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https://www.courtlistener.com/api/rest/v3/opinions/8482101/ | J-S32026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DENNIS MERCADO : No. 398 MDA 2022
Appellee
Appeal from the Order Entered February 1, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002651-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: NOVEMBER 7, 2022
The Commonwealth appeals from the trial court’s February 1, 2022
order granting Appellee’s, Dennis Mercado, motion to dismiss the charges
pending against him pursuant to Pa.R.Crim.P. 600. The Commonwealth avers
that the trial court erred by not excluding, from its Rule 600 calculations, a
period of time during which a local order declared a judicial emergency in light
of the Covid-19 pandemic. After careful review, we vacate the trial court’s
order and remand for further proceedings.
The facts of Appellee’s underlying charges are not pertinent to the issue
the Commonwealth raises on appeal. We need only note that on May 24,
2020, the Commonwealth filed a criminal complaint against Appellee. Before
his case proceeded trial, Appellee filed, on December 3, 2021, a motion to
J-S32026-22
dismiss the charges pending against him due to an alleged violation of Rule
600. The trial court conducted a Rule 600 hearing on February 1, 2021. It
issued an order that same day granting Appellee’s motion to dismiss.
The Commonwealth filed a timely notice of appeal, as well as a
certification under Pa.R.A.P. 311(d) that the court’s order substantially
handicapped or terminated its case. It also complied with the trial court’s
order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. The trial court filed a Rule 1925(a) opinion on May 2, 2022. Herein,
the Commonwealth states one issue for our review, claiming that “[t]he trial
court erred in granting [Appellee’s] motion to dismiss pursuant to [Rule] 600.”
Commonwealth’s Brief at 5.
We begin by recognizing that,
[w]hen presented with a speedy trial claim arising under
Pennsylvania Rule of Criminal Procedure 600, our standard of
review is well settled.
In evaluating Rule [600] issues, our standard of review of a
trial court’s decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity
with law, upon facts and circumstances judicially before the
court, after hearing and due consideration. An abuse of
discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied or
the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill will, as shown by
the evidence or the record, discretion is abused.
The proper scope of review is limited to the evidence on the
record of the Rule [600] evidentiary hearing, and the
findings of the [trial] court. An appellate court must view
the facts in the light most favorable to the prevailing party.
-2-
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Additionally, when considering the trial court’s ruling, this
Court is not permitted to ignore the dual purpose behind
Rule [600]. Rule [600] serves two equally important
functions: (1) the protection of the accused’s speedy trial
rights, and (2) the protection of society. In determining
whether an accused’s right to a speedy trial has been
violated, consideration must be given to society’s right to
effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it.
However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental
speedy trial rights of an accused, Rule [600] must be
construed in a manner consistent with society’s right to
punish and deter crime. In considering [these] matters ...,
courts must carefully factor into the ultimate equation not
only the prerogatives of the individual accused, but the
collective right of the community to vigorous law
enforcement as well.
Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa. Super.
2018) (citation and emphases omitted), appeal denied, … 219
A.3d 597 ([Pa.] 2019). The Commonwealth bears the burden of
proving, by a preponderance of evidence, that it acted with due
diligence throughout the proceedings. See Commonwealth v.
Kearse, 890 A.2d 388, 393 (Pa. Super. 2005).
Pennsylvania Rule of Criminal Procedure 600 provides that “[t]rial
in a court case in which a written complaint is filed against the
defendant shall commence within 365 days from the date on which
the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). In computing
the Rule 600 deadline, however, we do not necessarily count all
time following the filing of the complaint. Rather, “periods of delay
at any stage of the proceedings caused by the Commonwealth
when the Commonwealth has failed to exercise due diligence shall
be included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600(C)(1).
The Rule 600 analysis thus entails three steps:
First, Rule 600(A) provides the mechanical run date.
Second, we determine whether any excludable time exists
-3-
J-S32026-22
pursuant to Rule 600(C). We add the amount of excludable
time, if any, to the mechanical run date to arrive at an
adjusted run date.
If the trial takes place after the adjusted run date, we apply
the due diligence analysis set forth in Rule 600([D]). As we
have explained, Rule 600[ ] encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth’s lack of diligence. Any such period of delay
results in an extension of the run date. Addition of any Rule
600[ ] extensions to the adjusted run date produces the final
Rule 600 run date. If the Commonwealth does not bring the
defendant to trial on or before the final run date, the trial
court must dismiss the charges.
Commonwealth v. Wendel, 165 A.3d 952, 956–57 (Pa. Super.
2017) (citation omitted).
Commonwealth v. Carl, 276 A.3d 743, 748–49 (Pa. Super. 2022),
reargument denied (July 7, 2022).
Here, the criminal complaint was filed against Appellee on May 24, 2020,
making the mechanical run date May 24, 2021. Due to delays that Appellee
conceded should be excluded for Rule 600 purposes, he contended in his
motion to dismiss that the adjusted run date was October 22, 2021. He filed
his motion to dismiss the charges against him under Rule 600 on December
3, 2021. The trial court agreed with Appellee’s calculations, and it granted his
motion to dismiss.
The Commonwealth, however, avers that the court should have
excluded the 90-day period between June 2, 2020 and August 31, 2020, which
would have pushed the adjusted run date to January 20, 2022. It explains
that, due to the Covid-19 pandemic, on May 27, 2020, the President Judge of
the York County Court of Common Pleas issued a Declaration of Judicial
-4-
J-S32026-22
Emergency (hereinafter, “Declaration”) that “suspend[ed] the statewide rules
pertaining to the rule-based right of criminal defendants to a prompt trial”
through August 31, 2020. Commonwealth’s Brief at 5. Specifically, the
Declaration stated:
Per the Supreme [C]ourt’s Order dated May 27, 202[0]
authorizing President Judges to declare judicial emergencies in
their judicial districts, I declare a judicial emergency in the 19th
Judicial District through August 31, 2020.
During the emergency the following shall apply:
1) Limit in-person access and proceedings in order to
safeguard the health and safety of court personnel, court
users, and members of the public;
2) Suspend statewide rules that restrict, directly or
indirectly, the use of advanced communication
technologies; and
3) Suspend statewide rules pertaining to the rule-based
right of criminal defendants to a prompt trial.
Any postponement caused by the judicial emergency shall be
considered a court postponement and shall constitute excludable
time for purposes of the application of Rule 600.
Trial Court Opinion (TCO), 5/2/22, at 2 (emphasis omitted). The
Commonwealth contends that the plain language of this Declaration required
the exclusion of the time between June 2, 2020 and August 31, 2020 for Rule
600 purposes.1
____________________________________________
1 While the Declaration was issued May 27, 2020, the Commonwealth
observes that Appellee “conceded the time periods between May 24, 2020
through June 1, 2020,” as well as “October 2, 2020 through November 30,
2020, and December 14, 2020 through February 28, 2021.” Commonwealth’s
Brief at 8. Thus, the time period at issue is from June 2, 2020 through August
31, 2020.
-5-
J-S32026-22
The trial court, however, disagreed. Although acknowledging “sub-
paragraph (3) of [the] Declaration,” the court found that “the concluding
paragraph … clarifies sub-paragraph [(3)] such that any postponement has to
be caused by the judicial emergency to be considered excludable time for
Rule 600 purposes.” Id. at 2 (emphasis in original). The court continued:
“As a result, and because there was no evidence presented to indicate that
there was any postponement due to the judicial emergency, … the [t]rial
[c]ourt properly included the time from June 2, 2020 to August 31, 2020 in
the calculation of time for Rule 600 purposes.” Id. at 3.
On appeal, the Commonwealth argues that the trial court misinterpreted
the Declaration. It insists that “[t]he plain meaning of … [the] [D]eclaration
is that Rule 600 was suspended until August 31, 2020.” Commonwealth’s
Brief at 16. It observes that “[t]he [D]eclaration did not distinguish between
cases that had been listed for trial, that were waiting for pre-trial conferences,
or that were still at the preliminary hearing stage.” Id. Accordingly, the
Commonwealth concludes that “the suspension of Rule 600 affected all cases,
regardless of their status[,]” and the “application of … [the D]eclaration
requires that the time period between June 2, 2020 through August 31, 2020
not be assessed against the Commonwealth.” Id. at 16-17.
We agree. In Carl, this Court addressed the same argument by the
Commonwealth regarding the Declaration issued in York County. There, as in
this case, the trial court refused to exclude time between the issuance of the
Declaration and its expiration on August 31, 2020, reasoning that
-6-
J-S32026-22
the Declaration had no bearing on … [Carl’s] case where it caused
neither delay nor a postponement of any of its proceedings. Thus,
the court refused to extend Carl’s adjusted run date by the
requested 60 days[2] and proceeded to conduct its examination of
the Commonwealth’s due diligence in bringing the present case to
trial.
Critical to the trial court’s due diligence inquiry was its observation
that no discernable backlog of pending criminal trials had occurred
in York County during the relevant time here, and it produced a
list of 15 criminal cases with less Rule 600 urgency that the
Commonwealth had elected to bring to trial before the present
case. It concluded, therefore, that the Commonwealth had not
demonstrated appropriate time management here.
Carl, 276 A.3d at 747.
On appeal in Carl, the Commonwealth “urge[d] this Court to conclude
that the plain language of the Judicial Emergency Declaration’s Subsection (3)
mandated the suspension of time computations taken under statewide rules
governing a criminal defendant’s rights to a prompt trial.” Id. at 749. The
Carl panel agreed, explaining:
Construing Subsection (3) in accordance with the plain meaning
of its words, we find that it clearly and simply directs that rule-
based, “prompt trial” time computations are suspended for the
duration of the judicial emergency at hand. The intended effect
on Rule 600 computations in criminal cases existing at that time
is thus evident: such computations are to be held in abeyance and
shall not include days transpiring during the effective time of the
Declaration until the expiration of the declared emergency, at
which time resumption or commencement of such computations
may proceed.
Id. at 750.
Regarding the final paragraph of the Declaration, we found that it
____________________________________________
2Specifically, the Commonwealth sought to exclude a 60-day period from June
29, 2020 through August 31, 2020, under the Declaration. Id. at 747.
-7-
J-S32026-22
serves as a supplement to Subsection (3) that extends the Rule
600 exception therein to postponements “caused by” the judicial
emergency, which would thus include even those consequential
postponements occurring after the expiration of the emergency.
Given the uncertainties of the [Covid-19] pandemic’s course, it
was reasonable to anticipate that the judicial emergency would
have downstream effects, such as the possible creation of a
protracted criminal case backlog. Upon the eventual expiration of
the declared emergency, however, Subsection (3)’s time
computation suspension would expire with it.
The prospective posture of the Declaration’s final paragraph,
however, addresses this potential void by providing an ongoing,
explicit, local policy in those cases that continue to experience
postponements stemming from the judicial emergency even after
the emergency state, itself, has been lifted.
The final paragraph, therefore, functions as a judicial response to
the anticipated need for fair time computation and case
management demands in the wake of any emergency-caused
postponement, occurring either during or after the emergency. It
does not, however, in any discernable way limit the
immediate, preemptive, and plain mandate in Subsection
(3) to suspend statewide rules pertaining to the rights of
criminal defendants to a prompt trial “during the
emergency.”
Id. (emphasis added).
Ultimately, the Carl panel held that “[t]he plainly-worded Subsection
(3) unambiguously suspended in criminal cases all rule-based, ‘prompt trial’
time computations for the duration of the Declaration’s effective period, and
nothing in the subsequent paragraph of the Declaration placed
qualifications or limitations on this absolute, temporary suspension.”
Id. at 751 (emphasis added). Accordingly, the panel “found that the 60-day
time period in question should have been excluded from the Rule 600 time
computation in Mr. Carl’s case.” Id. at 750.
-8-
J-S32026-22
We reach the same decision in the instant case. Under our holding in
Carl, it is clear that the trial court erred by determining that the final
paragraph of the Declaration “clarifies sub-paragraph three such that any
postponement has to be caused by the judicial emergency to be
considered excludable time for Rule 600 purposes.” TCO at 2 (emphasis in
original). Instead, the plain language of sub-paragraph (3) of the Declaration
required the exclusion, for Rule 600 purposes, of the 90 days between June
2, 2020 and August 31, 2020. Excluding those 90 days results in an adjusted
run date of January 20, 2022. Accordingly, the court erred by granting
Appellee’s motion to dismiss the charges, which was filed on December 3,
2021. We vacate the court’s order and remand for further proceedings.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/07/2022
-9- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482105/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-3212
_______________
UNITED STATES OF AMERICA
v.
VONTEZ SCALES, a/k/a TEZ,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:18-cr-00576-005)
U.S. District Judge: Honorable Mark A. Kearney
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 13, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 7, 2022)
_______________
OPINION*
_______________
BIBAS, Circuit Judge.
Vontez Scales was convicted of two drug crimes: conspiracy to distribute methamphet-
amine and possession with intent to distribute heroin and fentanyl. United States v. Scales,
2021 WL 3854765, at *1, *3 (3d Cir. Aug. 30, 2021). On his first appeal, we affirmed his
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
conviction but remanded his case for resentencing under United States v. Nasir, 982 F.3d
144 (3d Cir. 2020) (en banc). On remand, the District Court found that Scales’s two prior
drug convictions made him a career offender under the Sentencing Guidelines. That meant
that his Guidelines range was 262 to 327 months. The court gave him a small downward
variance and sentenced him to 240 months.
Scales now appeals again, challenging his sentence in three ways. None succeeds. We
review questions of law de novo and findings of fact for clear error. United States v. Bell,
947 F.3d 49, 54 (3d Cir. 2020).
First, Scales argues that the District Court should not have considered his prior drug
convictions because the government had not accurately documented them. To be a career
offender, Scales must have at least two prior felony convictions for controlled-substance
offenses. U.S.S.G. § 4B1.1(a). And the government has shown that he has twice been con-
victed of cocaine trafficking. So he seems to be a career offender.
But wait, says Scales. His signed plea agreement for one of those convictions mentions
heroin and marijuana trafficking, not cocaine trafficking. True enough. Yet elsewhere in
the plea agreement, he signed and initialed that he was pleading guilty to cocaine traffick-
ing, just as the state-court judgment shows. In any event, a conviction for heroin and ma-
rijuana trafficking would still make him a career offender. See U.S.S.G. § 4B1.2(b).
Second, Scales argues that his prior convictions cannot make him a career offender un-
der Nasir. There, we held that inchoate crimes do not count toward career-offender status.
United States v. Nasir, 17 F.4th 459, 469–72 (3d Cir. 2021) (en banc). Scales says that his
2
drug convictions were under a law that includes inchoate crimes. See 35 Pa. Stat. & Cons.
Stat. § 780-113(a)(30). So under Nasir, he claims, his convictions cannot count.
But we recently foreclosed this argument. Earlier this year, we thoroughly examined
§ 780-113(a)(30) and its relationship to the Guidelines. United States v. Dawson, 32 F.4th
254, 258–67 (3d Cir. 2022). We found that this law does not criminalize any inchoate of-
fenses. Id. at 260. So “even after Nasir, § 780-113(a)(30) remains a career offender predi-
cate.” Id. at 267. Though Scales asks us to reject Dawson, that precedent binds us.
Finally, Scales claims that he should not have been sentenced for his meth conviction.
He points out that the government never seized any meth. Instead, it presented an inter-
cepted photo of two baggies containing something that, according to a detective’s testi-
mony, looked like meth. Scales argues that meth cannot be identified by sight alone and
that the government had to prove that the drug was “marketable and consumable.” Appel-
lant’s Br. 19 (citing United States v. Rodriguez, 975 F.2d 999 (3d Cir. 1992)).
These arguments are foreclosed too. On Scales’s first appeal, we held that the District
Court had properly admitted this testimony. Scales, 2021 WL 3854765, at *5. And even
without it, we observed, there was still plenty of evidence that Scales was part of a meth-
trafficking conspiracy. Id. at *4. Plus, although Scales says that he is challenging his sen-
tence, in fact he is attacking his conviction and should have raised these objections at trial
and on his first appeal. He cannot wait until round two. See Skretvedt v. E.I. DuPont de
Nemours, 372 F.3d 193, 202–03 (3d Cir. 2004). Lastly, the case that Scales relies on for his
“marketable and consumable” argument was about how to define a “mixture” of drugs; it
did not require marketable and consumable drugs for all drug convictions. See Rodriguez,
3
975 F.2d at 1004–08. And here, there was no evidence that any of the meth was fake or
non-consumable.
In short, Scales’s two prior drug felonies make him a career offender under the Guide-
lines. And his effort to challenge his meth conviction fails. So we will affirm.
4 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482104/ | PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 21-2114
__________
UNITED STATES OF AMERICA
v.
RASHEEM LANGLEY, a/k/a Q,
Appellant
__________
Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:20-cr-01025-001)
District Judge: Honorable John M. Vazquez
__________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 12, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 7, 2022)
__________
OPINION OF THE COURT
__________
Olubukola O. Adetula, Esq.
20 Rosewood Lane
Denville, NJ 07834
Attorney for Appellant
Rasheem Langley
Ray Brook FCI
P.O. Box 900
Ray Brook, NY 12977
Pro se
Mark E. Coyne, Esq.
Jane M. Dattilo, Esq.
Steven G. Sanders, Esq.
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Attorneys for Appellee
KRAUSE, Circuit Judge.
When counsel for a criminal defendant seeks to
withdraw from representing her client, she must comply with
the Supreme Court’s edict in Anders v. California, 386 U.S.
738 (1967) and file what is known as an Anders brief. But
counsel filing an Anders brief confronts a paradox. On the one
2
hand, to discharge her obligations under Anders, precedent and
our Local Rules require counsel to identify all issues that might
“arguably support” the defendant’s appeal—only to explain
why those issues are frivolous. Id. On the other hand, we have
advised that counsel need not raise every frivolous issue. That
paradox is even more confounding where a defendant
subsequently files a pro se brief raising frivolous issues that
counsel did not address. What, if anything, should counsel do
in that circumstance? Does her failure either to anticipate the
defendant’s arguments or to file a supplemental Anders brief
addressing them mean that counsel’s brief is per se inadequate?
We have not been consistent in answering these questions, so
we write today to clarify counsel’s obligations.
The vehicle that brings those issues before us is the
appeal filed by Richard Langley. Langley’s court-appointed
counsel sought to withdraw from representing Langley, filing
an Anders motion and accompanying brief that, on its face, met
the standard for a “conscientious investigation . . . [of] possible
grounds [for] appeal.” Id. at 741-42. After being served a copy
of that brief, however, Langley filed his own pro se brief
raising three arguments that were not addressed by counsel but
were patently frivolous. Because we hold that counsel is not
required to anticipate or address the defendant’s arguments in
that circumstance, and we agree with Langley’s counsel that
3
there are no non-frivolous issues for Langley to raise on appeal,
we will grant counsel’s Anders motion and dismiss the appeal.
I. BACKGROUND 1
In or around 2009, a group of individuals operating
under the names “CKarter Boys” or the “Jonez Boys” began a
drug trafficking operation (“DTO”) in Newark, New Jersey.
Defendant Richard Langley was a minor player in this DTO
and served as a street-level dealer between 2017 and 2019.
And after an investigation consisting of audio and visual
surveillance and controlled purchases, Langley was arrested
along with 25 other individuals in connection with the DTO on
June 18, 2019.
The Government offered Langley a plea agreement in
January 2020. The terms of that agreement provided that
Langley would plead guilty to a single count of conspiring with
others to distribute and possess with the intent to distribute 28
grams or more of crack-cocaine in violation of 21 U.S.C. §
846—an offense carrying a mandatory minimum sentence of
5-years’ imprisonment. It also provided that he would not
argue for a sentence below five years’ imprisonment, and that
he would enter into a limited appellate waiver applicable to any
challenges to the “sentence imposed by the sentencing court if
that sentence is 5 years or below.” App at 74. In exchange for
his plea, the Government agreed to not file additional charges
1
The factual and procedural background of this appeal are
taken from the Government’s criminal complaint, Langley’s
presentence report, Langley’s plea agreement, Langley’s
information, and the transcripts of Langley’s plea hearing and
sentencing hearing before the District Court.
4
against Langley for his involvement in the DTO and waived its
own right to appeal if the sentence imposed was “5 years or
above.” Id.
Although Langley and the Government acknowledged
the sentencing decision was entirely within the discretion of
the District Court and “recognize[d] that the stipulations,”
including the stipulated 5-year sentence, were “not binding
upon the Court,” both parties “nevertheless agree[d] to the
stipulations” and that a term of five-years’ imprisonment, i.e.,
60-months’, would be “reasonable.” App. at 74.
Langley accepted this plea deal and pleaded guilty in
November 2020. During his plea hearing, the District Court
engaged in a thorough colloquy under Fed. R. Crim. P. 11. The
Court confirmed that Langley wished to proceed by video
conference, that he was not intoxicated, and that he was
knowingly and voluntarily pleading guilty. See Fed. R. Crim.
P. 11(b)(2). It also confirmed that Langley understood he had
the right to plead not guilty and have a trial by jury, and that if
he chose to go to trial, he would have the right to an attorney,
the right to be present at trial, the right to subpoena witnesses,
the right not to testify, and that by pleading guilty he would
waive these rights. Id. 11(b)(1)(B)-(F).
Before Langley allocuted to an adequate factual basis
for his plea, the Court advised him of the penalties he faced for
his offense, and explained that, though non-binding, the Court
would have to calculate a sentence range using the United
States Sentencing Guidelines. Id. 11(b)(1)(G)-(O), 11(b)(3).
And importantly, for our purposes, the Court ensured that
Langley had discussed his plea agreement with his counsel and
that he understood its terms—including the terms and effect of
5
the appellate waiver. Id. 11(b)(1)(N). After affirming that he
understood each point addressed by the District Court, Langley
entered his plea.
A few months later, in May 2021, the District Court held
Langley’s sentencing hearing. There, the District Court heard
arguments from both the Government and defense counsel that
a 60-month sentence was appropriate given Langley’s minor
role in the DTO and the age of his prior convictions. Although
not required, it also addressed pro se arguments raised by
Langley, who had submitted a letter to the Court requesting a
sentence reduction based on the COVID-19 pandemic, the
effect of the crack/powder cocaine disparity on the Court’s
Guidelines calculation, and the age of the criminal convictions
used to calculate his Criminal History Category. The Court
advised Langley that his prior convictions had to be counted
because the last day of incarceration for each of these offenses
fell within the 15-year window for counting of offenses under
the Sentencing Guidelines. It also explained to him that it had
considered his arguments, but because it intended to grant a
substantial downward variance and impose the mandatory
minimum, in any event, those arguments could not reduce his
sentence any further.
Based on a Criminal History Category of VI and an
offense level of 25, the Court determined that the applicable
guideline range was 110 to 137 months. Nonetheless, after
considering arguments of counsel and the factors specified in
18 U.S.C. § 3553(a), the Court granted the downward variance
agreed upon by Langley and the Government and sentenced
Langley to 60-months’ imprisonment, followed by 5 years of
supervised release, and a $100.00 special assessment.
6
Langley filed a timely notice of appeal and requested
appointment of appellate counsel, which we granted,
appointing Langley’s trial counsel to serve on appeal. In due
course, the Clerk of Court issued a briefing schedule. When
the time came, however, in lieu of filing an appellate brief,
Langley’s counsel moved to withdraw, asserting in his Anders
brief, as required under Local Appellate Rule (L.A.R.)
109.2(a), that he identified “no issue of even arguable merit.”
Upon receipt of that motion, the Clerk issued a notice to
Langley. L.A.R. 109.2(a). Shortly thereafter, Langley
submitted his own pro se brief, objecting to withdrawal of
counsel and arguing for a further sentencing reduction on the
same grounds he had urged in the District Court.
I. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over Langley’s appeal under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). Having received an
Anders motion, this Court must evaluate the adequacy of
counsel’s briefing and “must then itself conduct a full
examination of all the proceedings to decide whether the case
is wholly frivolous.” Penson v. Ohio, 488 U.S. 75, 80 (1988)
(internal citation omitted). If there are no non-frivolous issues
for appeal, we will grant counsel’s motion to withdraw and will
dismiss the appeal. 2 In conducting this analysis, we “exercise
2
Local Appellate Rule 109.2(a) states that if this Court “agrees
that the appeal is without merit, it will grant counsel’s Anders
motion, and dispose of the appeal without appointing new
counsel,” L.A.R. 109.2(a), but our cases have varied between
“dispos[ing] of the appeal” by way of dismissal, on the one
hand, and affirmance, on the other. Compare United States v.
Coleman, 575 F.3d 316, 322 (3d Cir. 2009) (disposing of
wholly frivolous appeal by affirming the district court), with
7
plenary review to determine whether there are any such [non-
frivolous] issues” and review factual findings for clear error.
Simon v. Gov’t of Virgin Islands, 679 F.3d 109, 114 (3d Cir.
2012).
II. DISCUSSION
When counsel files an Anders brief seeking to withdraw
from representation, we ask two principal questions: (1)
whether counsel’s brief in support of her motion fulfills the
United States v. Moore, 801 F. App’x 837, 841 (3d Cir. 2020)
(disposing of wholly frivolous appeal by dismissing appeal).
Other Circuits have also varied in their approach. See, e.g.,
United States v. Seignious, 757 F.3d 155, 166 (4th Cir. 2014)
(affirming); United States v. Pesina-Rodriguez, 825 F.3d 787,
788 (5th Cir. 2016) (dismissing appeal); United States v. Zitt,
714 F.3d 511, 515 (7th Cir. 2013) (affirming conviction and
dismissing appeal); United States v. Edwards, 400 F.3d 591,
592 (8th Cir. 2005) (affirming); United States v. Bennett, 219
F.3d 1117, 1126 (9th Cir. 2000) (affirming).
Anders itself provides that if a court finds a defendant’s
appeal is wholly frivolous, “it may grant counsel’s request to
withdraw and dismiss the appeal insofar as federal
requirements are concerned, or proceed to a decision on the
merits, if state law so requires.” Anders, 386 U.S. at 744; see
also Smith v. Robbins, 528 U.S. 259, 278 (2000) (“[A]n
indigent defendant who has his appeal dismissed because it is
frivolous has not been deprived of a ‘fair opportunity’ to bring
his appeal.”) (internal citation omitted); cf. 28 U.S.C. §
1915(e)(2)(B)(i) (instructing courts to dismiss “frivolous or
malicious” appeals). We will therefore dismiss this appeal,
rather than affirm.
8
requirements of L.A.R. 109.2(a); and (2) whether an
independent review of the record presents any non-frivolous
issues. See United States v. Youla, 241 F.3d 296, 300 (3d Cir.
2001). Counsel fails to fulfill her obligation under the first
prong of the Anders inquiry where she either does not
adequately attempt “to uncover the best arguments for . . . her
client,” or she “argue[s] the purportedly frivolous issues [she
identifies] aggressively without explaining the faults in the
arguments.” Id. (quoting United States v. Marvin, 211 F.3d
778, 781 (3d Cir. 2000)). Conversely, counsel satisfies her
Anders obligation if she: (1) demonstrates to this Court that she
has thoroughly examined the record in search of appealable
issues, and (2) explains why those issues are frivolous. Id.
Once we determine whether counsel has met her Anders
obligation, we proceed to step two of the Anders inquiry.
Although at step two we conduct our own review of the
record regardless, it matters whether we found counsel’s
review adequate at the first step. It matters to the scope of step
two because if counsel has fulfilled her obligation under
Anders, then we may limit our review of the record to the issues
counsel raised. Id. at 301. It matters for clients because an
inadequate brief impairs their ability to respond by “failing to
provide them with complete information about the basis for
counsel’s motion to withdraw.” United States v. Whitely, 503
F.3d 74, 77 (2d. Cir. 2007). And it matters for counsel for the
claims against counsel that may flow from an adverse finding
in collateral proceedings and for the reputation of counsel
generally. Yet what is required to meet the standard of an
adequate review by counsel has not always been described in
our case law with clarity or consistency.
We endeavor to shed light on that standard today.
Below, we address, first, the obligation of counsel under
9
Anders and our Local Rules; second, whether Langley’s
counsel has met that obligation here; and finally, whether our
independent review of the record discloses any non-frivolous
issues for appeal.
A. The Obligation of Counsel Under Anders and
L.A.R. 109.2(a)
In Anders, the Supreme Court clarified what counsel
must do in order to withdraw from representing a criminal
defendant while still satisfying “[t]he constitutional
requirement of substantial equality and fair process.” Anders,
386 U.S. at 744. There, the defendant was convicted of a
felony drug offense and sought to appeal with the assistance of
his appointed counsel. Id. at 739. After studying the record,
court-appointed counsel concluded there was no merit to his
client’s appeal and so sent a letter to the California District
Court of Appeal seeking to withdraw and explaining:
I will not file a brief on appeal as I am of the
opinion that there is no merit to the appeal. I
have visited and communicated with Mr. Anders
and have explained my views and opinions to
him. He wishes to file a brief in this matter on his
own behalf.
Id. at 740, 742.
Extrapolating on its holding in Ellis v. United States,
356 U.S. 674 (1958), the Supreme Court in Anders held that
for counsel to withdraw from representation while still
comporting with the constitutional requirement that an indigent
defendant be provided representation, counsel must satisfy the
court that she has conducted a “conscientious investigation”
10
and “has diligently investigated the possible grounds of
appeal.” Anders, 386 U.S. at 741-42. This standard, the Court
concluded, was not satisfied by the cursory letter submitted by
court-appointed counsel in Anders. Id. at 743-44. Rather, to
demonstrate a “conscientious examination” of the record, it
required that counsel provide “a brief referring to anything in
the record that might arguably support the appeal.” Id. at 744.
Since Anders, the Supreme Court has provided
additional guidance of what is expected of counsel to
demonstrate a “conscientious examination” of the record. In
McCoy v. Ct. of Appeals of Wisc., Dist. 1, for example, the
Supreme Court noted that counsel’s obligation under Anders is
to provide “a thorough review of the record and a discussion of
the strongest arguments revealed by that review.” 486 U.S.
429, 444 (1988). Likewise, in Penson v. Ohio, the Court
emphasized that counsel’s Anders brief “serves the valuable
purpose of assisting the court in determining both that counsel
in fact conducted the required detailed review of the case and
that the appeal is indeed so frivolous that it may be decided
without an adversary presentation.” 488 U.S. at 81-82.
We have addressed the expectations of counsel when
seeking to withdraw under Anders primarily in three cases:
United States v. Marvin, 211 F.3d 778 (3d Cir. 2000), Youla,
241 F.3d at 296, and Coleman, 575 F.3d at 316. That precedent
echoes the holdings of the Supreme Court in Anders, McCoy,
and Penson that to withdraw from representing an indigent
defendant while complying with the Constitution, counsel
must submit a brief evincing a “conscientious examination” of
the record. See Marvin, 211 F.3d at 779-80; Youla, 241 F.3d
at 299-300; Coleman, 575 F.3d at 319. But recognizing that
11
the “conscientious examination” standard is less than pellucid, 3
we attempted in these cases to bound the scope of the search
expected of counsel. Specifically, while we reiterated that
counsel must satisfy this Court that she has “scoured the record
in search of appealable issues” and “attempted to uncover the
best arguments” for her client, we also provided the assurance
and qualification that counsel need not raise every possible
appealable issue to meet this standard. Marvin, 211 F.3d at
780; Youla, 241 F.3d at 300; Coleman, 575 F.3d at 319.
Yet these exact same cases could be read to fault
counsel for failing to anticipate and address every issue
subsequently raised in her client’s pro se brief, regardless of
whether it was frivolous. 4 See, e.g., Marvin, 211 F.3d at 781
(“As an initial matter, [counsel] does not mention all the issues
3
The Supreme Court itself has acknowledged that Anders’s
standard is subject to criticism. In Smith v. Robbins, the Court
explained that this standard is “incoherent and thus impossible
to follow” because it requires counsel to submit a brief setting
forth “arguable issues” in order to convince the court that the
appeal is “wholly frivolous,” even though the Anders Court
had described an issue that was “arguable” as “therefore not
frivolous.” Smith, 528 U.S. at 282 (quoting Anders, 386 U.S.
at 744). But the Court declined to offer a resolution by
explaining that the Constitution neither resolved the issue nor
required the Court to do so. Id. at 284.
4
Occasionally, we may receive a defendant’s pro se
submission before or contemporaneously with his counsel’s
Anders motion. As discussed in more detail below, however,
the defendant’s pro se brief is typically filed only after counsel
has filed her Anders motion and brief and served them on the
defendant.
12
raised by his client and assure us that he has considered them
and found them patently without merit.”); Youla, 241 F.3d at
301 (“While the length of a brief does not necessarily
determine the merit of its arguments, we do not believe that
Youla’s counsel mentions all the issues raised by his client . . .
.”) (internal citation omitted); Coleman, 575 F.3d at 319
(“First, Coleman’s counsel does not mention the argument
raised by Coleman in his pro se brief to assure us that he has
found it to lack merit.”).
These seemingly incongruous positions have generated
confusion and have led panels of this Court to suggest in
precedential and nonprecedential opinions alike that failing to
anticipate and discuss each issue raised—even those entirely
frivolous—in a defendant’s pro se brief automatically renders
counsel’s Anders brief inadequate, or alternatively requires
counsel to file supplemental briefing addressing those
arguments. See, e.g., Marvin, 211 F.3d at 781; Coleman, 575
F.3d at 319; United States v. Parson, 663 F. App’x 184, 187
(3d Cir. 2016); United States v. Low, 525 F. App’x 106, 108-
09 (3d Cir. 2013); United States v. Fluker, 553 F. App’x 210,
212 (3d Cir. 2014). But the best reading of Marvin, Youla, and
Coleman repudiates any per se rule and supports the
conclusion that failure to address pro se issues will sometimes,
but not always, indicate inadequacy.
We begin with Marvin, where, as here, counsel filed an
Anders brief, and the defendant then submitted his own pro se
brief raising a host of new issues not raised by counsel. Marvin,
211 F.3d at 781. It is true that we criticized counsel for failing
to “mention all the issues raised by his client,” id, but the
fundamental reason we held counsel’s Anders brief deficient
was its failure to adequately address any appealable issue. Id.
13
For example, despite listing five potential issues for appeal at
the outset of his Anders brief, Marvin’s counsel only discussed
“a few of them in the body of the brief.” Id. And even in these
discussions, counsel failed to explain why the arguments were
frivolous; instead, to the extent he offered explanations, they
were incorrect and unsupported by law. Id. at 781-82. In this
context, the error we attributed to counsel for failing to
anticipate and address each of Marvin’s pro se arguments was
essentially illustrative of the overarching deficiency in
counsel’s brief.
The same holds true for Youla. There, counsel
submitted a cursory Anders brief containing only two pages of
analysis of the potential appealable issues. Youla, 241 F.3d at
300-01. He did not cite any case law, and failed to mention,
let alone discuss, any of the clear discrepancies between the
District Court’s Sentencing Guidelines calculation and what
was recommended in the defendant’s presentence investigation
report. Id. at 300-01. In contrast, the defendant submitted a 26-
page pro se brief, raising three issues for appeal, two of which
involved arguable errors in the District Court’s application of
the Sentencing Guidelines. Id. We observed that, “[w]hile the
length of a brief does not necessarily determine the merit of its
arguments,” id. at 301, counsel’s failure to address any of the
specific issues raised in his client’s pro se brief led us to doubt
the adequacy of his Anders brief. Id. Our determination,
however, was based on counsel’s overall failure to submit a
brief with sufficient indicia that counsel had “thoroughly
searched the record … in service of his client so that we might
confidently consider only those objections raised.” Id.
(internal citation omitted).
14
Coleman is no different. There, counsel submitted an
Anders brief that addressed only one potential appealable issue.
Coleman, 575 F.3d at 319. And, despite the fact that this Court
had previously remanded Coleman’s case for resentencing due
to intervening Supreme Court precedent, counsel’s Anders
brief failed “to fully address the very issue for which [this
Court had] remanded . . . .” Id. Thus, while we ascribed error
to counsel’s failure “to address legal challenges raised by [his
client],” it was the brief’s patent inadequacy that formed the
basis of this Court’s deficiency determination. Id. at 319-20.
Taken together these cases teach that counsel’s silence
concerning issues raised in a client’s pro se brief may be
relevant to the court’s adequacy determination, for example, to
illustrate counsel’s more general failure to identify or discuss
potentially appealable issues, or to highlight her failure to raise
non-frivolous issues that were raised pro se. But counsel’s
omission of frivolous issues raised by the defendant has little,
if any, relevance where counsel’s brief, on its own terms,
reflects a conscientious examination of the record and
adequately discusses the potentially appealable issues. In that
circumstance, rejecting counsel’s Anders brief as inadequate
because of a per se rule would waste the resources and time of
both counsel and the Court.
The absurdity of a per se rule is even more apparent
when considering the context in which counsel files an Anders
brief. Like all appeals, an appeal where counsel for a criminal
defendant files an Anders brief begins with the production of
all relevant transcripts and counsel’s review of the entire
record. After her review, counsel typically consults, or
attempts to consult, with her client about potentially appealable
issues, as required by professional norms and ethics rules. See,
15
e.g., Pa. R. Pro. Conduct 1.4(a)(2) (“A lawyer shall . . .
reasonably consult with the client about the means by which
the client’s objectives are to be accomplished.”). If counsel
concludes that there are no non-frivolous issues to raise on
appeal, then under L.A.R. 109.2(a) counsel files an Anders
brief and motion to withdraw, with service on both the
defendant and the Government. Only after counsel files and
serves her Anders brief and corresponding motion does the
defendant have the opportunity to file a pro se response brief.
L.A.R. 109.2(a). At that point, having received counsel’s
Anders brief and any pro se brief filed by the defendant, the
Government files a brief responding to the Anders brief and
any pro se brief. Id.
With that typical Anders procedure in mind, it takes no
feat of imagination to envision the mischief a per se rule would
cause. A defendant might not discuss every issue he is
contemplating when consulting with counsel or might refuse to
meet with counsel altogether. But because counsel typically
files her Anders brief before the defendant’s pro se brief, a per
se rule would effectively punish such counsel for not being
clairvoyant. That is not a skill we require of defense counsel
generally, let alone court-appointed counsel, who, as here,
have heeded the Court’s call to public service and devoted their
time and effort to the representation of indigent defendants.
A defendant might communicate an issue to counsel
that is not fairly characterized as potentially appealable, and
that counsel therefore opts against including in her Anders
brief. Yet under a per se regime, all a criminal defendant
would need to do to demonstrate the inadequacy of counsel’s
Anders brief would be to review the brief after it was served
16
and then submit a pro se brief raising any other issue, however
frivolous.
Alternatively, a per se rule would require counsel to file
two Anders briefs—one with her motion, and then a second
supplemental one addressing every wholly frivolous argument
raised in her client’s pro se brief—in order to avoid a finding
of inadequacy. Under our Local Rules, that would either
require counsel to file a motion for leave to file that
supplemental brief, see L.A.R. 31.3, 111.5(c), or require that
this Court order supplemental briefing, see L.A.R. 109.2(a),
creating needless work for counsel and the Court and
unnecessarily complicating this Court’s resolution of Anders
motions. While a supplemental filing may well be warranted
if the defendant identifies a non-frivolous issue not originally
addressed by counsel, we have never required supplemental
briefing by counsel where the issues raised pro se are
determined to be frivolous, and we reject such a requirement
today.
Instead, we clarify that counsel’s failure to address
issues raised in her client’s pro se brief does not render an
Anders brief inadequate per se. 5 It may be relevant, however,
5
Other Courts of Appeals are in accord. See, e.g., United
States v. Coxton, 314 F. App’x 550, 551 (4th Cir. 2008) (noting
that defendant filed pro se brief that raised an issue not reached
by counsel’s Anders brief, but nevertheless affirming the
district court’s judgment and allowing counsel to withdraw);
United States v. Burns, 69 F.3d 540 (7th Cir. 1995) (finding
counsel’s brief adequate despite client’s subsequent pro se
brief raising a new issue); United States v. Trevillion, 770 F.
App’x 302, 303 (8th Cir. 2019) (noting that defendant filed pro
17
in illustrating a more general failure to identify and discuss
potentially appealable issues, in highlighting counsel’s failure
to raise non-frivolous issues identified by the defendant, or in
otherwise demonstrating that counsel has failed to provide
“sufficient indicia that [she] thoroughly searched the record
and the law in service of [her] client,” Marvin, 211 F.3d at 781,
and “diligently investigated the possible grounds of appeal.”
Anders, 386 U.S. at 741-42.
Of course, “what constitutes ‘sufficient indicia’ [of a
conscientious examination] cannot be laid down in a formulaic
manner,” as it will vary with the nature of the proceedings in
the district court. Id. No doubt there are certain issues that
arise with such frequency that counsel’s failure to address them
ordinarily will be indicative of deficiency, such as the district
court’s compliance with Fed. R. Crim. P. 11 and the
voluntariness of the plea in the context of a guilty plea, or, in
the context of sentencing, the court’s compliance with Fed. R.
Crim. P. 32, the adequacy of the court’s reasons for the
sentence imposed, and its calculation of the sentence based on
se brief raising an additional issue not addressed by counsel’s
Anders brief, but granting counsel’s motion to withdraw);
United States v. Delacruz-Soto, 414 F.3d 1158, 1160-61, 1169
(10th Cir. 2005) (observing that after counsel filed Anders
brief, defendant submitted a pro se letter raising an ineffective
assistance of counsel argument not addressed by his counsel’s
Anders brief, and finding counsel’s submission adequate and
granting motion to withdraw).
18
the Sentencing Guidelines. 6 But ultimately, our adequacy
determination must be made on a case-by-case basis. So
6
To assist counsel in identifying these and other common
issues for appeal, this Court has published an Anders Checklist
and Anders Guidelines for counsel seeking to withdraw from
representation, see Third Circuit Anders
Checklist,https://www.ca3.uscourts.gov/sites/ca3/files/ANDE
RS%20CHECKLIST.pdf (last visited Sept. 13, 2022); Third
Circuit Anders Guidelines, https://www.ca3.uscourts.gov/
sites/ca3/files/ANDERS%20GUIDELINES%203dCir.pdf
(last visited Sept. 13, 2022), as have a number of our sister
circuits, see, e.g., How to File an Anders Brief in the United
States Court of Appeals for the Second Circuit,
https://www.ca2.uscourts.gov/clerk/case_filing/appealing_a_c
ase/pdf/Anders%20brief%20instructions%20and%20checklis
t%20combined%2010-11.pdf (last visited Sept. 13, 2022)
(instructing counsel, inter alia, that an Anders brief must
include a copy of the transcript of the proceedings below, and
that in guilty plea cases an Anders brief “ordinarily must
contain” an examination of the validity of the guilty plea, an
examination of the validity and scope of any appellate waiver,
and an examination of the government’s compliance with the
plea agreement); Fifth Circuit Anders Guidelines,
http://www.ca5.uscourts.gov/clerk/AndersGuidelines.pdf (last
visited Sept. 13, 2022) (instructing counsel, inter alia, that if
she plans to file an Anders motion and supporting brief in a
jury or bench trial case, at a minimum, her brief must include
a discussion of: the sufficiency of the defendant’s indictment,
any adverse rulings pretrial, during trial, or post trial, jury
selection, and jury instructions); Sixth Circuit Notes on Anders
Cases,https://www.ca6.uscourts.gov/sites/ca6/files/documents
19
eschewing any per se rule, we turn now to the Anders brief at
issue in this case.
B. Counsel’s Anders Brief is Adequate
Here, Langley’s counsel has filed a brief that, on its
face, fulfills his Anders obligations and the requirements of
L.A.R. 109.2(a). Counsel adequately explains why there are
no non-frivolous appealable issues regarding the sufficiency of
Langley’s plea hearing and the propriety and length of
Langley’s sentence, and given counsel’s explanations we do
not doubt that he conducted a “conscientious examination” of
the record. Anders, 386 U.S. at 744.
As for Langley’s change of plea, counsel thoroughly
reviewed the District Court’s colloquy and confirmed that it
addressed each of the factors required by Fed. R. Crim. P.
11(b)(1). See supra Section III.A. For example, he points out
that the District Court addressed Langley directly and made
certain that he understood the charge, the factual basis for his
plea, and the terms and effect of his plea, including the plea’s
limited appellate waiver. See McCarthy v. United States, 394
U.S. 459, 464-67 (1969). Counsel also noted that the Court
ensured Langley’s plea was made knowingly and voluntarily
and that Langley comprehended the penalties he faced. See
/cja/andersnotesrev.wpd__0.pdf (last visited Sept. 13, 2022)
(explaining that an Anders brief must include a recitation of
substantive and procedural facts, and at least one issue of
potentially arguable merit); Practitioner’s Handbook for
Appeals to the United States Court of Appeals for the Seventh
Circuit, https://www.ca7.uscourts.gov/rules-procedures/
Handbook.pdf (last visited Sept. 13, 2022).
20
Fed. R. Crim. P. 11; United States v. Tidwell, 521 F.3d 236,
251-52 (3d Cir. 2008). And he observed that Langley provided
affirmative responses to the Court’s inquiries, confirming his
understanding of the rights he was waiving. United States v.
Trott, 779 F.2d 912, 914 (3d Cir. 1985).
Second, Langley’s counsel correctly asserts that
Langley’s sentence is not subject to challenge on appeal. As
explained in counsel’s brief, Langley may file an appeal for
review of his sentence only if any of the conditions in 18
U.S.C. § 3742 applies, which is not the case here. The District
Court’s sentence was not: (1) imposed in violation of law; (2)
imposed as a result of an incorrect application of the Federal
Sentencing Guidelines; (3) greater than the sentence specified
in the applicable guideline range; or (4) plainly unreasonable.
See 18 U.S.C. § 3742. In fact, as Langley’s counsel details,
quite the opposite is true. The sentence Langley received was
based on a correct calculation of Langley’s Criminal History
Category, see U.S.S.G. § 4A1.2(e)(1), and a reasonable
application of the Federal Sentencing Guidelines.
See U.S.S.G. § 1B1.1. Indeed, Langley was sentenced to the
mandatory minimum of 60-months imprisonment, which was
far lower than the guideline range of 110 to 137 months, thanks
to his counsel’s work in obtaining a substantial downward
variance.
In short, the Anders brief in this case demonstrates that
counsel scoured the record, including both Langley’s plea and
sentencing hearings, for the best possible arguments for his
client. Accordingly, counsel has met his obligations under
Anders.
21
C. Our Review Establishes No Non-Frivolous
Issues On Appeal
Because we are satisfied that Langley’s counsel has
submitted an adequate Anders brief, we proceed to the second
step of our Anders inquiry and review the record before us,
guided by counsel’s brief, in search of any non-frivolous
issues. Youla, 241 F.3d at 301. Here, our review of the record
reveals no issues of arguable merit in this appeal.
Given the record in this case, see supra Section I, and
the explanations in counsel’s Anders brief, see supra Section
II.B, we concur with counsel that there are no non-frivolous
appealable issues with respect to Langley’s plea hearing or his
sentence. But even if we were to consider the issues identified
by Langley in his pro se brief, which is not required because
we find his counsel’s Anders brief adequate, see Youla, 241
F.3d at 301, our conclusion would not change.
The three issues raised by Langley in his pro se brief
are: (1) that the District Court erred by incorrectly applying the
sentencing guidelines “[b]ased on a policy disagreement [o]n
the ‘18:1 v. 1:1 crack to powder cocaine’ ratio,” Pro Se Br. at
3; (2) that at the sentencing hearing his attorney did not bring
up that Langley’s past convictions were old and that he had
completed two re-entry programs; and (3) that the District
Court erred in calculating Langley’s Criminal History
Category by counting Langley’s convictions from 1995 and
2001. Each of these arguments lack merit.
As a threshold matter, our precedent would require that
we decline to exercise our jurisdiction to review the merits of
Langley’s arguments about the powder/crack disparity, the re-
22
entry programs, and the age of his past convictions because he
waived them as part of his plea agreement. We will enforce an
appellate waiver where we conclude that: (1) the issues a
defendant pursues on appeal fall within the scope of the waiver;
(2) the defendant knowingly and voluntarily agreed to the
waiver; and (3) enforcing the waiver would not work a
miscarriage of justice. See United States v. Corso, 549 F.3d
921, 927 (3d Cir. 2008). On this record, each condition is
readily satisfied.
Langley’s appellate waiver applies to “any appeal . . .
challeng[ing] the sentence imposed by the sentencing court if
that sentence is 5 years or below.” App. at 74. Langley
received the mandatory minimum sentence of 5 years, and as
Langley’s powder/crack disparity argument seeks to challenge
the duration of his sentence, it thus falls within the scope of his
waiver. Nor is there any question Langley entered his plea
knowingly and voluntarily when he confirmed as much during
his plea hearing. Lastly, Langley’s appeal is not one of the
“rare” and “unusual” situations which requires invalidating his
waiver to avoid a miscarriage of justice as it does not implicate
fundamental rights or constitutional principles. United States
v. Grimes, 739 F.3d 125, 131 (3d Cir. 2014). Langley’s waiver,
then, would be enforceable and would preclude consideration
of his argument in any event. 7
7
Even if Langley had not waived this argument, it would still
be unavailing. We perceive no error in the District Court’s
sentencing of Langley. And as noted by the District Court
during Langley’s sentencing hearing, these arguments could
have no effect on Langley’s sentence as he received the
mandatory minimum of 60 months. See 21 U.S.C. §
841(b)(1)(B)(iii). To the extent Langley may be seeking to
23
Our review also satisfies us that Langley’s third
argument is without merit. We apply an abuse-of-discretion
standard to the review of sentencing decisions. United States v.
Tomko, 562 F.3d 558, 561 (3d Cir. 2009). In considering
whether a sentence is reasonable, we must first “ensure that the
district court committed no significant procedural error” before
examining the “totality of the circumstances” in assessing
substantive reasonableness. Gall v. United States, 552 U.S. 38,
51 (2007). Sentences are substantively reasonable “unless no
reasonable sentencing court would have imposed the same
sentence on that particular defendant for the reasons the district
court provided.” Tomko, 562 F.3d at 568.
Here, the District Court committed no procedural errors.
Though Langley disputes the District Court’s counting of his
convictions greater than fifteen years old, in calculating his
Criminal History Category the Court was right to include them.
As it explained to Langley at his sentencing hearing, the last
day of incarceration for each of these offenses occurred within
the fifteen-year window for counting offenses under the
Federal Sentencing Guidelines, so each was properly counted
raise an ineffective assistance claim, it would be premature, see
Massaro v. United States, 538 U.S. 500, 505-07 (2003), and
would be baseless: counsel effectively negotiated a plea deal
and, despite Langley’s extensive criminal history, was able to
persuade the Government and the Court to settle on the lowest
sentence available. See United States v. Hankerson, 496 F.3d
303, 311-12 (3d Cir. 2007) (finding counsel’s representation
effective because, inter alia, counsel argued for and obtained a
downward departure for his client).
24
under U.S.S.G. § 4A1.2(e)(1). Nor can we conclude that
Langley’s sentence was substantively unreasonable when he
stipulated to its reasonableness in his plea agreement and
ultimately received the lowest possible sentence permitted by
the statute for his offense of conviction. Langley’s sentencing
arguments are thus also frivolous.
III. CONCLUSION
For the foregoing reasons, we will grant counsel’s
Anders motion and dismiss Langley’s appeal. 8
8
In accordance with L.A.R. 109.2(b) we state that the issues
presented here lack legal merit, and so Langley’s counsel is not
required to file a petition for writ of certiorari with the Supreme
Court.
25 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482106/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 21-3213 & 21-3214
_______________
UNITED STATES OF AMERICA
v.
ANTHONY LIVINGSTON,
Appellant
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Nos. 1:01-cr-00465-001 & 1:19-cr-00019-001)
U.S. District Judge: Honorable Renée Marie Bumb
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 15, 2022
Before: KRAUSE, BIBAS, and RENDELL, Circuit Judges
(Filed: November 7, 2022)
_______________
OPINION*
_______________
BIBAS, Circuit Judge.
Anthony Livingston spent almost two decades behind bars for bank robbery. It took
him less than two hours after his release to rob again. He now challenges his latest convic-
tions and sentence. Because his challenges are meritless, we will affirm.
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
I. THE REPEAT BANK ROBBER
Livingston spent 17 ½ years in prison for eight bank robberies. But those years would
not dissuade him from returning. Less than ninety minutes after getting off the bus from
prison, he re-robbed one of the same banks. Ten days later, he robbed a second bank and
tried to re-rob a third.
The District Court tried all three robberies together. Though the jury briefly deadlocked
on the first robbery, the next day it convicted Livingston of all three. The District Court
then sentenced him to more than 16 years in prison, a four-level upward variance from the
Guidelines range.
On appeal, Livingston challenges the joinder of the robberies, the court’s refusal to
sever them, the testimony of his probation officer identifying him in a surveillance photo
of the first robbery, and the reasonableness of his sentence. All these arguments fail.
II. JOINDER WAS PROPER AND SEVERANCE WAS NOT REQUIRED
Livingston argues that the indictment should never have joined the first robbery charge
with the other two. In any event, he says, the District Court should have severed them for
separate trials. We review joinder de novo and severance for abuse of discretion. United
States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003); United States v. Gorecki, 813 F.2d 40,
42 (3d Cir. 1987).
The indictment properly joined all three charges. Charges may be joined if they “are of
the same or similar character.” Fed. R. Crim. P. 8(a). Because joint proceedings are more
efficient, we tend to favor joinder. Gorecki, 813 F.2d at 42. In analyzing similarity, we focus
on the indictment. Irizarry, 341 F.3d at 287. But to understand how counts are connected,
2
we sometimes consider other pretrial documents too. United States v. McGill, 964 F.2d 222,
242 (3d Cir. 1992).
The three charged robberies were similar. Livingston tries to differentiate them by
stressing that he acted alone in the first robbery but used other people in the latter two. Yet
that one difference is outweighed by a host of similarities: All three were bank robberies.
All took place in Camden County, New Jersey. All occurred within ten days. And as the
pretrial briefing explains, all involved similarly worded demand notes but no gun or ex-
press threat. Though not identical, they were similar enough to be joined. See United States
v. Chambers, 964 F.2d 1250, 1250–51 (1st Cir. 1992) (Breyer, C.J.) (affirming joinder be-
cause all six robberies were around Boston, targeted banks, and happened within 2 ½
months; plus, the robber used a similar demand note and made violent threats each time).
And severance was not required. If joinder “appears to prejudice a defendant,” a district
court may try the counts separately. Fed. R. Crim. P. 14. Courts should grant severance only
when there is a serious risk that a joint trial would prevent the jury “from making a reliable
judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 538–39 (1993).
Here, there was not. Livingston says the joint trial created an intolerable risk that the
jury would wrongly use evidence of the second and third robberies to find him guilty of
the first. But the District Court instructed the jury to consider the evidence of each crime sep-
arately. That limiting instruction did enough to cabin the risk of prejudice. See id. at 539–41.
III. THE PROBATION OFFICER PROPERLY IDENTIFIED LIVINGSTON
Next, Livingston objects to his probation officer’s testimony identifying him in a sur-
veillance photo from the first robbery. He argues that this testimony was not helpful to the
3
jury and thus inadmissible. Fed. R. Evid. 701(b). We review for abuse of discretion. United
States v. Anderskow, 88 F.3d 245, 249 (3d Cir. 1996).
Testimony is helpful when a witness is “better position[ed] than the jurors to form an
opinion or make an inference.” United States v. Fulton, 837 F.3d 281, 292 (3d Cir. 2016).
To decide that issue, we look at all the circumstances, including:
1. the witness’s familiarity with “the defendant’s appearance at the time the crime
was committed” and “the defendant’s customary manner of dress [that is] related
to the clothing of the person depicted in the surveillance photograph,”
2. whether the defendant was disguised during the crime or has since changed his
appearance, and
3. whether the witness “knew the defendant over time and in a variety of circum-
stances.”
Id. at 297–98 (internal quotation marks omitted).
The District Court properly admitted the probation officer’s testimony. True, the officer
had met with Livingston only twice, for a total of about ninety minutes. So the third factor
is not met. But the first two are:
1. In the five days after the first robbery, the officer met with Livingston twice. In
both the robbery and one of those meetings, Livingston sported the same white
polo shirt. So the officer was familiar with what Livingston looked like at the
time of the robbery and recalled that he customarily dressed like the person in
the photo. Fulton, 837 F.3d at 297–98.
4
2. Plus, the officer met Livingston while he still wore the beard that he had during
the first robbery but later shaved off.
Because the probation officer was better positioned than the jury to identify Livingston
from the photo, his testimony was admissible. See United States v. Towns, 913 F.2d 434,
445 (7th Cir. 1990) (admitting identification testimony from a witness who, on the day of
the robbery, saw the defendant with a later-shaved mustache); United States v. Farnsworth,
729 F.2d 1158, 1160–61 (8th Cir. 1984) (admitting parole officers’ testimony identifying a
bank robber who had grown a post-robbery beard); United States v. Pierce, 136 F.3d 770,
773–76 (11th Cir. 1998) (admitting a probation officer’s testimony identifying a disguised
bank robber); United States v. Garrison, 849 F.2d 103, 107 (4th Cir. 1988) (admitting a
probation officer’s testimony identifying a bank robber who had lost weight post-robbery).
IV. LIVINGSTON’S SENTENCE WAS REASONABLE
Finally, Livingston challenges his sentence as procedurally and substantively unreason-
able: He says the District Court did not adequately explain its upward variance. And he
claims that the four-level upward variance was unwarranted.
We review a sentence’s procedural and substantive reasonableness for abuse of discre-
tion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Procedurally, the
sentencing judge must consider the factors in 18 U.S.C. § 3553(a) and explain why she
chose the sentence, including why she varied from the Guidelines range. Id. Substantively,
we ask whether any reasonable sentencing judge would have imposed that sentence on that
defendant for the reasons given. Id.
5
Procedurally, the sentencing judge considered all the § 3553(a) factors. Livingston sug-
gests that she focused exclusively on his lengthy rap sheet, but she did not. She also heard
his arguments, considered all the factors, and explained why the circumstances called for
an upward variance.
Substantively, the four-level upward variance was reasonable. Most of Livingston’s
thirty criminal convictions were too old to be included in his criminal-history score at sen-
tencing. And the eight bank robberies counted as only one conviction and three criminal-
history points because they were charged and sentenced together. Plus, Livingston had just
finished serving 17 ½ years in prison. Yet hours after regaining his freedom, he returned to
robbing the very same banks. See United States v. Washington, 515 F.3d 861, 867 (8th Cir.
2008) (affirming a five-level upward variance for attempting to rob a bank within five
months of serving an earlier bank-robbery sentence).
*****
Livingston’s bank robberies were similar enough to be tried together, and the court in-
structed the jury to keep the evidence of each one separate. His probation officer properly
identified him in the surveillance photo wearing his white polo shirt and beard as it looked
before he shaved it. And the District Court justifiably raised his sentence based on all the
relevant factors, especially his lengthy rap sheet and instant recidivism. So we will affirm.
6 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482112/ | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0235p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
DANIEL HILS; CHARLES KNAPP; KEN BYRNE;
│
ADARRYL BURCH,
│
Plaintiffs-Appellants, │
│
v. > No. 22-3224
│
│
GABRIEL DAVIS, Director, City of Cincinnati Citizen │
Complaint Authority and IKECHUKWU EKEKE, │
Investigator, City of Cincinnati Citizen Complaint │
Authority, in their official and individual capacities; │
CITY OF CINCINNATI, │
Defendants-Appellees. │
┘
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:21-cv-00475—Michael R. Barrett, District Judge.
Argued: October 25, 2022
Decided and Filed: November 7, 2022
_________________
COUNSEL
ARGUED: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills,
Kentucky, for Appellants. Scott M. Heenan, CITY OF CINCINNATI, Cincinnati, Ohio, for
Appellees. ON BRIEF: Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview
Hills, Kentucky, Thomas Bruns, BRUNS CONNELL VOLMAR ARMSTRONG, Cincinnati,
Ohio, Zachary Gottesman, GOTTESMAN & ASSOCIATES, LLC, Cincinnati, Ohio, for
Appellants. Scott M. Heenan, Lauren Creditt Mai, CITY OF CINCINNATI, Cincinnati, Ohio, for
Appellees.
No. 22-3224 Hils, et al. v. Davis, et al. Page 2
_________________
OPINION
_________________
SUTTON, Chief Judge. Does the First (and Fourteenth) Amendment give police officers
and their union representatives the right to record or videotape interviews conducted in the course
of a city’s investigation into police misconduct? No, as the district court correctly concluded.
I.
If residents of Cincinnati witness police misconduct, they may lodge complaints with the
City’s Citizen Complaint Authority. The Authority consists of a team of investigators, an
executive director appointed by the city manager, and a seven-person Board appointed by the
mayor. Cincinnati Municipal Code art. XXVII, § 2. In response to a complaint, the Authority
conducts an investigation that usually includes interviews of the relevant officers, any
complainants, and any other witnesses. See id. §§ 2, 2-B, 3-A, 3-B, 3-F. The officers, as a
condition of employment, are required to participate in such investigations and to “provide truthful
and accurate information” to the Authority. R.1 ¶ 11. If the Authority interviews an officer, he or
she may bring a representative from the union—in this case Sergeant Daniel Hils, the President of
Fraternal Order of Police Lodge 69—to the interview. The Authority video records the interviews.
After the Authority finishes the investigation, it prepares findings and recommendations for the
Board’s review. The Board then holds a hearing and approves or rejects the findings and
recommendations. See Cincinnati Municipal Code art. XXVII, §§ 3-C, 3-D. The report later
becomes available to the public. Id. §§ 3-E, 3-F, 5.
In the summer of 2021, Hils claims that he observed troubling behavior with respect to
some of the Authority’s investigations. He alleges that Investigator Ikechukwu Ekeke, in
recording an officer’s interview during an investigation, selectively turned off the recording when
the officer made exculpatory statements. Another time, he alleges, Ekeke “threatened” an officer
before the interview. R.1 ¶ 14.
Hils decided to make his own recordings of the interviews, which he planned to keep and,
if appropriate, share with others. In July 2021, he tried to record an interview of Officer Charles
No. 22-3224 Hils, et al. v. Davis, et al. Page 3
Knapp, whom he represented. The Authority investigator asked Hils to stop, Officer Knapp
refused, and the investigator ended the interview. A day later, Ekeke, along with the Director of
the Authority, Gabriel Davis, formally put in place a policy that prohibits officers or their
representatives from recording the interviews. If an officer refuses to stop the recording, the
Authority reserves the right to end the interview and, if need be, to complete the investigation
without it. The Authority enforced the policy that same day when Hils tried to record interviews
of two officers he represented, Ken Byrne and Adarryl Burch.
Hils and three affected officers sued Ekeke, Davis, and the City of Cincinnati for violating
their free-speech rights. Hils and the officers sought damages and declaratory and injunctive relief
under § 1983. The Fraternal Order of Police Lodge 69, meanwhile, filed an unfair labor practices
charge against the City arising from the same conduct. This charge led to a partial settlement
agreement, in which the City agreed to record all interviews all of the time going forward.
The district court eventually rejected all of the federal claims as a matter of law. It reasoned
that the settlement agreement mooted the selective-recording claims. As to the no-private-
recording policy still in place, the court ruled that the First Amendment does not include a right to
record a government investigation. Hils and the affected officers appeal.
II.
One question dominates all others in this case. Does the First (and Fourteenth) Amendment
give police officers and their representatives a right to record internal interviews of them during a
governmental investigation into alleged police misconduct? We think not. While there are many
potential ways to think about this claim, none of them provides a cognizable basis for relief.
Start with the text of the First Amendment. The relevant language—guaranteeing
“freedom of speech, or of the press”—does not by itself cover this conduct. U.S. Const. amend. I.
A prohibition on recording speech is not a prohibition on speaking. The union representative, Hils,
indeed freely spoke about the City’s recording policy and made some headway in changing it.
Based on his objections as well as the unfair labor practices charge, the City of Cincinnati changed
part of its policy, requiring investigators to record all of the interviews, not bits and pieces of them.
Nor may Hils or the officers seek protection, at least as a textual matter, as members of the press,
No. 22-3224 Hils, et al. v. Davis, et al. Page 4
or as individuals engaged in any such activity. They have not shown that they operate a “press,”
that they engage in such activity, or that they otherwise fall within any special Press Clause
protections.
History and tradition do not help the claimants either. See McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 341–42 (1995) (relying on history and tradition to determine the contours
of the free-speech guarantee); Press-Enter. Co. v. Superior Ct. (Press-Enter. II), 478 U.S. 1, 8–9
(1986) (same); Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 605–06 (1982) (same); cf.
Williams-Yulee v. Fla. Bar, 575 U.S. 433, 446 (2015) (similar). We know of no American
tradition, whether under federal or state law, by which the subjects of a governmental investigation
have a right to record all interviews and other fact-gathering efforts in the course of pending
investigations of their alleged misconduct—or, for that matter, the corollary right to make the
recordings or videotapes public before the investigation ends.
Hils and the officers do not identify any tradition of opening similar investigations to the
public—through releases of videotapes of interviews—in the midst of an investigation. If
anything, our traditions cut the other way. Plenty of areas of government factfinding and
deliberation—grand juries, jury and court deliberations, police and FBI interviews of subjects of
interest—do not allow private recordings of the events. We customarily look to the elected
branches—and the state or federal ballot boxes—to permit such access. Over the last several
decades, notably, these venues have not been reluctant to permit some access to government
information. A brief survey of the public-record statutes of the States in our circuit alone shows
plenty of access-enabling laws. E.g., Ky. Rev. Stat. Ann. § 61.872; Mich. Comp. Laws § 15.231
et seq.; Ohio Rev. Code Ann. § 149.43; Tenn. Code Ann. § 10-7-506. But those laws do not apply
here and do not help the claimants in the context of an ongoing investigation.
One risk of permitting the release of, say, a videotaped interview in the midst of an
investigation ought to resonate with the claimants. It’s the risk that only part of the interview will
be shared with the media or that the media will use only part of the video during the nightly news.
If it is unfair to an officer charged with misconduct to turn a recording on and off during an
interview of him, it is equally unfair to the integrity of the investigation and the objective of public
No. 22-3224 Hils, et al. v. Davis, et al. Page 5
confidence in it to share bits and pieces of the investigation with the public before the full
investigation ends.
Precedent does not support this claim either. As is often the case, however, the explanation
requires more elaboration. Several features of the case law in this area deserve note, one partly
helpful to the claimants in broadening protection, the rest not helpful to them.
The helpful point is that the Supreme Court has construed the freedom of the press to
include a right of access to information and has extended this right to non-journalists in a few
settings. “[W]ithout some protection for seeking out the news,” the Supreme Court has said,
“freedom of the press could be eviscerated.” Branzburg v. Hayes, 408 U.S. 665, 681 (1972); see
Pell v. Procunier, 417 U.S. 817, 834 (1974). At least seven justices in Houchins v. KQED agreed
that the First Amendment protects the “right to gather news ‘from any source by means within the
law.’” 438 U.S. 1, 11 (1978) (quoting Branzburg, 408 U.S. at 681–82); id. at 16 (Stewart, J.,
concurring); id. at 30–32 (Stevens, J., dissenting). The Court’s cases about the right to access
public criminal proceedings, hearings, and trials, moreover, frequently refer to the “press and
public,” not just the right of the press. E.g., Waller v. Georgia, 467 U.S. 39, 44 (1984) (“In several
recent cases, the Court found that the press and public have a qualified First Amendment right to
attend a criminal trial.”); Press-Enter. II, 478 U.S. at 7 (“[T]he right asserted here [to access a
preliminary criminal hearing] is that of the public under the First Amendment.”). Consistent with
these cases, our court has recognized a general First Amendment right to gather information in
public settings. Boddie v. Am. Broad. Cos., Inc., 881 F.2d 267, 271 (6th Cir. 1989); cf. S.H.A.R.K.
v. Metro Parks Serving Summit Cnty., 499 F.3d 553, 560–63 (6th Cir. 2007) (rejecting First
Amendment right to hide cameras in a public park after hours to record a deer-culling operation).
Helpful though this principle may be to the claimants in the abstract, it does not help them
in the concrete given the limited settings in which it applies. A right to gather information does
not require others to give it away or require governments to open up all ongoing proceedings to
the public. The First Amendment does not guarantee “the press a constitutional right of special
access to information not available to the public generally.” Branzburg, 408 U.S. at 684; see also
Pell, 417 U.S. at 833. The Constitution simply does not impose a duty on governments to provide
sources of information not available to members of the public. Pell, 417 U.S. at 834; Branzburg,
No. 22-3224 Hils, et al. v. Davis, et al. Page 6
408 U.S. at 684. A modest exception exists when the government excludes the people from a
space historically open to them, and that space has “play[ed] a particularly significant role in the
functioning of the judicial process and the government as a whole.” Globe Newspaper, 457 U.S.
at 605–06 (right to access criminal trials); see also Press-Enter. II, 478 U.S. at 8–9.
More specifically and less generally, the Supreme Court in case after case has recognized
the power of federal and state governments to close and open doors to sensitive information within
their control. The Court upheld government restrictions on the right to travel to Cuba despite its
effect on the flow of information about U.S. government policies abroad. Zemel v. Rusk, 381 U.S.
1, 16–17 (1965). It upheld a California law barring the press and media from interviews with
specific inmates. Pell, 417 U.S. at 819, 835. And it held that a county sheriff could restrict
newspaper access to a county jail in areas that he had not opened up to public view. Houchins,
438 U.S. at 3–4, 16 (plurality); id. at 18 (Stewart, J., concurring). The Houchins plurality saw “no
basis for reading into the Constitution a right of the public or the media to enter these institutions,
with camera equipment, and take moving and still pictures of inmates for broadcast purposes.” Id.
at 9. So too for the concurrence: “The Constitution does no more than assure the public and the
press equal access once government has opened its doors.” Id. at 16 (Stewart, J., concurring).
That explains why the free-speech and free-press guarantees do not override access restrictions to
the White House, Zemel, 381 U.S. at 17, or to Supreme Court conferences, grand jury
investigations, official governmental meetings, or crime scenes, Branzburg, 408 U.S. at 684–85.
When all is said and done, the First Amendment right to gather information from the government
usually extends as far as the government has opened its doors to the public and press. It thus
includes a right to collect information within government control that is currently public or,
perhaps in discrete settings not shown here, that the government has made public historically.
That leads to another way to think about this claim—that the officers’ appearance at the
interviews amounts to a legitimate condition of employment. The claimants acknowledge that the
officers’ “official duties” include an obligation to participate in investigations by the Authority of
alleged police misconduct. Appellants’ Br. 38. That makes the interviews, whether from the
perspective of the Authority or the officer, a function of government—and the government’s
speech, not the officers’ speech. Garcetti v. Ceballos teaches that governments may impose limits
No. 22-3224 Hils, et al. v. Davis, et al. Page 7
on the way employees carry out their official duties without violating the First Amendment.
547 U.S. 410, 420–22 (2006). So long as the employee is performing an official duty, the
government may direct and control his or her speech. Id. at 421. For First Amendment purposes,
as opposed to, say, Fifth Amendment purposes, the government may not only control the message
of its administration but also may control what employees can and cannot say on the job. Id. at
421–22. “When government speaks, it is not barred by the Free Speech Clause from determining
the content of what it says.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S.
200, 207 (2015). Thus, if the speech at issue is government speech, all we ask is whether the no-
recording policy rationally furthers a legitimate government interest. Cf. Neinast v. Bd. of Trs. of
Columbus Metro. Libr., 346 F.3d 585, 592 (6th Cir. 2003).
That leaves one last possibility—that we should look at this claim through the lens of
whether the Authority’s investigation occurs in a public forum or nonpublic forum. At stake is
whether the “[p]ublic property” is or is “not by tradition or designation a forum for public
communication.” Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37, 46 (1983). In
“places which by long tradition or by government fiat have been devoted to assembly and debate,”
such as “streets and parks,” the government “may not prohibit all communicative activity.” Id. at
45. If the speech occurs in a nonpublic forum, by contrast, we ask only whether any restrictions
on speech are reasonable, allowing both speaker-based and subject matter restrictions so long as
the restriction is viewpoint neutral. Id. at 49; Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 806 (1985). The claimants offer no argument that a government investigation—or
more precisely a government investigation room—amounts to a public forum, if indeed it amounts
to a forum at all. Just as the government reserves the polling place for the limited purpose of
voting, Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885–86 (2018), the City restricts access to
these interviews for investigatory purposes. One thoughtful scholar, for what it is worth, views
the government-speech approach of Garcetti as “a doctrinal island” and would assess public
employee speech cases primarily under the public or nonpublic forum analysis. See Randy J.
Kozel, Government Employee Speech and Forum Analysis, 1 J. Free Speech L. 579, 599 (2022).
No. 22-3224 Hils, et al. v. Davis, et al. Page 8
Gauged by these principles, possibilities, and illustrations, the claimants’ argument fails.
The City’s desire to prevent recordings of government investigations during an ongoing
investigation does not violate the First Amendment. In the case of an interview of a police officer,
the City of Cincinnati permits only a few interested parties into the Authority’s investigative
interviews: the Authority’s members, the police officer, and his or her union representative. It
has decided, quite fairly, not to open these interviews into allegations of police misconduct to the
public, and one would expect the officers and their union representative to appreciate why. Hils
and the officers may wish to record the interviews for “posterity” and “possibly” to “release” them
“to conventional and non-conventional media.” R.1 ¶ 15. But the premise of permitting recordings
is that they are public proceedings—and it is the rare governmental entity that conducts the
investigative stage of a civil or criminal matter in public. The reasons need not always turn on
secrecy; they can turn on maintaining operational order too. Take this case, in which Hils and the
officers seek not just to obtain audio recordings, but video recordings as well. It’s not hard to
envision problems that could arise from giving subjects of an investigation the same rights as the
investigators. Perhaps indeed better rights. Admonitions about pictures and words apply tenfold
to videotapes—and considerably more to partial video clips. Yet under the claimants’ view, they
would have the right to release favorable video clips on the evening news or social media sites, all
before the investigation ends. That is not a recipe for a productive and fair investigation into police
misconduct.
The City’s policy also satisfies rational-basis review. Neinast, 346 F.3d at 592. The
Authority has legitimate interests in maintaining order and fairness during its interviews by
ensuring the ongoing interviews are not selectively broadcasted, by ensuring the integrity of the
investigation, by protecting the subjects of the investigation from unfair and precipitous public
criticism, and by trying to prevent other subjects of the investigation from knowing all that was
said in prior interviews. Limiting each officer’s ability to record the interview is rationally related
to achieving those interests.
It is true that a union representative, such as Hils, is not an employee of the City. But that
does not matter. In this setting, he, like an attorney, would be an agent of the employee and thus
limited by any restrictions imposed on the principal, the officer. Because the First Amendment
No. 22-3224 Hils, et al. v. Davis, et al. Page 9
does not give the employees the right to record these interviews, they cannot sidestep this
restriction merely by bringing a union representative or an attorney to the interview.
Hils and the officers challenge this conclusion in several ways, but each comes up short.
They claim that cases from our sister circuits come out differently. But that overstates.
Not one of the cases concerns a right to record internal government proceedings or to compel
public and media access to information during an ongoing investigation. See Blackston v.
Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (per curiam) (right to record public committee
meeting); Glik v. Cunniffe, 655 F.3d 78, 79, 82–83 (1st Cir. 2011) (right to record public actions
of police); ACLU v. Alvarez, 679 F.3d 583, 606 (7th Cir. 2012) (same); Turner v. Lieutenant
Driver, 848 F.3d 678, 688–90 (5th Cir. 2017) (same); Fields v. City of Philadelphia, 862 F.3d 353,
360 (3d Cir. 2017) (same); see also Animal Legal Def. Fund v. Wasden, 878 F.3d 1184, 1203–05
(9th Cir. 2018) (striking down a law that prohibited recordings of private agricultural production
facilities as an impermissible content-based regulation); Chestnut v. Wallace, 947 F.3d 1085, 1090
(8th Cir. 2020) (right to observe police in public).
What about the reality, the claimants point out, that they would have the right to record a
police officer who enters their home during the execution of a warrant and that would be true even
if the public did not have an equivalent right? The question answers itself. Homeowners have a
right to be in their home. Other individuals do not. What a citizen may do under his roof does not
tell us what he may do under the government’s roof or indeed what he is permitted to do once
there. Just as the public does not have a right to accompany the police when they question a suspect
at the local police station, they do not have a right to accompany the police when they execute a
warrant at an individual’s home.
Butterworth v. Smith does not help the claimants either. 494 U.S. 624 (1990). A Florida
statute prohibited a grand jury witness from disclosing any of his testimony after the grand jury
ended. Id. at 626. In prohibiting the State from enforcing this prohibition on free speech grounds,
the Court reasoned that, once the investigation had ended, so too did the State’s interests in keeping
information from the targeted individual. At that point, other interests, such as preventing
subornation of the grand jury, could be protected by other state laws. Id. at 632–33. Butterworth
No. 22-3224 Hils, et al. v. Davis, et al. Page 10
is one sizeable step removed from this case. It concerns the rights of an individual to speak after
a secret proceeding has ended, not a right to welcome the public, as there, into the grand jury itself
or to welcome the public, as here, into an investigation room while the proceedings remain closed
to the public.
Because the Authority’s reports and files eventually will become public, the claimants
persist, the City’s only interest in a no-recording policy is to hide doctored recordings. But just
because the reports and files eventually may become public does not mean that the City lacks a
legitimate interest in maintaining control over the interview during the investigation. Other
mechanisms exist for dealing with the risk of doctored interviews after a report becomes public,
most notably the reality that the officer and Hils can say as much and Hils can use his notes to
show as much.
Hils and the officers claim that Ohio law gave them a right to record the interviews. The
source of that authority, they say, is Ohio Revised Code § 2933.52. But the statute criminalizes
interceptions of oral, wire, and electronic communications unless the interceptor “is a party to the
communication or if one of the parties to the communication has given the person prior consent to
the interception.” Id. § 2933.52(B)(4). That Ohio has chosen not to criminalize certain conduct
does not mean that it has permitted it.
We affirm. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482108/ | BLD-149 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1703
___________
IN RE: ERNEST WOODALL,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to Civ. No. 2-11-cv-00607)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
May 12, 2022
Before: MCKEE 1, GREENAWAY, JR., and PORTER, Circuit Judges
(Opinion filed: November 7, 2022)
_________
OPINION *
_________
PER CURIAM
Ernest Woodall has filed a petition for a writ of mandamus asking us to order the
District Court to hold an evidentiary hearing on a habeas claim we have already rejected.
We will deny the petition.
1
Judge McKee assumed senior status on October 21, 2022.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Woodall is serving a sentence of 32 to 80 years in prison after being convicted of
four counts of attempted murder. After unsuccessfully challenging his convictions in
state court, he filed a petition pursuant to 28 U.S.C. § 2254 in the District Court, raising,
inter alia, a claim based on the Interstate Agreement on Detainers (“IAD”). The District
Court denied the petition, and we denied Woodall’s request for a certificate of
appealability. See C.A. No. 13-4721. Woodall has since filed two unsuccessful
mandamus petitions seeking to reargue his IAD claim. See C.A. Nos. 14-4838 & 16-
2788. In the petition before us, Woodall once again seeks to reargue his IAD claim.
Mandamus is an extraordinary remedy that we have the discretion to grant only
when the petitioner has a “clear and indisputable” right to relief and no other adequate
means to obtain it. In re Kensington Int’l Ltd., 353 F.3d 211, 219 (3d Cir. 2003).
Woodall does not have a clear and indisputable right to a hearing on a meritless § 2254
claim that has already been litigated and rejected. Accordingly, we will deny the petition.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482118/ | 11/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 17, 2022 Session
LARRY MARK MANGUM v. LANEY CELESTE MANGUM
Appeal from the Chancery Court for Hamblen County
No. 2016-CV-323 Douglas T. Jenkins, Chancellor
No. E2021-00285-COA-R3-CV
This appeal concerns a divorce. Larry Mark Mangum (“Husband”) sued Laney Celeste
Mangum (“Wife”) for divorce in the Chancery Court for Hamblen County (“the Trial
Court”). After a trial, the Trial Court entered its final judgment, which Wife appealed. In
Mangum v. Mangum, No. E2018-00024-COA-R3-CV, 2019 WL 1787328 (Tenn. Ct. App.
April 24, 2019) (“Mangum I”), we vacated the Trial Court’s judgment except as to the
divorce itself. We remanded with instructions for the Trial Court to make findings of fact
and conclusions of law that consider all of the relevant and applicable statutory factors
guiding child custody and property division matters, respectively. On remand, the Trial
Court entered a new final judgment in light of our Opinion in Mangum I. Wife appeals,
arguing that the Trial Court erred in fashioning the permanent parenting plan concerning
the parties’ two minor sons (“the Children”) as well as in its classification, valuation, and
division of the parties’ property. Husband raises the separate issue of whether this appeal
is frivolous. We find that the Trial Court, in considering all of the relevant statutory factors,
complied with our instructions on remand. We find, inter alia, that the evidence does not
preponderate against the Trial Court’s findings with respect to its application of the
statutory factors. However, while the Trial Court expressed a clear intent to award Wife
more than half of the marital estate, its written order in fact awards Husband significantly
more than half of the marital estate because of a mathematical error. Therefore, in order
to effectuate the Trial Court’s clearly expressed intent and to correct what we discern to be
mathematical error, we modify the Trial Court’s judgment to reduce Husband’s share of
the marital estate by $30,000 and increase Wife’s share by the same amount. Wife’s appeal
is not frivolous, and we decline to award either side attorney’s fees or expenses. We affirm
as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed as Modified; Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and KRISTI M. DAVIS, JJ., joined.
Betsy Stibler, Morristown, Tennessee, for the appellant, Laney Celeste Mangum.
Cameron Beier, Morristown, Tennessee, for the appellee, Larry Mark Mangum.
OPINION
Background
This is a divorce case that has been appealed to this Court once before. In July 2016,
Husband sued Wife for divorce in the Trial Court. In December 2017, after a trial, the
Trial Court entered its final judgment. The Trial Court attempted to award Wife more than
half of the marital estate. The Trial Court designated Husband as the primary residential
parent of the Children while granting the parties equal parenting time. Wife appealed. In
Mangum I, we vacated the Trial Court’s judgment except as to the divorce itself and
remanded with instructions for the Trial Court to make findings of fact and conclusions of
law that consider all of the relevant and applicable statutory factors. In Mangum I, we set
out the background of this case as follows, in part:
This divorce involves a tumultuous marriage of six years between
professional parents who both worked full-time. The couple have two young
sons (ages 4 and 6 at the time of the trial).
When the parties began their relationship, Laney Celeste Mangum
(“Wife”) was 30 years old and a pharmacist. Larry Mark Mangum
(“Husband”) was 55 years old and the sole owner of an established veterinary
practice in Hamblen County. Husband also owned several farms with cattle
and livestock. Additionally, he owned real property and various assets
related to his cattle business. Husband’s gross income for 2016 was
$366,209; Wife’s income for the same year was $134,063.
In June 2010, before the couple married, Wife discovered that she was
pregnant. The parties’ first child, Samuel, was born on January 29, 2011. In
order that Wife could continue working as a pharmacist after the birth of her
son, her mother retired from her job to become a full-time caretaker for the
child. In December of that year, just before Samuel’s birth, Husband
purchased a farmhouse and acreage at 1735 Needmore Road, Whitesburg,
-2-
Tennessee (“the Needmore Road property”). The Needmore Road property
was purchased by Husband as sole owner, although Wife notes that it was
refinanced with both Husband’s and Wife’s financial information. While
waiting on remodeling of the farmhouse, the parties and Samuel lived in a
property owned by Wife’s parents at 1816 Leia Drive in Morristown (“the
Leia Drive property”).
The parties were married on November 26, 2011. This was the first
marriage for Wife and the second marriage for Husband. Less than a year
later, on August 6, 2012, Husband was found guilty in federal district court
of the felony of structuring funds to avoid filling out a currency transaction
report. He was ordered to serve five years on probation, perform 350 hours
of community service, pay a $50,000 fine, and serve two 30-day periods of
intermittent confinement. The following year, the parties’ second child, John
Mark, was born on April 26, 2013.
***
Counselor, Nan Buturff, a licensed clinical social worker, testified at
trial that she had met with the children and observed their aggressive
behavior toward Wife. She discussed the differing disciplinary styles of the
parents and the Mother’s use of time out versus Father’s corporal discipline.
Ms. Buturff related that she does not believe in corporal punishment; in her
view, it is ineffective, does not teach respect, and it only humiliates and
angers a child. Ms. Buturff opined that “corporal punishment needs to be a
thing of the past” in regard to these children. She admitted that she was
unaware of Wife’s psychiatric history, if any.
Husband testified that Wife worked all the time, stayed in bed when
she was home, and did not help much with the children. According to
Husband, he hired maids, cooks, and caretakers to help him attend to the
boys. He stated that he spends his mornings with the children and takes them
with him to the clinic. Husband further related that he had raised his two
older children from his first marriage in the same environment. He noted
that one of them is a veterinarian and the other is a teacher.
Husband opined that Wife’s parents were a big problem in the
marriage, always wanting to take control of the children. He observed that
Wife loves her sons but cannot take care of them. Rather, Wife relinquishes
the care of the children to her parents and her friend, Lauren Rice.
-3-
***
Wife testified that the children were often aggressive, violent, and out
of control when they were with her. In addition, Wife alleged domestic
abuse. According to Wife, Husband hit her in October 2015 and January
2016.
***
Husband responded that he did not abuse Wife and that the pictures
she introduced showing bruises on her thigh and arm occurred in a 2015 fall.
According to Husband, Wife squirted a drink in his face as he was lying in
bed asleep, smacked him on the head with the carton, and then threw a
porcelain platter at him. He claimed that when he jumped up, Wife ran into
the bedroom, tripping over a chair and hitting the vanity table with her side.
Husband asserted that he did not touch Wife.
***
Wife and her mother alleged injuries to the children during the time
that they were under the supervision of Husband or Husband’s family
members acting as caretakers. When Husband worked, the children were
cared for by his family or taken to the clinic where he and his staff watched
them. Wife further alleged that Husband’s sister had abused the oldest son
by hitting him with a switch. During questioning about her abuse allegations
toward the children, Wife testified:
A. Yeah. I mean, it’s like when they’ve come home it’s like
they’re constant ... there’s constant injuries and then like the
motorcycle burn and John Mark had bruises on his back too
from falling off the pony. (Witness paused)
Court: Well that’s pretty normal boy stuff I think, you know,
based on my experience. So, you know, if you’ve got some
evidence that somebody’s abusing them or anything, you know
then ... and I’m talking more than just giving them a good
whipping. I’m talking about some sort of abuse. I’ll listen to
it.
***
-4-
In a final judgment rendered on December 7, 2017, the trial court
ordered the parties divorced and approved a parenting plan that granted the
parties equal co-parenting time with joint decision making and Husband as
the primary residential parent. The trial court awarded Wife all of her interest
in her 401(k) and her personal bank account. She was allowed to retain the
$9,700 in cash of Husband’s property and was awarded all interest in her
personal property listed. Husband was awarded all interest in the marital
residence, his IRA, his business account, personal accounts, livestock, and
an antique car. Husband was held solely responsible for the line of credit.
Additionally, he was awarded as his sole property the remaining real
property, personal property, and farm equipment. Husband continued to live
at the Needmore Road property, which was awarded to Husband as his
separate property, although the court did award Wife $25,000 for her share
of the increased value as a result of improvements. In the trial court’s
memorandum opinion, the court “believe[d] that the increase in value or the
increase to the marital estate during the marriage on the marital home is the
equivalent of one hundred thousand dollars ($100,000.00).” “The court
found that ‘the Wife’s share of the cattle is twenty-five thousand dollars
($25,000.00).” The court opined that he believed he was awarding Wife a
bit more than 50% of the marital estate:
I find that it’s just a wash. There were some things accrued or
increased during the marriage but they were sort of accrued on
both sides so the Court doesn’t believe that it would be
equitable for any money to change hands. The Court’s calling
it a wash. And that favors the Wife because she gets to retain
her sizable 401K.
***
I believe, the way I think about the numbers, that I have favored
the Mother a little bit in the number and it’s probably not up to
sixty forty (60/40) but it’s more that she gets more than fifty
percent (50%) I guess of whatever accrued during the marriage
because I’m just knocking her whole retirement fund off to her.
But if you look at it and you become convinced that I’ve given
her less than fifty percent some way or other then bring it back
before the court in a Motion if you don’t mind and let me at
least hear what you’re thinking, okay.
As to the parenting plan, the court observed that it was “troubled ...
because nothing I try to do for you guys seems to work.” The court
continued:
-5-
I think Mom there’s a lot of testimony from friends of yours
and insinuating on the record that you were planning on
moving somewhere. And if that’s what is best for you ... the
Court absolutely is not telling someone they can or cannot
move. The father is anchored. I know the kids will have a roof
over their head there. And for that reason the Court is choosing
to make the Father the [primary] residential parent. But the
main reason I’m doing that is because of this indication that
you may move ....
But I am going to try to split the time with you two as close to
equal as I can get.
***
Mr. Stambaugh: ... [A]re we talking a four/three (4/3),
three/four (3/4) that would alternate a fifty/fifty (50/50)
schedule like Nan Buturff suggested in her testimony?
Court: Yeah that’s what I want to do. Yeah.
***
Court: ... I’m making the Father the primary custodian because
if she decides to move somewhere I want her to have to give
him the notice and I want the case to have to come back before
me and me hear it again.... But she testified from the witness
stand that she had no immediate plans to go anywhere although
maybe in her heart of hearts she’d like to ....
Mangum I, 2019 WL 1787328, at *1-4, *6-7.
In Mangum I, we vacated the Trial Court’s judgment except for the divorce and
remanded for the Trial Court to make findings that consider the statutory factors applicable
to child custody determinations and property divisions, respectively:
As noted by Wife, in naming Husband primary residential parent, the
only factor that the trial court appeared to consider was the stable
environment offered by Husband in the marital home. The court did not
enumerate or discuss the statutory factors as to the education, character, and
experience of the parents, their economic circumstances and employment
schedules, and their conduct. There is no discussion of the “best interests of
the children.” The trial court did not mention or discuss the children’s ages,
habits, mental and emotional make up; the relative location of the parents’
residences; the relationships between the children, caregivers, and family
-6-
members; or the relationships between the parents and children. It made
virtually no findings of fact regarding the abuse allegations but designated
Husband as the primary residential parent. We must remand for the court to
make appropriate findings as to the abuse issue in addition to all other
relevant and appropriate statutory factors. Consistent with our standard of
review, this is a determination more appropriately made by the trial court.
All other matters raised related to the permanent parenting plan are
pretermitted.
***
It is apparent to this court that the trial court struggled mightily with
these parties and the case. In the absence of sufficient fact findings reflecting
the property valuations, it is difficult for us to discern the rationale behind
the property division and whether it is equitable. During the reconsideration
of this case, the trial court is further directed to make specific fact findings
as to the property issues pursuant to the factors listed in 36-4-121(c).
Mangum I, 2019 WL 1787328, at *14, *17.
In October 2019, the Trial Court entered an order on remand applying the pertinent
statutory factors in fashioning a permanent parenting plan for the Children. The Trial Court
found, in part:
If the undersigned understands the Opinion correctly, the Court of
Appeals suggested that the [T]rial Court should have considered the sixteen
(16) factors formerly found at T.C.A. 36-6-404(b) in formulating a
Permanent Parenting Plan. The Court of Appeals vacated the [T]rial Court’s
order, in part, for failure to make findings in accordance with that statute.
However, the version of the statute cited in the Court of Appeal’s Opinion
was no longer in effect in October 2017 when this case was tried. It appears
to have been amended by deleting the sixteen (16) factors as of July 2014.
Consequently, the Court did not expressly consider the 404(b) factors. The
Court finds that the statutory factors in T.C.A. 36-6-106(a) for determining
“best interest” are the law of this case. These factors were previously
considered in adopting the parties’ agreement which was announced in open
court and at the conclusion of the trial. These are the factors routinely used
by the Court to formulate parenting plans where no agreement can be
reached. In obedience to the Court of Appeals and pursuant to T.R.C.P. Rule
52, the Court memorializes the following findings and conclusions:
Findings:
-7-
(1) This factor [concerning the strength of relationship] weighs
heavily in favor of the Father being the primary custodian of these children;
(2) This factor [concerning the facilitation of a relationship with both
parents] weighs evenly between the parties, perhaps slightly in favor of the
Father as the Father was willing, during the pendency of the divorce, to allow
the Mother to go on a cruise with the children and his extended family and
did other things the Court considered as efforts to maintain the children’s
relationship with their Mother. The Mother, on the other hand, will hopefully
do better in the future at fostering a relationship between the Father and his
children when they are in her care;
(3) The Court finds that both parties have been to the parenting
classes;
(4) The Court finds this factor [concerning the provision of care] to be
equal between the parents;
(5) Based on the proof the Court heard at trial, and several preliminary
hearings, (where the Court had a great deal of trouble of getting a temporary
parenting plan down that did not put the children in the middle of these
parties’ frequent and bitter disputes), this factor [concerning the degree to
which one parent has been primary caregiver] weighs in favor of the Father;
(6) The Court believes that it is in the best interest of these minor
children to have a close and loving relationship with their Mother instead of
being kept away from her. The same is true of Father. Mother and Father
cannot get along with each other, but the Court finds that their “bad blood”
should not carry over to the Parenting Plan. The children need and love both
parents;
(7) The Court finds that the children have different personalities, with
different strengths and weaknesses, but there are no conditions that would
preclude shared and equal parenting;
(8) This factor [concerning the moral, physical, mental and emotional
fitness of each parent as it relates to their ability to parent the child] weighs
in favor of the Father. Mother has some health issues and medications that
adversely affect her parenting. Father does not. The Mother has a history of
somewhat irrational conduct, but the children love her very much. The
Mother’s expert witness sanctioned equal time parenting as long as the
children were not away from one parent for more than four days. The Court
does not credit everything Mother’s expert said, particularly as to discipline.
But the Mother’s expert gave a good history of interactions with the parents
and children that seemed fair. Mother has trouble controlling the children.
Father does not;
(9) This factor [concerning a child’s relationships and physical
surroundings] weighs in favor of the Father. The stability of the Father and
-8-
his extended family unit, as well as his successful parenting of two adult
daughters impressed the Court and significantly affects the Court’s decision
to name the Father primary residential parent. When the children are in
Father’s care, they are surrounded by extended family, grandparents, and
aunts. The Court finds specifically that this is very much in the best interest
of the minor children. The Court also finds that a relationship with the
Mother’s extended family is in the best interest of the minor children;
(10) This [factor concerning continuity] is equally applicable to both
parties. However, the Mother at times has insinuated that she is going to
move. The Mother’s sometimes irrational behavior is not as worrisome to
the Court because the Father is close at hand and has the ability to get the
children at a moment’s notice. However, if the Mother were to take the
children and move to where the Father did not have almost instant access to
the children, the Court fears that such a move would be detrimental to the
children;
(11) The Court finds that both parents abused each other; however,
that does not deter the Court’s determination for equal time. Technically,
under a strict reading of the law, both Mother and Father could be labelled
“Domestic Abuse Victims” (See T.C.A. 36-6-406(b) and T.C.A. 36-3-601).
That being said, the domestic violence issue (T.C.A. 36-6-406) was waived
at trial when the parties stood up in open court and agreed to an equal time
parenting plan after much of the proof was in. No party or lawyer suggested
during the trial that either parent’s parenting time should be limited. T.C.A.
36-6-406 was not mentioned orally or in any pleading before the Court that
the Court can recall. Nor did the Mother submit a proposed parenting plan
containing time limitations for the father. The Mother, while on the witness
stand, denied that she wanted Father’s parenting time limited. The Court
thinks that it should be entitled to take her at her word on that without making
any further finding. It is unclear when Mother changed her mind about
limiting the Father’s parenting time, but it was definitely subsequent to the
conclusion of this matter in the trial court. The Court is of the opinion that
this issue is waivable, and was expressly waived by both Mother and Father
due to their failure to assert their rights in the trial court. The matter must
have first emerged on appeal, because it was not an issue at trial.
However, if the matter is again appealed, and if the Court of Appeals
disagrees and finds that the issue was not waived, the Court hereby expressly
considers the domestic violence of both of the parents with respect to their
parenting time. The record is full of mostly minor acts of emotional and
physical abuse perpetrated by both parents against the other. The Court did
not — and never would — “ignore” domestic violence. But what is the Court
to do in a case such as this? The Court finds that the instances of domestic
-9-
violence between the parties were typically one provoking the other followed
by a reaction from the provoked party against the other. The Court most
certainly does not condone the parties’ conduct toward one another; however,
the Court does not view this as the type of behaviors that should be used to
limit the parenting time of either parent. Further, the Court finds that neither
party presently resides with an abuser as required by T.C.A. 36-6-406(b) for
limitation of parenting time. They may very well have both formerly resided
with an abuser (when they lived with each other), but neither presently does.
The technical record supports a finding that they separated from each other
on July 1, 2016. The Court finds that these parties need to be divorced and
living apart since they cannot seem to get along with each other. The few
times that their fighting has erupted into physical violence, in the Court’s
opinion, the combat was mutual. In the quantum of credibility, the Court
finds Father more credible than Mother on this issue — and this after
repeatedly observing the demeanor of both parties in multiple hearings. The
Court finds that neither party’s parenting time should be limited due to their
actions against the other. The Court does not find that either parent’s
participation in the children’s lives will have an adverse effect on the
children. T.C.A. 36-6-406 should not be used to limit the parenting time of
either parent. The Court impliedly found previously and expressly finds
presently that the opposite is true. To limit the parenting time of either parent
would be detrimental to the children.
Alternatively, if T.C.A. 36-6-406 does, in fact, require either or both
parent’s time to be limited in this case, then the Court limits Father’s time to
50 percent and limits Mother’s time to 50 percent to satisfy the requirement.
The Court also observes that there is some discrepancy in T.C.A. 36-
6-10[6](a)(11) and T.C.A. 36-6-406. ln the first, “abuse” is simply a factor
to be considered, but in the latter “abuse” seems to mandate a limitation of
parenting time for the abuser. This Court cannot resolve those differences;
(12) This factor [concerning other persons in the home] favors Father.
The Court questions the Mother’s rationale in delegating many of her
parenting responsibilities to her parents and former college roommate/friend.
The Court believes she has made the statements attributed to her by witnesses
where she expressed regret that she was saddled with parenting
responsibilities. But she certainly said these things in a weak or despairing
moment, and the Court does not really believe she meant it in her heart of
hearts. Mother’s delegation of parenting responsibilities to her parents and
friend does not seem to be particularly repugnant to the children’s best
interest, so the Court is not using it to decrease her time. These are young
children that adore both parents and both extended families — and this part
of the proceeding is about the children — not the parents;
-10-
(13) This is not applicable as the Court did not hear the preference of
the children;
(14) The parents both live and are employed locally in Hamblen
County; however, Mother at times has insinuated that she is going to move.
The Court does not see any reason to do anything here other than shared and
equal parenting until and if the move is made;
(15) As the Court tried - in an inarticulate way - to explain when
uttering its prior ruling on the case, the evidence favors Father being primary
residential parent in the Parenting Plan. The Court has no doubt the kids love
the Mother. She in turn loves them. But it appears to the Court that at times
she is fragile; is barely able to take care of herself; and needs help parenting.
With respect to the complaint about a “Christian” counselor, the Court
believes that it is within the discretion of the Court to require a faith-based
counselor. The Court does not read the Court of Appeals’ Opinion as
precluding a faith-based counselor. The Court sees no basis to preclude the
children from seeing a faith-based counselor since the Father indicated in
court that was the only type of counselor to which he would agree.
***
Conclusion:
For the reasons stated above and previously in open Court, the Court
hereby adopts the Permanent Parenting Plan entered on December 7, 2017,
and the same is hereby ORDERED.
In February 2021, the Trial Court entered its final judgment in which it addressed
the property division. The Trial Court summarized its division of the marital estate as
follows:
Wife Receives Husband Receives
Her IRA $259,000 $100,000 appreciation in marital
home
Cash on hand: $3,000 His IRA: $43,000 in appreciation
Adjustment Verizon/cash: $5,885 Business Account: $15,000
Cattle: $25,000 (marital interest)
Total: $265,8851 Total: $183,000
(Footnote added).
1
We note that this column does not add up. The sum should be $267,885.
-11-
Wife was further awarded various items of personal property. The Trial Court
attached to its final judgment a transcript of its oral ruling from the September 2020 hearing
at which it explained its division of the marital estate. In its oral ruling, the Trial Court
stated, in part:
So on Pages 7 and 8 of the previous Ruling...I’m obviously readopting
everything previously found but also in addition, with respect to the real
estate, to be clear, the Court said, “I find that all real estate is premarital and
is Mr. Mangum’s separate property.” I don’t know how much more I need
to say about that. The proof I think was clear, it was owned before the
marriage. So the only property, real property that the Court saw that had
appreciated in value was this house that they lived in, the marital house. And
that did, based on their efforts to fix it up and live in it accrue some additional
value. And the Court previously found, I think, that that was one hundred
thousand dollars ($100,000.00). The Court still thinks that. And I don’t think
any further findings are required on that except to say that the Wife claimed
that her signature on Deed of Trust changed it all over into marital property
and that is everything secured by that Deed of Trust. And it’s an exhibit in
the original case. And the Court doesn’t know the exact exhibit number. But
the Wife says that her signature on a certain Deed of Trust that’s in the record
changed everything secured by that Deed of Trust over to marital property.
The Court specifically finds that it did not. She was not bound on the loan.
She didn’t make any of the payments. She didn’t contribute to any of the
income that made the payments. And therefore, the Court rejects that theory.
And again finds all real property...now I’m not listing each parcel
individually because Mr. Mangum owns a lot of property and the Court, you
know, heard a lot of proof on it and it’s in the record. But I don’t see how
much more specific I need to be than to say “all real property.”
***
Now with respect to the Parties’ retirement assets, the Wife’s 401K
was two hundred and fifty-nine thousand dollars ($259,000.00), give or take
a little at the time of the divorce. I found that that was all marital because I
think that that’s in keeping with the proof that I heard. And so that’s an asset
that has to be divided.
***
And there was a previous Judgment where I said in previous Orders before
the final day of court that the Wife owed the Husband ninety-seven hundred
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dollars ($9,700.00) for some cash that was taken. And so that’s the Court’s
Ruling with respect to moneys on-hand.
***
I also found that the Wife’s assertion that the Husband had bought
during the marriage a cow worth two hundred and fifty thousand dollars
($250,000.00), The Court did not credit that testimony and still doesn’t. The
Court doesn’t find that there’s a cow in the marital estate worth two hundred
and fifty thousand dollars ($250,000.00). And that the cattle are probably
worth more what the Husband testified to at the divorce, which was about
nine hundred dollars ($900.00) a piece. And I found that the marital interest
that the Wife held...or the Parties held as marital property in the cattle was
approximately twenty-five thousand dollars ($25,000.00). And again, I’m
not sure exactly what more I can say about that. I’ve considered her
testimony and I’ve considered his testimony and that is the way I resolved
the testimony, to find that there are twenty-five thousand dollars
($25,000.00) worth of marital cattle. So I have not itemized that in any
particular way. I’ve not tried to make a list of every cow I think these people
own. I’ve taken the cattle in gross and I find that her interest is twenty-five
thousand dollars ($25,000.00).
***
But when it comes to the rest of this property settlement I again, and
I said this on the record last time and I guess it was ambiguous and hard to
understand so I’m trying to say it again a little clearer. But this settlement
I’m calling a wash. Technically the Wife owes the Husband about thirty...or
somewhere between thirty ($30,000.00) and fifty thousand dollars
($50,000.00). And I’m saying that she doesn’t have to pay it. I’m saying
that this is a wash. She doesn’t have to pay that. I am favoring her in this
settlement probably as much as sixty/forty (60/40) and frankly it could be a
little bit more.
Now I guess the Court of Appeals maybe wanted me to say why I did
that based on these factors and so let me go down through here and do this
based on the factors one at a time and maybe they will understand my
rationale and I offer them my apologies for not being specific enough last
time.
***
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Bottom of Page 24 is the Court’s remand there. There they’re still at
36-4-121 but they’re at (c)(1). The duration of the marriage. This wasn’t all
that lengthy of a marriage but it was a fairly lengthy relationship and the
Parties had two (2) children and they’ve had a lot of trouble since they got
married but they apparently got along pretty good at least in the early parts
of it. But the Court, even though the length, the actual years of this marriage
may not weigh in favor of doing this the way that I’ve done it there was fruit
of the marriage, these two (2) little precious boys. And these Parties went
into the marriage with their eyes wide open. They’d had a pretty lengthy
relationship before they got married. So the Court’s using that factor to do
what I did in the Wife’s favor.
Number (2). The age, physical and mental health, vocation skills,
employability, earning capacity, estate, financial liabilities, financial needs
of the Parties. The Husband is very wealthy, although he owes quite a bit of
money. He’s got a lot of cash flow, a lot of premarital property. His net
worth is extensive. The Wife’s age, physical and mental health is not lacking
such that I should favor her in any way I don’t think, but she is not nearly as
wealthy as the Husband and she’s raising his children so in fairness I think I
ought to favor her in this. I guess, based mainly on the Husband’s wealth.
Number (3). Tangible or intangible contribution by one Party to the
education, training or increased earning power of the other Party. If I heard
proof on that I don’t remember it. But the Wife is a pharmacist to my
understanding and she’s gainfully employed and making a good living and
not dependent upon the Husband nor his income. So that one, Number (3) is
probably a wash to be honest with you.
Number (4). The relative ability of each Party for future acquisition
of capital assets and income. I’d say the Husband’s is much greater than the
Wife’s and that’s why I’m favoring her.
The contribution of each Party to the acquisition, preservation,
appreciation, depreciation, or dissipation of the marital or separate property
including the contribution of a Party to the marriage as a homemaker, wage-
earner, parent with the contribution of a Party as a homemaker or wage-
earner to be given the same weight if each Party had fulfilled its role. Both
Parties in this marriage were “breadwinners”, for lack of a better way to say
it. And Wife, I find, contributed her share during the marriage and for that
reason the Court’s favoring her somewhat in the settlement. But again, it’s
not necessarily based on that. It’s based on the Husband’s other wealth and
assets and earning capacity, which is much greater than hers.
For purposes of Section (c)(5). Dissipation of assets. Which is
basically wasteful spending. Husband may have said Wife did that but I
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didn’t make any specific findings on it and still don’t. So I don’t think that
prevents a division such as the one that I formulated.
The value of the separate property of each Party. Obviously, I’ve
already talked about that. That weighs greatly in favor of what I’m doing in
favor of the Wife.
Number (7). The estate of each Party at the time of the marriage. I
think the proof was Wife didn’t have much property at the time of the
marriage. Husband had a substantial amount, which most of which he’s
retaining. Therefore, I think that one, in my mind anyways, favors doing
what I did.
Let’s see, the economic circumstances of each Party at the time the
division of property is to become effective. I think the economic
circumstances are better for the Wife than they were at the time of the
marriage but still she’s somewhat disadvantaged in that her income and
assets are less than Husband’s so I think that supports what I have done.
Number (9). The tax consequences to each Party. I didn’t take any
proof on that that I heard, or the foreseeable [sale] of assets or the [sale] and
expenses of assets. That...I’m not really considering Number (9) here.
Number (10). The amount of Social Security benefits. I didn’t hear
much about that from either one of them I don’t think.
And it says such other factors that are necessary to consider the
equities between the Parties. And I think I said several times the thing that
clinched it for me that I needed to favor the Wife was Husband’s wealth,
assets and earning capacity are somewhat greater than the Wife’s. So the
Court believes what it did is fair and equitable to both Parties.
Wife timely appealed to this Court.
Discussion
Although not stated exactly as such, Wife raises the following issues on appeal: 1)
whether the Trial Court erred in fashioning the permanent parenting plan; 2) whether the
Trial Court erred in its classification, valuation, and division of property; and 3) whether
Wife is entitled to an award of attorney’s fees and litigation expenses on appeal. Husband
raises the separate issue of whether this appeal is frivolous.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn.
2001). A trial court’s conclusions of law are subject to a de novo review with no
-15-
presumption of correctness. S. Constructors, Inc. v. Loudon Cnty. Bd. of Educ., 58 S.W.3d
706, 710 (Tenn. 2001). Regarding witness credibility, our Supreme Court has stated:
When it comes to live, in-court witnesses, appellate courts should
afford trial courts considerable deference when reviewing issues that hinge
on the witnesses’ credibility because trial courts are “uniquely positioned to
observe the demeanor and conduct of witnesses.” State v. Binette, 33 S.W.3d
215, 217 (Tenn. 2000). “[A]ppellate courts will not re-evaluate a trial judge’s
assessment of witness credibility absent clear and convincing evidence to the
contrary.” Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.
1999); see also Hughes v. Metro. Gov’t of Nashville & Davidson Cnty., 340
S.W.3d 352, 360 (Tenn. 2011). In order for evidence to be clear and
convincing, it must eliminate any “serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” State v. Sexton,
368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v. State, 297 S.W.3d
208, 221 (Tenn. 2009)). Whether the evidence is clear and convincing is a
question of law that appellate courts review de novo without a presumption
of correctness. Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 515 (Tenn.
2013), (citing In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010)), cert.
denied, ––– U.S. ––––, 134 S.Ct. 224, 187 L.Ed.2d 167 (2013).
Kelly v. Kelly, 445 S.W.3d 685, 692-93 (Tenn. 2014). To the extent that the issues on
appeal implicate the abuse of discretion standard of review, “[a] court abuses its discretion
when it causes an injustice to the party challenging the decision by (1) applying an incorrect
legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision
on a clearly erroneous assessment of the evidence.” Fisher v. Hargett, 604 S.W.3d 381,
395 (Tenn. 2020) (internal quotation marks omitted) (quoting Harmon v. Hickman Cmty.
Healthcare Servs., Inc., 594 S.W.3d 297, 305-06 (Tenn. 2020)).
We first address whether the Trial Court erred in fashioning the permanent parenting
plan. Our Supreme Court has explained that trial courts have considerable discretion in
deciding the details of parenting arrangements, stating:
Because decisions regarding parenting arrangements are factually
driven and require careful consideration of numerous factors, Holloway v.
Bradley, 190 Tenn. 565, 230 S.W.2d 1003, 1006 (1950); Brumit v. Brumit,
948 S.W.2d 739, 740 (Tenn. Ct. App. 1997), trial judges, who have the
opportunity to observe the witnesses and make credibility determinations,
are better positioned to evaluate the facts than appellate judges. Massey–
Holt v. Holt, 255 S.W.3d 603, 607 (Tenn. Ct. App. 2007). Thus, determining
the details of parenting plans is “peculiarly within the broad discretion of the
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trial judge.’ ” Suttles v. Suttles, 748 S.W.2d 427, 429 (Tenn. 1988) (quoting
Edwards v. Edwards, 501 S.W.2d 283, 291 (Tenn. Ct. App. 1973)). “It is
not the function of appellate courts to tweak a [residential parenting
schedule] in the hopes of achieving a more reasonable result than the trial
court.” Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
Armbrister v. Armbrister, 414 S.W.3d 685, 693 (Tenn. 2013). The following statutory
factors applied to the Trial Court’s decision herein on custody:
(a) In a suit for annulment, divorce, separate maintenance, or in any other
proceeding requiring the court to make a custody determination regarding a
minor child, the determination shall be made on the basis of the best interest
of the child. In taking into account the child’s best interest, the court shall
order a custody arrangement that permits both parents to enjoy the maximum
participation possible in the life of the child consistent with the factors set
out in this subsection (a), the location of the residences of the parents, the
child’s need for stability and all other relevant factors. The court shall
consider all relevant factors, including the following, where applicable:
(1) The strength, nature, and stability of the child’s relationship with each
parent, including whether one (1) parent has performed the majority of
parenting responsibilities relating to the daily needs of the child;
(2) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child’s parents,
consistent with the best interest of the child. In determining the willingness
of each of the parents and caregivers to facilitate and encourage a close and
continuing parent-child relationship between the child and both of the child’s
parents, the court shall consider the likelihood of each parent and caregiver
to honor and facilitate court ordered parenting arrangements and rights, and
the court shall further consider any history of either parent or any caregiver
denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be
considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing,
medical care, education and other necessary care;
(5) The degree to which a parent has been the primary caregiver, defined as
the parent who has taken the greater responsibility for performing parental
responsibilities;
(6) The love, affection, and emotional ties existing between each parent and
the child;
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(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it
relates to their ability to parent the child. The court may order an
examination of a party under Rule 35 of the Tennessee Rules of Civil
Procedure and, if necessary for the conduct of the proceedings, order the
disclosure of confidential mental health information of a party under § 33-3-
105(3). The court order required by § 33-3-105(3) must contain a qualified
protective order that limits the dissemination of confidential protected mental
health information to the purpose of the litigation pending before the court
and provides for the return or destruction of the confidential protected mental
health information at the conclusion of the proceedings;
(9) The child’s interaction and interrelationships with siblings, other relatives
and step-relatives, and mentors, as well as the child’s involvement with the
child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life and the length of time
the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent
or to any other person. The court shall, where appropriate, refer any issues
of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or
frequents the home of a parent and such person’s interactions with the child;
(13) The reasonable preference of the child if twelve (12) years of age or
older. The court may hear the preference of a younger child upon request.
The preference of older children should normally be given greater weight
than those of younger children;
(14) Each parent’s employment schedule, and the court may make
accommodations consistent with those schedules; and
(15) Any other factors deemed relevant by the court.
Tenn. Code Ann. § 36-6-106(a) (West July 1, 2016 to June 30, 2021).
Wife argues that the Trial Court erred in its analysis with respect to factors (1), (8),
and (14). Specifically, Wife points to, among other things, her testimony that Husband
was not an active father; that the Children suffered injuries in Husband’s care; and that
licensed clinical social worker Nan Buturff (“Buturff”) had concerns about Husband’s use
of corporal punishment on the Children. Wife argues further that the Trial Court failed to
consider evidence of Husband’s domestic violence against her. She states that Husband’s
parenting time should be restricted based upon his history of domestic violence. In
addition, Wife asserts that the Trial Court inappropriately concluded from Wife’s
testimony that she wanted to move out of her parent’s house and out of the jurisdiction
simply because she expressed a desire to have a place of her own. In a nutshell, Wife
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contends that the evidence preponderates against the Trial Court’s factual findings. For his
part, Husband argues that Wife failed to timely submit a proposed permanent parenting
plan below; that she has therefore waived her challenges to the permanent parenting plan;
and that, in any event, the Trial Court considered each relevant statutory factor and its
resulting custody determination is supported by a preponderance of the evidence. Husband
further notes that the Trial Court found him more credible than Wife.
Initially, we disagree with Husband to the extent that he argues Wife waived any
issues concerning the permanent parenting plan, particularly with regard to the issue of
domestic violence. As we explained in Mangum I, “[t]he trial court is required to consider
evidence of physical or emotional abuse against the other parent in determining the custody
and parenting schedule for the children.” 2019 WL 1787328, at *14 (citing Burden v.
Burden, 250 S.W.3d 899, 913 (Tenn. Ct. App. 2007)). Here, we specifically instructed the
Trial Court to consider the issue of abuse on remand as part of its determination of a
custody arrangement in the Children’s best interest. Id. The Trial Court, in keeping with
our instructions, did so. The Trial Court found that “both parents abused each other[.]”
The Trial Court found further that “[t]he record is full of mostly minor acts of emotional
and physical abuse perpetrated by both parents against the other”; that “the Court finds that
neither party presently resides with an abuser as required by T.C.A. 36-6-406(b) for
limitation of parenting time”; and that “[t]he Court does not find that either parent’s
participation in the children’s lives will have an adverse effect on the children.” In
addition, the Trial Court found Husband to be “more credible than [Wife] on this issue —
and this after repeatedly observing the demeanor of both parties in multiple hearings.” The
Trial Court thus fully addressed the issue of abuse as instructed by this Court. In essence,
the Trial Court found no basis to restrict Husband’s parenting time with the Children as it
found that both Husband and Wife had committed violence against one another. The Trial
Court also found specifically that the parents’ acts of violence against one another, while
regrettable, did not warrant a reduction of parenting time for either parent as both parents
had engaged in the conduct. The evidence does not preponderate against these findings.
At oral argument, Wife cited Husband’s criminal background as grounds for
disbelieving his testimony. Husband was found guilty in federal court of structuring funds
to avoid filling out a currency transaction report. Wife says this crime bears on Husband’s
honesty. While Husband’s conviction of a crime involving fraud is indeed a consideration
relevant to his credibility, Wife has cited no law to the effect that a trial court is prohibited
from crediting the testimony of a witness previously convicted of such a crime. We do not
find that Husband’s criminal conviction for structuring funds in itself constitutes clear and
convincing evidence sufficient to overturn the Trial Court’s credibility assessment in his
favor. Furthermore, the Trial Court’s assessment of Husband’s credibility did not occur in
a vacuum, or between Husband and the ideal witness. The Trial Court also saw and heard
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Wife testify. Even if Husband’s credibility was less than perfect, the Trial Court
nevertheless found him more credible than Wife, as was its prerogative.
With respect to Wife’s other points regarding the Trial Court’s application of the
statutory factors in reaching a custody determination, it is plain that the Trial Court
considered Buturff’s testimony but did not credit it entirely. With regard to the Trial
Court’s consideration of Wife potentially moving to a new residence, we find that this was
a fair interpretation of Wife’s testimony and a legitimate scenario for the Trial Court to
consider. We note further the Trial Court’s findings that “[Wife] has a history of somewhat
irrational conduct” and “it appears to the Court that at times she is fragile; is barely able to
take care of herself; and needs help parenting.” On remand, the Trial Court considered
each statutory factor under Tenn. Code Ann. § 36-6-106(a) and made findings as to the
Children’s best interest, fully compliant with our instructions. The evidence does not
preponderate against any of the Trial Court’s factual findings relative to this issue. The
Trial Court neither applied an incorrect legal standard, reached an illogical or unreasonable
decision, nor based its decision on a clearly erroneous assessment of the evidence. In short,
the Trial Court did not abuse its discretion. We affirm the Trial Court in its fashioning of
the permanent parenting plan.
We next address whether the Trial Court erred in its classification, valuation, and
division of property. The division of the parties’ property begins with the identification
and classification of all property interests. Keyt v. Keyt, 244 S.W.3d 321, 328 (Tenn. 2007).
All property should be classified as either marital or separate property prior to distribution
of the marital estate because the trial court does not have the authority to make an equitable
distribution of separate property. Id. The classification of property during a divorce
proceeding as either marital or separate property is a question of fact to be determined by
the trial court upon consideration of all relevant circumstances. Snodgrass v. Snodgrass,
295 S.W.3d 240, 245 (Tenn. 2009). Generally, unless proven otherwise, property acquired
by either spouse during the marriage is presumed to be marital property, while property
acquired by either party prior to the marriage is presumed to be separate property.
Trezevant v. Trezevant, 568 S.W.3d 595, 615 (Tenn. Ct. App. 2018); Owens v. Owens, 241
S.W.3d 478, 485 (Tenn. Ct. App. 2007). If a spouse seeks to have the other spouse’s
separate property classified as marital property, he or she bears the burden of proving that
such property has become marital property as defined in Tenn. Code Ann. § 36-4-
121(b)(1). Keyt, 244 S.W.3d at 328. Similarly, a spouse seeking to have property acquired
during the marriage deemed as separate property has the burden of proving the asset is
separate property, which can be proven by the types of evidence found in Tenn. Code Ann.
§ 36-4-121(b)(2)(B)-(F). Owens, 241 S.W.3d at 485-86. Courts must look to Tenn. Code
Ann. § 36-4-121 when classifying property as marital or separate. Tenn. Code Ann. § 36-
4-121(b) (West July 1, 2015 to June 30, 2017) provided, in pertinent part, as follows:
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(1)(A) “Marital property” means all real and personal property, both tangible
and intangible, acquired by either or both spouses during the course of the
marriage up to the date of the final divorce hearing and owned by either or
both spouses as of the date of filing of a complaint for divorce, except in the
case of fraudulent conveyance in anticipation of filing, and including any
property to which a right was acquired up to the date of the final divorce
hearing, and valued as of a date as near as reasonably possible to the final
divorce hearing date….
(B)(i) “Marital property” includes income from, and any increase in the value
during the marriage of, property determined to be separate property in
accordance with subdivision (b)(2) if each party substantially contributed to
its preservation and appreciation;
(ii) “Marital property” includes the value of vested and unvested pension
benefits, vested and unvested stock option rights, retirement, and other fringe
benefit rights accrued as a result of employment during the marriage;
(iii) The account balance, accrued benefit, or other value of vested and
unvested pension benefits, vested and unvested stock option rights,
retirement, and other fringe benefits accrued as a result of employment prior
to the marriage, together with the appreciation of the value, shall be “separate
property.” In determining appreciation for purposes of this subdivision
(b)(1)(B)(iii), the court shall utilize any reasonable method of accounting to
attribute postmarital appreciation to the value of the premarital benefits, even
though contributions have been made to the account or accounts during the
marriage, and even though the contributions have appreciated in value during
the marriage; provided, however, the contributions made during the
marriage, if made as a result of employment during the marriage and the
appreciation attributable to these contributions, would be “marital property.”
When determining appreciation pursuant to this subdivision (b)(1)(B)(iii),
the concepts of commingling and transmutation shall not apply;
(iv) Any withdrawals from assets described in subdivision (b)(1)(B)(iii) used
to acquire separate assets of the employee spouse shall be deemed to have
come from the separate portion of the account, up to the total of the separate
portion. Any withdrawals from assets described in subdivision (b)(1)(B)(iii)
used to acquire marital assets shall be deemed to have come from the marital
portion of the account, up to the total of the marital portion;
***
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(D) As used in this subsection (b), “substantial contribution” may include,
but not be limited to, the direct or indirect contribution of a spouse as
homemaker, wage earner, parent or family financial manager, together with
such other factors as the court having jurisdiction thereof may determine;
***
(2) “Separate property” means:
(A) All real and personal property owned by a spouse before marriage,
including, but not limited to, assets held in individual retirement accounts
(IRAs) as that term is defined in the Internal Revenue Code of 1986,
compiled in 26 U.S.C., as amended;
(B) Property acquired in exchange for property acquired before the marriage;
(C) Income from and appreciation of property owned by a spouse before
marriage except when characterized as marital property under subdivision
(b)(1); [and]
(D) Property acquired by a spouse at any time by gift, bequest, devise or
descent….
Beyond the classification of assets, Wife’s issue also implicates the Trial Court’s
valuation of assets. In Neamtu v. Neamtu, No. M2008-00160-COA-R3-CV, 2009 WL
152540 (Tenn. Ct. App. Jan. 21, 2009), no appl. perm. appeal filed, this Court discussed
our standard of review with respect to the valuation of marital assets. We stated:
Once property has been classified as marital property, the court should
place a reasonable value on property that is subject to division. Edmisten v.
Edmisten, No. M2001-00081-COA-R3-CV, 2003 WL 21077990, at *11
(Tenn. Ct. App. May 13, 2003). The parties have the burden to provide
competent valuation evidence. Kinard v. Kinard, 986 S.W.2d 220, 231
(Tenn. Ct. App. 1998). When valuation evidence is conflicting, the court
may place a value on the property that is within the range of the values
presented. Watters v. Watters, 959 S.W.2d 585, 589 (Tenn. Ct. App. 1997).
Decisions regarding the value of marital property are questions of fact,
Kinard, 986 S.W.2d at 231; thus, they are not second-guessed on appeal
unless they are not supported by a preponderance of the evidence. [Smith v.]
Smith, 93 S.W.3d [871,] 875 [(Tenn. Ct. App. 2002)].
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Neamtu, 2009 WL 152540, at *4. Finally, Wife challenges the Trial Court’s distribution
of the marital estate. In Larsen-Ball v. Ball, 301 S.W.3d 228 (Tenn. 2010), the Tennessee
Supreme Court stated as follows with regard to the division of a marital estate:
After classifying the divorcing parties’ assets as either separate or
marital, the trial court must divide the marital estate equitably by weighing
the relevant factors enumerated in Tennessee Code Annotated section 36-4-
121(c). We give great weight to the trial court’s division of marital property
and “ ‘are disinclined to disturb the trial court’s decision unless the
distribution lacks proper evidentiary support or results in some error of law
or misapplication of statutory requirements and procedures.’ ” Keyt v. Keyt,
244 S.W.3d 321, 327 (Tenn. 2007) (quoting Herrera v. Herrera, 944 S.W.2d
379, 389 (Tenn. Ct. App. 1996)).
Tennessee Code Annotated section 36-4-121(c) provides that in
making an equitable division of marital property, the trial court shall consider
all relevant factors. Because trial courts have broad discretion in dividing
the marital estate, the division of marital property is not a mechanical
process. Flannary [v. Flannary], 121 S.W.3d [647,] 650 [(Tenn. 2003)].
Rather, the trial court should weigh the most relevant factors in light of the
facts of each case. Tate v. Tate, 138 S.W.3d 872, 875 (Tenn. Ct. App. 2003).
We review the trial court’s findings of fact de novo with a presumption of
correctness and honor those findings unless the evidence preponderates to
the contrary. Tenn. R. App. P. 13(d); Blackburn v. Blackburn, 270 S.W.3d
42, 47 (Tenn. 2008). When issues of credibility and weight of testimony are
involved, we afford considerable deference to the trial court’s findings of
fact. Keyt, 244 S.W.3d at 327.
Larsen-Ball, 301 S.W.3d at 234-35 (footnote omitted). Tenn. Code Ann. § 36-4-121(c)
provided:
(c) In making equitable division of marital property, the court shall consider
all relevant factors including:
(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability,
earning capacity, estate, financial liabilities and financial needs of each of
the parties;
(3) The tangible or intangible contribution by one (1) party to the education,
training or increased earning power of the other party;
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(4) The relative ability of each party for future acquisitions of capital assets
and income;
(5)(A) The contribution of each party to the acquisition, preservation,
appreciation, depreciation or dissipation of the marital or separate property,
including the contribution of a party to the marriage as homemaker, wage
earner or parent, with the contribution of a party as homemaker or wage
earner to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means
wasteful expenditures which reduce the marital property available for
equitable distributions and which are made for a purpose contrary to the
marriage either before or after a complaint for divorce or legal separation has
been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of
property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably
foreseeable sale of the asset, and other reasonably foreseeable expenses
associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the
parties.
Tenn. Code Ann. § 36-4-121(c) (West July 1, 2015 to June 30, 2017).
In her statement of the issues, Wife identifies six specific areas in which she
contends that the Trial Court erred in classifying, valuing, and dividing the parties’
property, to wit: (1) that the Trial Court erred in finding that all of the real estate was
premarital property and awarding it to Husband; (2) that the Trial Court erred in finding
that all of Wife’s 401(k) was marital property and that Husband’s 401(k) increased in value
by $43,000 during the marriage; (3) that the Trial Court erroneously awarded Husband
$9,700 without an appropriate basis after having previously awarded the same amount to
Wife; (4) that the Trial Court failed to distribute the increased value of Husband’s clinic;
(5) that the Trial Court erred in finding that all of the cattle was premarital property and
valuing the marital interest in the cattle at $25,000; and (6) that the Trial Court erred in
finding that all of the farm equipment was premarital property. In her brief, Wife states:
As a result of the Trial Court’s erroneous classification of marital
property, lack of valuation, and marital property division, Wife leaves this
marriage with no real property, liquid assets, or personal property beyond
miscellaneous personal effects. Wife was awarded her 401(k) account, the
-24-
majority of which was accrued prior to the marriage, while Husband was
awarded all of his purported separate property, including real estate, farm
equipment, and livestock, which he valued at well over $8,000,000, and the
majority of the marital property. Wife is left in a much worse position than
she was at the beginning of a six (6) year marriage to an extremely affluent
husband.
In response, Husband argues that Wife’s purported valuations are inadmissible.
Husband states that Wife is not a record owner of any of the deeds to the real estate, and
that Husband owned the real estate as sole owner prior to the parties’ marriage. Husband
contends that Wife fails to point to any finding that the Trial Court classified all of Wife’s
401(k) as marital property as opposed to only a $127,000 increase agreed upon by the
parties. Husband also argues that the $9,700 awarded to him by the Trial Court was a credit
for $9,700 Wife had taken from him out of his jacket; that Wife points to no evidence of
an increase in the value of Husband’s clinic; regarding the cattle, that the Trial Court chose
a figure in keeping with the evidence presented by both parties; and that the farm equipment
was Husband’s separate property and was, in any case, encumbered by a home equity line
of credit (HELOC) loan to the full extent of its value.2
Although Wife frames her six sub-issues in a sequential format, she does not rigidly
adhere to that order in the body of her brief. Setting aside for now the question of Wife’s
401(k), we begin by addressing Wife’s other arguments concerning the classification of
property. Wife states that the Trial Court erred in finding that the real estate—notably, the
marital home—was Husband’s premarital property since both Husband and Wife
participated in renovating it. Wife says this is “classic transmutation.” However, she cites
to no law regarding the doctrine of transmutation. She develops no argument supporting
her claim that the marital home or any real estate at issue became marital property.
Husband purchased the real estate before he married Wife. Barring any other evidence,
the real estate thus meets the statutory definition of “[a]ll real and personal property owned
by a spouse before marriage….” Tenn. Code Ann. § 36-4-121(b)(2)(A). Wife’s cursory
assertion of an interest in the real estate fails to render it marital. We find no reversible
error on this point.
Wife argues next that the Trial Court erred in finding that all of the farm equipment
was premarital property. Wife points out that, according to Husband’s proposed property
2
In the section of his brief addressing Wife’s issue concerning the Trial Court’s classification, valuation,
and distribution of property, Husband attempts to raise an issue about his being assigned a $15,585 Verizon
debt. However, in his response to Wife’s statement of the issues, Husband stated that “[t]he Trial Court did
not err in its classification, valuation and division of the parties’ marital property….” Also, Husband did
not identify the Trial Court’s assignment to him of the Verizon bill as a separate issue in his response to
Wife’s statement of the issues. Consequently, we find this would-be issue waived.
-25-
division, he bought at least $33,420 in farm equipment after the parties were married. The
Trial Court nevertheless found that the farm equipment was premarital, or nonmarital,
property and awarded it to Husband. Wife argues that the Trial Court should have
classified the farm equipment purchased by Husband after the parties were married as
marital property, valued it, and awarded her 50% of it. In response, Husband points to his
trial testimony whereby he stated that his farm equipment was encumbered by a HELOC
loan to the full extent of its value. Husband testified:
Q: Anything else?
A: Well I know we’ve talked about some of the things that was put into the
HELOC but most of the debt paid down on the HELOC, first of all she’s got
down here as an asset was a combine and it was taken out of the HELOC,
which is still owed on and...
HON. CHANCELLOR DOUGLAS JENKINS: Well let me ask you a
question, are you saying that to suggest to me that it’s just a wash?
A: Yes.
HON. CHANCELLOR DOUGLAS JENKINS: You may have a corn-picker
but you’ve...
A: I still owe on it.
HON. CHANCELLOR DOUGLAS JENKINS: ...got a debt that’s equal to
the value of it?
A: Yes.
HON. CHANCELLOR DOUGLAS JENKINS: Is that what you’re saying?
A: Right.
The Trial Court implicitly credited Husband’s testimony that the farm equipment
was encumbered up to its full value. There was nothing to distribute. It was, as Husband
acknowledged, “a wash.” If the Trial Court erred by classifying the farm equipment as
premarital or nonmarital, such error was harmless as it did not affect the ultimate outcome
of the case. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available
and otherwise appropriate shall not be set aside unless, considering the whole record, error
involving a substantial right more probably than not affected the judgment or would result
in prejudice to the judicial process.”).
Continuing our review of Wife’s sub-arguments, Wife disputes the value that the
Trial Court placed on the cattle. Husband testified to having 220 head of cattle at $750 per
head. Husband acknowledged having one cow worth $30,000 and another one worth
$8,000. Wife points to an exhibit prepared by Husband showing $295,000 in gross cattle
equity as of the time of the divorce hearing and a net equity of $225,000. Husband, for his
part, states that he accepts the Trial Court’s valuation of the cattle. Wife’s testimony on
-26-
this, as well as the valuation of property in general, was less than clarifying. At trial, Wife
testified:
Q: In other words, you don’t have your own independent basis only what
you’ve been able to get from the internet?
A: Correct.
Q: And so the basis of what we had used is what Larry had provided to us?
A: (Witness paused) Yes, but I mean, I knew of when he went to those cow
sales. I mean, the boys went with him to one of the first ones in Georgia.
Q: So how much do you think that he has in cattle?
A: I don’t...I don’t know. I mean, he told me when he got into it he said,
“Nobody knows, but I’m going big and I ain’t kidding.”
Q: Okay. But what you want is to be awarded just half the interest in the
cattle or half the cattle?
A: I mean, I just...(witness paused)...I mean, it doesn’t really matter, I
mean...(witness paused)...
Mr. Stambaugh [Wife’s trial counsel]: I understand that you’re saying that
because you’re tired and it’s long in the day but it does matter. And it does
matter to this Court record and it does matter to this Judge. I’m not trying to
be harsh to my own client but I’m just telling you that it does matter.
A: (Witness paused) I mean, yes.
Q: And there’s some other personal property that’s listed in there as well?
A: (Witness nodding affirmatively)
Q: And as to some farm equipment that he’s purchased since that time period
and are you asking for an interest in that?
A: Yes.
Q: And you’ve marked all that down with values on your sheets and it shows
how much the value is if it’s split between the two Parties and you’ve totaled
it up at the bottom of the sheet?
Mr. Beier [Husband’s trial counsel]: I want to know before she answers that,
what is the foundation, the basis for her evaluation?
Q: Did you take them off of Larry’s sheet that he provided to us?
A: Yes.
Q: What he said the values were?
A: They’re listed in there. I mean, they’re in the balance sheets.
Mr. Beier: What is the increase in the value?
A: I don’t...I don’t know.
Q: All you know is what you got from his tax returns and from the
information...
A: From the...
Q: ...that he provided to us in Discovery?
-27-
A: Yes.
Q: You don’t have any other information other than that?
A: Correct.
Q: Okay. And there’s no other way to get access to those cattle for us to
actually do an appraisal?
A: I mean, you would have to pull it up on your own account.
Meanwhile, it was and is Husband’s contention that he actually lost money on the
cattle over the course of the marriage. The Trial Court arrived at a figure for the cattle’s
worth within the range of evidence presented to it. The evidence does not preponderate
against the Trial Court’s findings regarding the cattle, and we find no reversible error in
the Trial Court’s classification or valuation of same.
As to the distribution of the marital estate, Wife argues that the Trial Court wrongly
awarded Husband $9,700, a figure previously awarded to her. In response, Husband points
out that $9,700 was awarded to him by the Trial Court as a credit to compensate for funds
Wife had taken from him. In addition, Wife argues that the Trial Court erred in failing to
distribute the increased value of Husband’s clinic. She states: “The record in this case is
clear that Wife’s efforts contributed to the value of the Husband’s vet clinic during the
marriage.” However, Wife’s statement is conclusory and fails to point to any evidence of
an increase in the clinic’s value over the course of the marriage such that could be
distributed. We discern no reversible error in the Trial Court’s decisions regarding either
the $9,700 or the alleged increase in value of Husband’s clinic.
The remaining sub-argument made by Wife under the umbrella of this issue
concerns her 401(k). Wife contends that the Trial Court wrongly classified her entire
401(k) balance as marital property rather than just the $127,000 increase in its value over
the course of the marriage, or at least was highly unclear about whether it did or did not
make such a distinction.3 In his brief, Husband concedes that the marital increase in Wife’s
401(k) was $127,000. However, he says that “[t]he Trial Court did not find that all of
Wife’s 401(k) is marital property as Wife contends, and she cites no proof and no finding
by the [T]rial Court that supports their argument.” This statement by Husband is
inaccurate. The Trial Court specifically found: “Now with respect to the Parties’ retirement
assets, the Wife’s 401K was two hundred and fifty-nine thousand dollars ($259,000.00),
give or take a little at the time of the divorce. I found that that was all marital because I
think that that’s in keeping with the proof that I heard. And so that’s an asset that has to
be divided.” In its order, the Trial Court plainly counted as marital property and awarded
to Wife the full $259,000 balance of her 401(k) rather than just the $127,000 increase as
3
Wife argues cursorily that the Trial Court erred in valuing the marital portion of Husband’s 401(k) at
$43,000, but never develops this argument. We find no reversible error by the Trial Court on this point.
-28-
agreed to by the parties at trial and on appeal. The Trial Court thus did not distinguish
between the premarital portion of Wife’s 401(k) and the marital portion. The result is
significant. Instead of awarding $267,885 to Wife and $183,000 to Husband, the effect of
the Trial Court’s inclusion of the premarital portion of Wife’s 401(k) was to make Wife’s
effective share of the marital estate only $135,885 under the figures used by the Trial Court.
This outcome is not consistent with the Trial Court’s clearly stated intent to award her more
than 50% of the marital estate.
Elsewhere, Wife argues that the Trial Court erred in its application of the statutory
factors. She even suggests that, given the disparity between the parties, she should have
been awarded the entire marital estate. We disagree. As reflected in its order, the Trial
Court carefully considered each factor under Tenn. Code Ann. § 36-4-121(c). Contrary to
Wife’s insistence, we conclude that the Trial Court did consider Husband’s wealth in its
analysis. The Trial Court intended and attempted to award more than half of the marital
estate to Wife. The Trial Court also observed that Wife is a professional person herself
and is capable of earning a good income. The evidence does not preponderate against the
Trial Court’s factual findings except as to the Trial Court’s finding concerning the marital
portion of Wife’s 401(k). Nevertheless, as it stands, the Trial Court’s written order does
not match its clearly expressed intent. In its oral ruling, which was incorporated into its
final judgment, the Trial Court stated: “But this settlement I’m calling a wash. Technically
the Wife owes the Husband about thirty...or somewhere between thirty ($30,000.00) and
fifty thousand dollars ($50,000.00). And I’m saying that she doesn’t have to pay it. I’m
saying that this is a wash. She doesn’t have to pay that. I am favoring her in this settlement
probably as much as sixty/forty (60/40) and frankly it could be a little bit more.” The Trial
Court stated further: “And I think I said several times the thing that clinched it for me that
I needed to favor the Wife was Husband’s wealth, assets and earning capacity are
somewhat greater than the Wife’s. So the Court believes what It did is fair and equitable
to both Parties.”
To correct the discrepancy between the Trial Court’s clearly stated intent and the
mathematical result of its written order, remand is an option. In fact, Wife argues that the
proof should be re-opened as to the division of property. We disagree with Wife, however.
The record in this case has been developed extensively. This case has been appealed and
remanded once before already. There is another option, one which comports with judicial
economy and provides the parties a chance to move on with their lives. While we may not
substitute our judgment for that of a trial court concerning the division of property in a
divorce case, we do have the authority to correct clear mathematical errors. See Ramsey v.
Ramsey, No. E2012-01940-COA-R3-CV, 2013 WL 5827648, at *6 (Tenn. Ct. App. Oct.
29, 2013), no appl. perm. appeal filed (“We determine that the trial court committed a
mathematical error in subtracting the full settlement amount when the court’s intent was
clearly to divide the assets equally between the parties.”). The Trial Court’s use of
-29-
$259,000 rather than the agreed upon $127,000 resulted in a mathematical error by using
the wrong number. In the present case, the Trial Court clearly intended to award more than
half of the marital estate to Wife. To effectuate the Trial Court’s clear intent, we modify
the Trial Court’s judgment to reduce Husband’s share of the marital estate by $30,000—
out of his $100,000 award of the appreciation of the marital home—and increase Wife’s
share of the marital estate by the same amount, $30,000. Based upon the Trial Court’s
findings as to the marital estate, and accounting for the marital portion of Wife’s 401(k)
being $127,000 rather than $259,000 as conceded by Husband, this $30,000 shift leaves
Wife with some $165,885 of the marital estate to Husband’s $153,000. This is in keeping
with the Trial Court’s clearly stated intent to award Wife more than half of the marital
estate or “probably as much as sixty/forty (60/40) and frankly it could be a little bit more.”4
We reiterate that we are not substituting our judgment for that of the Trial Court or
tinkering with the Trial Court’s decision. On the contrary, the Trial Court’s judgment was
well-reasoned and applied all of the statutory factors in keeping with our instructions on
remand from Mangum I. The Trial Court neither applied an incorrect legal standard,
reached an illogical or unreasonable decision, nor based its decision on a clearly erroneous
assessment of the evidence. In short, the Trial Court did not abuse its discretion. Apart
from our modification of the Trial Court’s judgment to correct what we believe to be a
mathematical error so as to effectuate its clearly stated intent as discussed above, we
otherwise affirm the Trial Court in its classification, valuation, and distribution of the
marital estate.
We next address whether Wife is entitled to an award of attorney’s fees and
litigation expenses on appeal. Wife notes her economic disadvantage relative to Husband.
The decision to grant an award of attorney’s fees on appeal “is within this Court’s sole
discretion.” Sample v. Sample, 605 S.W.3d 629, 640 (Tenn. Ct. App. 2018) (citing Cain-
Swope v. Swope, 523 S.W.3d 79, 101 (Tenn. Ct. App. 2016)). In arriving at our decision,
we consider “the ability of the requesting party to pay the accrued fees, the requesting
party’s success in the appeal … and any other equitable factor that need be considered.”
Id. (Internal quotation marks and citations omitted). In the exercise of our discretion, and
in consideration of all equitable factors, we decline to award Wife her attorney’s fees and
litigation expenses on appeal.
The final issue we address is Husband’s issue of whether this appeal is frivolous.
Tenn. Code Ann. § 27-1-122 provides as follows:
4
This is so even adding in the $30,000 to $50,000 the Trial Court found that “[t]echnically the Wife owes
the Husband…” that the Trial Court did not require her to pay.
-30-
When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include, but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the appeal.
A successful party should not be forced to bear the costs and vexation of a baseless
appeal, nor should appellate courts be saddled with such appeals. See Henderson v. SAIA,
Inc., 318 S.W.3d 328, 342 (Tenn. 2010). However, the courts must take care not to
discourage legitimate appeals and should only impose a penalty pursuant to Tenn. Code
Ann. § 27-1-122 in rare and obvious cases of frivolity. Id. Whether to award damages due
to a frivolous appeal is a discretionary decision by the appellate court. Young v. Barrow,
130 S.W.3d 59, 66-67 (Tenn. Ct. App. 2003). Wife’s appeal was not devoid of merit.
Indeed, her appeal was partially successful. We deny Husband’s request for attorney’s fees
on appeal.
Conclusion
We modify the Trial Court’s judgment to reduce Husband’s share of the marital
estate by $30,000 and increase Wife’s share by the same amount. We otherwise affirm the
Trial Court. The judgment of the Trial Court is thus affirmed as modified, and this cause
is remanded to the Trial Court for collection of the costs below. The costs on appeal are
assessed one-half against the Appellant, Laney Celeste Mangum, and her surety, if any,
and one-half against the Appellee, Larry Mark Mangum.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
-31- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482117/ | Argued: November 3, 2022
IN THE COURT OF APPEALS
OF MARYLAND
Misc. No. 3
September Term, 2022
IN THE MATTER OF THE APPLICATION
OF WILLIAM WALLACE MONTIER FOR
ADMISSION TO THE BAR OF MARYLAND
Fader, C.J.
Watts
Hotten
Booth
Biran
Gould
Eaves
JJ.
ORDER
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Filed: November 7, 2022
2022-11-07
12:31-05:00
Suzanne C. Johnson, Clerk
IN THE MATTER OF THE APPLICATION * IN THE
OF WILLIAM WALLACE MONTIER * COURT OF APPEALS
FOR ADMISSION TO THE * OF MARYLAND
BAR OF MARYLAND * Misc. No. 3
* September Term, 2022
ORDER
The Court having considered the adverse recommendations of the Character
Committee for the Third Appellate Judicial Circuit and the favorable recommendation of
the State Board of Law Examiners concerning the application of William Wallace Montier
for admission to the Bar of Maryland, it is this 7th day of November, 2022
ORDERED, by the Court of Appeals of Maryland, a majority of the Court
concurring, that the favorable recommendations of the Character Committee for the Third
Appellate Judicial Circuit and State Board of Law Examiners are accepted, and it is further
ORDERED, that the applicant, upon taking the oath prescribed by statute,
be admitted to the practice of law in this State.
/s/ Matthew J. Fader
Chief Judge | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482122/ | Filed 11/7/22 P. v. Sauceda CA2/6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B301139
(Super. Ct. No. 1434089)
Plaintiff and Respondent, (Santa Barbara County)
v. OPINION FOLLOWING
TRANSFER FROM
SANTOS MANUEL SUPREME COURT
SAUCEDA,
Defendant and Appellant.
Santos Manuel Sauceda appeals from the trial court’s order
denying his petition for resentencing. (Pen. Code,1 § 1172.6.2)
1 Statutory references are to the Penal Code.
2 Sauceda
filed his resentencing petition when former
section 1170.95 was still in effect. Effective June 30, 2022,
former section 1170.95 was renumbered 1172.6, with no change
to the text of the statute. (See People v. Mitchell (2022) 81
Cal.App.5th 575, 583.) We use the statute’s current designation
throughout this opinion.
He contends the court erred when it summarily denied the
petition without appointing counsel. We vacate the denial order
and remand.
FACTUAL AND PROCEDURAL HISTORY
In May 2015, a jury convicted Sauceda and four
codefendants of first degree murder (§§ 187, subd. (a), 189, subd.
(a)), and found true a special circumstance allegation that they
committed murder during the commission of a kidnapping
(§ 190.2, subd. (a)(17)(B)). (People v. Gonzales (Aug. 7, 2018,
B264384) 2018 WL 3737940 at p. *1 (Gonzales) [nonpub. opn.].)
In a bifurcated proceeding, the trial court found true allegations
that Sauceda had served two prior prison terms (§ 667.5, subd.
(b)). (Gonzales, at p. *1.) It sentenced him to life in state prison
without the possibility of parole plus two years. (Ibid.)
We affirmed the judgment on appeal. (Gonzales, supra,
2018 WL 3737940 at p. *17.) Among other things, we concluded
that substantial evidence supported the jury’s true finding on the
kidnapping special circumstance allegation because Sauceda
“was a major participant in the kidnapping that led to the
victim’s murder” and “demonstrated reckless disregard for
human life.” (Id. at p. *1; see People v. Clark (2016) 63 Cal.4th
522, 618-623 and People v. Banks (2015) 61 Cal.4th 788, 797-803.)
Specifically, in the months before the murder Sauceda said that
the outlook for the victim “ ‘[didn’t]’ look good.” (Gonzales, at p.
*8.) After a codefendant lured the victim to a house, Sauceda
helped to force him into a back room that had a shower curtain
covering the carpeted floor. (Id. at p. *2.) He then “assisted in a
violent and ultimately lethal attack of long duration during
which” a codefendant tortured the victim by looping a belt around
his neck and attacking him with a machete and scissors. (Id. at
pp. *7-8.) And though his codefendants inflicted most of the
2
victim’s injuries, Sauceda neither restrained them nor provided
the victim with any assistance—despite being able to do so.
(Id. at p. *7.) He was later “instrumental” in disposing of the
victim’s body. (Id. at p. *8.)
After his case was final on appeal, Sauceda petitioned the
trial court to resentence him pursuant to section 1172.6. In his
petition, Sauceda declared that: (1) the information filed against
him allowed the prosecution to proceed on a felony murder
theory, (2) he was convicted of first degree felony murder, (3) he
could not now be convicted of first degree murder based on
amendments to sections 188 and 189, and (4) he was not the
actual killer, did not harbor the intent to kill, and was not a
major participant in the underlying kidnapping who acted with
reckless indifference to human life. Sauceda also requested the
appointment of counsel to assist him during the resentencing
process.
The trial court summarily denied Sauceda’s petition
without appointing counsel, concluding that he failed to make a
prima facie showing that he was entitled to relief. The jury found
true the kidnapping special circumstance allegation, which
required proof that Sauceda was a major participant in the
kidnapping who acted with reckless indifference to human life.
Because of that finding—which was upheld on appeal—Sauceda
was ineligible for section 1172.6 resentencing as a matter of law.
We affirmed the trial court’s denial of Sauceda’s
resentencing petition. The trial court instructed jurors on the
intent required to prove the kidnapping special circumstance
allegation. That instruction told jurors that they could convict
Sauceda of first degree murder as an aider and abettor only if
prosecutors proved either: (1) that he participated in the
kidnapping with the intent to kill, or (2) that his participation in
3
the kidnapping began before or during the killing, that he was a
major participant in the kidnapping, and that he acted with
reckless indifference to human life. (See CALCRIM No. 703.)
Those are the same theories that permit a first degree felony
murder conviction pursuant to the amended version of section
189. (See § 189, subd. (e).) Thus, in finding the kidnapping
special circumstance true, jurors necessarily determined that
Sauceda could still be convicted of murder under the current
versions of sections 188 and 189.
We reached this conclusion notwithstanding that Sauceda
was convicted prior to our Supreme Court’s decisions in Banks
and Clark, which construed “major participant” and “reckless
indifference to human life” more narrowly than courts had
previously. Though the jury did not have the Supreme Court’s
guidance, we did when we decided Sauceda’s direct appeal. And
we applied that guidance when we upheld the jury’s special
circumstance finding. We concluded that this finding was
necessarily based on conduct that remains prohibited today. It
was accordingly proper for the trial court to rely on it when
summarily denying Sauceda’s section 1172.6 petition without
appointing counsel.
The Supreme Court subsequently granted Sauceda’s
petition for review, transferred the case back to us, and ordered
us to vacate our prior decision and reconsider the matter in light
of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v.
Lewis (2021) 11 Cal.5th 952 (Lewis).
DISCUSSION
Sauceda contends, and the Attorney General concedes, that
the trial court’s summary denial of his resentencing petition
4
violated section 1172.6’s procedural requirements. Having
reconsidered the matter, we agree.3
In Lewis, the Supreme Court held that a trial court must
appoint counsel for those who request such an appointment when
filing a section 1172.6-compliant resentencing petition. (Lewis,
supra, 11 Cal.5th at p. 963.) If the court erroneously denies the
petitioner’s request, the error is prejudicial if the petitioner
shows a reasonable probability that their petition would not have
been summarily denied had they been afforded the assistance of
counsel. (Id. at p. 974.)
In Strong, the Supreme Court held that a true finding on a
felony-murder special circumstance allegation rendered prior to
Banks and Clark does not preclude a petitioner from showing
eligibility for section 1172.6 relief. (Strong, supra, 13 Cal.5th at
pp. 717-718.) Nor is such a showing precluded where the
evidence would nevertheless have been sufficient to uphold the
finding on appeal under the principles set forth in those two
cases. (Id. at pp. 710, 720.)
Here, Sauceda filed a resentencing petition and requested
the appointment of counsel. Because that petition complied with
the provisions of section 1172.6, the trial court erred when it
summarily denied the petition. And that error was prejudicial
because: (1) the jury’s true finding on the kidnapping special
circumstance allegation predates Banks and Clark, and (2) our
conclusion that substantial evidence supports the finding under
the standards articulated in those cases does not “amount[] to the
3 The decision in People v. Sauceda (Jan. 5, 2021, B301139)
[nonpub. opn.], judg. vacated and cause remanded for further
consideration in light of Strong, supra, 13 Cal.5th 698 and Lewis,
supra, 11 Cal.5th 952, is vacated.
5
[prima facie] determination section 1172.6 requires.” (Strong,
supra, 13 Cal.5th at p. 720.) Remand is required.4
DISPOSITION
The order denying Sauceda’s petition for section 1172.6
resentencing, entered September 16, 2019, is vacated, and the
matter is remanded to the trial court with directions to appoint
counsel, issue an order to show cause, and hold an evidentiary
hearing at which prosecutors must prove, beyond a reasonable
doubt, that Sauceda is guilty of murder under the current
versions of sections 188 and 189. We express no opinion as to
how the court should rule at the conclusion of the hearing.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J. PERREN, J.
4 Given our conclusion, we do not consider Sauceda’s
alternative argument that the summary denial of his
resentencing petition violated his Sixth Amendment and due
process rights. We also need not opine on his challenge to the
trial court’s reliance on hearsay statements in Gonzales, supra,
2018 WL 3737940 when denying the petition. We note, however,
that the Supreme Court has rejected similar challenges. (See
Lewis, supra, 11 Cal.5th at p. 972; People v. Woodell (1998) 17
Cal.4th 448, 459-460.)
Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
6
John F. McGregor, Judge
Superior Court County of Santa Barbara
______________________________
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482123/ | Filed 11/7/22 P. v. Gastelum CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079642
Plaintiff and Respondent,
v. (Super. Ct. No. INF1800593)
EFRAIN VALLEJO GASTELUM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Anthony R. Villalobos, Judge. Affirmed in part, vacated in part, and
remanded for resentencing.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Collette
Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
A jury convicted Efrain Vallejo Gastelum of assault with a
semiautomatic weapon, unlawful possession of a firearm, and unlawful
possession of ammunition. The jury found true allegations Gastelum
personally used a firearm and inflicted great bodily injury in connection with
the assault with a semiautomatic weapon count. The trial court sentenced
him to a total term of 13 years in prison.
On appeal, Gastelum contends the trial court violated his right of
confrontation under the Sixth Amendment to the United States Constitution
and Article I, section 15 of the California Constitution by allowing the victim
to wear a face mask while testifying against him. On the record before us, we
conclude Gastelum has waived the claim and we decline to reach the merits
of his constitutional challenge.
However, Gastelum asserts, and the Attorney General concedes, we
must remand for resentencing under Assembly Bill No. 124 (2021–2022 Reg.
Sess.; Stats. 2021, ch. 695, § 5) (Assembly Bill 124), which the Legislature
passed while his appeal was pending.1 Assembly Bill 124 amended Penal
Code2 section 1170, subdivision (b), to require courts to impose the lower
term if the offender was under 26 years of age at the time of the offense,
unless the court finds that aggravating circumstances outweigh the
mitigating circumstances. Given that Gastelum was 25 years old when he
1 Gastelum highlights that Assembly Bill Nos. 124 and 1540 and Senate
Bill No. 567 all concurrently amended Penal Code section 1170, subdivision
(b), but we will focus on Assembly Bill 124, which impacted sentencing of
youthful offenders. (Pen. Code, § 1170, as amended by Assem. Bill Nos. 124
& 1540 (2021–2022 Reg. Sess.) and Sen. Bill. No. 567 (2021–2022 Reg.
Sess.).)
2 Further undesignated statutory references are to the Penal Code.
2
committed the offenses, we agree the People’s concession is proper.
Accordingly, we vacate the sentence and remand the matter for resentencing
under current section 1170, subdivision (b). In all other respects, we affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
One evening in March 2018, Gastelum joined two other guests to drink
and socialize at B.H.’s home. After some time passed, B.H. accused Gastelum
of behaving inappropriately towards a female guest. The two got into a
physical altercation during which B.H. grabbed Gastelum’s legs, knocked him
to the ground, and struck him repeatedly. B.H. then escorted Gastelum out
of the house and down a long driveway. In the street near the end of the
driveway, Gastelum pulled out a semiautomatic handgun and fired eight
shots either at B.H. or at the ground. The first bullet passed through B.H.’s
right foot. B.H. ran back to the house and his stepfather called the police.
Officers arrested Gastelum nearby and found the handgun in a neighbor’s
cluster of palm trees.
A jury convicted Gastelum of assault with a semiautomatic firearm
against B.H. (§ 245, subd. (b); count 2), unlawful possession of a firearm
(§ 29800, subd. (a); count 4), and unlawful possession of ammunition
(§ 30305, subd. (a); count 5). In connection with count 2, the jury found true
the allegations that he personally used a firearm (§§ 12022.5, subd. (a), and
1192.7, subd. (c)(8)), and inflicted great bodily injury on B.H. (§§ 12022.7,
subd. (a), and 1192.7, subd. (c)(8)). The jury acquitted Gastelum of attempted
murder (§§ 664, 187, subd. (a); count 1) and assault with a semiautomatic
firearm against a second person (§ 245, subd. (b); count 3).
The trial court sentenced Gastelum to a total prison term of 13 years,
based on the middle term of six years for the assault, the middle term of four
3
years for the firearm enhancement, and three years for the great bodily
injury enhancement. The court imposed but stayed sentences on the counts
of unlawful possession of a firearm and unlawful possession of ammunition,
pursuant to section 654. Gastelum timely appealed.
DISCUSSION
I.
Gastelum Waived His Confrontation Clause Claim
Gastelum contends the trial court violated his federal and California
right of confrontation by allowing B.H. to wear a face mask while testifying
against him. The People respond that he has forfeited his claim because
defense counsel agreed with the trial court’s ruling that B.H. could testify
with his face mask. The record is clear: defense counsel objected to the
victim testifying with his mask on, but ultimately acquiesced to the trial
court’s ruling for strategic reasons. The issue was waived, not forfeited.3
A. Additional Background
Gastelum was tried in May 2021. At that time, the State of California
and the Riverside County Superior Court imposed various restrictions for
3 We note Gastelum’s opening brief fails to even mention the fact that his
trial counsel agreed to the very ruling he now challenges as error. An
appellant’s opening brief must provide an adequate “summary of the
significant facts limited to matters in the record.” (Cal. Rules of Court, rule
8.204(a)(2)(C).) Moreover, the appellant must set forth all material evidence,
not just evidence favorable to his position. (See People v. Dougherty (1982)
138 Cal.App.3d 278, 282.) In his reply to the Attorney General’s forfeiture
argument, Gastelum barely addresses the significance of counsel’s
acquiescence. Instead, Gastelum responds by contending that further
objection would have been futile. This argument ignores the facts in the
record demonstrating that defense counsel discussed the confrontation issue
at length with the court. When we consider these facts, it is apparent counsel
conceded for strategic, not futility, reasons.
4
public safety in response to the COVID-19 pandemic. As a result, the trial
court closed Gastelum’s trial to the public and required everyone in the
courtroom to wear masks. On each day of trial, the court read a history of the
COVID-19 pandemic restrictions into the record and found good cause to
close court proceedings to the public. Everyone in the courtroom wore a mask
and sat socially distanced from one another. Counsel were allowed to remove
their masks while speaking so long as they remained six feet or more away
from others.
When each witness took the stand, the trial judge pointed out that
everyone in the courtroom was wearing a mask and sitting more than six feet
from the witness; that Plexiglas protected the witness from the bailiff and
others; and that the witness could use a court-provided face shield. The judge
then gave the witnesses the option of removing their masks while testifying
so the jury could see their facial expressions. Some witnesses opted to shed
their masks, but several declined. Gastelum also wore a mask throughout
the proceedings but repeatedly pulled it down briefly at the court’s direction
so that witnesses could identify him.
The court followed the same procedures when B.H. took the stand. In
the presence of the jury, the judge highlighted the safety precautions and
gave B.H. the option to remove his mask so the jury could see his face while
he testified. In response, B.H. asked, “Am I allowed to keep the mask on?”
The judge told B.H., “You can keep it on if you wish.” But the prosecutor
requested on behalf of both parties that B.H. remove his mask, “if the witness
is willing.” The court again asked B.H. if he was willing to take the mask off
and use the face shield. B.H. responded, “I would prefer to keep this one on if
that’s okay.” The court then told the attorneys, “I am going [to] let him keep
5
it on.” At this point, defense counsel did not object to B.H. leaving his mask
on.
At the noon recess, defense counsel raised the issue outside the
presence of the jury. He acknowledged “COVID is still rampant, and it still
exists.” Defense counsel stated he did not know “what [B.H.’s] reasons are for
keeping his mask on,” but “assuming it is COVID,” counsel argued that
Gastelum’s right of confrontation mandated the jury and defense be able to
see B.H.’s facial expressions while testifying. The court agreed with defense
counsel but did not think it could “force” the witness to remove his mask
“given . . . the way COVID is now.”
When the jury returned and B.H. resumed the witness stand, the court
told him they had “a little difficulty” hearing his earlier testimony and asked
him to reconsider using the face shield. B.H. responded, “I’d prefer to keep
my face covered just because of future retaliation and identifying me. That’s
my reason.” The court responded, “if that’s the reason, sir, then I am going to
ask you to take off your face mask.” When the court told B.H., “I thought it
was because of COVID,” B.H. said: “Well, of course. That, too.” The court
sought further clarification. It asked B.H., “what’s the main reason, sir?”
B.H. responded, “Well, it is COVID as well, of course.” The court stated his
answer “seem[ed] like an afterthought” and B.H. interjected, “Of course, it
is.”
At that point, the prosecutor asked for a chambers conference, outside
the presence of the jury, and argued the People should be entitled to question
B.H. as to why he was afraid. Earlier that morning, the prosecutor had
informed defense counsel that B.H. told him a third party had threatened
him, and B.H. believed it was related to the case. The prosecutor argued
B.H. was “genuinely afraid of the defendant and retaliation, whether that’s
6
because he believes that the defendant is a gang member or because the
defendant is a gang member.” And because the court had inquired about
B.H.’s refusal to take the mask off in front of the jury, the prosecutor asserted
he was entitled to “inquire as to his motives, essentially, for refusing to take
the mask off.”4
The trial court responded that it felt “kind of stuck here because of
COVID,” and reiterated it did not believe it could force B.H. to remove his
mask. The court told counsel, “So at this point, I am going to let him keep his
mask on, and we will just proceed.” Defense counsel responded: “I am fine
with that.” Defense counsel clarified he did not have any information about
the third-party threat, and he would be going into cross-examination “blind”
if the court allowed the prosecution to ask B.H. about the alleged threat.
Defense counsel then stated: “I think we all assumed it was due to COVID
and apparently it was something else, and the afterthought was COVID. So I
am okay with him keeping his mask on, move on, and keep going.”
The prosecutor continued to press the court to allow him to ask B.H. “a
couple of questions about him being concerned or afraid for testifying today,”
“without getting into the details.” The court denied the request, telling the
prosecutor, “let’s not get into that issue.” The prosecutor tried again and said
he would only ask “ ‘Is this the only time you have been shot in your life’ type
questions, as opposed to ‘Are you afraid, and that’s why you are not removing
your mask.’ ” Defense counsel cautioned that even that question could
4 Although the trial court had previously denied the People’s motion in
limine to allow testimony regarding Gastelum’s alleged gang affiliation, the
prosecutor argued B.H.’s unanticipated expression of fear opened the door to
that issue.
7
trigger a mistrial because B.H. “obviously wants to say a lot.” The court
again told the prosecutor, “let’s not get into that.”
When proceedings resumed in the presence of the jury, the trial court
told B.H.: “I understand you said earlier that you have some concern.
Normally, that’s not something that I allow. However, given that we are in a
COVID pandemic, I will allow you to keep your mask on.” B.H. remained
masked for the remainder of his testimony.
B. Gastelum Has Waived His Confrontation Claim
The People argue Gastelum has forfeited his right to complain that the
trial court erred in allowing B.H. to testify with his mask on because defense
counsel agreed with the court’s ruling. Courts and parties frequently use the
terms “forfeiture” and “waiver” interchangeably, but they are distinct legal
concepts. A party forfeits the right to challenge a ruling on appeal if it could
have objected in the trial court but did not. (In re S.B. (2004) 32 Cal.4th
1287, 1293.) By contrast, “a waiver is the ‘intentional relinquishment or
abandonment of a known right.’ ” (Id. at p. 1293, fn. 2.) A finding of waiver
requires demonstrating the party knew it possessed an existing right and
intended to relinquish that right. (Lynch v. California Coastal Com. (2017) 3
Cal.5th 470, 475 (Lynch).) On the record before us, we conclude Gastelum
has waived his confrontation claim, rather than forfeited it as the People
have argued.
The People rely on People v. Reynolds (2010) 181 Cal.App.4th 1402,
1408, which held, “[a] party forfeits his or her right to attack error by
implicitly agreeing or acquiescing at trial to the procedure objected to on
appeal.” Reynolds cites Mesecher v. County of San Diego (1992) 9 Cal.App.4th
1677, 1685–1686 (Mesecher), for this proposition. But in Mesecher, this court
explained that “ ‘an appellant may waive his right to attack error by
8
expressly or impliedly agreeing at trial to the ruling or procedure objected to
on appeal.’ ” (Mesecher, at p. 1685, italics added.) The court’s application of
waiver, not forfeiture, was grounded in the recognition that attorneys make
strategic choices during trial. (Id. at p. 1686.) Our adversarial system
affords significant deference to “attorney creativity,” and appellate courts
generally will not second guess counsel’s tactical choices. (Ibid.) But “where
a deliberate trial strategy results in an outcome disappointing to the
advocate, the lawyer may not use that tactical decision as the basis to claim
prejudicial error.” (Ibid.) Such is the case here.
Gastelum’s trial attorney did not fail to object to B.H. wearing a mask.
He promptly objected to B.H. wearing a mask, and did so specifically on the
grounds of Gastelum’s constitutional right of confrontation. He argued it was
“vitally important for the jury and defense to see [B.H.’s] expressions as he is
testifying.” He further asserted Gastelum’s “right to confront under the
constitution” mandated that B.H. remove the mask. Thus, there is no
ambiguity that the defense understood Gastelum’s constitutional right of
confrontation was at issue.
Knowing Gastelum possessed an existing right of confrontation, the
defense subsequently relinquished that right when it acquiesced to the
court’s ruling permitting B.H. to testify with the mask on. “The intention [to
relinquish a known right] may be express, based on the waiving party’s
words, or implied, based on conduct that is ‘ “so inconsistent with an intent to
enforce the right as to induce a reasonable belief that such right has been
relinquished.” ’ ” (Lynch, supra, 3 Cal.5th at p. 475.) Here, the intention was
express.
As defense counsel acknowledged, no one anticipated that B.H. would
say (in front of the jury) that he wanted to wear a mask because he was
9
afraid of retaliation; they “all [had] assumed it was due to COVID.” Thus,
the prosecution had valid grounds to request permission to examine B.H.’s
reasons for refusing the court’s invitation to testify without a mask, in part to
help the jury understand his demeanor on the witness stand. When the court
stated, “at this point, I am going to let him keep his mask on, and we will just
proceed,” defense counsel did not continue to press his objection to the ruling
on the grounds of Gastelum’s right of confrontation. Rather, defense counsel
said: “I am fine with that.” (Italics added.) If not already pellucidly clear,
defense counsel then said: “So I am okay with him keeping his mask on, move
on, and keep going.” (Italics added.)
The decision to abandon Gastelum’s objection to the mask on
confrontation grounds was strategic. The defense objected to the prosecutor’s
request that the People be allowed to inquire about B.H.’s reasons for being
afraid, and specifically about the third-party threat he had allegedly received
at trial. Defense counsel acknowledged “[a]pparently, there has been some
retaliation or some ID issues” and “it looks bad for Mr. Gastelum.” Thus, the
defense made the tactical choice to relinquish further assertion of Gastelum’s
right of confrontation to avoid what might have been a worse outcome—
B.H.’s testimony he was threatened by a third party and that he believed the
threat was related to the case.5 “[W]here a deliberate trial strategy results
in an outcome disappointing to the advocate, the lawyer may not use that
5 And, unlike some constitutional rights, the right to confront a
particular witness is one that counsel has authority to waive for strategic
reasons without the accused’s express consent. (See Taylor v. Illinois (1988)
484 U.S. 400, 418 [recognizing that clients must accept the consequences of
their attorney’s decisions to forgo cross-examination, not put certain
witnesses on the stand, and otherwise manage trial choices because “[t]he
adversary process could not function effectively if every tactical decision
required client approval”].)
10
tactical decision as the basis to claim prejudicial error.” (Mesecher, supra, 9
Cal.App.4th at p. 1686.) As in Mesecher, Gastelum has “ ‘waive[d] his right to
attack error by expressly . . . agreeing at trial to the ruling or procedure
objected to on appeal.’ ” (Id. at p. 1685.)
II.
The Matter Shall Be Remanded for Resentencing Pursuant to Section 1170,
Subdivision (b), as Amended
The trial court selected count 2 (§ 245, subd. (b)) as the principal count
and sentenced Gastelum to the middle term of six years. It also imposed the
middle term of four years for the firearm enhancement (§§ 12022.5, subd. (a)
and 1192.7, subd. (c)(8)), plus three years for the great bodily injury
enhancement (§§ 12022.7, subd. (a) and 1192.7, subd. (c)(8)). The court
sentenced Gastelum to one-third the middle term for eight months on counts
4, possession of a firearm by a prohibited person (§ 29800, subd. (a)), and
count 5, possession of ammunition by a prohibited person (§ 30305, subd. (a)),
but stayed both sentences pursuant to section 654.
At the time the court sentenced Gastelum, section 1170, former
subdivision (b), left it to the sentencing court’s “sound discretion” to select
which of the three possible terms “best serve[d] the interests of justice.”
(§ 1170, former subd. (b), as amended by Stats. 2018, ch. 1001 (Assem. Bill
No. 2942) § 1.) In selecting the middle term for count 2, the court explained
the low term was not appropriate given Gastelum’s three prior felony
convictions and the fact that someone was injured. The court also based its
sentencing determination on Gastelum’s inability to stay in school, maintain
a job, or interact well with others. Although the prosecution argued for the
upper term on count 2, the court acknowledged as mitigating factors that
11
Gastelum was only 25 years old when the incident occurred and had left the
victim’s house before pulling out his gun.
While the present appeal was pending, the Legislature enacted
Assembly Bill 124, which made significant amendments to section 1170,
subdivision (b). (Stats. 2021, ch. 695, § 5.) Effective January 1, 2022, “unless
the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the lower term
if . . . [t]he person is a youth, or was a youth as defined under subdivision (b)
of Section 1016.7 at the time of the commission of the offense.” (§ 1170, subd.
(b)(6).) Section 1016.7 defines a youth as “any person under 26 years of age
on the date the offense was committed.”
On appeal, Gastelum contends the amendments to section 1170,
subdivision (b), implemented by Assembly Bill 124 apply retroactively to him.
He requests that we remand to the trial court for resentencing under the new
law. The People correctly concede the amendments are retroactive under In
re Estrada (1965) 63 Cal.2d 740. Absent evidence to the contrary, we
presume under the Estrada rule that statutes that ameliorate the
punishment for criminal conduct apply retroactively to all defendants whose
judgments are not final on the statute’s operative date. (People v.
Brown (2012) 54 Cal.4th 314, 323.) This includes statutes that reduce the
possible punishment for a class of criminal defendants. (People v.
Frahs (2020) 9 Cal.5th 618, 631–632.) Assembly Bill 124 lowered the default
term courts should consider when sentencing youthful offenders, thus
rendering it ameliorative in nature. There also is no indication the
Legislature intended the recent amendments to section 1170 to apply only
prospectively. We thus infer under the Estrada rule that the Legislature
12
intended the amendments to apply retroactively to all nonfinal convictions on
appeal.
Even though the trial court considered Gastelum’s youth as well as
other mitigating and aggravating factors, the court stated expressly that it
was not considering the lower term. Accordingly, the trial court may weigh
these factors differently in exercising its discretion on remand. Thus, the
People’s concession that Gastelum is entitled to remand for the court to
exercise its discretion under amended section 1170, subdivision (b), is also
proper. We therefore remand the matter for resentencing consistent with the
current version of section 1170, subdivision (b). We express no views on the
outcome of resentencing.
DISPOSITION
Gastelum’s sentence is vacated. The matter is remanded to the trial
court for resentencing. The judgment is affirmed in all other respects.
DO, J.
WE CONCUR:
IRION, Acting P. J.
DATO, J.
13 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482119/ | Case: 22-40213 Document: 00516535646 Page: 1 Date Filed: 11/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 22-40213 November 7, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Santos Salazar,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:20-CR-786-5
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
The attorney appointed to represent Santos Salazar has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Salazar has filed a response. The record is not sufficiently developed to allow
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-40213 Document: 00516535646 Page: 2 Date Filed: 11/07/2022
No. 22-40213
us to make a fair evaluation of Salazar’s claims of ineffective assistance of
counsel; we therefore decline to consider the claims without prejudice to
collateral review. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
We have reviewed counsel’s brief and the relevant portions of the
record reflected therein, as well as Salazar’s response. We concur with
counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review. Accordingly, the motion for leave to withdraw is
GRANTED, counsel is excused from further responsibilities herein, and
the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485332/ | OPINION OF THE COURT
MORROW, Chief Justice.
Plaintiff is the senior matai of the Seui Family of Nuuuli. Defendant is a lesser matai in the same family. The guest house of the Seui Family stands on the landward side of the main thoroughfare of the Village of Nuuuli. The defendant Mata’afa has begun the construction of a two-story palagi house on Seui Family land approximately 50 feet landward of the family guest house. The defendant has erected the forms into which he plans to pour cement or concrete to make .the posts upon which he plans to build *335the second story of the house. The forms are approximately seven feet in height. If the house is completed as planned, it will be higher than the Seui Family’s guest house.
Prior to the hearing the Court viewed the land on which the guest house stands and on which the defendant’s house is being erected. Both parties were present at the viewing.
Seui, the senior matai, instituted this action praying for an order requiring the defendant “to remove his house from the plaintiff’s land.” However, at the hearing it was apparent that his real object was to get an order requiring the defendant, if he built the house, to build it in such a way that it would be lower than the Seui Family guest house.
There is a custom in Samoa to the effect that if a family member builds his house near the family guest house he must construct it so that it will be lower than the guest house. However, this custom does not prevail if the family member’s house is built out in the bush and the guest house is in the village, nor is it applicable where the house is at a substantial distance from the guest house. Another and somewhat similar custom is that a chief’s rank in the village is indicated by the number of ring steps up to the floor of his guest house and the number of beams under the roof. The more steps and the more beams the higher his rank.
The writer of this opinion has been in American Samoa for many years and is familiar with Samoan customs. The two Associate Judges are Samoans. The Court as a whole is familiar with Samoan customs and takes judicial notice of the custom of the Samoans to the effect that a member of a Samoan family, if he erects his house near the family guest house, must construct it in such a way that it will be lower than the family guest house. The customs of the Samoans are matters of common knowledge in *336Samoa, and courts may properly take judicial notice of customs which are matters of common knowledge. 31 Corpus Juris Secundum 574.
The Samoan people are proud of their customs and they desire to preserve them. To .this end Sec. 1.0102 of the Code of American Samoa, 1961 Ed., provides that “The customs of the Samoan people not in conflict with the laws of American Samoa or the laws of the United States concerning American Samoa shall be preserved.” There is no law of American Samoa or of the United States concerning American Samoa abolishing the custom of having a family member’s house built near the family guest house lower than the guest house.
It follows, therefore, that under the circumstances in this case, considering the nearness of the defendant’s house under construction to the family guest house, that the Court should order the defendant, if he should elect to complete his house to construct it in such a way that when constructed it will be lower than the Seui Family guest house approximately 50 feet in front of it.
DECREE
Accordingly, Mata’afa is hereby ORDERED not to contract his palagi house at its present location so that when completed it will be higher than the Seui Family guest house; also, if Mata’afa elects to continue the erection of his palagi house at its present location, he shall construct it in such a way that when built it will be lower than the Seui Family’s guest house approximately 50 feet in front of it.
Costs in the amount of $12.50 are hereby assessed against Mata’afa, the same to be paid within 20 days.
Note: Seui told the Court that he would be willing to assign a piece of other Seui family land to defendant Mata’afa on which *337he could construct a full two-story palagi house, and we think (although this paragraph is not a part of this decision) that he should do that, particularly in view of the fact that Mata’afa has a very large family to take care of including several children, their wives, and his grandchildren. Mata’afa renders service to Seui and Seui, as the senior matai, is under an obligation to see that Mata’afa has proper housing for himself and his family. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485333/ | OPINION OF THE COURT
MORROW, Chief Justice.
The plaintiffs filed a petition seeking the eviction of the defendants from a part of the land Vaiula in the Village of Ofu and to require them to put it in the same condition it was prior to the alleged construction of a certain palagi house thereon.
It appeared from the evidence that a pastor’s house is being constructed on a portion of the land Vaiula by the Village of Ofu, the house to be occupied by the defendant Pastor Pita.
The plaintiffs claim that Vaiula was divided by plaintiff Gala’s father, Muasau Peni, upon the advice of his father Muasau Taatu, the division being among four clans of the Vaiula Family. There was testimony for the defendants that there was no such division. Whether, there *339was any Such division or not is immaterial as far as the decision of this case is concerned. We are satisfied from the evidence that the land on which the pastor’s house is being constructed was given to the L.M.S. Church in Ofu before the Government was established in 1900 by Muasau Taatu, the grandfather of Oala and the father of Muasau Peni, or by Muasau Taatu and the Lei together, for the residence of the pastor of the L.M.S. Church in Ofu, the land to revert to the donor or donors or their heirs if and when it should cease to be used as the residence of the pastor of said church. The plaintiffs’ evidence was to the effect that it was Gala’s father Muasau Peni who gave the land for the pastor’s house about 1912. However, as we view the case, it makes no difference whether the land was given by Muasau Peni about 1912 or Muasau Taatu himself or by Muasau Taatu and the Lei before 1900. The result is the same. We might point out the High Talking Chief Lei testified that the Lei contributed part of the land for the pastor’s house, the remainder being given by the Muasau. The Lei is not complaining. He favors the construction as planned. The vital question in this case is whether the pastor’s house is being constructed within the area given.
The plaintiffs complain that the long palagi house for the pastor is being constructed about eight feet longer and seven feet wider than the house it replaces. They complain also that the sleeping house already built for the pastor has slightly different dimensions from those approved by the Governor, as shown on the blue print for the house. See Sec. 18.0101 of the Code of 1961.
The evidence clearly established that the L.M.S. Church in Ofu was built on ground given by the Muasau many years before the establishment of the Government. The understanding being that if and when the land should cease to be used for a church, it would revert to the donor *340or his heirs. This is what is known in the law as the grant of a determinable fee.
The evidence clearly established that the pastor’s house is being constructed within the area given by either Muasau Peni, as claimed by the' plaintiffs, or by Muasau Taatu and the Lei, as claimed by .the defendants. It makes no difference that the long house for the pastor, when completed, will be approximately eight feet longer and seven feet wider than the house it replaces, so long as the new house is within the area given for the pastor’s house, as the weight of the evidence clearly establishes that it is. Lei, Muasau, and Misa so testified, and we believe their testimony.
That the sleeping house may have been built with slightly different dimensions than those approved by the Governor, as shown on the blue print for it, is immaterial as far as the plaintiffs are concerned, it being built within the area given for the pastor’s house. While the Government may complain about the deviation from the dimensions, the plaintiffs cannot so long as the sleeping house is within the area given for the pastor’s house, as it is. See in .this connection Sec. 17.0106 of the Code of 1961.
The fact that the Village Council may have approved of the buildings being constructed as they are is also immaterial as far as the plaintiffs are concerned. And the fact that the village may be furnishing money and labor for their construction is also no concern of the plaintiffs, the buildings constructed and under construction for the pastor being within the area given many years ago by the then Muasau, or the Muasau and Lei together, as the case may have been.
It is also immaterial that the name of the church has been changed from L.M.S. to Congregational Christian Church in Samoa. The congregation is the same and their *341religion is the same as it was before the change of name. Merely changing a man’s name does not make him a different man. And changing the name of a church does not make it a different church.
There is no ground revealed in the evidence warranting an order requiring the eviction of the defendants and the restoration of the land involved to the condition it was before the “palagi house” complained about by the plaintiffs was begun. The pastor’s house is being constructed within the area given for such house. That is the decisive fact in this case. The plaintiffs’ petition should be dismissed.
ORDER
Accordingly, it is ORDERED that the plaintiffs’ petition be and the same is hereby dismissed.
Costs in the sum of $18.50 are hereby assessed against Gala F. Muasau' and Faufano F. Muasau, each of them to pay $9.25 thereof within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485334/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on to be heard the above entitled and numbered cause, wherein plaintiff, Sianava R. S. Tago (Acting for and in behalf of the Sevaaetasi Family of the Village of Pago Pago) appeared personally on his own behalf; and defendant, Leota of Pago Pago, appeared personally and by and through his counsel, Logo.
Plaintiff filed a petition against defendant on April 24, 1963 wherein he asks the Court for four (4) remedies, as follows:
“(1) Petition for removal of part or parts of Leota European houses now on and trespassing Sevaaetasi Family land; and
“(2) To stop Leota from extending his house on said Sevaaetasi Family land; and
“(3) Restraining the Leota Family from further construction on the Sevaaetasi Family land pending a final decision of the Court; said construction of a new European house of the Leota Family land is now started; and
“(4) To establish an easement (right of way) for members of the said Sevaaetasi Family in order for them to go to and from the Public Highway.”
On the morning of the day of the trial, before the actual hearing, the three judges, members of this Court, visited the site of the alleged dispute, in the presence of both parties to this suit. The Court had an opportunity to view the land and then endeavored .to ascertain the dividing line between Sevaaetasi land and Leota land. In this regard, the *344Court tried to locate certain monuments set out in the plat of a survey done in 1929, which survey was made as a result of a suit between the Leota and Sevaaetasi families in Case No. 1-1929. These monuments were located to the satisfaction of the Court.
The testimony and the evidence presented by the parties at the trial was contradictory, the main contention of the plaintiff being that part of Leota’s new house was located on Sevaaetasi land called Leiliili, and the defendant insisting, just as strongly, that his new house was wholly situated within Leota land and in no way encroached upon Sevaaetasi land.
Among the testimony and evidence presented by plaintiff was the fact that he had filed a complaint against Leota in 1952 for building a house (not the house the subject of the present dispute but another one) partly on Sevaaetasi land. Plaintiff claimed that on that occasion the Court had the 1929 survey retraced and that the monuments shown to this Court at the site of dispute were held to mark the boundary line between the Sevaaetasi land and Leota land. This plat of the survey made in 1929, as corrected by the Court at that time, which is still in the papers of Case No. 1-1929, was referred to at the present trial and used by both parties to the suit. The judgment rendered by the Court in 1929 was also used and referred to by both parties.
Plaintiff testified that at the 1952 hearing the Court held that part of Leota’s house was on Sevaaetasi land, and that the Court asked plaintiff that if he, plaintiff, wanted it done, the Court could order that part of Leota’s house which was on Sevaaetasi land be torn down. However, the plaintiff further testified that he, in open court, had stated that he did not want the part of Leota’s house which was on Sevaaetasi land to be torn down and that he, plaintiff, would settle the matter with Leota. Plaintiff continued that he had allowed Leota to leave said house there from 1952 *345until Leota tore it down and had started to build his present new house. At no time during all those eleven (11) years was there any action or effort on the part of the plaintiff to revoke the permit or license of Leota to leave his house partly on Sevaaetasi land. After Leota tore down the house he built in 1952, he put up a concrete foundation and columns about IV2 to 2 feet east of where the previous house was or toward the highway, with the result that Leota’s new house appears to encroach between 1% to 2 feet less than did the 1952 house on Sevaaetasi land.
There is no question in the Court’s mind that Leota’s present new house encroaches partly on Sevaaetasi land. Plaintiff claims that said house encroaches between 9 and 10 feet into Sevaaetasi land. The Court, after viewing the site, is of the opinion that if a straight line is drawn from north to south connecting the two monuments setting out the boundary of the Sevaaetasi and Leota land in the 1929 survey, part of Leota’s new house would encroach into Sevaaetasi land a maximum of from 4 to 5 feet. The measurement was not taken exactly and no exact measure was produced by either of the parties in Court, but this is not too important since the exact measurement can be ascertained at any time by measuring from a straight line connecting the two monuments referred to in the survey.
We now come to the point as to whether that part of Leota’s new house which is encroaching on Sevaaetasi land should be removed or torn down as prayed for in plaintiff’s petition. This Court is of the opinion that that part of Leota’s new house situated on Sevaaetasi land should not be removed. The Court heard testimony in connection with a 1952 court dispute involving the same parties and the same land. Neither the transcript nor the judgment of the 1952 hearing were formally presented or admitted into evidence before this Court by either of the two *346parties. The plaintiff furnished most of the information in this connection, and he in open court testified .that he had allowed Leota to let the house stand even though it encroached partly on Sevaaetasi land. The Court believes plaintiff’s testimony and considers said action in 1952 by plaintiff as a license from plaintiff to defendant to allow Leota’s house to encroach partly on Sevaaetasi land. We believe that, following the agreement between plaintiff and defendant, Leota occupied that portion of Sevaaetasi land on which his house stood as a licensee.
33 Am.Jur., Licenses, Sec. 91 in part reads as follows:
“It (a license) is an authority to do a lawful act, which, without it, would be unlawful, and while it remains unrevoked is a justification for the acts which it authorizes to be done. According to this principle a bare parol license, while unrevoked, even though without consideration, will furnish a justification for an act which would otherwise be a trespass. It is not material that a mere license is or is not in writing, nor is it essential that it be on a consideration. . . .”
Section 92 partly reads as follows:
A license may arise by implication; and a parol license may result from circumstances or the ratification of previous acts, as well as from permission expressly given. . .
It appears to this Court that Leota relied on this license and lived in said house unmolested for more than eleven (11) years before he started building the present new house. There is no record or testimony or evidence to the effect that the license granted defendant by plaintiff in 1952 was ever revoked before the institution of this action on April 24, 1963. By that time defendant had already started his present new house, which western boundary as we said earlier rests from Vh to 2 feet less on Sevaaetasi land than did the house situated there in 1952 and torn down by defendant to build his new house. We are *347of the opinion that in laying the foundations for his new house defendant relied on the license he had received from plaintiff in 1952, which, not having been revoked, was still effective. If instead of tearing down the old house defendant had this year decided to build another story on top of the house he built there in 1952 and which encroached on Sevaaetasi land from 1 lh to 2 feet more than the present house, and which plaintiff allowed to remain partly on Sevaaetasi land, there would be no question that defendant could have built that second story in reliance of the 1952 license, unless the original license contained any limitations, which it did not. While it may be said that no parol license involving land should be irrevocable, it is the opinion of this Court that the defendant, having relied upon the previous license from the plaintiff and having expended monies in the tearing down of his old house and the construction of his new one as a result of such reliance, should be allowed, and the defendant is hereby ordered by the Court to be allowed, to exercise said license and live in his new house for a reasonable period of time.
We come now to plaintiff’s second point: “(2) To stop Leota from extending his house on said Sevaatasi [sic] Family land.” As we have said before, .to the extent that Leota’s new house overlaps beyond a straight line from north to south connecting the two monuments, Leota’s new house is encroaching on land which is the property of the Sevaaetasi Family. Any further extension of this house into Sevaaetasi land is hereby forbidden, and the Court hereby orders defendant that no further extension of the house now under construction shall be made into Sevaaetasi land.
Plaintiff’s point number (3) in the petition has already been covered elsewhere in this decision.
*348Plaintiff’s point No. (4) reads: “To establish an easement (right of way) for members of the said Sevaaetasi Family in order for them to go to and from the public highway.” After considering the testimony and the evidence, the Court, without making a decision as to where the way of ingress and egress between Sevaaetasi land and the public highway lay in the past, hereby orders and decrees that plaintiff and members of the Sevaaetasi family are entitled to have a right of ingress and egress from the Sevaaetasi land out into the highway and that such means shall be by way of a path running between the south side of Leota’s new house and Pila Patu’s branch store situated between the stream and Leota’s new house.
Plaintiff contended and argued that the overall height of defendant’s new house was such that it would block the passage of air, thereby jeopardizing the health and life of the members of the Sevaaetasi Family. The Court is convinced that .there is ample space between Sevaaetasi Family houses and defendant’s new house and plenty of room for the circulation of air entering the area from all directions, and that the height of Leota’s new house in no way jeopardizes the life or health of the Sevaaetasi Family.
In conclusion, after considering the plaintiff’s petition and weighing all the testimony and the evidence, it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That a certain portion of defendant’s new house is presently encroaching upon Sevaaetasi Family land.
2. That defendant obtained a license from plaintiff in 1952 to allow defendant to have his house partly encroach upon Sevaaetasi land. That defendant relied upon said license when he tore down his old house after 11 years and started to build his present new house on or about April, *3491963. That that part of defendant’s new house encroaching upon Sevaaetasi land need not be presently removed, but allowed to remain for a reasonable time or until defendant tears down his present new house, whichever occurs first.
3. That defendant allow the plaintiff and the people from the Sevaaetasi Family a right of ingress and egress to allow them to get from their land out to the public highway. That said right-of-way shall be in the form of a path of at least four (4) feet wide to be situated between the south end of defendant’s new house and Pila Patu’s branch store, which is situated between the stream and defendant’s new house. ■
4. That the present height of defendant’s new house is not prejudicial to the plaintiff to the extent that said height jeopardizes the health or life of members of Sevaaetasi family.
5. Court costs in the amount of $25.00 to be paid by defendant, Leota, within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485335/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on to be heard the above entitled and numbered cause, wherein Mrs. Lafaga S. Beaver as representative of plaintiffs Nafanua Soliai and sisters and brothers appeared personally and by and through their counsel, Tuia; and defendant, Apelu Leleua, appeared personally and by and through his counsel, Manuma.
*351Plaintiffs filed a petition against defendant asking for defendant’s eviction from plaintiffs’ land Nu’umau, a parcel of land in the Village of Pago Pago.
On July 10, 1963, the three judges, members of this Court visited the site of the property concerned, in the presence of both parties to this suit.
The plaintiffs, children of Va (now deceased) and Soliai, claim the land Nu’umau as their individually-owned freehold land, the names of all the plaintiffs being as follows: 1. Nafanua (f), 2. Lefaga (f), 3. Noanoa (f), 4. Faiaso (f), 5. Talaitupu (f), 6. Toloai (m) and 7. Po’u (m).
The testimony and the evidence of plaintiffs was to the effect that the land in question was originally given to Va and her children, plaintiffs herein. The evidence showed that around the year 1913 or 1914 there was a death in the Te’o family; that three matais, members of the Te’o family, went to Soliai to get him to go and see Pi’o, Va’s brother, and Soliai’s brother-in-law, to make certain contributions to the funeral. Soliai refused to go and see Pi’o alone and invited the three matais to go .themselves and see Pi’o. The three matais, Te’o (Falepopo), the present Te’o, Tauvaga and Faagata, together with Soliai, went to see Pi’o and, according to the testimony, Pi’o agreed to make certain contributions to the funeral if the land Nu’umau were given by the Te’o family matais to his sister Va and her children. According to the plaintiffs’ testimony, the three matais agreed to make such conveyance to Va and her children in consideration for Pi’o furnishing the items for the funeral, and that Te’o had spoken for the group. Te’o admitted having gone with Soliai and the two others (now deceased) to see Pi’o to get him to contribute something for the funeral. After the funeral Soliai went to see Te’o about honoring the promise made to Pi’o and asked him to make the conveyance to Va and her children. The testimony indicated .that Te’o kept putting Soliai off for several months *352until Soliai told Te’o that he was going to bring a surveyor to survey the land Nu’umau and register it in the name of Va and her children, and Te’o refused to be present when the surveyor came.
The plaintiffs then introduced a certain plat of a survey of the land Nu’umau made on January 21, 1914, said instrument being found and recorded in Volume I, Page 124, Native Titles, into evidence, without any objection on the part of the defendant or his counsel after examining said instrument. Under questioning by counsel, two witnesses, Soliai and Mrs. Beaver, made a mark on the survey where they claimed defendant’s house was situated and where defendant is presently living. They both testified they were positive that defendant’s house was within the plat of the survey. The survey itself gives the name of the land as Nu’umau. Apart from setting out the metes and bounds of the surveyed land, the plat has the following information: “Name: Nu’umau; Village: Pago Pago; Surveyed by: A. Debelle; Date: Jan. 21, 1914; Area: l8/io Acres; Scale: 1" - 100'.” The top left margin of Page 124 of Volume I, Native Titles reads as follows: “Folio 426 Registrars Journal.” Within margin, starting at the top of the page, “Land — ‘Nu’umau at Pago Pago, owner Va, wife of Pine, and her children.” Immediately following is the aforementioned plat of the land Nu’umau, which is pasted to the page. Below the plat is written the following: “I, A. Stronach, Registrar of Titles for the United States Naval Station, Tutuila, do hereby certify that the above plan is a true, full & correct copy of the plan of land at Pago Pago called ‘Nu’umau’ claimed by Va and her children, as filed in this office for registration & that notice of said registration was posted for 60 days, & there being no objection filed, the same is hereby registered. Dated at Fagatogo this 29th day of May 1914. /s/ A. Stronach, Registrar of Titles.” On the margin at the bottom of the page appears the *353following writing in red ink: “Reed & filed for registration May 28th & registered May 29th at 10:30 o’clock a.m. /s/ A. Stronach, Registrar.”
Plaintiffs’ evidence further showed that Soliai, together with Ya and her children, plaintiffs herein, lived on the land known as Nu’umau from 40 to 50 years, and left Nu’umau only when Soliai was made a matai in Nu’uuli on or about 1925, and that from two to seven of Soliai’s children were born in Nu’umau. The evidence further indicated that previous to the alleged promise to convey Nu’umau to Va and her children and previous to the survey in 1914 Nu’umau was communal land of the Te’o family. The evidence further showed that Soliai and family had a palagi style house while living in Nu’umau, and that Soliai sold said house upon moving to Nu’uuli. Plaintiffs’ evidence further showed that defendant, Apelu, never asked permission of plaintiffs to live on said land, and that in 1946, upon learning of Apelu’s presence on the land, plaintiffs went to see defendant and advised him that the land he was living on belonged to plaintiffs and that he, defendant, should get out. Defendant told plaintiffs to talk to Te’o. Testimony indicates that Te’o asked plaintiffs to allow Apelu to remain in Nu’umau so that he, Apelu, could render services to Te’o. Plaintiffs refused to grant Te’o’s request and told him that if he wanted Apelu to render services to him he could assign him a piece of Te’o communal family land outside of Nu’umau. The evidence further showed that in 1952 or 1953 plaintiffs again told Apelu to get off the land. After Apelu refused, plaintiffs went to see the then Attorney General, Peter Coleman, who assured them that he would notify Apelu to vacate the land. Nothing further came from this complaint. As we stated before, two of plaintiffs’ witnesses, Soliai and Mrs. Beaver, placed defendant’s house in approximately the same area within the plat of the registered survey. Counsel for defendant de*354dined to cross-examine plaintiffs’ witness, Mrs. Beaver. The evidence further showed that Va, mother of plaintiffs, died on May 16,1955.
Defendant Apelu testified that he started living in his present house at the place in question in 1946 with Te’o’s permission, and that he built the house later, probably in 1947. Apelu testified that Mrs. Beaver and one of her sisters told him on two occasions that the land belonged to plaintiffs and that he should move out. Under cross-examination, Apelu stated he would move out if Te’o asked him to do so. Apelu also testified Te’o had adopted him as his legal son after Mrs. Beaver’s visit in December, 1952.
Te’o, 87 years old, took the stand as a defendant’s witness. He testified he has been a matai since 1906. He stated that the land in question, Nu’umau, was surveyed by him and his family in 1912 and that said survey was filed with the Registrar of Titles. He offered no evidence or asked for any Registrar of Titles’ documents to substantiate his claim. Te’o further claimed that Apelu’s house was situated in Togaseasea and not in Nu’umau. He said Nu’umau land had been sold to the L.D.S. (Mormon Church). Te’o claimed he had a copy of a map of Nu’umau which he said he filed in 1912. Defendant’s counsel, Manuma, claimed he had a copy of the map in his possession but refused to let Te’o identify it or introduce it into evidence. Te’o claimed plaintiffs never went to see him about getting Apelu out, even though the testimony of Soliai, Mrs. Beaver and Apelu is that Te’o was approached. Te’o said there was a meeting but not about Nu’umau or Apelu but about something else. On one occasion Te’o admitted he had gone to see Pi’o, together with Tauvaga, Faagata and Soliai, at the time of the alleged funeral. Te’o claimed at first that he knew nothing of the registration of the land Nu’umau in 1914 and then he testified he was in Upolu at the time of the registration and that he filed an objection. Te’o further stated that as a *355result of said objection there had been a court case on the land Nu’umau in 1919 or 1920. The records do not reflect that there was either an objection to or a court case resulting from the registration of the Nu’umau survey in 1914 by Va and her children.
There was no evidence to substantiate the fact that the land in question has been used as communal land of the Te’o family since the survey and registration in 1914 or after Ya and her children left Nu’umau to join Soliai as a matai in Nu’uuli. The only person from the Te’o family that has lived there is the defendant, Apelu, to which presence plaintiffs have objected on several occasions, and Apelu was not a member of the Te’o family until he was legally adopted by Te’o in 1952.
In his closing argument counsel for plaintiffs argued that the petition for eviction was proper and legal; that the land Nu’umau was the freehold, individually-owned land, of Va and her children; that said title or conveyance grew out of the promise of Te’o and the other matais to convey said land to Va and her children in return for Pi’o, Va’s brother, furnishing certain necessities for a funeral; that said conveyance was legal under the existing Samoan customs at the time; that upon said promise to convey said land, Nu’umau changed from communal land of the Te’o family to freehold individually-owned land of Ya and her children; that based on the promise to convey the land, a survey of the land was made and registered in the name of Va and her children as shown on page 124 of Volume I of Native Titles; that notice of said registration was posted for 60 days and that no objection whatsoever was filed upon said registration; that both Soliai and Lafaga (Mrs. Beaver) accurately identified and spotted the place in the survey where defendant’s house is situated, and that defendant’s house is situated within Nu’umau.
*356Manuma, counsel for defendant, Apelu, argued that Nu’umau is the communal property of the Te’o family; that Apelu occupied the land with Te’o’s permission; that the survey of 1914 was made without authority from the Te’o family. Counsel for defendant stated that there was in fact no case filed in court after the 1914 registration of the survey by Va and her children; that his (Manuma’s) father (Soliai’s brother), wrote Te’o at Upolu to return when notice of the land registration was posted but that there was no objection filed.
After viewing the land in question and after considering the testimony and the evidence presented at the trial, it is the unanimous opinion of the Court that the parcel of land called Nu’umau in the Village of Pago Pago, as represented by the survey filed on Page 124 of Volume I, Native Titles, is the property of the seven (7) plaintiffs in this action, jointly; that following the registration on May 29, 1914, the land Nu’umau was the property of Va and her children; that upon the death of Va, her share passed to her children. That as a result of the conveyance and subsequent registration for the benefit of Va and her children, the parcel of land known as Nu’umau is the joint property of the plaintiffs in fee simple. The Court is further of the opinion, being satisfied from the evidence, that defendant’s house is presently situated within the boundaries of the land Nu’umau as represented by the plat of the survey registered by Va and her children in 1914, and that plaintiffs’ action for eviction against defendant, Apelu, has been proven.
In conclusion, it is the unanimous decision of the Court, and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That the land known as Nu’umau in the Village of Pago Pago, as surveyed and recorded on Page 124, Volume *357I,Native Titles, is the joint freehold property of the plaintiffs.
2. That the house of defendant, Apelu Leleua, is presently situated within the boundaries of the land Nu’umau which belongs to the plaintiffs, and that defendant, Apelu, is on such land wrongfully.
3. That plaintiffs’ request for eviction of defendant be, and the same is hereby, granted. That defendant, Apelu Leleua, is hereby ordered to remove his house from said land and out of Nu’umau land within six (6) months from the date of the filing of this decision.
Court costs in the amount of fifteen ($15.00) dollars to be paid by defendant, Apelu Leleua, within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485336/ | *358OPINION OF THE COURT
MORROW, Chief Justice.
Plaintiff filed his petition against the defendants praying for a mandatory injunction and eviction of the defendants from certain land in the Village of Fagatogo. All parties appeared at the hearing and participated therein except Malia, who was in Hawaii when the hearing was had. The plaintiff dismissed his petition without prejudice with respect to Malia, and she ceased to be a party in the case.
Plaintiff Túfele claims that he himself and other heirs of Túfele Sililauga, who died in 1923, and his sister Malamaisaua, who died in 1915, are the owners of the land involved in this case. Defendants Lutu and Afoa claim that the land is communal property of the Lutu-Afoa-Tupua-Taesali Family.
Without doubt this land was the property of the Lutu-Afoa-Tupua-Taesali Family when Túfele Sililauga came from Manua a few years after the Government was established in 1900 to serve in the Fita Fita Guard and Band. When he came he had no place in Tutuila to live, and the Lutu people took him and some of his aiga from Manua in to live with them on this land. Sometime after that Túfele Sililauga built a house on the land for himself and his aiga to use so long as he should be in the Fita Fita Guard and Band. When he completed his service therein, he returned to Manua.
In 1910 Túfele S. had some land in Fagatogo registered which plaintiff Túfele claims to be the land involved in this case, the registration being recorded in Vol. 1, Native Titles, pp. 163-164. Plaintiff Túfele also claims under a deed from Afoa and Mailo.
The point of beginning in the survey, which was made in 1908 and which accompanied the registration, is an orange tree. It is the only monument indicated on the survey. The *359orange tree is no longer in existence, and it is not known exactly where it was located.
The survey itself is grossly inaccurate and it does not close. In other words, it is just a crooked line. The total of the departures to the east and total to the west differ by 17 feet while the total of the latitudes north and the total south differ by eight feet. The survey shows the area as 42/ioo of an acre. With such a small area, the error is very substantial.
A resurvey was made in 1963 by Tuaolo, a licensed surveyor. However, an accurate retracing of an inaccurate survey would necessarily be inaccurate. In other words, an accurate retracing of a survey that does not close would also not close. However in this case, the resurvey must of necessity be only an approximation since the starting point could not be located, the orange tree having disappeared long ago.
The resurvey shows that part of defendant Lutu’s house is inside it; also that a part of defendant Afoa Tupuola’s house (it is occupied by his son upon his authority) is likewise inside the resurvey.
We are convinced from the evidence that Túfele owns some land within the resurvey. However, it is impossible upon the evidence presented by Túfele to determine just what land inside the resurvey is Túfele land. This is because of the gross inaccuracy of the original survey, which did not close and from which no monument (as before stated, the orange .tree, the only one mentioned in the original survey, is no longer in existence) can be located.
However, if it be conceded for Tufele’s benefit that if Túfele ever did own the land on which part of Lutu’s house stands inside the resurvey, he has, in our view of the weight of the evidence, lost that part through adverse possession by Lutu and Lutu’s predecessors in title for 20 years. Lutu put up the first story of his house in 1947, claiming the *360land on which it was erected as Lutu-Afoa-Tupua-Taesali communal land. Túfele, according to his own testimony, made no complaint to Lutu until 1957 after Lutu had added a second story. Lutu’s present house has stood on the land for 17 years. There was testimony to the effect that the Lutu people had had three oblong houses (one at a time and in succession) on this spot for many years prior to 1947 when the last oblong house was torn down by Lutu and the first story of his present house was put up. Lutu testified that he was 55 years old and that the Lutu people had had a house (not the same house but three oblong houses, one following the other) on .the spot where his present house is ever since he got old enough to know things. Lutu put in bananas and taro on some of the land without objection by Túfele.
We believe from the testimony that the Lutu and his predecessors in title had been in the actual, open, notorious, hostile and exclusive possession of that part of the land inside the resurvey on which part of Lutu’s house stands for much more than 20 years prior to the time Túfele instituted this action on Sept. 5, 1962, and that such part is now the communal property of the Lutu-Afoa-Tupua-Taesali Family. Sec. 10.0115 of the American Samoa Code, 1961, provides that:
“Actual, open, notorious, hostile, exclusive, and continuous occupancy of real estate for the period prescribed by law as sufficient to bar an action for the recovery of real property confers a title thereto by adverse possession, which is sufficient against all. . . .”
By Sec. 3.1101(4) of the Code of 1961, actions for the recovery of real property are barred after 20 years.
Lutu is a chief and the Lutu in .the Lutu-Afoa-Tupua-Taesali Family.
With respect to defendant Afoa Tupuola’s house, a part *361of which is on land included in the resürvey, we believe the weight of evidence is to the effect that Afoa Tupuola has been in the actual, open, notorious, hostile, exclusive and continuous occupancy of that part of the disputed land for more than 20 years preceding the institution of the present action by Túfele; and if that part of the land ever was Túfele land, title thereto has passed to Afoa’s family through adverse possession. According to his testimony, Afoa Tupuola had a house on the place where his present house is located for 25 years before his present house was built. Túfele made no complaint that the old house was on his land, and he made no complaint of any kind until the construction of the new house was begun a year or two ago. Afoa Tupuola disregarded the complaint and continued building the house, telling Túfele that the land was his. Afoa Tupuola gave permission to the village to put up a latrine on the disputed land, and it was he who had the latrine taken down.
It is not necessary for us to make any determination of the ownership of the part of the land involved on which Malia’s house stands, since Túfele dismissed his petition with respect to her without prejudice to further action, Malia not being in court at the time of the hearing. Lutu admitted in open court that Malia put her house up on his authority.
What we are deciding is that that part of Lutu’s house inside the resurvey and that that part of Afoa Tupuola’s house likewise inside the resurvey are on land belonging to the Lutu-Afoa-Tupua-Taesali Family, and that we should not order the eviction of Lutu and Afoa from their respective houses. We are making no decision as to the ownership of the land inside the resurvey except those parts occupied by parts of Lutu’s and Afoa’s houses respectively; It is *362not necessary for us to do so. However, while it is not neces¿ sary for us to say so, we do believe from the evidence that the Túfele people do have some land within the resurvey but not those parts on which portions of the Lutu house and Afoa Tupuola’s house stand.
However, it follows from what we have said that we should not have Lutu and Afoa Tupuola evicted from their respective houses as asked in the plaintiff’s petition.
ORDER
Accordingly, the plaintiff’s petition is hereby dismissed with respect to defendants Lutu Simaile and Afoa Tupuola.
Costs in the sum of $44.75 are hereby assessed against Túfele, the same to be paid within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485338/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on to be heard the above entitled and numbered cause wherein plaintiff, Sianava R. S. Tago (Acting for and in behalf of the Sevaaetasi Family) appeared per*370sonally; and defendants appeared personally and by and through their counsel, Leota.
Plaintiff brought this action seeking the removal of part or parts of defendants’ house encroaching upon Sevaaetasi Family land. Plaintiff based his petition on two grounds: (1) Plaintiff claims that any part of the house of defendants which extends beyond a straight line connecting the two monuments marking the boundary line between Leota Family land and Sevaaetasi Family land is encroaching on Sevaaetasi Family land; (2) Plaintiff asserts his right to a remedy in an Agreement entered into between plaintiff and defendants on April 2, 1957, which instrument was duly recorded in Volume 4, Miscellaneous, Page 42, Records of the High Court of American Samoa, the original of which Agreement having been introduced into evidence by plaintiff as Exhibit No. 1, without objection from defendants or their counsel.
The Agreement recites that defendants are the true owners of a European house (38' x 40') which is located in Pago Pago. It admits that part of said house is located on Sevaaetasi Family land and that the other part of said house is situated on Leota Family land, adjoining the said Sevaaetasi Family land. In said instrument plaintiff agrees to allow the part of said house situated on Sevaaetasi land to be left there for a period of five (5) years without payment of any rent by the defendants to the plaintiff. In turn, defendants agree that at the termination of the five (5) year period, they (defendants) will remove said part of their house standing on Sevaaetasi land. The Agreement is signed by plaintiff, representing the Sevaaetasi Family, and by the defendants, Ala and Aitulagi. The Clerk of the High Court and the Deputy Clerk of the High Court affixed their signatures as witnesses to said Agreement. It was brought out at .the trial that the Agreement was translated or interpreted from the English language into the Samoan *371language by the official court interpreter, Punefu, in the presence of all those signing the Agreement.
The evidence indicated that the five-year term set out in the Agreement ended on April 2, 1962. The evidence further showed that since April, 1962 plaintiff had on several occasions approached defendants and asked them to remove that part of their house which encroached on Sevaaetasi land, and that defendants failed to honor the Agreement of April 1957 by removing said part of their house from Sevaaetasi land, and that defendants still refused up to the time when this action was filed on April 26, 1963, and that defendants’ house still continues to encroach upon Sevaaetasi land.
Plaintiff prayed the Court for the removal of part or parts of defendants’ house from the Sevaaetasi land. Plaintiff argued that if for some reason the Court did not see fit to order defendants to tear down and remove that part of the house overlapping into Sevaaetasi land, then in the alternative the Court should order defendants to pay the plaintiff the sum of six ($6.00) dollars per month as rent money for said part of Sevaaetasi land being occupied by defendants’ house, with the provision that if defendants failed to meet their monthly payments to plaintiff, then defendants were to remove said part or parts of their house out of Sevaaetasi land immediately upon their default in said payment. Plaintiff asked the Court that if such alternative were ordered by the Court, said monthly rent payment be deposited by defendants in the Bank of American Samoa in the name of the Sevaaetasi Family, Robert S. Siania, Trustee, until a matai for the Sevaaetasi Family is selected, at which time rent payments are to be made directly to the matai of the Sevaaetasi Family.
The members of the Court visited the land in question prior to the trial. Drawing an imaginary straight line connecting two monuments which indicate the boundary line *372•between the Leota and Sevaaetasi Family lands, it was obviously clear to the Court that the west end of the rear of defendants’ house overlapped into Sevaaetasi land about 1072 feet, while the east end of the rear of defendants’ home overlapped about 1872 feet into Sevaaetasi land, this •includes the length of the steps going up into defendants’ house. The house is rectangular and from east to west it measures 40 feet and from north to south it measures 38 feet.
Leota, counsel for defendants, and Ala both testified. Leota’s main line of defense was twofold: (1) That the Agreement of April 2, 1957 was not legal and binding on the defendants for the reason that defendants were compelled to sign said Agreement without understanding its contents, and that said Agreement was no good unless it was approved by him, Leota, who was the matai of defendants. (2) That plaintiff should be denied remedy because defendants’ house was situated wholly within Leota Family land. The Court unanimously rejects the foregoing arguments by Leota. Both the plaintiff and defendant, Ala, testified that the Agreement had been signed in the Office of the Clerk of the High Court, at which time all parties thereto signed in the presence of the Clerk of the High Court and the Deputy Clerk. They both testified that the court interpreter had translated the Agreement from the English language into Samoan. Defendant Ala further testified that the reason he had not asked Leota’s advice on the Agreement was because he, Ala, and his wife, Aitulagi, were angry with Leota. This Court finds it hard to believe that any person would be compelled to sign an instrument against his will in the presence of three officers of the Court. Certainly, three officers of the Court could not be parties to such practices as those inferred by Leota. Leota’s allegation that defendants’ house does not encroach *373upon Sevaaetasi land but is wholly situated on Leota land is also in error. Leota well knew that in a recent land case —No. 23-1968 — the boundary line between the Leota Family land and Sevaaetasi Family land was established by the High Court as a straight line connecting the two monuments before mentioned.
It is the unanimous opinion of the Court that that part or parts of defendants’ house protruding beyond a straight line connecting the two monuments overlaps and to that extent encroaches upon Sevaaetasi Family land. It is further the unanimous opinion of the Court that the Agreement of April 2, 1957 signed between plaintiff and defendants is a legal and binding document between the parties thereto, and that defendants have wrongfully encroached upon Sevaaetasi Family land from and after the expiration of the aforementioned Agreement on April 2, 1962, and that defendants have continued to have their house situated thereon in violation of said Agreement. It is further the unanimous opinion of the Court that in view of the type of construction and the necessary burden to defendants in tearing down part of their house encroaching upon Sevaaetasi land, defendants should pay a monthly rental for the use of Sevaaetasi land, conditioned that if defendants fail to pay said monthly rent, they are to forthwith remove that part of their house encroaching upon Sevaaetasi land. Defendants may at any time remove the part of their house overlapping into Sevaaetasi land in lieu of making, said monthly rental payments.
In conclusion, it is the unanimous decision of this Court and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That a certain portion of the house belonging to defendants overlaps and encroaches into Sevaaetasi Family land.
*3742. That the Agreement of April 2, 1957 executed between plaintiff and defendants is a legal and binding document as between all the parties thereto, and that defendants have wrongfully encroached upon Sevaaetasi Family land from and after the expiration of said Agreement on April 2, 1962, and that defendants have continued to have their house thereon situated in violation of said Agreement.
3. That defendants need not remove that part of their house encroaching upon Sevaaetasi Family land in consideration of the type of structure of said house and the alternative suggested by plaintiff, provided, however, that defendants must pay plaintiff the sum of three ($3.00) dollars per month rent in lieu of removing part of their house from the Sevaaetasi Family land. The first rental payment is due and payable on the 1st day of October, 1963, and a similar payment of $3.00 to be paid on the 1st of each and every month thereafter, said money to be deposited by defendants in the Bank of American Samoa to the credit of the Sevaaetasi Family, Robert S. Siania, Trustee. Provided, further, that if defendants fail to meet the monthly rental payments as above ordered, they shall forthwith, after such failure, remove that part of their house out of Sevaaetasi Family land. Provided, further, that if defendants refuse to accept this alternative rental payment ordered by the Court, then the defendants are hereby ordered to remove that part of their house encroaching upon Sevaaetasi Family land by not later than October 1, 1963.
Court costs in the amount of fifteen ($15.00) dollars to be paid by defendants, Ala and Aitulagi Ala, within 30 days after filing of this decision. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485340/ | OPINION OF THE COUET
ROEL, Associate Justice.
Came on to be heard the above entitled and numbered cause wherein Applicant, Lualemana, filed an application with the Office of Registrar of Titles of American Samoa to register a certain surveyed parcel of land called “Ta-feta” containing 90.45 acres, more or less, as the communal family land of the Lualemana Family. Upon notice of the proposed registration of the land, objections were filed for the Chiefs of Aitulagi, the Chiefs of Faleniu and Maea K., chronologically in that order. An objection had also been filed on behalf of the Chiefs of Aoloau, but such objection was withdrawn and dismissed on motion of Moananu, the spokesman for the Chiefs of Aoloau, in open Court at the beginning of this trial.
Applicant Lualemana sought to register the land on the basis that said land was the property of the Lualemana Family. Each of the objectors based their objection to the registration of the land by Lualemana on the grounds that each objector, respectively, was the owner of the land in question. According to the survey filed with the application to register, the land in question was a plat of land containing 90.45 acres, more or less, situated in Leasina County, Tutuila, American Samoa.
Logo, Counsel for Lualemana, based his case on the testimony of two witnesses, Lualemana and his father Aitufaifili.
The Applicant, the present Lualemana, is a young man 32 years of age residing in Asu. He testified that although the land surveyed was called Tafeta, the 90.45 acres repre*387sented only part of the whole land Tafeta which consisted of over 200 acres. Lualemana testified that he based his claim of ownership of the land within the survey on the stories of the Lualemana Family that Tafeta is Lualemana land and on the tradition that the first Lualemana resided there. All these stories came to him through his ancestors. He recited for the Court a genealogical table starting from the supposedly first Lualemana to the present Lualemana ten generations later. Lualemana testified that the land Ta-feta in the present case was the same Tafeta involved in the litigation between the Chiefs of Faleniu and himself in the case decided January 16, 1962, No. 60-1961 (H.C. of Am. S.). He further testified that the land claimed by the Chiefs of Faleniu in the above-referred-to case was included in the survey in the present case.
Lualemana stated that all of the land Tafeta was cleared from the virgin bush by Lualemana people. He testified that as early as 1918 people from the Village of Faleniu were having plantations in Tafeta, but that they were Lualemana people. He further stated that from 1918 on the Lualemana people who lived in Faleniu had the plantations with the permission of the Lualemana, but that these same people were limited to planting taro and bananas for fear that if they planted coconuts they might claim the land as their own. When questioned as to how many Lualemana people presently lived on or had plantations in the land in question, he answered that none did. Yet, Lualemana admitted that several Faleniu people presently had plantations in Tafeta. Lualemana claimed that the oldest coconut trees in Tafeta were from 9 to 15 years old. He testified that he himself lived on the land Tafeta a little over one year before he was evicted by order of the Court in Case No. 60-1961 (H.C. of Am. S.). He said during the year he had lived in Tafeta he had planted a great many trees before he was evicted. Asked if there were any other Lualemana peo*388pie in Tafeta while he was there, he said there were none. In answering Lolo on cross-examination, Lualemana stated that his father, the previous Lualemana, never lived on the land in question, and he stated that he did not know whether any Lualemana had ever lived on the land in question. The only Lualemana people which Lualemana named as having had plantations in Tafeta were people from Faleniu. Lualemana testified that the Lualemana people were originally from the seaside of the mountain.
When he was asked whether he had filed a war damage claim on the land Tafeta, Lualemana at first stated he had filed a claim and then testified he had filed a claim under his then title Tuiapolima. He testified he had not granted permission for the establishment of a prison farm in Tafeta and that nobody had consulted with him about it.
Lualemana’s other witness was his father, Aitufaifili, a man 83 years of age. When queried about dates, he had no concept of time, but did a little better when questioned about events. He declared the land in question was Lualemana land before the Government was established, but that there was no Lualemana in 1900 or for a number of years thereafter. He did not know whether there was a Lualemana in 1918, the year in which applicant Lualemana testified Faleniu people were having plantations in Tafeta with permission of Lualemana. Aitufaifili further testified that there was no Lualemana in 1910 and that maybe he was the Lualemana in 1918. Following that, he said he held the Lualemana title from 1930 to 1962. He testified he had lived in Olotele for more than 10 years and had lived in Asu before that. Aitufaifili said the Lualemana people had no plantations on the land in question during the time he was holding the title. He stated that the land had been cleared by students from Mesepa and Mapusaga, and that he gave Savea, a chief of Faleniu, permission to clear the land, and that Savea was a member, of the Lualemana Family. He *389testified there was no Lualemana guest house at Tafeta during the war; that he was living in Asu. He acknowledged that a previous Court decision regarding the land Tafeta was awarded in favor of the Faleniu Chiefs. He also testified he had given the land to Savea. When counsel Logo told Aitufaifili that a Lualemana had signed the Deed of Cession in 1900 and asked him who was the Lualemana then, Aitufaifili stated there was no Lualemana in 1900, that there was a war in Apia at the time. He testified he had later received a watch from the Fita Fita. On cross-examination, Counsel Usu extracted from Aitufaifili the testimony that he had asked permission from the Aitulagi Family to live in Olotele. Aitufaifili denied that all the land from Olotele to Tafeta was Aitulagi land. When asked if he knew Maea, Aitufaifili said he knew him but that it must be an Upolu name or something. He did not know whether Maea had plantations on the land Tafeta.
Tuilefano was the sole witness for the Chiefs of Aitulagi, one of the objectors herein. Tuilefano said he was claiming the land Tafeta in the name of the Aitulagi Family, for the Aitulagi Village and for the County of Aitulagi. Tuilefano traced his claim all the way back to Tuifeasi, who he claimed was the king of Ituau and Alataua Counties, and that Tuifeai’s rank was so high that he was served one human being to eat every day. He testified that the Aitulagi people claimed Tafeta as the descendants of Tuifeai.
Tuilefano’s counsel, Usu, sought to introduce into evidence two plats purported to be surveys of the land in question. The plats did not mention the word Tafeta and were labeled “MALAELOA” and dated September 27, 1906. One of .the plats was on a piece of cloth about five feet by three feet and the other was a smaller alleged photostatic copy of the same plat obtained from Western Samoa. Both plats showed the survey as containing 983 acres. Neither of the plats was authenticated or certified or shown *390as being registered in any government office. Although Tuilefano testified that said plat was recorded in the Registrar’s Office in American Samoa, said registration could not be located or ascertained. Nowhere in either plat was the word Tafeta to be found. Counsel for Lualemana objected to the admission of said plats into evidence on the grounds that it could not be determined whether the land Tafeta as shown in the survey filed with the present case was included in either of the two plats. Lolo objected for the Chiefs of Faleniu on the grounds that there was no certification by a surveyor on either of the two plats. Leuluai, Counsel for Maea, objected to the introduction of the plats as evidence on the ground that the word Tafeta did not appear on either of the two plats. The Court sustained the objections and denied the admission of either of the two plats into evidence.
Tuilefano testified that Aitulagi people had not cleared the land Tafeta from the bush. He further stated that there were no Aitulagi people living in the land Tafeta within the survey filed in this case. When asked who had cleared the land from the virgin bush, Tuilefano answered that it had been cleared by a talaloa from Faleniu Village, after which the Faleniu people had put in plantations. In answer to another question, Tuilefano said that nobody from Aitulagi worked the land Tafeta. Later, in answer ,to questions from his counsel, Usu, he testified that the plantations on Tafeta dated from 1946 and that the Aitulagi people did have plantations therein. Tuilefano stated that everybody using Tafeta. asked permission from Aitulagi. Later, answering a question from Lolo, Tuilefano stated that he had no plantations in Tafeta and that none of the Aitulagi people were living within .the surveyed area of Tafeta. Tuilefano testified he never tried to stop the Faleniu people when they were putting in plantations on Tafeta. He said the Government had not secured permission from the Aitulagi people *391to set up the prison farm in Tafeta. He stated that the Aitulagi people had not filed war damage claims on the land Tafeta because they had no plantations thereon.
In presenting the case for the Chiefs of Faleniu, counsel Lolo put on Magalei as his only witness. Magalei testified he was objecting to .the registration of the land on behalf of the Chiefs of the Village of Faleniu; that the land Tafeta belonged to all of the Village of Faleniu. Magalei further testified that the land Tafeta as shown in the survey was in Tualauta County and not in Leasina County. He testified that the land in question was first cleared from the virgin bush in the year 1922; that several Faleniu people kept plantations of coconuts, cocoa, breadfruit, taro, taamu and other crops in the land Tafeta. Amongst these people, he mentioned Filo, Malufau, Savea, Siufanua, Mo [sic], Magalei and others. He testified .that neither the Lualemana people nor the Aitulagi Family had plantations in Tafeta, and that only Faleniu people had plantations therein. Magalei testified that the Faleniu people worked the plantations at Tafeta before, during and after the war. He stated that although the Marines had a rifle range in the area during the war, the Faleniu people would go into the plantations in Tafeta early in the morning and leave before the practice shooting started. Magalei testified that the case between the Chiefs of Faleniu, and Lualemana, No. 60-1961 (H.C. of Am. S.) involved the same land Tafeta as is involved in the instant case. In answer to a question by Lualemana’s counsel, Magalei said that after the land Tafeta was cleared from the bush it was divided amongst the different chiefs of Faleniu for use as plantations. From looking at the survey, Magalei could not tell which part of .the land belonged to which Chief of Faleniu but testified that he could tell by viewing the land itself. Magalei testified the only plantations by Lualemana were those Lualemana had planted at the time before he was evicted by the Court order *392in the decision of Case No. 60-1961. Magalei stated the claim of the Faleniu chiefs was based on the clearing of the land from the virgin bush and having plantations on the land since 1922. He stated Maea was one of the matais from Faleniu and that Maea had joined the Chiefs of Faleniu as plaintiff in the case against Lualemana in 1961.
In answer to a question, Magalei stated that all of the land known as Tafeta was not included in the survey filed with the Court, but that the Chiefs of Faleniu claimed all the land within said survey. He further answered that the people of Faleniu had not asked or received permission from Aitulagi when they had their talaloa on Tafeta to clear the land. Magalei testified that the people of Faleniu had some fales in Tafeta during the time of the talaloa. He stated this was the fourth case involving the land Tafeta. In connection with war damage claims, Magalei testified that a number of Faleniu people had filed war damage claims on the land Tafeta and had received compensation therefor. Amongst the persons filing claims he mentioned Siufanua, Savea, Sagapolu, Filo, Magalei, Tuiaana, Mulufau and others. Magalei further testified that the prison farm situated within the land Tafeta was set up with the permission and consent of the Chiefs of Faleniu. He stated he was present when the Chiefs of Faleniu granted the Government permission to set up the farm.
Leuluai, Counsel for objector Maea, attempted to prove his client’s claim to the land Tafeta on the sole testimony of Maea himself. Maea, a man 78 years old, testified he was claiming the land Tafeta as his individually-owned property. In support of his claim, he recounted a legend that went back several hundred years, starting with the battles between Tuiaana and Levalea, both of whom, according to Maea, were very tough. According to legend, Tuiaana won the battle which started by being fought with all the sticks available in the bush and ended with Levalea throwing *393oranges at Tuiaana. In reciting his genealogy, Maea claimed that Tuiaana was the father of Magaleileo’o; that Magaleileo’o had a son named Faatafuga; that Faatafuga had a son named Faitala; and that he, Maea, was the son of Faitala. Maea testified that although he lived on land called Tafeta, no member of Maea’s family has ever lived within the surveyed portion of Tafeta. Maea stated that he lived in Pago Pago; that from there he went to live in the Village of Faleniu in 1926. He testified that in 1926 he started cutting down the big trees in Tafeta, and that he cleared all the way up and down the hill. He stated that he cleared four acres in the 16 years from 1926 to 1942. At one point when he was asked if he had any plantations within the surveyed land at the present time, he answered in the negative. Maea admitted that the people of Faleniu had a talaloa in Tafeta. Maea testified he was a matai of Faleniu and that he served the Village of Faleniu. He claimed he disagreed with the other chiefs of Faleniu because they did not fix things right. He also admitted that he had joined as one of the Chiefs of Faleniu in their claim to the land Tafeta against Lualemana in Case No. 60-1961 (H.C. of Am. S.). Maea further stated that Tuiaana was from Faleniu and that Magalei and Tuiaana were siding with the Chiefs of Faleniu in the present litigation. On several occasions, Maea testified he did not want to answer or elaborate on his answers because he did not want to embarrass or hurt anyone. In answer to a question by his counsel, Leuluai, Maea stated he started clearing the bush in 1929. He also answered that his place of residence was not included in the survey; that he was not living in Tafeta, but only had plantations therein. Maea claimed that by himself he felled trees big enough that it would take the extended arms of three grown persons to cover their circumference. When asked if the present Tuiaana had any rights to Tafeta, Maea said it was tough for him to answer the question be*394cause he did not want to create a disturbance among the people in the courtroom. He then said, “Yes, the name Tuiaana has a right, but not the person.” He then stated that Siufanua, Malufau, Filo, and Magalei, all Faleniu Chiefs, had a right to the land Tafeta. Maea testified he had filed a war damage claim on the land Tafeta and that he had also received part of the money received by the Chiefs of Faleniu for war damage claims on the land Tafeta. He testified that Faleniu people had given the Government permission to establish the prison farm in Tafeta, and that Savea had taken the people over to the prison farm area.
In his argument to the Court, Logo, counsel for Lualemana, stated that the issue in the case of the Chiefs of Faleniu v. Lualemana, No. 60-1961 (H.C. of Am. S.), was the eviction and injunction of Lualemana and that the Court had ruled Lualemana must vacate Tafeta. He stated Lualemana had come to live in Tafeta in 1952. Logo argued that the Lualemana people had not slept on their rights, and that even though the judgment in Case No. 60-1961 was against him and he appealed the case and lost, Lualemana had surveyed the land and was seeking to register it. He further argued that Moananu on behalf of the Aoloau people had withdrawn their objection in favor of Lualemana. Logo argued that Aitulagi Family had not shown or proven a claim to Tafeta; that Aitulagi’s family history should not be given weight by the Court. He contended that Lualemana had gotten the land in question through war and intermarriage. He insisted that Maea’s family history as related should be disregarded since it only covered five generations. Logo argued that Aitufaifili, the previous Lualemana, gave permission to people of Faleniu to have plantations in Tafeta as early as 1918; that the Lualemana people living in Faleniu were limited .to planting taro and bananas because they would claim the land if allowed to plant coconuts. Logo agreed that the people of Faleniu cleared the *395land first, but with permission of Lualemana. He argued that whereas Aitufaifili’s testimony was disturbed concerning dates, his .testimony was lucid regarding events. Logo insisted that while the Faleniu chiefs could not claim the land Tafeta by adverse possession, the Lualemana people could, since they held it during the time the Faleniu people were using the land Tafeta from 1918 to 1948 with permission of Lualemana.
Counsel for the Chiefs of Aitulagi, Usu, opened his argument by referring to the Bible. He argued that Lualemana wanted to take other people’s land. Usu contended that Magalei claimed the land Tafeta for the Chiefs of Faleniu solely on the plantations they had in Tafeta. Usu argued that Tuifeai, the cannibal ancestor of Aitulagi, was the sole owner of Tafeta. He stated that the reason Aitulagi did not take part in the 1961 case between the Faleniu Chiefs and Lualemana was because the land was not offered for registration. Usu insisted that the two plats dated 1906, which he attempted to introduce into evidence, proved ownership of the land Tafeta by Aitulagi, even though no proof of registration of said plats was available. Usu admitted that permission for the prison farm was given by Faleniu people and that Aitulagi Family had not bothered to object because they were relying on the plat dated 1906 to prove ownership. He further admitted that the Faleniu people had a talaloa in Tafeta to clear the land, but that it had been done with Aitulagi’s permission. There was no mention of any Aitulagi people living within the land Tafeta as surveyed or of the Aitulagi people keeping any plantations thereon.
In presenting his argument on behalf of the Chiefs of Faleniu, Lolo argued that the claims of Lualemana, Aitulagi and Maea were based solely on legend without any concrete evidence either of ownership, possession or use of the land. He stated each of the three parties had presented *396a different legend to prove their claim to' Tafeta and that neither of the three legends were dependable. Lolo reiterated the testimony and evidence that the Faleniu Chiefs had cultivated the land Tafeta since 1922 when they first cleared it from the bush. He referred to the Samoan custom that the land belonged to the one that clears the land from the virgin bush and plants it. Lolo argued that Magalei’s testimony established the fact that after clearing the land in 1922 Faleniu chiefs have had continuous possession up to the present time, except during the war when the U.S. Marines occupied the land as a rifle range, but that even then Faleniu people were going into the land early in the morning. Lolo contended that the Marines’ occupation of Tafeta did not disrupt the rights of ownership by the Chiefs of Faleniu and cited Tago v. Mo [sic], No. 12-1955 (H.C. of Am. S.) and 2 C.J.S. 686-689.
Commenting on the Lualemana claim, Lolo argued that the Lualemana claim is based on legend and that Aitufaifili, Lualemana’s father, had testified that no member of .the Lualemana Family had resided on the property in question during the past 50 years. He further argued that the Aitulagi claim was based on legend and myth and that such testimony should not be considered in a Court of law. He contended that if Lualemana and Aitulagi had ever indeed had a good claim to the land in question, that they had lost said right by virtue of adverse possession of Tafeta by the Chiefs of Faleniu for over 20 years.
In commenting upon Maea’s claim, Lolo stated Maea’s claim was also based on legend. He stated that Tuiaana and Magalei, who are descendants of the original Tuiaana that Maea referred to, are both Chiefs of Faleniu. Lolo stated that the clearing of the land Tafeta by the Chiefs of Faleniu was by means of a talaloa — a group effort of the Village of Faleniu to cut down the virgin bush and *397put in plantations — and that each family was entitled to a portion of the cleared land. He contended that the Chiefs of Faleniu went into the land Tafeta without asking the consent of Aitulagi or anybody else. In commenting upon Lualemana’s testimony and emphasis that some of the people in the talaloa from Faleniu were blood members of the Lualemana Family, Lolo argued that a married man living with his wife’s family is considered .to be a member of his wife’s family under Samoan custom. Lolo further argued that a chief or chiefs of Faleniu would not render services to the chief of another village or family. Lolo called attention to the fact that Maea had testified his house was outside of the surveyed portion of the land. Lolo stated that Maea is a member of the Faleniu Village and that Maea has plantations in Tafeta, and that in previous litigation Maea had joined with the Chiefs of Faleniu as plaintiffs against Lualemana. He recalled that Maea had admitted that the Chiefs of Faleniu had rights to the land Tafeta in his testimony. Lolo insisted .that contrary to the description of the land, the portion of the land Tafeta covered in the survey was in Tualauta County and not in Leasina County.
Counsel for Maea, Leuluai, impressed the Court with the brevity of his argument, intimating that the Court had heard all the testimony and there was no need to consume extra time to rehash the evidence. Leuluai stated Maea’s right ,to Tafeta was supported by the family history related by Maea and the other testimony. Not to be outdone by Usu and Lolo, Leuluai also referred to the Bible in his argument. He said Maea lived in Tafeta and Vaita’i from 1929; that Maea had cut down the huge trees all by himself, and that he had cleared at least four acres within the surveyed portion. Leuluai argued that Maea at present had plantations within the surveyed part of Tafeta. He stated that the claim of Maea to the land had continuity and that Maea had established his right to the land. Leuluai intimated that the *398relations between Maea and the Chiefs of Faleniu were presently somewhat strained.
The Court has dwelt at great length on the testimony and the evidence, both for the benefit of the parties and for the Court. It is obvious that if the Court were to believe all the testimony — legend and fact — that came out during the two full days of trial, a decision would be unattainable, as each of the four contesting parties were claiming ownership to 90.45 acres of land, for a total of 361.10 acres, and this, of course, is an impossibility when there are only 90.45 acres in the survey. The responsibility to weed out fact from fiction or legend from all the testimony rests upon this Court in arriving at the rightful claimant to the 90.45 acres of the land Tafeta as surveyed.
In connection with Lualemana’s claim, the Court considered dismissing Lualemana’s application to register the land Tafeta on the grounds that the land in question was the same as was involved in the case of the Chiefs of Faleniu v. Lualemana in Case No. 60-1961 (H.C. of Am. S.), in which case the Court decided that the land Tafeta was the property of the Chiefs of Faleniu, and the Court granted the Faleniu Chiefs’ request of eviction and injunction against Lualemana. This Court decided against dismissing the Lualemana application and to try the instant case on the merits on the basis that Case No. 60-1961 was one for eviction and injunction while the present case is one for registration of land, and also on the basis that two of the parties in the instant case — Tuilefano for the Aitulagi Family and Maea as individual claimant — were not parties to the previous case.
The Court is of the unanimous opinion that in the instant case Lualemana failed to prove ownership of the land Tafeta, as surveyed, by the preponderance of the evidence necessary to allow him to register the land Tafeta as the communal land of the Lualemana Family. We think *399the great weight of evidence proved that Lualemana had no right to the land in question. We will not repeat his testimony as to the basis of his claim for it is already covered elsewhere in this opinion. This Court was not swayed, impressed or convinced by the family stories Lualemana related to substantiate his claim to the land in question. Lualemana admitted the land in question was the same land as that involved in Case No. 60-1961 (H.C. of Am. S.), as a result of which decision he was evicted from Tafeta, which decision was affirmed on appeal. Lualemana’s testimony that the land in question was cleared from the bush by Lualemana people is not accepted by this Court, as it is contrary to the great preponderance of the evidence and even contrary to Lualemana’s statement that the people he claimed belonged to the Lualemana Family were from Faleniu. If any Lualemana blood people did in fact participate in the clearing of Tafeta, they did it while living in Faleniu, and married to Faleniu families they were doing it as people living with Faleniu chiefs and as married men to Faleniu families and not as Lualemana people from Asu. Under Samoan custom, a married man living in his wife’s family is considered to be a member of such family. Lualemana admitted that no Lualemana people were presently living in Tafeta or had plantations therein, and that several Faleniu people had plantations in Tafeta. Lualemana testified he had lived in Tafeta only a little over a year before he was evicted by Court order in Case No. 60-1961 (H.C. of Am. S.). He stated that his father had never lived or had plantations on the land in question, and did not know if any of his predecessors ever lived on said land. Lualemana testified his people originally lived on the seaside of the mountain, which is quite far away from the land Tafeta, relatively speaking. It does not appear logical that the Lualemana people would come over the mountain and go past other lands to get to Tafeta. The Court does not believe that Lualemana filed any *400war claim on the land Tafeta and none appears on the files available to this Court. In Case No. 60-1961 (H.C. of Am. S.), the Court found that Lualemana had testified falsely when he insisted he had filed a war damage claim on the land Tafeta using the name Tuiapolima. This Court takes judicial notice of the falsity of the claim in the previous case and finds from the evidence given in the instant case that the Lualemana did not file a war damage claim on the land Tafeta as he testified.
This Court is of the unanimous opinion that the claim of Tuilefano on behalf of the Chiefs of Aitulagi to the land Tafeta, as surveyed, should be rejected. There is no evidence whatsoever that the land in question was cleared from the bush by any of the Aitulagi people or that the land was ever occupied or cultivated by any of them. Contrary to Tuilefano’s testimony, there is no evidence that the Aitulagi Chiefs have ever had any control over Tafeta as evidenced by the fact that they have no plantations on the land and never had, and the fact that they did not file nor were they paid for any war damage claims on the land Tafeta, and they had no say in granting permission of occupation to the U.S. Marines or for use of part of the land for the prison farm. It is inconceivable to this Court that the Aitulagi chiefs would not have filed war damage claims on Tafeta if they considered themselves the owners of said land. While Tuilefano’s story about his cannibal forefather was interesting, it certainly did not lend any substance to his claim to the land Tafeta as surveyed.
Maea was also in good form relating the story of the battle between Tuiaana and Levalea which, as far as he was concerned, by virtue of intermarriage, passed ownership to him personally of all the land Tafeta within the survey. The Court is of the unanimous opinion that Maea’s claim of personal ownership to the land Tafeta has no basis whatsoever. We believe that any right he might have to the *401land in question is by virtue of his being one of the chiefs of Faleniu. Maea appeared as plaintiff with the other chiefs of Faleniu in their case against Lualemana. We are satisfied that the only reason Maea did not join with the chiefs of Faleniu in the instant case in objecting to the registration of the land Tafeta by Lualemana was because of some personal disagreement. However, Maea himself admitted in Court that he was one of the chiefs of the Village of Faleniu and that other Faleniu chiefs had a right to Tafeta.
In considering the claim of the Chiefs of the Village of Faleniu, the Court is of the unanimous opinion that they, rather than any of the other parties to the instant case, presented the testimony and evidence with enough substance and fact to prove their claim as owners of the land Tafeta by a great preponderance of the evidence. The Court is satisfied that the Chiefs of Faleniu and the young men of the village started to clear the land in question from the virgin bush on or about the year 1922. We believe the testimony that they had plantations thereon from 1922 to the present. There was evidence from the different parties to this litigation that a talaloa from the Village of Faleniu had cleared the land as early as 1918 and as late as 1922. The evidence indicated that the Chiefs of Faleniu have continuously had plantations on the land in question since 1922, and if the years during which .the Marines used the land are tacked to the rest of the time, the Chiefs of Faleniu have had possession of Tafeta for over 40 years. The testimony was that after clearing the land the Chiefs of Faleniu divided the land amongst themselves. The allegation that the Chiefs of Faleniu had filed and been paid for war damage claims on the land Tafeta was proved to the satisfaction of the Court. There was also evidence that the Government prison farm on the land Tafeta was established through permission given by the Chiefs of Faleniu.
*402The Samoan people acquire title to the land through first occupancy coupled with a claim of ownership, as this Court has previously held (Faataliga v. Fano, No. 80-1948,. (H.C. of Am. S.)); Soliai v. Lagafua, No. 5-1949 (H.C. of Am. S.); Oi v. Te’o, No. 35-1961 (H.C. of Am. S.); Chiefs of Faleniu v. Lualemana, et al., No. 60-1961 (H.C. of Am. S.). This Court believes that the Chiefs of Faleniu have proved their claim of ownership to the land Tafeta by first occupancy by clearing the land from the virgin bush in 1922. They have exercised a claim of ownership by cultivating the land, by granting permission to the U.S. Marines to use the land, by filing war damage claims on the land after the war, and by granting authority for the establishment of the prison farm in Tafeta.
Sec. 10.0115 of the Code of American Samoa provides that the statutory period governing the acquisition of title by adverse possession shall be 20 years. The effect of the running of the statutory period is to vest title in the adverse possessor. (2 C.J.S. 803; 151 U.S. 586, pg. 607; Faamao v. Tiumalu, et al., No. 45-1961 (H.C. of Am. S.); Chiefs of Faleniu v. Lualemana, No. 60-1961 (H.C. of Am. S.). While this Court believes that the Chiefs of Faleniu have proved their claim and ownership to the land Tafeta by first occupancy, claim of ownership and use beyond any doubt, we believe that if any of the other parties had presented a stronger claim, the Chiefs of Faleniu would still have prevailed by virtue of having had actual, open, notorious, hostile, exclusive and continuous occupancy of the land Tafeta for over 40 years or since 1922.
Contrary to the description attached to the survey, this Court is satisfied that the land in question — the land included in the survey of Tafeta — is situated not in Leasina County but in Tualauta County. This appears obvious from examination of the map of Tutuila with marked county boundaries found in the Office of the Secretary of American *403Samoa. This same land Tafeta was held to be situated in Tualauta County in a previous court case (No. 60-1961, H.C.of Am.S.).
In conclusion, it is the unanimous decision of this Court and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That the application filed by Lualemana to register the land Tafeta, consisting of 90.45 acres, as reflected in the survey, as the communal land of the Lualemana Family be and the same is hereby denied.
2. That the claim of ownership to the land in question by the Chiefs of Aitulagi Village, as objectors, be and the same is hereby denied.
3. That the claim of Maea K. to his individual ownership to the land Tafeta be and the same is hereby denied. Any right that Maea may have in the land in question is by virtue of his being one of the Chiefs of Faleniu.
4. That the Chiefs of the Village of Faleniu are the owners of the land Tafeta as shown in the survey. That each Chief of Faleniu is the owner of that parcel of land within the survey as was given to him after clearing Tafeta from the virgin bush. This Court is not ordering the registration of the land in the survey. Each interested Chief of Faleniu must survey, by metes and bounds, his own individual parcel of land which he claims if he desires to make application for registration of said land. (Sec. 10.0112, CAS, 1961).
5. That the land Tafeta as shown in the survey is situated in Tualauta County, Tutuila, American Samoa.
Court costs to be paid within 30 days as follows: Lualemana, $16.77; Tuilefano, $16.77; Maea, $16.66. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485342/ | OPINION OF THE COURT
MORROW, Chief Justice.
Faatama filed his application with the Registrar of Titles to be registered as the holder of the matai title Laie at*420tached to the Village of Fitiuta, Manua. Taulago Veve (hereinafter in this opinion referred to as Taulago) and Pogisa Upega each filed an objection to the proposed registration, each claiming he had a better right to the title. This resulted in each of the objectors and the applicant becoming candidates for the name. Hence, this litigation. See Sec. 6.0106, A. S. Code, 1961 Ed.
Sec. 6.0101 of the Code prescribes the qualifications which a person must have to be eligible to succeed to a matai title. The evidence clearly established that each of the three candidates possess these qualifications and is eligible to be registered as the holder of a matai title.
Sec. 6.0107 of the Code prescribes the law which the Court shall follow in determining which one of the opposing candidates shall be registered as the holder of a matai title. It reads as follows:
“CONSIDERATION GIVEN BY COURT: In the trial of matai title cases, the High Court shall be guided by the following considerations, in the priority listed:
First: The best hereditary right in which the male and female descendants shall be equal in families where this has been customary, otherwise the male descendant shall prevail over the female.
Second: The wish of the majority or plurality of those clans of the family as customary in that family.
Third: The forcefulness, character, personality, and knowledge of Samoan custom.
Fourth: The value of the holder of the matai title to the family, the village, and the country.”
Each of the candidates filed his pedigree with the Court and testified with respect to his descent from a former holder of the Laie title. It is undisputed that Faatama is the grandson of a Laie and has Laie blood and that Taulago is the blood son of Laie Aniva and has XÍ2 Laie blood while Upega is the blood son of Laie Misa and also has Hi Laie blood.
*421It follows, therefore, that Taulago and Upega are on an equality with respect to the issue of hereditary right and that each of them prevails over Faatama on this issue, and we so find.
There is a conflict in the testimony with respect to the number of clans in the family favoring each of the respective candidates. Upega testified that there were nine clans in the family and that seven of them favored Taulago and .that the other two favored him, while some, but not a majority, of the membership in each of the seven clans favored him (Upega). Taulago testified that there were eight clans in the family and that seven of these favored him while the remaining clan favored Upega. The testimony of both Upega and Taulago indicates that not a single clan favored Faatama, the applicant. Faatama testified that there were 11 clans in the family and that seven of these favored him.
Faatama testified that his grandfather was the first Laie, that he had seven children by two marriages and that he lived about the time Christianity came to Samoa, which was in 1830, i.e., 133 years ago. He also testified that there were four other Laies besides his grandfather. That there were only five Laies during the last 133 years seems very, very improbable, considering the span of human life among the Samoans prior to the introduction of modern medicine by the Navy in Tutuila in 1900. Faatama claimed that the seven children of the first Laie established the seven clans which he claimed favored him.
There were five meetings of the Laie Family in Fitiuta called for the purpose of selecting a new matai for the family. Faatama has lived in Tutuila for the last 31 years (eight years while he was in the Fita Fita Guard and 23 years while he has been working for Public Works). He attended none of the five meetings in Fitiuta which the whole family could attend. We believe from the evidence that Faatama was using his imagination when he testified that seven *422clans favored him. Having lived away from the family for 31 years, it is obvious that the great majority of family members were born after he left Fitiuta and came to Tutuila to live in other Samoan families. Those family members would hardly know him. He says there were two meetings of the family in Tutuila which he attended. Obviously, only a very small part of the family who happened to be in Tutuila at the time could have attended.
It is to be remembered that the Laie Family is a Fitiuta, Manua, family, not a Tutuila family. We have weighed the testimony with attendant circumstances and we conclude that the weight of evidence is clearly to the effect that Taulago ranks first on the issue of the wish of the majority or plurality of the clans in the family respecting who shall be the new matai, that Upega ranks second and Faatama third, and we so find.
Both Taulago and Upega live in Fitiuta and have lived there in the Laie Family practically all of their lives. They have served the family ever since they became old enough to serve it. Faatama is serving a matai in Fagatogo. As before stated, he left his family in Fitiuta 31 years ago. We think he may have provided some food for a few Laie Family members coming to Tutuila on visits but that his service to the Laie Family has been very little compared to that of Taulago and Upega. These circumstances clearly support the testimony of Taulago and Upega respecting whom the majority of the clans in the family favor to be the new matai. Thirty-one years of absence from Fitiuta would make Faatama almost unknown to the majority of the Laie Family members.
Taulago and Upega live on Laie Family land. It is true that Faatama's sister lives on Laie land, but it is Faatama, not his sister, who is seeking the mataiship.
Faatama is 52 years old. He completed the 8th grade in school. He speaks English well. He served in the Fita *423Fita Guard for eight years and during much of that time was the Governor’s interpreter. Upon his discharge from the Fita Fita Guard, he got a job with Public Works and has worked in that department for 23 years. At present he has charge of spare parts and surplus at Tafuna and has four assistants who work under him. He also works as a mechanic. Faatama was a school teacher for three years. He is a lay preacher in the L.M.S. Church and has been the treasurer of the L.M.S. Church in Fagatogo for many years. When the regular pastor is away, Faatama takes charge of the church services. He is secretary of the organization of deacons and lay preachers in Fagatogo and is an officer in the Boys’ Brigade. He gives the boys instruction in religion and good morals. He is also a member of the Fagatogo L.M.S. Church choir and has been since 1940.
Taulago, 38 years old, finished the 7th grade in school. He then returned to Fitiuta to serve his father Laie Aniva until he died. He speaks very little English. He has worked on family plantations and has charge of four pieces of Laie land. The evidence indicated that he served his matai, the Laie Family and the Village of Fitiuta .very well. Taulago has held the Veve title for about five years. He held a position for one year in the Department of Agriculture Extension Service.
Upega, 48 years old, finished the 6th grade in school and then attended Leulumoega School in Upolu where he graduated. Like Taulago, he speaks very little English. After graduation from Leulumoega School, he returned to Fitiuta to serve his father Laie Misa and has made his home in the Laie Family in Fitiuta ever since. He lives on Laie land and has served the Laie, the Laie Family, and his village. During the war he worked as a laborer, partly in Tutuila and partly in Manua. He fixes the water system in Fitiuta when it gets out of order. He supervises the building of long boats for the Village of Fitiuta. He was an assistant to the car*424penter who built the school house in his village. Upega has held .the Upega title for five years. He was the village policeman for one year.
During the course of the hearing, the judges had an excellent opportunity to observe the personalities of the three candidates.
It is our conclusion from the evidence and our observation of the candidates that Faatama ranks first on the third issue, Taulago second, and Upega third, and we so find.
We will now consider the fourth issue, viz., the “value of .the holder of the matai title to the family, the village, and the country.” A matai who lives on another island 60 miles across the sea from his family and has done so for 31 years would obviously be of very little value to his family. His duties as a matai cannot be well performed under these circumstances; and, obviously, too, the same matai would be of very little, if any, value to the village. For one thing, he would no.t be sitting in the village council and giving the other councilors the benefit of his wisdom and experience in deciding matters affecting the village and its people. True, such a matai might be of considerable value to the faraway island on which he lives and indirectly be of considerable value to his country. We think that Faatama would be of very little value to his family and village under the foregoing circumstances applicable to him, although, due to his training and experience, he no doubt would be of substantial value to the Island of Tutuila on which he lives and, thereby, indirectly to his country.
Both Upega and Taulago have lived in the Laie Family and rendered service to the family and Fitiuta Village almost all of their lives and will continue to do so. It is our conclusion from the evidence and attendant circumstances that Taulago ranks first on this issue, Upega second and Faatama third, and we so find. Awarding the title to Faatama would elevate his status under' Samoan custom in *425Tutuila, but it would scarcely result in any substantial benefit to the Laie Family in Fitiuta or to Fitiuta Village on the Island of Ta’u.
Since we find that Taulago ranks ahead of Faatama on the first, second, and fourth issues, and ahead of Upega on the second, third, and fourth issues and is on an equality with Upega on the first issue, it follows .that he should be registered as the holder of the matai title Laie attached to the Village of Fitiuta. However, since a person cannot hold two matai titles at the same time, it follows that before he can be registered as the Laie, he must resign from the title Veve.
DECREE
Accordingly, it is ORDERED, ADJUDGED AND DECREED that Taulago shall be registered as the holder of the matai title Laie, attached to the Village of Fitiuta, Manua, upon his resignation from the title Veve within three weeks from the date of this decree, which is October 31,1963.
The Registrar of Titles will be advised of this decree.
Costs in the amount of $21.50 are hereby assessed against Faatama and Upega, each of them to pay one-half of the costs within 30 days. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485343/ | OPINION OF THE COURT
ROEL, Associate Justice.
Came on to be heard the above entitled and numbered cause wherein Applicant, Mageo Felise, filed an application with the Office of the Registrar of Titles of American Samoa to register a certain surveyed parcel of land called “Vaitafe,” containing 1.01 acres, more or less, as the communal land of the Mageo Family. Upon notice of the proposed registration of the land, objections were filed by Fuga Selega on behalf of the Fuga Family and by Pogai and Faafia, on behalf of the Taito Family.
*428Applicant Mageo sought to register the land in question as the communal land of the Mageo Family. Fuga objected to the registration of the land as surveyed on the ground that the land in question was the communal land of the Fuga Family. At the trial, Fuga and his counsel, Leota, stated Fuga was claiming only a part of the land within the survey, about 1k of the land involved. Pogai and Faafia objected to the registration of the land on the grounds that a portion of the land Vaitafe included in the survey was the communal family land of the Taito Family. At the trial and at the time the Court visited the site of the land involved, Pagai and Faafia, together with their counsel, Tuaolo, claimed only about 450 square feet of the land within the survey, or 1/9s or just over 1 % of the total land in question, which consists of 1.01 acres.
Previous to the time of the trial, all three judges viewed the land in question in the presence of all the parties involved, their counsel, and other witnesses.
The original survey of the land was made in February, 1962, and it was agreed that all the parties hereto were present at the time of the survey. The application to register the land was filed June 6,1963.
Mageo, the applicant, sought to prove his case by the testimony of Liufau Moelata and Mageo himself. The testimony of Liufau was so confused, unsubstantiated and irrelevant that, for all practical purposes, we are discounting his whole testimony in arriving at the decision in this case.
Mageo himself testified that his claim to the land in question as the communal land of the Mageo Family was based on the fact that Mageo people had occupied, cleared and used the land from time immemorial to the present. He testified that he was personally familiar with the land for a long time since he had been born there in 1910. Mageo testified Fuga’s claim to a portion of the land within the survey *429had no merit whatsoever. He also testified that the claim asserted by Pogai and Faafia on behalf of the Taito Family was unfounded and incorrect. Mageo testified that the Mageo Family claimed from the sea to the summit when they came to live in Pago Pago. He further testified that around the year 1820 or 1830 Mageo gave a parcel of land to Taito and that said land is adjacent to the southeast of the land in question, between the second and the third points of the plat of the survey, but that no Taito land was included within the survey.
Mageo further testified that Mageo had given a portion of land to Mauga for the use of Fuga around 1850 to the northeast of the second point in the survey, the same being the land where the church house is presently situated. Mageo testified that the Mageo Family first occupied the land in question before 1700 and cleared all the land included within the survey, including the portions claimed by Fuga and Taito, between 1800 and 1900.
Mageo introduced, and the Court received without objection, three instruments into evidence. Exhibit No. 1 related to an agreement separating a dwelling house from land between Mageo M. and Sifoa Loa. The agreement was dated July 31, 1959 and recorded in Register of Mise., Yol. 4, p. 122 on August 21, 1959. It confirmed that the Mageo Family was the owner of the land “Vaitulu” where Sifoa Loa was to erect a building. Mageo testified the building referred to is the same where Spencer’s store is located, within the surveyed parcel of land. Applicant’s Exhibit No. 2 consisted of the plat of the survey as filed with the application in the Court. Said plat was marked with pencil marks during the trial by Fuga and Pogai, respectively, to indicate the amount of land they were each claiming. Exhibit No. 3 was a property separation agreement between Maamoto and Mageo Felise, dated August 1, 1961. It recited that the Mageo Family was the owner of the land *430“Vaitafe” where Maamoto was to erect a building. The Maamoto store building is situated within the survey filed by Mageo.
In response to a question from Leota on cross-examination, Mageo testified that in 1946 Fuga Gafoa surveyed and registered the land where the church is presently situated and only that part. Mageo further answered that Fuga’s guest house was on the land where the church building now stands. Mageo testified that not a single Fuga had lived within the surveyed land. He further testified that Taito houses situated east of the survey are in Taito Family land, originally given to Taito by Mageo Veevalu. Mageo testified that all the land bordering outside of the survey from the third point of the survey to the creek was Taito Family land. In answer to a question by Tuaolo, Mageo testified that Fuga and Taito were related.
Counsel for Fuga, Leota, based his case on the testimony of Fuga Selega, 63 years old, and Lago, 76 years old. Fuga claimed that the portion of the land within the survey as marked by a pencil line was the communal land of the Fuga Family. Fuga testified that the whole area claimed was the residential place of the Fugas, even though he stated that he himself lived further down on Fagasa road. Fuga testified that the name of the land in question was Fusi instead of Vaitafe. Fuga further testified that the land where the church is situated was registered by Fuga in 1955, together with the pastor of the church. It later developed that Fuga was referring to a lease in 1955 and not the registration of the land. Fuga testified that there had been 10 Fugas and that they had all lived on the land in question.
On cross-examination by Tuaolo, Fuga testified that Ioane, Akenese, Tamato, Lia, and Manu had at different times lived on the land within the survey and that all of these persons belonged to the Mageo Family. Later Fuga testified that these people lived within the survey, but not in *431the portion which he was claiming within the survey. Fuga testified that Fuga Gafoa had registered the land on which the church stands and not the portion within the survey he claims because of Gafoa’s great intelligence — that he wanted to leave the unsurveyed land for the family. Fuga testified that the Fuga and Taito families were one family from the beginning and that there had never been any difficulty between the Taito and Fuga chiefs. He further testified that one of the oblong houses of a previous Fuga was near to where Sifoa’s building is presently located, and that Fuga Gafoa and his wife had lived on the land within the survey. Fuga testified that Fuga people cleaned the portion of the land within the survey which Fuga is claiming and that Fuga had had possession of the portion claimed for 63 years.
Lago, witness for Fuga, testified that the portion of the land within the survey claimed by Fuga, from the church to Meamoto’s and Sifoa’s house, was occupied by Fuga people. Lago said that the whole land within the survey was Mageo land except that part claimed by Fuga. Lago claimed that he was related to both Fuga and Mageo.
Tuaolo, Counsel for Pogai and Faafia, attempted to build his case upon the testimony of Pogai, 57 years old. Pogai testified that a very small portion of the land within the survey was the communal land of the Taito Family; a small triangle formed by drawing a line from the third point in the survey, 15 feet to the northwest and from there a straight line back north to the second point of the survey, the whole portion claimed by Pogai amounting to about 457 square feet.
Pogai testified that the basis for claiming this small portion out of the survey was possession and occupation by former Taitos. She testified that her present residence adjoined the surveyed land, that Taito had cleared the land from the virgin bush around 1800. Pogai testified that the *432land where the church house is situated was given to Fuga for his guest house, and that her father, Taito, had agreed that the lease for the church house (outside the survey) be made in the name of Fuga; that Fuga was living in Taito land because Fuga had no land of his own in the area because Fuga was from Upolu, and that the only land given to Fuga was the small piece occupied by the church. Pogai testified that Fuga and Taito people were no.t related and neither did they do things together, Pogai testified that Taito and not Mageo had given the land where the church is to Fuga. She further testified that the land where the church stands was surveyed by Fuga before it was leased, and that Fuga and Taito property were adjacent. Pogai testified that, except for the small portion within the survey claimed by Taito, all the land within the survey, including that claimed by Fuga, belonged to the Mageo Family. She further testified that the portion claimed by Fuga was cultivated by Mageo people. Pogai testified that there have been only four Fugas and not 10 as claimed by Fuga.
On cross-examination by Leota, Pogai testified that Fuga’s children’s house was next to Pogai’s house (outside of the survey) and that Taito and Fuga took care of the land together, but Pogai insisted that Taito and Fuga were not one family. When asked if Taito was related to Mageo, Pogai answered “yes,” that they were related by blood. When asked who cleaned the area claimed by Fuga, Pogai answered that Mageo children did, and continued to say that Mageo and Fuga people lived about the same distance from the area.
Pogai testified that the name of the land in question was Vaitafe, meaning “close to the stream,” and that the general name of the whole area was Fusi. Pogai testified that Taito permitted Fuga to put up a house on Taito land; that previous Fugas resided on the land where the church is; that Taito allowed Fuga people to build on Taito land *433because Fuga had no land in Pago Pago; that when Fuga Gafoa died, Taito gave permission to have Fuga’s body in Taito’s house because Fuga did not have a guest house any longer.
In his closing argument, Mageo insisted that all the land within the survey offered for registration was the communal land of the Mageo Family, and that his application to register the land should be granted. Mageo argued that Fuga’s claim to part of the land within the survey had no merit, and that all of Fuga’s testimony was based on lies. Mageo argued .that Mageo people cultivated that part of the land claimed by Fuga since before 1900. Mageo argued that Fuga’s claim to part of the land within the survey had no merit, and that all of Fuga’s testimony was based on lies. Mageo argued that Mageo people cultivated that part of the land claimed by Fuga since before 1900. Mageo argued that Fuga had no land in Pago Pago, except that given him by Mageo, which was limited to the land where the church stands. Mageo argued that in 1946 Fuga Gafoa surveyed and registered the land where the church stands; that Fuga Gafoa did not include any of the land now in question in his survey in 1946 because he knew .that the land now in question was Mageo land and not Fuga land; that Fuga Gafoa was a very just and truthful man and that is why he only surveyed the land he owned.
Mageo argued that the claim of Pogai and Faafia to the very small portion of land within the survey was unfounded and was a mistake on their part, perhaps because Taito never pointed out the boundary between Mageo and Taito land to his children. Mageo argued that at the time of the survey of the land in question, in February, 1962, there was no objection to the survey, even though all .the parties involved herein were present. Mageo made reference to the documentary evidence introduced in his behalf in the form of Exhibits 1,2 and 3.
*434Leota, counsel for Fuga, argued that the portion of land claimed by Fuga was indeed Fuga land; that Fuga people had cleared the land from the virgin bush and had occupied it and cared for it without objection. Leota argued that Mageo’s testimony was all hearsay and that Mageo did not know what he was talking about. Leota argued that Meamoto’s house was entirely in Mageo land, and that Sifoa’s building was also entirely in Mageo land except for a very small part that extended into the part of the land claimed by Fuga. Leota argued that Mageo Meaele and Mageo Felise contradicted each other in Exhibits 1 and 3 as to the name of the land in question, one calling it “Vaitulu” and the other one calling it “Vaitafe.”
Leota argued that Fuga had testified that in the past there was an oblong house and a cooking house belonging to Fuga in the portion now claimed by Fuga, and that Fuga was entitled to the portion claimed because Fuga had used it for 100 years. Leota further argued that Fuga and Taito were one and the same family. Leota stated that it was general knowledge that Mageo owned the land in question, except for the portion claimed by Fuga.
Tuaolo, counsel for Pogai and Faafia, argued that a very small portion of Taito land is included within the survey; that perhaps because of the change in the land and his absence from Pago Pago, Mageo may have forgotten the boundaries between Taito and Mageo land. Tuaolo argued that Fuga people had not occupied the land Fuga claimed, contrary to Fuga’s testimony; that Fuga was allowed on Taito land by permission of Taito. Tuaolo argued that the first Fuga, Va’amua, abandoned the land given to him where the church presently stands, and that Taito sent to Western Samoa for Fuga Gafoa to come and hold the Fuga title.
After considering the testimony and the evidence, including exhibits, and the arguments of counsel, the Court *435is of the unanimous opinion that objector Fuga failed to prove his right to that portion of the land within the survey, and outlined in pencil, claimed as the communal land of the Fuga Family. Fuga’s testimony and evidence as to his claim was not at all persuasive or substantiated. Both Mageo and Pogai testified that the only Fuga land in the area of Pago Pago was where the church house was presently situated and as surveyed and registered by Fuga Gafoa in 1946. It appears to the Court that if Fuga in fact had more land adjacent to that where the church is, said land would have been surveyed and registered at the same time Fuga Gafoa made the survey in 1946, alleged in the testimony. If Fuga and Taito are one family as argued by counsel for Fuga, it would appear to the Court that Pogai would have substantiated or corroborated Fuga’s claim. However, Pogai testified that all the land within the survey, including the portion claimed by Fuga, was Mageo land, with the exception of the very small portion claimed to be Taito land. Pogai also testified that Mageo people had cultivated the portion claimed by Fuga, and Pogai lives immediately adjacent to the land.in question. There was no evidence on the part of Fuga that there was any objection to the survey of the land in question when it was made in February, 1962 although Fuga people were present at the time of the survey. We are of the opinion that Fuga has no rightful claim and that the portion of the land he claims as Fuga land within the survey is in fact Mageo land.
The Court is also of the unanimous opinion that the claim of Pogai and Faafia to the small portion of the land within the survey should be denied. They are claiming as Taito Family land about 450 square feet out of the whole survey consisting of 1.01 acres. 1.01 acres is the equivalent of 43,995 square feet, so that Pogai and Faafia are claiming about 1b8 of the land within the survey, or slightly more than 1%, or a plot of land approximately 21 feet square in *436the shape of a long, narrow triangle. There was no concrete evidence that this small portion was part of a larger tract continuously occupied or originally cleared from .the virgin bush. Neither was there any evidence that there was any objection by any of the Taito people at the time the land was surveyed by Mageo in February, 1962, even though Taito people were present. If by any stretch of the evidence or imagination the Court were to allow the claim by Taito, the only way the land in the survey could be registered would be for Mageo and Taito to file separate surveys. In that case, Taito would have to submit a survey of the 450 square feet triangle of land. However, the Court is satisfied from the evidence that Pogai and Faafia have no rightful claim to the very small portion within the survey which they claim, and that said small portion as well as the rest of the land within the survey is Mageo land.
The Court is of the unanimous opinion that the application filed by Mageo Felise .to register the land within the survey as the communal land of the Mageo Family should be granted, and that said registration should be ordered. We are satisfied from the evidence of Mageo and even Pogai that the whole area within the survey has been under the use, control and cultivation of the Mageo Family for a long time. There was no question by either of the two objectors as to the ownership of the greatest portion of the land by the Mageo Family. Due notice was given to the parties affected at the time of the original survey in February, 1962, and no objection to the inclusion of any part of the land was made. Exhibits 1 and 3 left no doubt but that the greatest part of the land is Mageo land. Even Pogai, one of the objectors, testified that all .the land within the survey was Mageo land, except for the 450 square feet she claimed for Taito. The great majority of people mentioned by name as having occupied the portions involved were Mageo people according to all the parties. We are of *437the opinion that all the land within the survey is Mageo Family land.
In conclusion, it is the unanimous decision of this Court, and it is hereby ORDERED, ADJUDGED AND DECREED by the Court as follows:
1. That the application filed by Mageo Felise to register the land Vaitafe within the survey, consisting of 1.01 acres, more or less, as the communal land of the Mageo Family be and the same is hereby granted, and that the said land be registered in the Office of the Registrar of Titles as the communal land of the Mageo Family.
2. That the claim filed by the objector, Fuga, be and the same is hereby disallowed and denied.
3. That the claim filed by the objectors, Pogai and Faafia, on behalf of Taito, be and the same is hereby disallowed and denied.
4. Court costs in the amount of $37.50 to be paid within 30 days as follows: $18.75 by objector Fuga and $18.75 by objectors Pogai and Faafia. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486003/ | These matters were consolidated for trial. Plaintiff, a national of Iran, first entered the territory under a temporary visitor’s permit on May 3, 1987. He has been preoccupied ever since in striving to remain in the territory on a more permanent basis. The local immigration authorities, on the other hand, have been trying to deport him since mid-1988. In the process, plaintiff has been arrested several times and detained at the Tafiina Correctional Facilities pending deportation efforts.1 His repeated encounters with the immigration authorities can be attributed in no small measure to his curious flair for readily making and unmaking friends. As a result, he has had a remarkably high turnover of sponsors.2
Filing suit pro se. plaintiff seeks, in CA No. 20-90 and CA No. 109-90, damages against the government and various immigration officials for alleged wrongful detainment; and in CA No. 103-90, damages against the government (hospital) and certain of its dental personnel for their alleged wrongful failure to hire him.
FACTS
*3Plaintiff came to the territory via the Republic of the Philippines, where he had attended school and gained a dentistry degree. After he arrived, plaintiff quickly befriended the hospital’s then-director of dental services, Dr. Salamo Laumoli, in hope of securing employment. They became close friends. However, after being on-island for some two months, plaintiffs expectations of employment had not materialized; at the same time, he was vaguely aware that his tourist status would lapse after 60 days.3 He visited the Immigration Office on or about July 3, 1987, to inquire about extending his permit. He met with Chief Deputy Immigration Officer . Robert Porter and informed him of pending employment with the hospital. Mr. Porter, in turn, advised plaintiff that government employment constituted permission to enter the territory but that plaintiff had to furnish proof of such employment.4
Faced with this need for proof, plaintiff turned to his friend Dr. Laumoli, who then produced a "To Whom It May Concern" letter in the name of "friendship." Dr. Laumoli testified that plaintiff not only requested the letter but also suggested its wording. The letter stated that the hospital "was in the process of hiring Dr. Davoud Rakhshan ... as a general practitioner dentist" and sought such assistance as might "expedite [plaintiffs] permit to reside here in American Samoa." In fact, the letter flagrantly misrepresented the facts and (not surprisingly) has since become a sorry source of embarrassment for its author. (Not only did Dr. Laumoli lack the singular authority to hire plaintiff, but also plaintiff could not even have been hired as "a general practitioner dentist," since the Health Services Regulatory Board had not licensed him to practice dentistry in the territory, as mandated by statute. See A.S.C.A. §§ 31.1001 et seq. Indeed, Dr. Don Noel, a member of the Health Services Regulatory Board, testified that the board denied plaintiffs application for licensure because he failed to demonstrate qualification in accordance with applicable regulatory criteria.)
The letter, which plaintiff promptly delivered to Mr. Porter *4personally, served its intended purpose. The Chief Deputy Immigration Officer accepted its representations and took no further action — plaintiff, in reality an overstayer, had managed to avert otherwise-certain deportation. See A.S.C.A. § 41.0616(15). There was, of course, no government job in the pipeline, although plaintiff kept up the ruse by regularly asking Deputy Chief Porter whether the Immigration Office had received the paperwork relating to his employment. At the same time, plaintiff maintained the overt appearance of imminent employment at the hospital’s dental clinic, where he was daily permitted to "observe."
After a few more months had passed, and probably because the ruse of government employment could not be indefinitely continued, Dr. Laumoli agreed to sponsor plaintiff and petition the Immigration Board to give him a work permit. Although the application5 was dated September 27, 1987, it did not come before the board until March 11, 1988. Dr. Laumoli had by that time withdrawn his offer of sponsorship since he and plaintiff had by then parted company. Notwithstanding, plaintiff had also by that time obtained a new patron, and on May 6, 1988, the board granted him a conditional6 work permit for one year under the sponsorship of a Mr. Lautaimi Talamaivao.
As soon as he obtained his permit, plaintiff again visited the Immigration Office to seek advice on how to change sponsors; this time, he was accompanied to the Immigration Office by a Mr. David Katina.7 *5The request, according to the testimony of Chief Immigration Officer So’oso’o Tuiolemotu, was referred to and approved by the Attorney General’s Office.
Within a month plaintiff was in need of yet another sponsor. Mr. Katina complained to the Immigration Office that plaintiff was causing him trouble within his church and family and withdrew his sponsorship of plaintiff. Consequently, the Immigration Office gave plaintiff notice to depart the territory within ten days, as he was without a sponsor.8
Plaintiff, however, failed to depart the territory. As a result, he was subsequently taken into custody and detained at the Correctional Facilities pending deportation proceedings. He was arrested on July 12, 1988, but then released on July 16, 1988. The evidence was not very clear on the reason for plaintiffs release; however, Chief Deputy Immigration Officer Porter testified that he had received a call from Dr. Toeaso Tago (a relative of plaintiffs original sponsor, Mr. Talamaivao), who informed him that Mr. Talamaivao was returning to the territory and was willing to again sponsor plaintiff. Evidently, the matter was informally resolved with the return of Mr. Talamaivao, since deportation proceedings were discontinued and plaintiff ended up teaching at the Tafuna High School.
In the following year, as his permit was about to expire, plaintiff again went before the Immigration Board and requested another change in sponsor because Mr. Talamaivao was again departing the territory indefinitely.9 At this time a Mr. Dave Save presented himself before the board as plaintiffs new prospective sponsor. The board, in its written decision dated June 30, 1989, denied this application and ordered plaintiff to depart the territory within ten days.
*6Plaintiff appealed to the Appellate Division after unsuccessfully petitioning the board for reconsideration. The Court granted plaintiffs application for a stay. See Rakhshan v. Immigration Board, 13 A.S.R.2d 25 (1989). Among other things, the Appellate Division found the record below to be inadequate for purposes of judicial review and remanded the matter back to the board for further hearing. The Court later observed, in Rakhshan v. Immigration Board, 15 A.S.R.2d 29, that the sketchy record produced suggested that the board could have deported plaintiff on a charge of "overstaying" because he had by then lost his teaching job; however, since it did not clearly articulate overstaying as a ground for deportation, that opportunity was only available to the board on rehearing as ordered. IcL ai 31. As it turned out, the board never took that opportunity. Assistant Attorney General Tauivi Tuinei testified that instead he and plaintiffs then-counsel Charles Ala’ilima entered into settlement discussions about allowing plaintiff to depart voluntarily.10 Tuinei also testified that he was under the impression from counsel that plaintiff was planning to travel to Australia and that he was, therefore, surprised when plaintiff visited him on or about January 3, 1990, and inquired about a date for the rehearing which the appellate court had ordered. Tuinei further testified that plaintiff denied having had any plans to depart the territory and that he later produced a tape of a secretly recorded conversation he had with Ala’ilima which he offered to discredit his (by then former) attorney. In the ensuing dialogue, Tuinei informed plaintiff that he would prepare to have him re-arrested, whereupon p laintiff quite literally took to the hills.
For almost two months, plaintiff eluded several search efforts; however, he was finally apprehended on February 28, 1990, pursuant to a warrant of arrest executed by Immigration Officers Herota Satele and Taufooua Asoau. The officers found plaintiff hiding out in the hills behind Futiga and Pava’ia’i; they arrested him and took him to the Tafuna Correctional Facility.
The application for the warrant, which was sworn to by Officer Satele, charged plaintiff with a number of violations of the Immigration Act, namely: overstaying, failing to furnish an annual report of address, failing to furnish a change in address, and being the subject of an *7outstanding foreign warrant of arrest. On March 1, 1990, plaintiff was brought before the board to answer these charges. At this time he was represented by counsel Asaua Fuimaono. The board’s record reveals that it first considered an application for bail set in the sum of $7,000, after being initially set at $10,000, and then took evidence over a two-day period. On March 23, 1990, the board issued its written decision which again ordered plaintiff deported.
On April 12, 1990, plaintiff filed his appeal to the Appellate Division and, at the same time, applied to stay execution of the deportation order and to be released upon surety in lieu of cash. The appellate court granted the application for release upon sufficient sureties and stayed only so much of the deportation order as required deportation to Iran as plaintiffs country of origin. See Rakhshan v. Immigration Board, 15 A.S.R.2d 29. The Appellate Division’s file further reveals that on or about May 19, 1990, the immigration authorities attempted to enforce the board’s order, as modified by the Court, by deporting plaintiff to the Republic of the Philippines as his country of origin. The flight on which plaintiff was booked to depart was significantly delayed; when it was finally ready to leave, plaintiff failed to show. He fled again. This time, plaintiff managed to hide for almost a month until he was physically extracted by immigration officials from the attic of a residence in Sogi, Leone, pursuant to a search warrant.
DISCUSSION
These consolidated matters suffer a common feature — they border on the vexatious. If anything has been shown in these cases, it is that plaintiff confuses the court’s "open doors" policy with something akin to an "open sesame" policy which commands access to judicial relief upon the mere ritualistic incantation of a few mystic phrases — "due process," "constitutional rights," "extreme emotional and mental anguish," "pain and suffering," etc. These phrases were but some of the jargon counsel Asaua Fuimaono used in preparing the original complaint in CA No. 20-90 and the administrative claim preceding CA No. 109-90. Fuimaono’s friendship has since become another made-and-unmade friendship, which ultimately ended in a lawsuit.11 However, after parting company with *8Fuimaono, plaintiff continued to fashion pro se complaints by mindlessly parroting the jargon which counsel had employed in another context. The resulting "patchwork" nature of these complaints is unmistakable; therefore, the question which immediately arises is whether there are meritorious claims submitted.
I. CA No. 109-90
This particular action, which required the defendants to defend a $1 million suit for "general" and "special" damages, is illustrative. The complaint here shamelessly depicts a haphazard effort at "cut and paste." Although mindful that a pro se complaint should be broadly construed in order to promote the interests of justice, see American Samoa Gov’t v. Agasiva. 6 A.S.R.2d 32 (1987), we find that the complaint here says virtually next-to-nothing by way of noticing a claim upon which judicial relief may be framed. It recites, for instance (or more accurately, it lifts from another context), the timely filing of an administrative claim pursuant to the Government Tort Liability Act (hereinafter the "G.T.L.A."), whereas, in fact, nothing of the sort occurred.12 But we are satisfied that this was not an attempt to deliberately mislead; instead, plaintiff was merely reproducing legal jargon from elsewhere without the slightest idea of what he was in fact doing. The complaint also mentions once (in conclusionary fashion) the word "negligence" as being the "proximate [cause]" of plaintiffs damages; but what comprised that negligence on the part of the defendants is neither to be gleaned from the complaint nor revealed, even remotely, on the evidence.13 Additionally, the complaint, after quoting (inappropriately) from the Appellate Division’s order entered May 4, 1990, in Rakhshan v. Immigration Board, 15 A.S.R.2d 29, further alleges that plaintiffs "constitutional rights” were being violated by his continued detention contrary to the terms of the said order, which *9allowed plaintiff admission to bail on sureties. This is a gross misstatement of fact based upon only half of the story. The other half is that the Appellate Division subsequently vacated its said bail order and thereby returned plaintiff to custody after he had, on May 19, 1990, skipped bail and went into hiding for nearly a month.
While a few magic phrases have thus been recited in the complaint, there has been absolutely nothing in the way of evidence to sustain the allegations arising by the use of those phrases.
II. CA No. 103-90
Here, plaintiff seeks $1 million in "general" and "special" damages against the hospital and Drs. Salamo and Noel for their failure to hire him as a dentist at the dental clinic. Plaintiffs claim is that Dr. Laumoli had promised him work which never materialized, although plaintiff ended up working five months for the hospital without pay. In support of his testimony to that effect, plaintiff submitted the aforementioned "To Whom it May Concern" letter.
Assuming arguendo that plaintiff had stated a cognizable claim for relief, such a claim is nevertheless thoroughly wanting in merit. As we noted above, no person may practice dentistry in the territory until he or she is duly licensed by the Health Services Regulatory Board. See A.S.C.A. §§ 31.1001 et seq. ■ It simply follows that before one can be hired as a "dentist," it behooves that person to demonstrate that he is in fact a dentist. Plaintiff could not provide the requisite proof before the Health Services Regulatory Board, nor has he attempted even in the slightest to show otherwise before this Court. According to Dr. Laumoli, the only documents plaintiff furnished him were copies of a diploma and transcripts of subjects and grades; he had advised plaintiff that he must furnish references as well as evidence of licensure in the Philippines before he, Dr. Laumoli, could make a recommendation to the hospital’s medical executive committee, as well as to the Health Regulatory Board; plaintiff failed to provide those requirements.
Alternatively, plaintiff accuses Dr. Noel of discriminatory treatment by reason of his being denied a license to practice dentistry in the territory. This allegation of discrimination remains just that — an allegation without anything in the way of meaningful proofs. Rather, plaintiff seems to think, as far as we can gather from the extent of his attempted proofs together with his related questions put to Drs. Laumoli and Noel on the witness stand, that merely presenting a piece of paper, *10albeit from an unfamiliar and unknown foreign institution, makes him a dentist. In the realm of medicine and public health care, it really takes no great imagination to appreciate why a regulatory authority would require something more in the way of establishing competence beyond a piece of paper submitted without foundation.14
III. CA No. 20-90
Plaintiff bases this claim, also for $1 million in "general" and "special" damages, on his contention that he was unlawfully arrested on July 12, 1988, and unlawfully detained thereafter until July 16, 1988. He argues that, at the time of his arrest and detention, he was lawfully in the territory pursuant to the work permit which the board had granted on May 6, 1998.
The claim, if it sounds in tort, is outside the scope of the G.T.L.A. Specifically, A.S.C.A. § 43.1203(b)(5) unequivocally excludes, inter alia, any claim against the government based on "false arrest" or "false imprisonment." In terms of an action based on the notion of false arrest or false imprisonment, the government remains immune from suit.
At the same time, we have searched for a constitutional dimension to plaintiffs claim; however, we are unable to conclude on the evidence that plaintiffs arrest on July 12, 1988, was otherwise than lawful. Rather, the evidence showed that he was an overstayer at the time of his arrest because he was effectively without a sponsor and therefore was only entitled to remain in the territory for a period of ten days following the revocation of sponsorship. See A.S.C.A. § 41.0408(i). He was duly warned by the Immigration Office, but he chose to ignore that warning; accordingly, he was arrested and taken into custody on July 12, 1988.
Notwithstanding the facts, plaintiff nevertheless argues that he was not an overstayer on the following simplistic reasoning: his file with the immigration office failed to disclose any paperwork relating to the termination of Talamaivao’s sponsorship; therefore, Talamaivao was *11always his sponsor; the corollary to this proposition is that Katina was never his sponsor and therefore was never in a position to make plaintiff an overstayer by withdrawing his sponsorship. This argument only serves to reinforce the suggestion of frivolity in these matters — plaintiff had already admitted to the Immigration Office that Talamaivao was leaving the territory for an indefinite term and that he would no longer be eligible to continue as his sponsor. See A.S.C.A. § 41.0408(f) (the indefinite departure of a person’s sponsor is a ground for revoking that person’s permit).
Plaintiff also questioned the lawfulness of an arrest made without the authority of a warrant issued by the Attorney General. Plaintiff, apparently under the impression that an arrest can only be made upon a warrant issued by the Attorney General, referred us to the provisions of A.S.C.A. § 41.0610 and A.S.A.C. § 41.0227. This impression is mistaken. In addition to A.S.C.A. § 41.0610, the code also authorizes warrantless arrests, provided that the person making the arrest applies immediately thereafter "to a member of the board for an order of arrest and commitment, until the board’s next meeting. . ." See A.S.C.A. § 41.0510(c). Furthermore, the regulation A.S.A.C. § 41.0227 (derived from Immigration Regulations effective prior to 1975) is no longer on the books as the result of subsequent amendments to the rules.
We find no merit in these matters.
On the foregoing, judgment will enter for the defendants and each of them.
It is so ordered.
These efforts have been stayed by the Appellate Division of the High Court, although not for reasons attributable to any particular merit in plaintiffs claim of entitlement to remain in the territory. See Rakhshan v. Immigration Board, 15 A.S.R.2d 29 (1990).
A person who seeks to remain in American Samoa for any permissible extended length of time is required to have a local sponsor, who is, among other things, a guarantor of that person’s public debts. See A.S.C.A. § 41.0408.
A tourist or business visitor may remain in the territory for a period of up to 30 days, however, such period may be extended for an additional 30 days upon approval of the Attorney General or his designee. See A.S.C.A. § 41.0502(a)(2)(D).
Government employees are merely required to supply proof of government employment and assignment to the territory in order to enter. See A.S.C.A. § 41.0502(a)(5).
Dr. Laumoli also testified that he merely signed and dated the application form and it was plaintiff who filled out the details.
The Board’s Order stated in pertinent part: "Alien Rakshan [sic] is hereby authorized for employment, but only upon the showing that the job was advertised extensively and there is a shortage of employable qualified persons existing in American Samoa. A.S.C.A. § 41.0305(5). Such proof shall be submitted to the Immigration Department [sic] prior to actual employment."
It is to be noted that the Act, A.S.C.A. § 41.0408(h), does not permit the transfer of sponsorship from one person to another absent some "compelling reason in the public interest of the people of American Samoa." Just what was the "compelling reason" in plaintiffs then-circumstances was not clear on the evidence. Plaintiff claims that he had to find another sponsor because Mr. Talamaivao was at the time leaving the territory indefinitely; on the other hand, Mr. Katina testified at a *5deportation proceeding before the Immigration Board that plaintiff had sought out his sponsorship after accusing Mr. Talamaivao of certain mistreatment.
A.S.C.A. § 41.0408(i) provides that upon revocation of sponsorship, the person sponsored may remain in the territory for a period of up to ten days, unless the board earlier orders deportation.
Indefinite departure of a person’s sponsor is a ground for revoking that person’s permit. See A.S.C.A. § 41.0408(f).
There are significant practical differences between deportation and voluntary departure as defined in A. S.C. A. §41.0601. For example, the former instance renders one an excludable person, see A.S.C.A. § 41.0615(14); i.e., further entry into the territory is effectively prohibited.
See Rakhshan v. Fuimaono, 18 A.S.R.2d 77 (Trial Div. 1991). Fuimaono here testified that he filed CA No. 20-90 largely as a tactical manoeuvre intended to gain leverage with the immigration authorities, in view of the deportation issue then facing plaintiff, and that the more he *8investigated the case, the more convinced he had become that neither the law nor the facts favored his client. IcL at 79.
Such a claim is a jurisdictional prerequisite to any suit against the government pursuant to the provisions of the G.T.L.A., A.S.C.A. §§ 43.1201 et seq. Faoato v. Government of American Samoa, CA No. 36-79 (1979); Gobrait v. Americana Hotels. Inc., CA No. 12-78 (1978).
Even if negligence could be sustained on the evidence, we are without jurisdiction to entertain such a claim. See Note 12.
The requirements for licensure are to be found in the provisions of A.S.C.A. §§ 31.1001 et seq., and the regulations contained in A.S.A.C. §§ 31.0401 et seq. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486004/ | Defendant has moved for an order returning items seized pursuant to a search warrant and suppressing the use of such items against him. He argues, inter alia, that the warrant was defective because it does not describe the premises to be searched or the items to be seized with the particularity required by the Fourth Amendment of the United States Constitution; Art. I, § 5 of the Revised Constitution of American Samoa; and T.C.R.Cr.P. 41. We agree.
*13Clearly the warrant alone cannot pass constitutional muster since it fails to even name the places to be searched. However, the government argues that a supporting affidavit was attached to the warrant, thus adding the requisite particularity. Traditionally, a warrant that is too general cannot be cured by the specificity of an underlying affidavit, United States v. Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976), but an affidavit may sometimes cure a defective warrant if the warrant plus affidavit limited the discretion of the officers executing the search and informed the person whose property was seized what the officers were entitled to take. Rickert v. Sweeney. 813 F.2d 907, 909 (8th Cir. 1987).
Most circuits have held that a search warrant may sometimes be construed along with its supporting affidavit to satisfy the particularity requirement, U.S. v. Maxwell. 920 F.2d 1028, 1031 (D.C.Cir. 1990), but differ as to what circumstances are needed to construe the warrant with reference to the affidavit. The Ninth Circuit allows an affidavit to supply the particularity lacking in a warrant only if it accompanies the warrant and the warrant uses suitable words of reference which incorporate the affidavit. United States v. Hillyard, 677 F.2d 1336, 1340 (9th Cir. 1982); United States v. Spilotro. 800 F.2d 959, 967 (9th Cir. 1986); United States v. Luk, 859 F.2d 667, 675 (9th Cir. 1988); Center Art Galleries-Hawaii, Inc. v. United States. 875 F.2d 747, 750 (9th Cir. 1989); and United States v. Stubbs, 873 F.2d 210, 212 (9th Cir. 1989). Other circuits have applied the criteria of attachment and incorporation-by-reference less rigidly. See U.S. v. Luk, 859 F.2d at 676 n.8 and cases cited therein; U.S. v. Maxwell, 920 F.2d at 1032 n.2 and cases cited therein.
The warrant herein does not expressly incorporate the underlying affidavit; under the Ninth Circuit test it stands alone and does not have the particularity required by the Fourth Amendment. However, we need not decide here under what circumstances a warrant in American Samoa can be construed to be in reference to a supporting affidavit - both the warrant and affidavit in question are so overbroad and unparticularized as to what may be seized that the warrant would be deficient even if construed in reference to the affidavit.
The warrant authorized the executing agents to seize:
[¶ 1] books, magazines, booklets, receipts, pictures, photographs, medicines, narcotics or narcotics paraphernalia *14and automobiles;
[¶ 2] Said properties are possessed in violation of the laws of American Samoa and constitute evidence of commission of criminal offenses, in violation of §§ 46.3611 [sodomy], 46.3612 [deviate sexual assault], 46.3615 [first degree sexual abuse], 46.4402 [first degree promoting pornography], 46.4613 [false impersonation], 13.1020 [dispensing controlled substance], 13.1022 [possession of controlled substance] A.S.C.A.
The supporting affidavit of the investigating officer used the identical language of ¶ 1, but instead of ¶ 2 noted that these items "is/are property that constitutes evidence of a criminal offense and/or contraband, the fruits of a crime, or otherwise criminally possessed; and/or property designed or intended for use or which is or has been used as the means of committing a criminal offense." As grounds for his belief that these items were at the places named in the affidavit, the officer said that the complaining minor had told him that, following the alleged criminal acts, the minor had seen a medicine cabinet "full of medicines," video tapes and a box of "pornographic magazines" in defendant’s bedroom; and that another juvenile had also said that defendant had shown her "pornographic movies" that he took from his bedroom.
Even if we assumed that the warrant and/or affidavit showed probable cause that the cited statutes had been violated and demonstrated a sufficient nexus between the items to be seized and the alleged crimes, the wording of both documents falls far short of the particularity required to meet constitutional standards and is unconstitutionally overbroad. A description in a warrant must be specific enough to enable the person conducting the search reasonably to identify the things authorized to be seized. United States v. Spilotro, 800 F.2d at 963. The warrant does not even purport to limit the discretion of the executing officers except by reference to the statutes cited. Although a warrant’s reference to a particular statute may in certain circumstances limit the scope sufficiently to satisfy the particularity requirements of the Fourth Amendment, U.S. v. Maxwell, 920 F.2d at 1033, we hold that it does not do so here, since warrants reciting generic categories and criminal statutes, without more, *15do not usually give the executing officers guidance to determine what items to seize.1 United States v. Spilotro. 800 F.2d at 965; United States v. Storage Spaces Designated Nos. 8 & 49. 777 F.2d 1363, 1369 (9th Cir. 1985) (citing United States v. Cardwell, 680 F.2d 75 (9th Cir. 1982) (limiting search to records that are evidence of violation of certain statute generally not enough)).
Nor does the affidavit provide more guidance, since it does not specify the items to be seized. In determining whether a description is sufficiently precise, courts have focused on: (1) whether probable cause exists to seize all items of a particular type described in a warrant; (2) whether the warrant sets out objective standards by which executing officers can distinguish items subject to seizure from those which are not; and (3) whether the government could have described the items more particularly in light of the information available to it at the time the warrant was issued. U.S. v. Stubbs, 873 F.2d at 211 (quoting Spilotro). If the government was (as it now argues) seeking certain items as evidence of the "means" of committing the crimes of sodomy and promotion of pornography, the alleged victims should have been able to provide the detail to enable the government to describe the items sought with the particularity required by the Fourth Amendment. As it stands, the only limitation in the warrant and affidavit on the broad categories of items to be seized is that they somehow be connected to the listed statutes and activities. Even if we construed the warrant and affidavit together to limit the seizure to "pornographic" materials used as a means of committing the alleged criminal acts, the warrant would be invalid. See 8B J. Moore, Moore’s Federal Practice ¶ 41.05 at 41-55 (2d ed. 1985) (warrant authorizing search and seizure of ‘all obscene materials’ located in particular place would impart impermissible discretion to executing officer, lack particularity, lack probable cause as to obscene nature of material subject to seizure, and infringe First Amendment rights).
The lack of particularity is especially troublesome in light of the fact that the items to be seized (books, magazines, booklets, pictures, and photographs) are presumptively protected by the First Amendment, since in such cases the particularity requirement of the Fourth Amendment must be applied with "scrupulous exactitude." United States v. Hale, 784 F.2d 1465, 1468 (9th Cir. 1986) (quoting Maryland v. Macon, 472 U.S. 463, 468 (1985)). The items were purportedly seized (at least regarding *16the sodomy charge) not for the ideas they contained, but for their use as a "means" of committing a criminal act. However, the "scrupulous exactitude" standard has been applied to similar items seized pursuant to a more detailed warrant seeking items evidencing the receipt by mail of child pornography. United States v. Hale, 784 F.2d 1465, 1469 (9th Cir. 1986) (seized magazine suppressed because first part of warrant did not specifically describe it and second part too general to support seizure of material arguably, at time of seizure, protected by First Amendment). The same standard has also been applied to a seizure of documents that were not sought for the ideas they contained, but for the associations they demonstrated, since freedom of association was a right protected by the First Amendment. United States v. Apker, 705 F.2d 293, 300-01 (8th Cir. 1983). When we consider that the defendant has a constitutional right to possess obscenity for personal use in his home, see Stanley v. Georgia, 394 U.S. 557 (1969), and that the only limitation on the items to be seized was that they be "pornographic" and somehow connected to sodomy or promotion of pornography, we find his First Amendment rights implicated. Thus, the standard of particularity to be applied should be "scrupulous exactitude." The warrant and affidavit fail to meet this standard. The motion is granted. Accordingly, the evidence seized must be returned to defendant and its use against him prohibited.
It is so ordered.
Indeed, among the items seized was an airline ticket which the government has since returned to the defendant. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486005/ | Plaintiff Sagapolutele is the senior matai of the Sagapolutele family of Iliili, American Samoa. Defendant Tala’i Sagapolutele is a member of the Sagapolutele family and as such she occupies a certain portion of family land known as "Vaiolefala" where she has maintained her residence and has raised subsistence crops. Lately, she entered into an agreement with a non-family member for the lease of her home at a monthly rental of $600.00. Her lessee is the defendant Choo Jieng Im who has set up his grocery business on the premises — which incorporates customer parking frontage — notwithstanding the senior matai’s objections to any attempts to lease without his consent. After calling a family meeting on the proposed use of family property, and there being no resolution to the parties differences, the matai then filed a petition to enjoin any lease between the defendants and to restrain the continuance of the grocery business on Sagapolutele family property. The matai’s concerns are, among other things, the establishment of a precedent to the effect that individual family members may unilaterally reassign family land to strangers.
We hold that the facts disclose circumstances for the proper granting of a preliminary injunction. It is trite law that the senior matai has pule or control over family lands and that in his or her capacity as the matai may assign or designate a piece of family land for the use of individual family members.1 While he may so parcel out family land for individual use, his pule, however, over such land is not thereby terminated. Pisa v. Solaita, 1 A.S.R. 520 (1935). Thus in Lolo v. The *18Heirs of Sekio, 4 A.S.R.2d 477, 481 (1964), the Court noted "that under Samoan custom family lands are under the jurisdiction of the matai, and [that] a young [untitled] man . . . has no authority to permit strangers to live on communal lands." Similarly, in Fagasoaia v. Fanene, 18 A.S.R.2d 72 (1991), the Court recently said that a "family member’s right to live on family land does not include a right to build supermarkets, warehouses, and parking lots on it and rent these out to strangers." Id. at 73. The attempted lease here is clearly an attempt to usurp the matai’s pule. See also Fagasoaia v. Fanene, 17 A.S.R.2d 91 (1990).2
Finally, the lease attempt here is not only in derogation of the matai’s pule, but it is utterly ineffectual in view of the statutory prohibition against the lease of communal land without the Governor’s approval. See A.S.C.A. § 37.0221.
The matai’s application for a preliminary injunction is granted.
It is so ordered.
See, e.g., Lutu v. Fuimaono, 4 A.S.R. 450 (1964); Atualevao v. Masalosalo, 4 A.S.R. 868 (1962).
We necessarily reject defendants’ argument that the subject matter of the lease is a house and not communal land. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482125/ | NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-NOV-2022
07:57 AM
Dkt. 43 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
DWIGHT J. VICENTE, Claimant-Appellant-Appellant, v.
HILO MEDICAL INVESTORS, LTD., Employer-Appellee-Appellee, and
AMERICAN HOME ASSURANCE COMPANY/AIG CLAIMS SERVICES,
Insurance Carrier-Appellee-Appellee, and JOHN MULLEN & COMPANY,
INC., Insurance-Adjuster-Appellee-Appellee
APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD
(CASE NO. AB 2015-259(H)(S); DCD NO. 1-87-00882)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Leonard, Presiding Judge, Nakasone and Chan, JJ.)
Upon review of the record, it appears that we lack
appellate jurisdiction over self-represented Claimant-Appellant-
Appellant Dwight J. Vicente's (Vicente) appeal from a purported
order denying Vicente's motion to continue trial by the Labor and
Industrial Relations Appeals Board (LIRAB), in Case No. 2015-
259(H)(S), because the record on appeal in CAAP-XX-XXXXXXX does
not include a final decision or order by the LIRAB regarding its
review of a June 3, 2015 decision by the Director of the
Department of Labor and Industrial Relations regarding Vicente's
claim for further workers' compensation benefits for a May 3,
1987 injury.
An aggrieved party may appeal from a final decision and
order by the LIRAB directly to this court under Hawaii Revised
Statutes (HRS) §§ 386-88 (2015) and 91-14 (2012). For purposes
of HRS § 91-14(a), "final order" means "an order ending the
proceedings, leaving nothing further to be accomplished[;] . . .
Consequently, an order is not final if the rights of a party
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
involved remain undetermined or if the matter is retained for
further action." Bocalbos v. Kapiolani Med. Ctr. for Women &
Child., 89 Hawai i 436, 439, 974 P.2d 1026, 1029 (1999) (cleaned
up).
No final judgment has been entered in the underlying
proceeding. Absent an appealable, final decision or order in
LIRAB Case No. 2015-259(H)(S), the appeal is premature and we
lack jurisdiction.
Therefore, IT IS HEREBY ORDERED that appellate case
number CAAP-XX-XXXXXXX is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai i, November 7, 2022.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Karen T. Nakasone
Associate Judge
/s/ Derrick H.M. Chan
Associate Judge
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482121/ | Case: 22-40026 Document: 00516535613 Page: 1 Date Filed: 11/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-40026
FILED
November 7, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Salvador Armas-Lopez,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:20-CR-64-2
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam:*
The attorney appointed to represent Salvador Armas-Lopez has
moved for leave to withdraw and has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229
(5th Cir. 2011). Armas-Lopez has not filed a response. We have reviewed
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-40026 Document: 00516535613 Page: 2 Date Filed: 11/07/2022
No. 22-40026
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous
issue for appellate review. Accordingly, counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities
herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482127/ | [Cite as State v. Cunningham, 2022-Ohio-3982.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2022 CA 00008
:
BRYAN CUNNINGHAM :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Municipal Court, Case No. CRB2101497
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 7, 2022
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOSEPH M. SABO STEPHEN T. WOLFE
ASSISTANT PROSECUTOR WOLFE LAW GROUP, LLC
CITY OF LANCASTER 1350 W. 5th Ave., Suite 330
136 West Main St., P.O. Box 1008 Columbus, OH 43212
Lancaster, OH 43130
Fairfield County, Case No. 2022 CA 00008 2
Delaney, J.
{¶1} Defendant-Appellant Bryan Cunningham appeals his March 9, 2022
conviction and sentence by the Fairfield County Municipal Court.
FACTS AND PROCEDURAL HISTORY
{¶2} On November 16, 2021, Deputy Logan Waite of the Fairfield County Sheriff’s
Office, filed complaints in the Fairfield County Municipal Court against Defendant-
Appellant Bryan Cunningham alleging: (A) Aggravated Menacing, a first- degree
misdemeanor in violation of R.C. 2903.21; (B) Aggravated Menacing, a first- degree
misdemeanor in violation of R.C. 2903.21; (C) Domestic Violence, a first-degree
misdemeanor in violation of R.C. 2919.25(A); (D) Domestic Violence Threats, a fourth-
degree misdemeanor in violation of R.C. 2919.25(C); (E) Domestic Violence Threats, a
fourth-degree misdemeanor in violation of R.C. 2919.25(C); (F) Endangering Children, a
first-degree misdemeanor in violation of R.C. 2919.22(A); (G) Endangering Children, a
first-degree misdemeanor in violation of R.C. 2919.22(A); (H) Endangering Children, a
first-degree misdemeanor in violation of R.C. 2919.22(A); and (I) Endangering Children,
a first-degree misdemeanor in violation of R.C. 2919.22(A).
{¶3} Cunningham entered not guilty pleas to the charges. The matter proceeded
to a jury trial on February 17, 2021 and February 18, 2021, where the following facts were
adduced.
The Stepchildren’s Testimony: An Argument Escalates
{¶4} On November 15, 2021, Cunningham resided in Rushville, Ohio, with his
Wife, 13-year-old Stepdaughter, 12-year-old Stepson, 6-year-old biological daughter, and
5-year-old biological daughter. The custody arrangement for Stepdaughter and Stepson
Fairfield County, Case No. 2022 CA 00008 3
was alternating weeks at Cunningham and Wife’s home and biological father’s home. At
Wife’s home, the children testified they had more rules and chores to do than at their
biological father’s home. Stepson and Stepdaughter testified that every day, Cunningham
wore a fixed blade bowie knife and a gun strapped to his waist. Cunningham has a
concealed carry permit.
{¶5} On November 15, 2021, Cunningham was at home with the younger
children when Stepdaughter and Stepson got home from middle school. Cunningham and
Stepdaughter got into a verbal argument about her friend’s choice of pronouns. Wife
returned home from work while Cunningham and Stepdaughter were still arguing, so Wife
intervened. Cunningham told Stepdaughter and Stepson to carry sheets of drywall from
the basement to the main floor, as he was in process of renovating the home, while Wife
and Cunningham went into the laundry room.
{¶6} Stepdaughter and Stepson both testified that as they were carrying the
drywall up from the basement, they heard Cunningham and Wife arguing in the laundry
room and then the kitchen. They saw Cunningham push Wife in the chest and Wife fall
after he pushed her. Cunningham ripped a kitchen cabinet door off the hinges and threw
it. At one point, both Stepdaughter and Stepson testified they saw Cunningham grab
Wife’s throat with one hand and put a knife to her throat with the other hand. Stepdaughter
believed Cunningham used his bowie knife; Stepson believed Cunningham used a
kitchen knife. Stepson heard his mother yelp when Cunningham put the knife to her throat.
While Stepson was in the basement, he texted his biological father at 6:04 p.m. He did
not call the police himself because he was afraid that Cunningham would hear him, take
his cell phone, and become more violent. Cunningham had already taken Wife and
Fairfield County, Case No. 2022 CA 00008 4
Stepdaughter’s cell phones and Wife’s car keys. The following is the text exchange
between Stepson and his biological father:
Stepson:
He just threatened mom with acknife [sic]
Very up close
Like he was going to stab jer [sic]
Also don’t respond I think he might take my phone just call the police
or something I don’t care
He’s abusing her at this point
He’s pushing her and cornering her
Call the police
Biological Father:
I can’t do anything buddy. You would have to decide how serious it
is and call yourself.
Stepson:
[Rushville home address]
(State’s Ex. A).
{¶7} Despite biological father’s reluctance to call the police after his son’s plea
for help, biological father called 911 at 6:29 p.m. Sergeant Christopher Walker and Deputy
Logan Waite of the Fairfield County Sheriff’s Office were dispatched to the Rushville
address on a reported call of domestic violence.
{¶8} Stepdaughter and Stepson had finished carrying the drywall up from the
basement while Wife and Cunningham continued arguing. Stepdaughter testified she
Fairfield County, Case No. 2022 CA 00008 5
intervened and told Wife to stop arguing because she did not want Cunningham to hurt
her. Stepdaughter testified,
A. * * *I think at this point [Cunningham] pulled the gun out from the behind
of his belt or I’m not completely sure of this, but it looked as to [Stepson],
he said it looked like he did and that’s what it felt like into my head, so –
Q. When you say that’s what it felt like, what do you mean?
A. It just – it just actually kind of felt like metal gun, just not fingers.
Q. Okay. How certain are you that it wasn’t his fingers?
A. Like 70 or 80 percent sure.
Q. Did he say anything to you when this happened?
A. Yeah, he was kind of just screaming. He was calling me names and
telling me to pull the trigger, go die, I think. Yeah.
Q. What names was he calling you?
A. The B word, I think. The F slur. * * *
Q. And then you said, what else did he say about pulling the trigger?
A. Yeah, was like pull the trigger or something as if I was going to off myself.
***
Q. And when this incident with the gun happens, were you scared?
A. Yes.
Q. Why were you scared?
A. Because I felt like my life was being threatened.
(T. 131-133).
Fairfield County, Case No. 2022 CA 00008 6
{¶9} Stepson testified that he saw his sister standing in the living room, but he
did not see Cunningham with a gun. Stepdaughter told him that she thought he pulled his
gun out of his holster and aimed it at her head. He heard Cunningham say, “something
like why don’t you go kill yourself, you emo.” (T. 80-81). Stepson said his 6-year-old sister
and Wife were present when this happened.
{¶10} After the gun incident, Stepdaughter testified that Cunningham fed the
younger children dinner and Wife went upstairs to take a shower. She recalled
Cunningham telling her younger siblings that he did not hold a gun to Stepdaughter’s
head. Then the police arrived.
Fairfield County Sheriff’s Office Investigation
{¶11} Sergeant Walker and Deputy Waite arrived at the residence based on the
reported call of a domestic dispute from biological father. Biological father told the 911
dispatcher there was a knife and the possibility of a firearm at the residence. Cunningham
met the officers on the deck of the home. Sergeant Walker saw the knife strapped to
Cunningham’s waist, so he asked him to put his hands on his head and not to make any
movements. Cunningham stated he was a taxpayer and did not immediately follow the
officers’ orders, so Sergeant Walker drew his taser and pointed it at Cunningham’s chest.
Cunningham then complied. Sergeant Walker removed the knife and then discovered a
gun tucked into the waist of his pants. The black Sig Sauer P365 was determined to be
loaded with a bullet in the chamber and fully functional. Deputy Waite secured the knife
and gun in his cruiser. Cunningham was handcuffed and seated on the outside deck.
{¶12} Sergeant Walker entered the residence through the kitchen. He observed a
shotgun in a bedroom. When he spoke with Wife in the upstairs master bedroom, she told
Fairfield County, Case No. 2022 CA 00008 7
him that she was okay but she appeared scared to him because her hands were
noticeably shaking and her voice quivered. Sergeant Walker had to leave for another call
and Deputy Waite was in charge of the scene. As he left, he told Deputy Waite that Wife
appeared to be in fear.
{¶13} Deputy Waite was wearing a body cam on November 15, 2021, and his
interactions with Cunningham and the family were recorded. The State presented the
body cam videos to the jury. Deputy Waite initially spoke with Cunningham, and it
appeared to the officer that Cunningham expected to be arrested. Cunningham said he
knew where this was going and to just put in him the cruiser. He explained the argument
with Stepdaughter and Wife, but he denied placing his hands-on Wife. He admitted to
breaking a cabinet. Deputy Waite testified that he was confused as to why Cunningham
felt he was going to be arrested, but he had not spoken to Wife or the children yet.
{¶14} After speaking with Cunningham, Deputy Waite spoke with Wife alone on
the front porch at 6:57 p.m. The children were upstairs. The body cam recording of Deputy
Waite’s first interaction with Wife was played for the jury in State’s Exhibit N. (T. 305). In
the video, Wife explained she came home to Cunningham arguing with the kids about a
transgender friend. Deputy Waite asked Wife if she was afraid for her life, and she said
no. She denied there was anything physical. It was a heated argument where
Cunningham threw some things and broke some things. Deputy Waite asked her if she
was scared because she looked scared, and she responded, “I am.” (T. 306). She was
concerned that Cunningham would find out that Stepdaughter and Stepson called their
father. Deputy Waite said Cunningham was told that a neighbor called the police. (T. 306).
She said to Deputy Waite that Cunningham took her cards, keys, phone, and the kids’
Fairfield County, Case No. 2022 CA 00008 8
phones, so she had nothing. Deputy Waite asked if Wife needed anything, and Wife said
she would be fine.
{¶15} Deputy Waite spoke with Cunningham again. After he found out the
neighbor had called the police, Deputy Waite testified that Cunningham plead the fifth.
{¶16} At 7:04 p.m., Deputy Waite went upstairs to speak with the children. State’s
Exhibit C, the body cam video of his discussion with the children, was played for the jury
during Stepson’s testimony. (T. 114). The video showed Stepson in a bedroom with the
two younger siblings. Deputy Waite asked Stepson to show him the text messages he
sent to his biological father, but Stepson said Cunningham had his phone. Stepdaughter
came out into the hallway, where Stepson joined her. Deputy Waite testified the two
children did not appear to be angry, but more concerned and nervous. In the body cam
video, Deputy Waite asked if anything physical happened. Stepson told Deputy Waite
that Cunningham was pushing “her,” and he had “her” cornered in the laundry room. One
of the younger siblings is seen in the video entering the hallway and standing behind
Stepson. Deputy Waite asked the two older children if there was anything else. Stepson
said that he threatened her with a knife. Stepson then told Deputy Waite that Cunningham
held a gun to Stepdaughter’s head, which Cunningham said was his fingers, but it was
his gun. In the background, the younger sibling is seen pointing her fingers at her head
and saying, “like this.” Deputy Waite asked the Stepdaughter, “he had a gun and aimed
it at you?” The younger sibling in the background said, “yeah, like this.”
{¶17} Deputy Waite went back to the front porch to speak with Wife at 7:07 p.m.
Her second statement to Deputy Waite was played for the jury in State’s Exhibit D. (T.
313). In the video, Deputy Waite told Wife that the children said Cunningham pushed her,
Fairfield County, Case No. 2022 CA 00008 9
put a knife to her throat, and took a gun out. Wife became visibly upset and began to cry.
Deputy Waite asked Wife what happened, and Wife asked why it mattered what she said.
She said he knew what happened. He asked her if what the kids said was true. She
responded that she did not know what they said, but she was sure they were honest
because she had honest kids. Deputy Waite testified that Wife did not deny what
happened in the house that evening but would not tell Deputy Waite what happened. Wife
told Deputy Waite that she did not want Cunningham to be arrested and charged for his
alleged actions on November 15, 2021.
{¶18} Deputy Waite testified he arrested Cunningham based on the children’s
statements and the totality of the circumstances of his interactions with Cunningham, the
children, and Wife.
Wife’s Testimony: A Heated Argument
{¶19} Wife was called as a State’s witness. Wife testified that she came home
from work and saw that Cunningham was arguing with Stepdaughter. She inserted herself
into the heated argument, told everyone to calm down, and to have dinner. She denied
being touched or pushed by Cunningham. She denied that Cunningham threatened her
with a knife. She denied that Cunningham threatened Stepdaughter with a gun.
{¶20} The State made a motion to treat Wife as a hostile witness, which the trial
court granted. (T. 163).
{¶21} The State played a portion of State’s Exhibit D. Wife testified the video
showed she did not confirm or deny Cunningham’s alleged actions. She stated she
suffered from post-traumatic stress syndrome and while she spoke with Deputy Waite,
Fairfield County, Case No. 2022 CA 00008 10
she was suffering from mental distress that prevented her from recalling what happened
and she was uncomfortable speaking with the officer.
{¶22} Wife testified that Stepdaughter and Stepson wanted to live with their
biological father, and she learned they were having conversations about how to make
that happen.
Crim.R. 29 and Jury Verdict
{¶23} The State rested and Cunningham moved for a dismissal of the domestic
violence and child endangering charges pursuant to Crim.R. 29. (T. 360). The trial court
denied the motion. The defense then rested its case. (T. 370).
{¶24} The jury was charged and returned its verdict, finding Cunningham guilty of
Aggravated Menacing as to Wife, Aggravated Menacing as to Stepdaughter, Domestic
Violence as to Wife, Domestic Violence with Threats as to Wife, Domestic Violence with
Threats as to Stepdaughter, Child Endangering as to Stepdaughter, and Child
Endangering as to Stepson. The jury found Cunningham not guilty of the two charges of
Child Endangering as to the two younger siblings.
Sentencing
{¶25} The trial court held a sentencing hearing on March 9, 2022. The sentence
was journalized via judgment entry filed on March 9, 2022.
{¶26} The trial court imposed a 180-day sentence of actual incarceration on Count
(A). The trial court next sentenced Cunningham to 180 days suspended on Count (B),
180 days suspended on Count (C), 30 days suspended on Count (D), 30 days suspended
on Count (E), 180 days suspended on Count (F), and 90 days suspended on Count (G).
Fairfield County, Case No. 2022 CA 00008 11
{¶27} For purposes of sentencing, the trial court merged Count (A) Aggravated
Menacing as to Wife with Count (D) Domestic Violence Threats as to Wife and ordered
Counts (A) and (D) to run consecutive to Count (C) Domestic Violence as to Wife.
{¶28} The trial court next merged Count (B) Aggravated Menacing as to
Stepdaughter, Count (E) Domestic Violence Threats as to Stepdaughter, and Count (F)
Child Endangering as to Stepdaughter for purpose of sentencing. Counts (B), (F), and (E)
were to run consecutive to all other Counts.
{¶29} For the offenses involving Stepson, the trial court ordered Count (G) Child
Endangering to run consecutive to all other counts.
{¶30} The trial court then imposed community control sanctions including non-
reporting probation for five years, a mental health evaluation, and the completion of an
anger management program. Cunningham was also ordered to stay away from, have no
contact with, and not enter the premises of Wife, Stepson, Stepdaughter, and the two
younger children at the Rushville home. The parties were allowed to be together to
participate in family counseling.
Appeal
{¶31} Cunningham filed an appeal of the March 9, 2022 sentencing entry with this
Court on March 11, 2022.
{¶32} On March 11, 2022, Cunningham filed a motion with the trial court to
suspend the execution of his sentence. The trial court denied the motion on March 16,
2022. On March 16, 2022, Cunningham filed a motion to suspend execution of sentence
with this Court. We remanded the matter to the trial court for the purposes of having the
trial court explain its reasons in support of denying the request for stay. The trial court
Fairfield County, Case No. 2022 CA 00008 12
filed its judgment entry on May 13, 2022. On May 18, 2022, we denied Cunningham’s
motion to suspend execution of sentence.
ASSIGNMENTS OF ERROR
{¶33} Cunningham raises four Assignments of Error:
{¶34} “I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUSTAIN THE CONVICTIONS.
{¶35} “II. THE JURY’S VERDICTS WERE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶36} “III. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES.
{¶37} “IV. THE TRIAL COURT ERRED WHEN IT IMPOSED THE MAXIMUM
SENTENCE ON THE HIGHEST DEGREE OFFENSE.”
ANALYSIS
I. and II. Sufficiency and Manifest Weight of the Evidence
{¶38} In his first and second Assignments of Error, Cunningham contends his
convictions were against the sufficiency and manifest weight of the evidence. We
disagree.
{¶39} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held, “An appellate court's function when reviewing the sufficiency of the evidence
Fairfield County, Case No. 2022 CA 00008 13
to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a reasonable doubt.”
{¶40} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387,
678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.
{¶41} Cunningham was charged and convicted of multiple violations of the Ohio
Revised Code. We review each conviction in turn.
Aggravated Menacing
{¶42} Cunningham was convicted of two counts of Aggravated Menacing as to
Wife and Stepdaughter, a first-degree misdemeanor in violation of R.C. 2903.21(A). The
statute reads in pertinent part:
(A) No person shall knowingly cause another to believe that the offender
will cause serious physical harm to the person or property of the other
person, the other person's unborn, or a member of the other person's
Fairfield County, Case No. 2022 CA 00008 14
immediate family. In addition to any other basis for the other person's belief
that the offender will cause serious physical harm to the person or property
of the other person, the other person's unborn, or a member of the other
person's immediate family, the other person's belief may be based on words
or conduct of the offender that are directed at or identify a corporation,
association, or other organization that employs the other person or to which
the other person belongs.
{¶43} Cunningham first argues that his conviction for aggravated menacing as to
Wife was not supported by the sufficiency and manifest weight of the evidence. Wife
testified at trial that on November 15, 202, Cunningham did not cause her to believe that
he would cause serious physical harm to her or her children. The video evidence and the
testimony of Stepdaughter, Stepson, Sergeant Walker, and Deputy Waite contradicted
Wife’s testimony. Stepson testified that when he witnessed Cunningham hold a knife to
Wife’s throat, he heard her yelp. He testified that when Cunningham held the loaded gun
to Stepdaughter’s head, Wife was present. Sergeant Walker and Deputy Waite testified
that Wife appeared fearful to them, with shaking hands and a quivering voice. When
Deputy Waite confronted Wife with the statements of her children, Wife began to cry. She
told Deputy Waite that she had honest children. In the State’s Exhibit D, Wife did not deny
Cunningham’s actions towards her or the children on November 15, 2021.
{¶44} Cunningham next argues there was likewise insufficient evidence of
aggravated menacing towards Stepdaughter because she never saw the gun held to her
head. She only heard Cunningham call her names. We point to Stepdaughter’s testimony
where she stated she did not feel fingers on her head, but the metal touch of a gun. As
Fairfield County, Case No. 2022 CA 00008 15
he held the gun to her head, Stepdaughter testified that Cunningham told her to pull the
trigger and to go die. She testified that in that moment, she feared for her life. Deputy
Waite found an operational Sig Sauer, with a bullet in the chamber, in the waist band of
Cunningham’s pants.
{¶45} We have frequently recognized that the jurors in a criminal trial “as the
firsthand triers of fact, [are] patently in the best position to gauge the truth.” State v. Jones,
5th Dist. Richland No. 2016 CA 0045, 2017-Ohio-8633, 2017 WL 5565501, ¶ 59 citing
State v. Frazier, 5th Dist. Stark No. 2010CA00042, 2011–Ohio–434, ¶ 23. Furthermore,
while a jury may take note of inconsistencies and resolve or discount them accordingly,
such inconsistencies do not render a defendant's conviction against the manifest weight
of the evidence. See State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752,
citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714. Upon
this record, considering the evidence in a light most favorable to the State, there was
sufficient evidence that any reasonable trier of fact could have found the essential
elements of aggravated menacing as to Wife and Stepdaughter were proven beyond a
reasonable doubt. The jury did not lose its way to create a manifest miscarriage of justice
when it found Cunningham guilty of aggravated menacing as to Wife and Stepdaughter.
Domestic Violence and Domestic Violence with Threats
{¶46} Cunningham was convicted of Domestic Violence against Wife, in violation
of R.C. 2919.25(A), and Domestic Violence with Threats against Wife and Stepdaughter,
in violation of R.C. 2919.25(C). The statute reads:
(A) No person shall knowingly cause or attempt to cause physical harm to
a family or household member.
Fairfield County, Case No. 2022 CA 00008 16
***
(C) No person, by threat of force, shall knowingly cause a family or
household member to believe that the offender will cause imminent physical
harm to the family or household member.
{¶47} Wife testified at the trial that Cunningham did not push her, she did not fall,
and he did not hold a knife to her throat. The testimony of Stepson and Stepdaughter
contradicts Wife’s testimony. They testified they witnessed Cunningham push Wife,
causing her to fall. They saw him hold a knife to her throat. Stepson was so concerned
that he texted his biological father the details of what he saw and asked him to call the
police. Stepdaughter testified that she felt Cunningham put a gun to her head. She heard
him tell her to pull the trigger and to go die. Wife denied in her testimony that event
occurred. Wife and the children agreed that Cunningham ripped a cabinet door off the
hinges during the arguments.
{¶48} “When there is a conflict in the testimony of witnesses, it is for the trier of
fact to determine the weight and credibility to be given to such evidence.” State v. York,
3rd Dist. Union No. 14-21-14, 2022-Ohio-1626, 2022 WL 1538021, ¶ 87 quoting State v.
Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, ¶ 29. The jury may
“take note of any inconsistencies in the testimony and resolve them accordingly, believing
all, part, or none of each witness's testimony.” State v. Lark, 12th Dist. Fayette No.
CA2018-03-004, 2018-Ohio-4940, ¶ 29. Ultimately, “‘a conviction is not against the
manifest weight of the evidence because the trier of fact believed the state's version of
events over the defendant's version.’” State v. Smith, 3rd Dist. Marion No. 9-20-50, 2021-
Fairfield County, Case No. 2022 CA 00008 17
Ohio-3404, ¶ 26, quoting State v. Ferrell, 10th Dist. Franklin No. 19AP-816, 2020-Ohio-
6879, ¶ 59.
{¶49} The jury in this case did not find Wife’s testimony credible after considering
the other witnesses’ testimony and the body cam video evidence. There was sufficient
evidence to support the jury’s finding that the elements of Domestic Violence under R.C.
2919.25(A) and (C) were met. The jury did not lose its way and create a manifest
miscarriage of justice in convicting Cunningham for Domestic Violence.
Endangering Children
{¶50} Cunningham finally argues his conviction for Endangering Children as to
Stepdaughter and Stepson under R.C. 2919.22(A) was against the sufficiency and
manifest weight of the evidence. The statute reads:
(A) No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child under eighteen years
of age or a mentally or physically handicapped child under twenty-one years
of age, shall create a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support.
{¶51} On November 15, 2021, Stepson was 12 years old, and Stepdaughter was
13 years old. Stepdaughter and Stepson lived with Wife and Cunningham on alternating
weeks. The evidence in this case showed that on November 15, 2021, while children were
present, Cunningham ripped a kitchen cabinet door off the hinges and threw it.
Stepdaughter and Stepson witnessed Cunningham push their mother and cause her to
fall. The minor children were present to see Cunningham hold a knife to their mother’s
Fairfield County, Case No. 2022 CA 00008 18
throat. Stepdaughter felt Cunningham hold a gun to her head and make threats of
violence to her, which Stepson heard.
{¶52} We note that Cunningham was originally charged with endangering children
as to the four children in the home on November 15, 2021. The jury found Cunningham
not guilty of endangering children as to the two younger children. The jury's not guilty
findings show it considered the evidence and discerned the State demonstrated beyond
a reasonable doubt that Cunningham committed the offense of endangering children as
to only Stepdaughter and Stepson.
{¶53} Upon our review, we find sufficient evidence to support the charges for
endangering children and no manifest miscarriage of justice.
{¶54} Cunningham’s first and second Assignments of Error are overruled.
III. Misdemeanors and Consecutive Sentences
{¶55} In his third Assignment of Error, Cunningham argues the trial court erred
when it imposed consecutive sentences because the trial court failed to make the
statutory findings necessary to support consecutive sentences.
{¶56} At the March 9, 2022 sentencing hearing, the trial court stated,
THE COURT: So all one case number, but I’ll impose with regard to [Wife]
and the aggravated menacing, 180 days. Let’s see. For the purposes of –
and 180 days imposed on the DV. For purposes of the DV threats, I’ll
impose 30 days, but that merges for purposes of – so with regard to those
three charges, we have a total of 360 days. With regard to [Stepdaughter],
180 days on the ag menacing charge, 180 days on the endangering
children, 30 days on the Domestic violence threats. Those would merge
Fairfield County, Case No. 2022 CA 00008 19
through to 180 days so we’ll merge those to the aggravated menacing for
purposes of that. And then 180 days on the other endangering children case
with * * * [Stepson]. So a total of 720 days imposed. I’m going to order five
years probation.
***
These are tough. I mean I want to be fair to you, Mr. Cunningham, as well
as – but, you know, based on the circumstances and everything involved in
this case, I’m going to impose of the 720 days – I am going to impose 180
days to be served and suspend 540 of those days.
(T. 50, 53). The trial court did not state on the record that the sentences were to be served
consecutively. In the March 9, 2022 Final Judgment Entry, the sentencing entry stated in
pertinent part, “Jail sentences on each count are consecutive.”
{¶57} R.C. 2929.41(B) reads in pertinent part:
(B)(1) A jail term or sentence of imprisonment for a misdemeanor shall be
served consecutively to any other prison term, jail term, or sentence of
imprisonment when the trial court specifies that it is to be served
consecutively or when it is imposed for a misdemeanor violation of section
2907.322, 2921.34, or 2923.131 of the Revised Code.
{¶58} Cunningham argues the trial court failed to make the statutory findings for
consecutive sentences pursuant to R.C. 2929.14(C)(4). Cunningham was not convicted
of any felonies, only misdemeanors. “R.C. 2929.14(C)(4) does not apply to a conviction
that includes consecutive service of misdemeanor jail terms.” State v. Alexander, 8th Dist.
Cuyahoga No. 102708, 2016-Ohio-204, 2016 WL 299272, ¶ 2.
Fairfield County, Case No. 2022 CA 00008 20
{¶59} The Eleventh District Court of Appeals analyzed the issue of consecutive
misdemeanor sentences in State v. Bechtel, 11th Dist. Lake No. 2019-L-145, 2020-Ohio-
4889, 2020 WL 6042383, ¶ 17, appeal not allowed, 161 Ohio St.3d 1440 (2021). In that
appeal, the defendant was convicted of eight second-degree misdemeanors and the trial
court ordered her to serve eight 90-day jail sentences (which equaled 720 days in the
aggregate) but suspended the jail time. Id. at ¶ 5-6. The trial court did not state at the
sentencing hearing or in the sentencing entry whether the sentences were to be served
concurrently or consecutively. The defendant argued in her assignment of error that the
sentence was contrary to law because the trial court failed to make the statutory findings
necessary to support consecutive sentences. The court of appeals stated:
[R.C. 2929.41(B)(1)] does not prescribe how a sentencing court is to specify
that a misdemeanor jail term is to be served consecutively. The statute
neither requires the court to use particular language when ordering
sentences to be served consecutively nor mandates whether the
specification be made at the sentencing hearing or in the sentencing entry.
While ambiguity as to whether sentences are to be served concurrently or
consecutively should be construed in the defendant's favor, State v. Wright,
8th Dist. Cuyahoga No. 107213, 2019-Ohio-1361, ¶ 15, we find no such
ambiguity in the present case.
Id. at ¶ 17.
{¶60} The Eleventh District found that because the defendant would be subject to
720 days in jail if she violated community control, the trial court effectively specified that
the suspended sentences were to be served consecutively. Id. at ¶ 18. In this case, we
Fairfield County, Case No. 2022 CA 00008 21
find no ambiguity because the trial court specified in the March 9, 2022 final judgment
entry that Cunningham’s sentences were to be served consecutively. R.C. 2929.41(B)(1)
does not require the trial court use particular language when ordering sentences to be
served consecutively. State v. Alexander, 8th Dist. Cuyahoga No. 102708, 2016-Ohio-
204, 2016 WL 299272, ¶ 2. Further, the Eighth District Court of Appeals has held that
R.C. 2929.14(C)(4) is limited to the imposition of consecutive “prison terms” and not “jail
terms.” State v. Alexander, 8th Dist. Cuyahoga No. 102708, 2016-Ohio-204, 2016 WL
299272, ¶ 6 citing State v. Peterson, 8th Dist. Cuyahoga No. 102428, 2015–Ohio–4581,
¶ 7; State v. Maloney, 12th Dist. Clermont No. CA99–01–006, 1999 Ohio App. LEXIS
4600, *7,1999 WL 760923 (Sept. 27, 1999); State v. Kroger, 12th Dist. Clermont No.
CA99–05–050, 2000 Ohio App. LEXIS 1393,2000 WL 342130 (Apr. 3, 2000). The court
of appeals clarified:
“Prison” is defined as a residential facility used for the confinement of
convicted felony offenders under the control of the Department of
Rehabilitation and Correction. R.C. 2929.01(AA). On the other hand, “jail
term” is defined as a jail sentence imposed pursuant to the misdemeanor
sentencing statute, R.C. 2929.24. Prison and jail are two separate types of
imprisonment.
Id.
{¶61} We find no error for the trial court to impose the misdemeanor sentences to
be served consecutively without making statutory findings pursuant to R.C.
2929.14(C)(4). Cunningham’s third Assignment of Error is overruled.
Fairfield County, Case No. 2022 CA 00008 22
IV. Maximum Sentence
{¶62} In his fourth Assignment of Error, Cunningham argues the trial court abused
its discretion when it ordered Cunningham to serve a jail term of 180 days. We disagree.
{¶63} Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not be disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Thadur, 2016-Ohio-417, 59 N.E.3d 602, ¶ 11 (5th Dist.), citing
State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006-Ohio-1558, 2006 WL 826128, ¶ 21,
internal citation omitted. See also State v. Chadwick, 5th Dist. Knox No. 08CA15, 2009-
Ohio-2472, 2009 WL 1485036, ¶ 30. To find an abuse of discretion, the reviewing court
must determine that the trial court's decision was unreasonable, arbitrary, or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). Furthermore, there is no requirement that
a trial court, in sentencing on misdemeanor offenses, specifically state its reasons on the
record. State v. Harpster, 5th Dist. Ashland No. 04COA061, 2005-Ohio-1046, 2005 WL
567319, ¶ 20.
{¶64} The 180-day jail term is within the statutory range for a misdemeanor of the
first degree. R.C. 2929.24(A)(1). In his appellate brief, Cunningham concedes the 180-
day jail term is not contrary to law.
{¶65} R.C. 2929.21(A) first states that “[a] court that sentences an offender for a
misdemeanor * * * shall be guided by the overriding purposes of misdemeanor
sentencing.” The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender. R.C.
2929.21(A). To achieve those purposes, a sentencing court must consider “the impact of
Fairfield County, Case No. 2022 CA 00008 23
the offense upon the victim and the need for changing the offender's behavior,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or the victim and the public.” Id.; Thadur, 2016-Ohio-417, 59 N.E.3d 602 at ¶ 13, citing
State v. Coleman, 4th Dist. Scioto No. 05CA3037, 2006-Ohio-3200, 2006 WL 1719348,
¶ 21.
{¶66} In addition, R.C. 2929.21(B) states in pertinent part as follows: “A sentence
imposed for a misdemeanor * * * shall be reasonably calculated to achieve the two
overriding purposes of misdemeanor sentencing set forth in division (A) of this section,
commensurate with and not demeaning to the seriousness of the offender's conduct and
its impact upon the victim, and consistent with sentences imposed for similar offenses
committed by similar offenders.”
{¶67} Thus, under R.C. 2929.21(A) and (B), to achieve the purposes of protecting
the public from future crime and punishing the offender, the sentencing court is to inter
alia consider the offender's conduct, the impact of the offender's conduct on the victims,
and the consistency of the sentence with sentences for similar offenses. State v. Frank,
2018-Ohio-5148, 127 N.E.3d 363, ¶ 55 (5th Dist.) citing Thadur, 2016-Ohio-417, 59
N.E.3d 602 at ¶ 15.
{¶68} At the sentencing hearing, Cunningham’s trial counsel objected to the
sentence and argued he had never encountered a 180-day jail term imposed for a
defendant who had not inflicted any injuries on the victims and was fully compliant while
on bond. (T. 53-54, 55). The trial court responded that based on the egregious facts of
the case that involved Cunningham putting his gun to the head of minor child
Stepdaughter and a knife to the throat of Wife based on an argument over the use of
Fairfield County, Case No. 2022 CA 00008 24
pronouns, the sentence was appropriate. (T. 56). Upon a review of the record in this case,
we find no abuse of discretion by the trial court to sentence Cunningham to a term of 180
days in jail. The sentence is within the statutory range for a misdemeanor of the first
degree. The sentencing hearing demonstrates the trial court considered the purpose of
protecting the public from future crime and punishing Cunningham, while considering
Cunningham’s conduct towards Stepdaughter, Stepson, and Wife and the consistency of
the sentence with sentences for similar offenses.
{¶69} The fourth Assignment of Error is overruled.
CONCLUSION
{¶70} The judgment of the Fairfield County Municipal Court is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, John, J., concur. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482124/ | Filed 11/7/22 P. v. Chester CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093223
Plaintiff and Respondent, (Super. Ct. Nos. 18FE10365,
20FE005376, 20FE005360)
v.
RONALD CHESTER,
Defendant and Appellant.
After a jury found defendant Ronald Chester guilty of possession of
methamphetamine, paraphernalia, and ammunition in a parking lot, (the parking lot case)
defendant pled no contest to bringing methamphetamine into jail and possession of it in
jail (the jail case). Defendant contends his counsel was ineffective for not moving to
dismiss the charges in the jail case because the two cases arose out of the same course of
conduct. He further argues there was insufficient evidence for the trial court to find his
prior conviction was a strike. We disagree.
Defendant further argues the case should be remanded due to changes in the law
under Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441). We agree
1
with the People’s concession that one of the two convictions in the jail case must be
vacated. We will vacate that conviction and otherwise affirm.
I. BACKGROUND
In the parking lot case, Sacramento County Superior Court case No. 20FE005360,
the amended information charged defendant with possession of a firearm by a felon (Pen.
Code, § 29800, subd. (a)(1))1, possession of ammunition by a felon (§ 30305, subd.
(a)(1)), possession of drug paraphernalia (Health & Saf. Code, § 11364), and possession
of methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
In the jail case, Sacramento County Superior Court case No. 20FE005376, the
information charged defendant with bringing methamphetamine into the jail under
section 4573.5 (count one) and possessing methamphetamine in jail under section 4573.6
(count two). The information in the parking lot case and the information in the jail case
alleged defendant had a prior strike in 2007 for battery inflicting serious bodily injury.
(§ 243, subd. (d).)
The preliminary hearings for both cases were held together as the trial court
commented the matters were “transactionally somewhat connected.”
During the jury trial on the parking lot case, Officer Benton of the Sacramento
City Police Department testified that on March 19, 2020, he and his partner had received
a report of a person in a parking lot refusing to leave and possibly doing drugs. Officers
Benton and Dyson responded at approximately 5:00 p.m. When they arrived, they found
defendant and searched defendant and his backpack. The search uncovered 0.11 grams
of methamphetamine wrapped in tin foil, two glass pipes, and over 100 rounds of live
ammunition.
In a search of defendant’s shopping cart, officers found a broken receiver from a
shotgun. Defendant claimed to have found the ammunition and the receiver in a nearby
1 Undesignated statutory references are to the Penal Code.
2
dumpster and said he was trying to sell them. The People’s expert testified the receiver
in its present state was not capable of firing. Defendant did not testify.
During the trial, defendant brought a motion to set aside the People’s prior strike
allegation contending the People could not prove this was a strike. The trial court
interpreted this motion as notice to the People as to what they had to prove at the strike
prior trial.
The jury found defendant guilty of possession of methamphetamine, possession of
paraphernalia, and being a felon in possession of ammunition. (§ 30305, subd. (a)(1);
Health & Saf. Code, §§ 11364 & 11377, subd. (a).) It could not reach a verdict on
defendant being a felon in possession of a firearm, and the trial court declared a mistrial
on that count.
After the jury trial on the parking lot case, the court trial was held on the 2007
strike allegation. The People offered the certified prior conviction packet, defendant’s
rap sheet, defendant’s section 969b packet from the Department of Corrections and
Rehabilitation (CDCR), and the CDCR packet related to his booking number. The court
admitted these documents into evidence without objection.
The People argued the language of the complaint from his 2007 conviction
charged defendant with personally using force on the victim and demonstrated there were
no accomplices or codefendants. The abstract of judgment demonstrated defendant was
convicted of a violation of section 243, subdivision (d). The minute order also showed
defendant pled no contest to section 243, subdivision (d). The conviction packet included
defendant’s written waiver of his constitutional rights acknowledging this was a strike
conviction and that his attorney had read and explained the document to him. The
defendant’s rap sheet and CDCR packets contained further information identifying
defendant and this conviction. The trial court found the documents submitted pertained
to defendant, and he was convicted of the crime of battery with personally inflicting
serious bodily injury under section 243, subdivision (d), which was a prior strike
3
conviction. The court found each fact necessary to prove defendant personally inflicted
bodily injury was implied when the trial judge found him guilty based upon the factual
basis stipulated to by the parties.
The facts of the jail case come from the preliminary hearing transcript. A
Sacramento County Jail deputy was on duty at approximately 10:00 p.m. on March 19,
2020. While defendant changed into his jail clothing, the deputy noticed a folded piece
of paper on the bench next to him. When asked to hand the paper to the deputy,
defendant responded, “ ‘those are my papers.’ ” The deputy unfolded the paper and
found a small plastic baggie with 4.9 grams of methamphetamine. When the deputy
viewed the jail surveillance of defendant, the deputy saw defendant holding the small
bag, placing his fingers on the bag, and bringing his fingers to his mouth twice.
At sentencing on the parking lot case, the trial court noted its intention to sentence
defendant to a concurrent sentence in the jail case “because I have repeatedly stated on
the record that I believe that the charge[s] relevant to [defendant’s] possession of
methamphetamine in jail was essentially a continuation of the course of conduct that I
will be sentencing him in this case.” In the parking lot case, the trial court sentenced
defendant to the middle term of two years on possession of ammunition, doubled to four
years due to his prior strike, and to 536 days in county jail on the two misdemeanor
charges, with credit for time served.
Defendant then agreed to plead no contest to both charges in the jail case with the
understanding the trial court would sentence him to a concurrent sentence with the
parking lot case that would not exceed the parking lot case sentence. The factual basis
for his plea was that on March 19, 2020, “defendant committed a felony in violation of
. . . section 4573.5, in that he unlawfully and knowingly brought in the Sacramento
County Jail methamphetamine. [¶] It’s also alleged that he, on the same date, violated
. . . [s]ection 4573.6, in that he knowingly and unlawfully possessed methamphetamine
while he was in the Sacramento County Jail, and he was not authorized to do so. [¶] In
4
this case, your honor, after defendant was booked into jail, deputies saw the defendant
with his booking paper folded in half. After they checked the paperwork, they found
methamphetamine on his person. They observed him eating the methamphetamine while
he was in jail after he passed all points which notified that he was not allowed to possess
any.” Defendant pled no contest to each charge and admitted his 2007 prior conviction
for battery was a strike. The trial court sentenced defendant to two years for possession
of methamphetamine in jail under section 4573.6, doubled to four years due to his prior
strike and to be served concurrently with the sentence in the parking lot case. On the
charge for bringing methamphetamine into jail under section 4573.5, the court sentenced
defendant to 16 months, doubled to 32 months due to his prior strike, and stayed this
sentence pursuant to section 654.
Defendant timely appealed.
II. DISCUSSION
Defendant argues the jail case should be dismissed because his attorney was
ineffective for failing to move to dismiss it pursuant to Kellett v. Superior Court (1966)
63 Cal.2d 822, because the act of bringing the methamphetamine into jail was a
continuation of his earlier possession of that methamphetamine. Further, he argues there
is insufficient evidence to sustain the true finding he had a prior strike. Finally, he argues
the case should be remanded to the trial court for resentencing due to changes to section
654 effective January 1, 2022.
A. Ineffective Assistance of Counsel
Defendant claims his counsel was ineffective for failing to move to dismiss the jail
case. A claim of ineffective assistance of counsel requires defendant to show by a
preponderance of the evidence that: (1) counsel’s performance fell below the objective
standard of prevailing professional norms; and (2) defendant was prejudiced by counsel’s
failing. (Strickland v. Washington (1984) 466 U.S. 668, 688-695.) We examine the
merits of defendant’s argument that the jail case should have been dismissed and
5
conclude defendant’s argument fails both prongs of the test because the trial court would
have properly rejected defendant’s motion to dismiss on the facts presented.
1. The Law Against Multiple Prosecutions
At the time of defendant’s trial, section 654 provided in pertinent part: “An act or
omission that is punishable in different ways by different provisions of law shall be
punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a prosecution for
the same act or omission under any other.” (Former § 654, subd. (a).)2
Section 654’s prohibitions on multiple punishment and multiple prosecutions are
separate, with “ ‘different purposes and different rules of prohibition.’ ” (People v.
Ochoa (2016) 248 Cal.App.4th 15, 27.) “ ‘The rule against multiple prosecutions is a
procedural safeguard against harassment and is not necessarily related to the punishment
imposed; double prosecution may be precluded even when double punishment is
permissible.’ (Neal v. State of California (1960) 55 Cal.2d 11, 21,[] disapproved on other
grounds as stated in People v. Correa (2012) 54 Cal.4th 331.)” (Ibid.)
Our Supreme Court has explained: “If needless harassment and the waste of
public funds are to be avoided, some acts that are divisible for the purpose of punishment
must be regarded as being too interrelated to permit their being prosecuted successively.
When there is a course of conduct involving several physical acts, the actor’s intent or
objective and the number of victims involved, which are crucial in determining the
permissible punishment, may be immaterial when successive prosecutions are attempted.
When, as here, the prosecution is or should be aware of more than one offense in which
2 Effective January 1, 2022, that section allows the trial court to punish under the
provision of its choice, not just the provision that provides the longest sentence. (§ 654,
subd. (a).) This change does not affect our analysis.
6
the same act or course of conduct plays a significant part, all such offenses must be
prosecuted in a single proceeding unless joinder is prohibited or severance permitted for
good cause. Failure to unite all such offenses will result in a bar to subsequent
prosecution of any offense omitted if the initial proceedings culminate in either acquittal
or conviction and sentence.” (Kellett v. Superior Court, supra, 63 Cal.2d at p. 827.)
“Appellate courts have adopted two different tests under Kellett to determine
whether multiple offenses occurred during the same course of conduct. [Citation.]
Under one line of cases, multiple prosecutions are not barred if the offenses were
committed at separate times and locations.” (People v. Ochoa, supra, 248 Cal.App.4th at
p. 28.) This test is commonly referred to as the “ ‘time and place test.’ ” (Id. at p. 29.)
“A second version of the test—the ‘evidentiary test’—looks to the evidence
necessary to prove the offenses.” (People v. Ochoa, supra, 248 Cal.App.4th at p. 29.)
“ ‘[I]f the evidence needed to prove one offense necessarily supplies proof of the other,
. . . the two offenses must be prosecuted together, in the interests of preventing needless
harassment and waste of public funds.’ ” (Ibid.) However, the overlap of evidence must
be more than trivial. “ ‘Simply using facts from the first prosecution in the subsequent
prosecution does not trigger application of Kellett.’ ” (Ibid.)
2. Application
While the trial court expressed a view the parking lot and the jail case included a
continuing course of conduct, we conclude neither the time/place test nor the evidentiary
test bars the subsequent prosecution of the jail case.
In terms of the time and place test, the two offenses took place at different times
and different places. As indicated by our choice of shorthand reference, the parking lot
case took place in a parking lot in Sacramento. The jail case took place at the
Sacramento County jail. These are not the same. Further, possession of
methamphetamine in a public place is a different crime than bringing that controlled
substance into a jail. (See People v. Raybon (2021) 11 Cal.5th 1056, 1084
7
[acknowledging the difference in treatment of the possession of cannabis generally versus
possession of that substance in prison].)
In terms of time, the parking lot crime took place at 5:00 in the evening, while the
attempt to bring drugs into jail took place five hours later at 10:00 p.m. Defendant had
five hours to disclose this additional methamphetamine before he was booked into the
jail. Had he done so, there would not be a reason for the second information. While
these two crimes took place on the same day, we believe the jail crime is sufficiently
distinct and removed from the original crime in time and place to allow for multiple
prosecution of these two separate crimes.
As to the evidence test, there is only a trivial overlap in the evidence here. The
officers who testified about defendant’s possession at the parking lot are different from
the Sacramento County Jail booking officer who would testify to his possession at the
jail. Each witness would testify as to a different set of facts and observations with no
overlap. The packaging and amount of the drugs were different: one was 0.11 grams in
foil; one was 4.9 grams in a baggie. The video evidence of each case was different: the
officers’ body worn camera footage in the parking lot case; the jail surveillance footage
in the jail case. While a forensic expert would be required to testify at both trials as to the
nature of the methamphetamine, that expert’s testimony would be based on testing two
separate drug samples. This limited overlap of evidence does not require separate
prosecutions under the evidence test.
Because the trial court properly would not have granted the motion to dismiss,
defendant’s counsel did not render ineffectiveness of counsel.
B. Evidence of Strike.
Defendant argues the evidence does not establish his 2007 prior conviction was a
strike under section 1192.7, subdivision (c). We disagree.
As to the jail case, defendant forfeited this contention when he admitted the 2007
prior conviction was a strike. (People v. LaJocies (1981) 119 Cal.App.3d 947, 956-957.)
8
We reach the merits on the parking lot case because defendant argued this issue
fully in the trial court. A conviction for battery with serious bodily injury does not
qualify as a serious felony unless the defendant personally inflicted great bodily injury on
a person other than an accomplice. (§ 1192.7, subd. (c)(8); People v. Bueno (2006)
143 Cal.App.4th 1503, 1508.) While the record does not explicitly show defendant
personally inflicted the great bodily injury, or that the victim was not an accomplice, that
was not the question the trial court was required to decide. The trial court was required to
decide whether the evidence submitted was sufficient to find beyond a reasonable doubt
defendant’s 2007 prior conviction for battery with serious bodily injury was a strike. We
conclude it was.
Here, the trial court relied on defendant’s plea, which included an admission the
prior offense was a serious felony. In his waiver of rights and declaration in support of
defendant’s motion to change plea, defendant specifically admitted, after consultation
with counsel, “a conviction for violation of [section] 243[, subdivision ](d) is a strike
pursuant to [section] 1192.7 and [section] 667.5.” Further, his attorney declared he read
and explained the document to defendant, and defendant understood the consequences of
his plea. The trial court found defendant to be fully informed of his constitutional rights
and the consequences of his plea. Ultimately, the trial court accepted his plea, found
defendant knowingly, intelligently, and voluntarily waived his rights, and there was a
factual basis for the plea. In effect, defendant made a section 969f admission, pursuant to
a procedure endorsed by our Supreme Court. (People v. Delgado (2008) 43 Cal.4th
1059, 1072.) A defendant who makes a section 969f admission as part of a guilty plea
concedes an offense is a serious felony, and “the serious felony nature of the offense will
become an explicit part of the record of conviction, leaving no room for confusion if and
when the issue becomes relevant to the sentence for a subsequent felony.” (People v.
Delgado, supra, at p. 1072.) Thus, because defendant was advised the nature of his plea
was to a prior strike, admitted his understanding of this advisement, and proceeded with
9
the plea in the presence of counsel, substantial evidence supports the trial court’s
conclusion defendant admitted the section 243 offense was a serious felony and strike
when he entered his plea.
C. Remand for Resentencing.
Defendant argues the jail case should be remanded to the trial court for
resentencing due to changes brought about by Assembly Bill No. 518, which provides the
trial court with discretion when selecting a sentence to impose for an act punishable by
two or more provisions. Defendant argues the trial court would now be able to impose
punishment under either section 4573.6 or 4573.5. The People observe, however, the
section 4573.5 conviction must be vacated because that provision only applies to bringing
“drugs, other than controlled substances” into jail. The only evidence in this case is
defendant brought methamphetamine, a controlled substance, into the jail. (People v.
Pierson (2001) 86 Cal.App.4th 983, 992 [methamphetamine is a controlled substance].)
We agree this conviction must be vacated. Because there is only a single conviction in
the jail case, there is no section 654 issue.
10
III. DISPOSITION
We affirm the judgment in its entirety in the parking lot case, Sacramento County
Superior Court case No. 20FE005360. In the jail case, Sacramento County Superior
Court case No. 20FE005376, we vacate defendant’s conviction on count one for violation
of section 4573.5. The trial court is directed to prepare a corrected abstract of judgment
and forward a certified copy to the Department of Corrections and Rehabilitation.
/S/
RENNER, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
EARL, J.
11 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482134/ | [Cite as State v. Lawson, 2022-Ohio-3972.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-133
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
PAUL PATRICK LAWSON,
Trial Court No. 2021 CR 000471
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Jamie R. Eck, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Paul Patrick Lawson, appeals his convictions after a jury found
him guilty of four counts of Gross Sexual Imposition, in violation of R.C. 2907.05(A)(4)
and 2907.05(A)(1).
{¶2} Specifically, Appellant asserts that the trial court erred in denying his motion
for acquittal pursuant to Crim.R. 29(A) and that his convictions are against the manifest
weight of the evidence. For the following reasons, we affirm the judgment of the Lake
County Court of Common Pleas.
Substantive and Procedural History
{¶3} Appellant and the victim, A.V. (D.O.B 3/27/2007), have known each other
since A.V. was around four or five years old. A.V.’s mother is related to Appellant’s
daughter-in-law, Kaitlyn, and the two families are very close.
{¶4} Appellant and A.V. grew closer in 2018 when the families went on a
camping trip together. A.V. was eleven years old and Appellant was around sixty. After
the camping trip, A.V. started to consider Appellant as a “grandfather” figure. (T.p. 283,
323). Between 2018 and 2020, A.V. and Appellant spent a lot of time together. She
helped him clean up his house in anticipation of a new roommate’s arrival, he frequently
took her fishing, and they would talk on the phone.
{¶5} In December 2020, A.V. disclosed to her mother that Appellant had
inappropriately touched her on multiple occasions. A.V.’s mother called Kaitlyn to come
over and discuss the allegations because she was upset. They called the police and the
police arrived at A.V.’s home shortly thereafter. A.V. spoke to the police, and also spoke
to Kaitlyn before and after the police arrived. A.V. claimed that the inappropriate
relationship began in early 2020 when she went to Appellant’s home to help him clean
(A.V. turned thirteen years old on March 27, 2020).
{¶6} Appellant was indicted on seven counts of Gross Sexual Imposition, in
violation of R.C. 2907.05(A)(4) and 2907.05(A)(1). A.V., her mother, police officers, and
Kaitlyn testified at the jury trial. At the close of the state’s evidence, Appellant moved for
acquittal under Crim.R. 29(A), arguing that the state did not provide sufficient evidence to
convict Appellant. The court denied the motion.
2
Case No. 2021-L-133
{¶7} The jury found Appellant guilty on count one of Gross Sexual Imposition, in
violation of R.C. 2907.05(A)(4), and counts two, three, and four, in violation of R.C.
2907.05(A)(1).
{¶8} The court sentenced Appellant to 60 months imprisonment on count one,
and 12 months each on counts two, three, and four. The court ordered consecutive
sentences on all counts, for a total of 96 months imprisonment.
{¶9} Appellant timely appealed and raises two assignments of error.
Assignments of Error and Law
{¶10} Appellant’s assignments of error state:
{¶11} (1) The trial court erred to the prejudice of the Defendant-Appellant when it
denied his motion for acquittal under Crim.R. 29(A).
{¶12} (2) The trial court erred to the prejudice of the Defendant-Appellant when it
returned a verdict of guilty against the manifest weight of the evidence.
Sufficiency of the evidence:
{¶13} “The court on motion of a defendant or on its own motion, after the evidence
on either side is closed, shall order the entry of a judgment of acquittal of one or more
offenses charged in the indictment, information, or complaint, if the evidence is insufficient
to sustain a conviction of such offense or offenses.” Crim.R. 29. Under Crim.R. 29(A),
“a court shall not order an entry of judgment of acquittal if the evidence is such that
reasonable minds can reach different conclusions as to whether each material element
of a crime has been proved beyond a reasonable doubt.” State v. Bridgeman, 55 Ohio
St.2d 261, 381 N.E.2d 261 (1978), at syllabus. “Thus, when an appellant makes a Crim.R.
29 motion, he or she is challenging the sufficiency of the evidence introduced by the
3
Case No. 2021-L-133
state.” State v. Patrick, 11th Dist. Trumbull Nos. 2003-T-0166, 2003-T-0167, 2004-Ohio-
6688, ¶ 18.
{¶14} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary (6 Ed.1990) 1433. The
appellate court’s standard of review for sufficiency of evidence is to determine, after
viewing the evidence in a light most favorable to the prosecution, whether a rational trier
of fact could find the essential elements of the crime proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶15} When evaluating the sufficiency of the evidence, we do not consider its
credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if
believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails
a review of the elements of the charged offense and a review of the State’s evidence.
State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.
Manifest weight of the evidence:
{¶16} “Weight of the evidence concerns the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.
It indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater amount
of credible evidence sustains the issue which is to be established before them. Weight
is not a question of mathematics but depends on its effect in inducing belief.” Thompkins.
4
Case No. 2021-L-133
at 387. Whereas sufficiency relates to the evidence’s adequacy, weight of the evidence
relates the evidence’s persuasiveness. Id. The reviewing court “weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.” State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist. 1983).
{¶17} The trier of fact is the sole judge of the weight of the evidence and the
credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-
Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The
trier of fact may believe or disbelieve any witness in whole or in part, considering the
demeanor of the witness and the manner in which a witness testifies, the interest, if any
of the outcome of the case and the connection with the prosecution or the defendant. Id.,
quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced
at trial, must defer to the weight and factual findings made by the jury. State v. Brown,
11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390 and
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the
syllabus.
{¶18} A finding that a judgment is supported by the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
5
Case No. 2021-L-133
Analysis
Count one:
{¶19} Appellant first asserts that the state did not prove all elements of count one
of Gross Sexual Imposition, in violation of R.C. 2907.05(A)(4). Appellant also asserts that
inconsistencies in the evidence weigh against finding that Appellant violated R.C.
2907.05(A)(4).
{¶20} Because a finding that a judgment is supported by the manifest weight of
the evidence necessarily means the judgment is supported by sufficient evidence, we
begin by analyzing whether it was against the manifest weight of the evidence for a jury
to find Appellant guilty of violating R.C. 2907.05(A)(4).
{¶21} R.C. 2907.05(A)(4) provides that no person shall have sexual contact with
another when the other person is less than thirteen years of age.
{¶22} “‘Sexual contact’ means any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C.
2907.01(B).
{¶23} A.V. testified at trial that the first time Appellant inappropriately touched her
was when she went to his house to help him clean up in anticipation of a new roommate’s
arrival with a baby. A.V. testified that she was sitting on Appellant’s lap when he
unbuttoned her pants and put his hands on her pubic region until she stood up and stated
that they should start cleaning. A.V.’s testimony was detailed and credible.
{¶24} Appellant contends that the state failed to prove that A.V. was twelve years
old when the conduct satisfying R.C. 2907.05(A)(4) occurred.
6
Case No. 2021-L-133
{¶25} At trial, when defense counsel asked A.V. if it was “possible” the house
cleaning was after her thirteenth birthday on March 27, 2020, she replied “yes.” However,
A.V. testified that she was confident the conduct occurred before her birthday because
she received a cell phone shortly before her birthday as a gift and remembers she did not
yet have a cell phone when she went to Appellant’s house to help clean. A.V.’s testimony
could be viewed as contradictory here. However, A.V.’s mother and Kaitlyn also testified
that A.V. was twelve when she went to Appellant’s home to help clean. A.V.’s mother
testified that A.V. helped Appellant clean his house in January 2020, two months before
A.V.’s thirteenth birthday. A.V.’s mother testified that she remembered the day was in
January because it was before Appellant’s roommate moved in with a baby. Kaitlyn also
testified that the house cleaning was in “early 2020” in January or February because it
was before Appellant’s roommate moved in. Lastly, the detective investigating the case
testified that Appellant told him the house cleaning was either “towards the end of 2019”
or the “very beginning of 2020.”
{¶26} The only evidence suggesting it could have been after her birthday was
A.V.’s testimony that it was “possible.” Yet all other witnesses who testified stated that
the house cleaning was in either January or February, “early” 2020 (before A.V.’s
thirteenth birthday on March 27, 2020.) Even Appellant, during his interview with police
officers, stated that A.V. went to his house to help clean either at the end of 2019 or early
2020.
{¶27} Overall, the greater weight of the evidence (including all reasonable
inferences and the credibility of all four witnesses who testified that A.V. was twelve when
the conduct occurred) demonstrates that the jury did not clearly lose its way and create
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Case No. 2021-L-133
such a manifest miscarriage of justice that the conviction must be reversed, and a new
trial ordered. This is not the exceptional case in which the evidence weighs heavily
against the conviction.
{¶28} Hence, since it was not against the manifest weight of the evidence for a
jury to convict Appellant of R.C. 2907.05(A)(4), that necessarily means the judgment was
supported by sufficient evidence. Arcaro. at ¶ 32.
{¶29} Appellant’s assignments of error as to count one are without merit.
Counts two, three, and four:
{¶30} Appellant next asserts that the state did not prove all elements of counts
two, three, and four of Gross Sexual Imposition, in violation of R.C. 2907.05(A)(1).
Appellant also asserts that the evidence weighs against finding that Appellant violated
R.C. 2907.05(A)(1).
{¶31} Again, we begin analyzing whether Appellants conviction was against the
manifest weight of the evidence.
{¶32} R.C. 2907.05(A)(1) provides that no person shall have sexual contact with
another when the offender purposely compels the other person to submit by force or
threat of force.
{¶33} Appellant first asserts that the evidence weighed against convicting him for
having “sexual contact” with A.V.
{¶34} “‘Sexual contact’ means any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.” R.C.
2907.01(B).
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Case No. 2021-L-133
{¶35} At trial, A.V. testified to at least three instances where Appellant removed
or unbuttoned her clothes and touched either her breasts or her pubic region. A.V.
testified that on one occasion, Appellant knelt in front of her, unbuttoned her shirt,
removed her bra, and placed his mouth on her breast. She also described an incident in
Appellant’s camper where they were lying down next to one another and he touched her
inappropriately. Appellant’s testimony is credible because she described each instance,
detailed exactly where Appellant touched her on each occasion, and was consistent
within her testimony.
{¶36} Appellant argues that the evidence weighed against a conviction because
no witnesses corroborated A.V.’s testimony. Appellant would have us disbelieve A.V.
However, he offers no justification for doing so, other than no one else saw the conduct
alleged. Nothing in the record suggests this victim deserves such disrespect. Moreover,
a lack of corroborating eyewitness testimony is not a basis for reversal alone. State v.
Branch, 3d Dist. Allen No. 1-12-44, 2013-Ohio-3192, ¶ 110. It is not at all unusual that a
sixty-one year old man would take pains to avoid detection while engaging in the conduct
alleged here.
{¶37} Appellant next contends that his conduct was not done with force or by
threat of force.
{¶38} “‘Force’ means ‘any violence, compulsion, or constraint physically exerted
by any means upon or against a person or thing.” R.C. 2901.01(A)(1). The Ohio Supreme
Court has addressed the issue of “force or threat of force” several times in the context of
the rape statute, R.C. 2907.02 and has loosened the definition. Appellate courts have
extended the application of the Court’s interpretations to apply under R.C. 2907.05(A)(1).
9
Case No. 2021-L-133
See State v. Henry, 3rd Dist. Seneca No. 13-08-10, 2009-Ohio-3535. “A defendant
purposely compels another to submit to sexual conduct by force or threat of force if the
defendant uses physical force against that person, or creates the belief that physical force
will be used if the victim does not submit.” State v. Schaim, 65 Ohio St.3d 51, 55, 600
N.E.2d 661 (1992). Force can be inferred from the circumstances surrounding the sexual
contact and is established if it is shown that the victim's will was overcome by fear or
duress. State v. Rodriguez, 8th Dist. Cuyahoga App. No. 82265, 2003–Ohio–7056.
Further, in situations involving an authority figure relationship with minor children, “force
need not be overt and physically brutal, but can be subtle and psychological.” State v.
Eskridge, 38 Ohio St.3d 56, 59, 526 N.E.2d 304 (1988). Courts have long recognized the
coercion inherent in cases involving parents or other figures of authority sexually abusing
children in their care. Id. at 58-59. The amount of force necessary to commit the offense
“depending upon the age, size and strength of the parties and their relation to each other.”
Id. at paragraph one of the syllabus.
{¶39} In support of this argument, Appellant notes that A.V. testified at trial that
she was not forced nor threatened. However, it is unclear whether A.V. (who was fourteen
years old when she testified) contemplated the accepted legal definition of what
constitutes “force or threat of force” in a case like this. An offender may be convicted of
using force even “without evidence of express threat of harm or evidence of significant
physical restraint.” State v. Dye, 82 Ohio St.3d 323, 695 N.E.2d 763, (1998), paragraph
one of the syllabus. Appellate courts have also found “force” where the offender removed
the victim’s clothing, but did not threaten nor physically restrain the victim. State v. Rutan,
No. 97APA03-389, 1997 WL 781902 (10th Dist. Dec. 16, 1997). Similarly, in State v. Oddi,
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Case No. 2021-L-133
5th Dist. No. 02CAA01005, 2002–Ohio–5926, the court held that the offender, a driving
instructor, used force when he inappropriately touched students who were fifteen and a
half years old on their breasts and pubic regions. In Oddi, the students were not
threatened nor physically restrained, but they felt afraid because the driving instructor
was in a position of authority over them. Id.
{¶40} A.V. described that Appellant would frequently remove or unbutton her
shirts, bras, and pants when she was sitting on his lap or lying next to him. At trial, when
A.V. was asked why she never tried to stop Appellant’s conduct, she testified that she
was afraid he would do something to her because he was bigger than she was. She
testified that Appellant had asked her to keep his conduct a “secret.” Moreover, Appellant
was around the age of sixty-one when the conduct occurred; A.V. was between ages
twelve and thirteen. A.V. described these instances in detail. The detective testified that
A.V. pointed out the locations at the fishing spot where Appellant touched her.
{¶41} Further, Appellant was an “authority figure” to A.V. because she was put in
his care during these occasions. A.V. testified that her mother told her that Appellant
was in charge and to “obey” him when she was in his care. The relationship between
Appellant and A.V. was also analogous to an authority figure because she testified that
he was “like family” to her and she considered him as a grandfather type figure.
{¶42} The jury’s convicting Appellant of gross sexual imposition by force or threat
of force, in violation of R.C. 2907.05(A)(1) was not against the manifest weight of the
evidence. A.V.’s testimony detailed each occasion Appellant inappropriately touched her
when she was in his care, including which clothing he removed, and where he touched
her each time. A.V. also testified that when he did so, she was afraid to push back
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because he was bigger than her. Weighing the evidence together, (including all
reasonable inferences and the credibility of A.V.’s detailed testimony) the jury did not
clearly lose its way and create such a manifest miscarriage of justice that the conviction
must be reversed, and a new trial ordered. This is not the exceptional case in which the
evidence weighs heavily against the conviction.
{¶43} Thus, since it was not against the manifest weight of the evidence for a jury
to convict Appellant of R.C. 2907.05(A)(1), that necessarily means the judgment was
supported by sufficient evidence. Arcaro, supra, at ¶ 32.
{¶44} Appellant’s assignments as to counts two, three, and four are without merit.
{¶45} We affirm the judgment of the Lake County Court of Common Pleas.
THOMAS R. WRIGHT, P.J.,
MATT LYNCH, J.,
concur.
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Case No. 2021-L-133 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482135/ | [Cite as State v. Jones, 2022-Ohio-3978.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0098
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
LYNDEN A. JONES,
Trial Court No. 2021 CR 00453
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Sean P. Martin, 113 North Chestnut Street, Suite A, Jefferson, OH 44047 (For
Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Lynden A. Jones (“Mr. Jones”), appeals from the judgment of the
Portage County Court of Common Pleas, which sentenced him to an aggregate nine-year
prison sentence after a jury found him guilty of reckless homicide with a firearm
specification and tampering with evidence.
{¶2} Mr. Jones raises seven assignments of error on appeal, in which he
contends: (1) the state failed to produce sufficient evidence to sustain his convictions for
reckless homicide and tampering with the evidence; (2) the state committed prosecutorial
misconduct when it referred to witness intimidation he did not commit; (3) the trial court
abused its discretion by allowing the admission of testimony that he discarded clothing
after the shooting, which led the jury astray in finding that he tampered with evidence; (4,
5) defense counsel was ineffective for failing to articulate any argument to sustain his
Crim.R. 29(A) and (C) motions for acquittal; (6) the trial court abused its discretion by
overruling defense counsel’s Crim.R. 29 motions without entertaining arguments; and (7)
the prosecutor impermissibly and prejudicially commented on his post-arrest silence
during closing arguments.
{¶3} After a careful review of the record and pertinent law, we find Mr. Jones’
assignments of error to be without merit.
{¶4} Firstly, a review of the state’s evidence reveals more than sufficient
evidence from which a jury could find Mr. Jones guilty of reckless homicide and tampering
with evidence beyond a reasonable doubt. Mr. Jones perversely disregarded the risks
associated with playing with a deadly weapon by pointing and dry firing a gun with its
magazine attached at another person standing in close proximity, i.e., 2-3 feet away.
Further, the state introduced evidence that Mr. Jones attempted to remove all traces of
himself at the scene by removing his personal handguns, plotting to report the shooting
as self-inflicted, and fleeing the scene, possibly discarding his clothing on an interstate as
he drove away. Additionally, the handgun left at the scene that was linked to the bullet
that tore through the victim did not have any traces of fingerprints or any DNA evidence.
{¶5} Secondly, because we find the underlying grounds of Mr. Jones’ fourth, fifth,
and sixth assignments of error, i.e., the sufficiency of the evidence, to be without merit,
we necessarily find these assignments of error are without merit and/or moot.
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Case No. 2021-P-0098
{¶6} Thirdly, as to the allegations of prosecutorial misconduct in Mr. Jones’
second assignment of error, we determine that the prosecutor legitimately questioned one
of the eyewitnesses, Mr. Dickerson, who was reluctant to answer the state’s subpoena,
in an effort to bolster his credibility. The eyewitnesses to the shooting did not come
forward until the investigation was already underway; several reported the victim shot
himself; and the trial itself was emotionally charged with family and friends allegedly
waiting outside of the courtroom threatening the witness. Mr. Dickerson reported being
threatened by his peers the night before he testified. Even if we did find the prosecutor’s
questioning about what was transpiring outside the courtroom improper and confusing for
the jury, Mr. Jones failed to demonstrate any prejudice, substantial or otherwise.
{¶7} Regarding his seventh assignment of error, we agree with Mr. Jones that
the prosecutor’s remark regarding Mr. Jones’ post-arrest silence was highly improper and
find it troubling that the trial court overruled defense counsel’s objection and did not give
a curative instruction to the jury. We determine, however, that any error is harmless since
the record amply supports Mr. Jones’ convictions.
{¶8} Lastly, we find Mr. Jones’ third assignment of error to be without merit since
the trial court did not abuse its discretion in allowing one of the detectives to testify that
Mr. Jones allegedly discarded clothing on the interstate after the incident, which was
never recovered, because it was neither more prejudicial nor less relevant than the
testimony regarding the missing handguns and was more probative than not in
determining whether Mr. Jones tampered with evidence to remove any traces of himself
from the scene. Moreover, the hearsay rule does not apply when an out-of-court
statement is introduced to explain the subsequent actions of a witness. See, e.g., State
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Case No. 2021-P-0098
v. Lewis, 22 Ohio St.2d 124, 132, 258 N.E.2d 445 (1970). Thus, the detective’s testimony
that he was prompted to search for the clothing along the interstate because of comments
from witnesses during his investigation was not inadmissible hearsay; rather, it explained
his course of action. Further, the jury was well aware that the discarded clothing was
never found, and any evidentiary value it had as far as linking Mr. Jones to the shooting
was speculative. Thus, the jury was free to weigh the credibility of such evidence.
{¶9} Finding Mr. Jones’ assignment of error to be without merit, the judgment of
the Portage County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶10} In May 2021, a Portage County Grand Jury indicted Mr. Jones on four
counts: reckless homicide, a third-degree felony, in violation of R.C. 2903.041; using
weapons while intoxicated, a first-degree misdemeanor, in violation of R.C. 2923.15;
involuntary manslaughter, a third-degree felony, in violation of R.C. 2903.04; and
tampering with evidence, a third-degree felony, in violation of R.C. 2921.12. The
indictment was amended a few days later to include a firearm specification on the counts
of reckless homicide and involuntary manslaughter pursuant to R.C. 2929.14(D) and R.C.
2941.145.
{¶11} The indictment arose out of a small get together of high schoolers who
gathered at an apartment following a high school basketball game. They were smoking
marijuana and several of them were dry firing handguns. The nine-millimeter handgun
Mr. Jones was handling fired a live round, which struck and killed the 17-year-old victim,
Dominick Anthony Diaz-Francis (“Mr. Diaz-Francis”).
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Case No. 2021-P-0098
{¶12} Mr. Jones pleaded not guilty at his arraignment, and the case proceeded to
a three-day jury trial.
The Jury Trial
{¶13} The state presented the testimony of twelve witnesses, including Mr. Jones’
friends that were present on the night of the shooting (with the exception of the lessee of
the apartment, Dajon Rovelle Buchanan a.k.a. “DJ” (“Mr. Buchanan”)): Dalvin Dickerson
(“Mr. Dickerson”); Mr. Jones’ cousin, Josiah Mercury aka “Joe Joe” (“Mr. Mercury”); and
Anthony Clark a.k.a. “Barry” (“Mr. Clark”).
The Eyewitnesses
{¶14} Mr. Dickerson, Mr. Mercury, and Mr. Clark gave similar accounts of the night
of the incident. The group had congregated at Mr. Buchanan’s apartment to “hang out,”
which included playing videogames, smoking marijuana, and playing with handguns.
Three handguns were brought out shortly after they arrived; two belonged to Mr. Jones,
and one belonged to Mr. Diaz-Francis. According to Mr. Dickerson, Mr. Jones and Mr.
Diaz-Francis were “cocking them back” to see which gun was the loudest and/or easiest
to fire. Mr. Mercury and Mr. Clark both testified that dry firing handguns was something
they did often. Dry firing a gun was described during the trial as pulling the trigger of an
unloaded gun. A click is heard when the hammer of the gun falls, which in a loaded gun
expels the bullet from the gun’s chamber.
{¶15} Mr. Jones was dry firing the nine-millimeter handgun that belonged to Mr.
Diaz-Francis. He pointed it at the victim, who was standing only a few feet away, and
pulled the trigger, expelling a live round. As the chief forensic investigator for the Portage
County Coroner’s office testified, the bullet struck Mr. Diaz-Francis mid-chest and exited
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Case No. 2021-P-0098
out of his upper back/right shoulder. An officer later retrieved the bullet, which was
located lodged into one of the ceiling tiles.
{¶16} Mr. Diaz-Francis collapsed in the doorway leading into the apartment
bedroom. Believing they could drive him to the hospital, Mr. Dickerson and Mr. Jones
assisted the victim as far as the door of the apartment hallway.
{¶17} The group discussed reporting the shooting as self-inflicted, and Mr.
Buchanan called 911 on Mr. Clark’s cell phone, reporting that the victim shot himself. No
one knew what happened to Mr. Jones’ guns, but everyone except the victim and Mr.
Buchanan fled the scene before emergency personnel arrived.
{¶18} The officers who responded to the scene smelled marijuana emanating from
the apartment before they entered. They found Mr. Buchanan standing over the victim,
who was lying on the floor, unresponsive, and gasping and swallowing for air. Mr. Diaz-
Francis was transported to the hospital by emergency personnel where he later died due
to blood loss.
{¶19} The only handgun recovered from the scene was Mr. Diaz-Francis’ nine-
millimeter handgun with the magazine still attached. At the time, the officers were
unaware other handguns had been present since they began the investigation under the
assumption that Mr. Diaz-Francis shot himself. A forensic investigator with the Ohio
Bureau of Criminal Investigation examined the gun, found it operable, and confirmed that
that the gun and the bullet that shot the victim had the same class characteristics.
{¶20} Mr. Buchanan was taken into custody by Detective Duane Kaley (“Det.
Kaley”). Mr. Buchanan filled out four different statement forms, reporting the shot as self-
inflicted in various versions, which indicated to Det. Kaley that there were more factors to
6
Case No. 2021-P-0098
consider than those initially reported. Mr. Dickerson, Mr. Clark, and Mr. Mercury
eventually came forward, all reporting that Mr. Jones shot Mr. Diaz-Francis. Ultimately,
Det. Kaley pieced together the events of the night of the incident and reached the
conclusion that Mr. Jones shot Mr. Diaz-Francis and fled to Texas to stay with his parents.
Eventually, he obtained a warrant for Mr. Jones and travelled to Texas to place him in
custody.
Intimidation of Witnesses
{¶21} As relevant to Mr. Jones’ second assignment of error, prior to Mr. Dickerson
testifying, the state noted on the record that Mr. Dickerson had been threatened by peers
the previous night. During his direct examination of Mr. Dickerson, the prosecutor
engaged him in the following colloquy:
{¶22} “Q. Okay. All right. Let me ask you this. Without naming names, it’s been
tough for you to get subpoenaed by us and have to come in here and tell the truth, would
that be fair to say?
{¶23} “A. Yes.
{¶24} “Q. In fact, I was told, and I don’t know if this is true or not, that even while
waiting on your testimony, some of the folks you know outside the courthouse, gave you
some lip, sort of challenged you verbally –
{¶25} “[Defense Counsel]: Objection.
{¶26} “The Court: Overruled.
{¶27} “Q. –beefing with you about your testimony today; is that true?
{¶28} “A. Yes.
{¶29} “Q. Okay. Um, not Lynden, to be fair to Lynden.
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Case No. 2021-P-0098
{¶30} “A. Right.
{¶31} “Q. Folks, friends, I mean, it’s an emotional time. And you sort of stood up
and said, hey, I’m just going to tell the truth what happened and let the court decide what
it wants to do; is that fair to say?
{¶32} “A. Yes.
{¶33} “Q. You got any reason to come in here and lie today?
{¶34} “A. No, sir.
{¶35} “* * *
{¶36} “Q. Do you feel intimidated or afraid or scared of the dudes that were
threatening you outside?
{¶37} “A. No.
{¶38} “* * *
{¶39} “Q. Okay. And when I asked you what you thought happened, you told me
in trial prep, you said, I thought it was an accident. I don’t think he meant the gun to go
off.
{¶40} “A. Right.
{¶41} “Q. That’s fair to say. We’re being fair to Lynden on that too. Okay. All
right, Dalvin. I want to thank you for being a standup guy and having the courage to testify
truthfully. [Defense counsel] will have some questions for you. He’s Lynden’s Attorney,
and then you’ll be free to go after that. If anybody does threaten you or retaliates against
you for your testimony, you call the police and let us know. That is a felony to do that,
okay. If somebody retaliates or threatens against you for testifying in court. All right. You
shouldn’t have to go through that.”
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Tampering with Evidence
{¶42} Det. Kaley elaborated on the tampering with evidence charge for the jury.
He testified that during the course of the investigation, witnesses indicated there were
three guns at the apartment, only one of which was located, i.e., the gun that shot Mr.
Diaz-Francis, and that Mr. Jones had taken the other two, which belonged to him. Det.
Kaley further testified that during the investigation, the eyewitnesses had indicated Mr.
Jones was wearing an article of clothing, potentially bloody, that he discarded on
Interstate 76 following the incident. The clothing was never recovered. The trial court
overruled defense counsel’s objection to this testimony, and Det. Kaley further testified
that “[t]here was [an] article of clothing that he had on that could have been of value to
enhance the investigation.” He also testified that no fingerprints or DNA were found on
the gun.
Crim.R. 29 Motions
{¶43} At the close of the state’s case in chief, defense counsel made a Crim.R.
29 sufficiency of the evidence motion, arguing that there was insufficient evidence
regarding each and every element of all four charges. Defense counsel inquired whether
the court would allow him to go into greater detail on those arguments. The court declined
and overruled the motion. Shortly after the defense rested, defense counsel renewed his
Crim.R. 29 sufficiency of the evidence motion, which the court overruled.
Closing Arguments
{¶44} As relevant to Mr. Jones’ seventh assignment of error, during closing
argument defense counsel remarked:
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Case No. 2021-P-0098
{¶45} “He went back to his parents’ house in Austin, Texas. And from that we’re
going [to] perceive it as being fleeing. As if he’s somehow hiding. If he’s hiding someone
has to be looking for you.
{¶46} “At that point, he doesn’t even know that people are looking for him.
{¶47} “Now, they’re going to say, well his leaving somehow creates the idea that
that’s tampering with evidence.
{¶48} “Again, look at the tampering with evidence charge.
{¶49} “Tampering with evidence does not say that you can’t go to your parents’
house.
{¶50} “It’s not like he’s trying to seek refuge in a monastery. It’s not like he’s
moved to Mexico or gone to some South American countries. He didn’t do any of those
things.
{¶51} “And if he had done those things, it’s a different charge.
{¶52} “He’s charged with tampering with evidence.
{¶53} “And the government’s going to use words like he was fleeing to try to plant
that seed in your mind that he already had this consciousness of guilt, that’s he’s trying
to get out of dodge, and he’s trying to get out before they get him.
{¶54} “But, again, that’s requiring you to put thoughts in his mind, but there’s
certainly no testimony, no testimony whatsoever.
{¶55} “And if they wanted to find him, if they truly wanted to get his side of the
story, they could have. They chose not to. And that’s why we have the case we have
here today.”
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Case No. 2021-P-0098
{¶56} During the state’s rebuttal closing argument, the prosecutor, in turn,
remarked,
{¶57} “He fled to Texas.
{¶58} “He killed Dominick, he didn’t know what to do so he ran to his family.
{¶59} “And let’s follow that. He doesn’t know what’s going on, okay.
{¶60} “All his friends know, it’s all over social media, the police are talking to
everybody, they’re looking for him, that’s well known. He eventually gets charged within
a few months, it goes through the Grand Jury process. Takes even up to a year then to
get him into custody.
{¶61} “He knows what’s going on.
{¶62} “And if you’re not sure then let’s come to the big moment, right. It’s your
time. You meet. Hi, I’m Detective Kaley of the Ravenna Police Department. All right.
Tell me about it.
{¶63} “What did he say? That’s what you hear. Nothing.
{¶64} “So all much ado about he didn’t even know they were looking for him. He
didn’t flee, he didn’t – he’s doing everything he can. He’s moving stuff from the scene,
he’s throwing his clothes out the window, he’s fleeing to Texas. And when the big moment
comes, if what [defense counsel] is telling you is true, he would have talked if he had his
chance.
{¶65} “He had his chance.”
{¶66} Defense counsel moved for a mistrial due to prosecutorial misconduct,
arguing that the prosecutor mentioned Mr. Jones’ right not to testify. The prosecutor
disagreed, contending that he was referring to defense counsel’s statement that the police
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did not try to get a statement from Mr. Jones and that Mr. Jones did not know anyone was
attempting to speak with him regarding the incident. The trial court overruled the motion,
and the case proceeded to jury deliberations.
Jury Verdict and Sentencing
{¶67} The jury returned a guilty verdict on the counts of reckless homicide, with a
firearm specification, and tampering with evidence.
{¶68} Several weeks later at the sentencing hearing, after making consecutive
sentence findings, the trial court sentenced Mr. Jones to consecutive 36-month terms of
imprisonment on each count, for an aggregate prison sentence of nine years.
{¶69} Mr. Jones raises seven assignments of error on appeal:
{¶70} “[1.] The State of Ohio Failed to Produce Legally Sufficient Evidence to
Sustain a Conviction on Count One and Count Three.
{¶71} “[2.] [The] State of Ohio Committed Prosecutorial Misconduct When it
Referred to Witness Intimidation That Was Not Committed by the Appellant.
{¶72} “[3.] [The] Trial Court Abused Its Discretion By Admitting Evidence Alleging
the Appellant Engaged in Tampering with Evidence.
{¶73} “[4.] Appellant received Ineffective Assistance of Counsel as Defense
Counsel Failed to Articulate Any Argument to Sustain Appellant’s Rule 29(A) Motion.
{¶74} “[5.] Appellant received Ineffective Assistance of Counsel as Defense
Counsel Failed to Articulate Any Argument to Sustain Appellant’s Rule 29(C) Motion.
{¶75} “[6.] [The] Trial Court Abused Its Discretion By Overruling Defense
Counsel’s Rule 29 Motions Without Entertaining Arguments.
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Case No. 2021-P-0098
{¶76} “[7.] The Prosecution Impermissibly Commented on Appellant’s Post Arrest
Silence During Closing Arguments And Prejudiced the Appellant.”
Sufficiency of the Evidence
{¶77} In his first assignment of error, Mr. Jones contends the state failed to
produce legally sufficient evidence to sustain his convictions for reckless homicide and
tampering with evidence.
{¶78} “‘“[S]ufficiency” is a term of art meaning that legal standard which is applied
to determine whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.’” State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th
Ed.1990). “In essence, sufficiency is a test of adequacy.” Id.
{¶79} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
Id.
{¶80} When conducting a sufficiency of the evidence analysis, this court is to look
at the actual evidence admitted at trial, both admissible and inadmissible. State v. Rose,
11th Dist. Lake No. 2014-L-086, 2015-Ohio-2607, ¶ 34. Further, a claim of insufficient
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Case No. 2021-P-0098
evidence invokes a question of due process, the resolution of which does not allow for a
weighing of the evidence. Id. at ¶ 33.
Reckless Homicide
{¶81} Mr. Jones was convicted of reckless homicide in violation of R.C. 2903.041,
a third-degree felony. Pursuant to R.C. 2903.041, “[n]o person shall recklessly cause the
death of another * * *.” Further, “[a] person acts recklessly when, with heedless
indifference to the consequences, the person disregards a substantial and unjustifiable
risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain
nature. A person is reckless with respect to circumstances when, with heedless
indifference to the consequences, the person disregards a substantial and unjustifiable
risk that such circumstances are likely to exist.” R.C. 2901.22(C).
{¶82} Mr. Jones specifically takes issue with the credibility of the eyewitnesses.
The credibility of the witnesses does not go to the sufficiency of the evidence but, rather,
goes to the manifest weight of the evidence. State v. Hodgson, 2021-Ohio-4374, 182
N.E.3d 417, ¶ 93 (11th Dist.). When evaluating the manifest weight of the evidence, it is
well-settled that when assessing the credibility of witnesses, “[t]he choice between
credible witnesses and their conflicting testimony rests solely with the finder of fact and
an appellate court may not substitute its own judgment for that of the finder of fact.” State
v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). Furthermore, if the evidence
is susceptible to more than one interpretation, a reviewing court must interpret it in a
manner consistent with the verdict. Cent. Motors Corp. v. Pepper Pike, 73 Ohio St.3d
581, 581, 653 N.E.2d 639 (1995).
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{¶83} As our review of the facts reveals, all three eyewitnesses testified that they
were smoking marijuana and that Mr. Jones and Mr. Diaz-Francis were dry firing guns,
giving similar accounts of the incident both before and after the shooting. Mr. Clark was
sleeping and, although Mr. Dickerson did not actually observe Mr. Jones pull the trigger,
he did see the gun Mr. Jones was holding fire. Mr. Mercury testified he and Mr. Jones
were looking at each other when the gun Mr. Jones was holding went off. All three saw
Mr. Jones drop the gun after Mr. Diaz-Francis was shot. All three described the panic
that ensued, their attempts to help the victim, and their discussions about reporting the
shooting as self-inflicted. An officer identified the gun secured at the scene, which had
the magazine still attached, and the Ohio BCI Investigator concluded that the bullet that
tore through the victim was fired from the gun Mr. Jones was holding.
{¶84} Simply because Mr. Dickerson did not see Mr. Jones actually pull the trigger
does not mean there was insufficient evidence introduced. “Circumstantial evidence and
direct evidence inherently possess the same probative value * * *.” Jenks, supra, at
paragraph one of the syllabus. Circumstantial evidence has been defined as “testimony
not grounded on actual personal knowledge or observation of the facts in controversy,
but of other facts from which inferences are drawn, showing indirectly the facts sought to
be established.” State v. Marhefka, 2016-Ohio-7158, 71 N.E.3d 1229, ¶ 22 (11th Dist.).
An inference is “‘a conclusion which, by means of data founded upon common
experience, natural reason draws from facts which are proven.’” Id., quoting State v.
Nevius, 147 Ohio St. 263, 274, 71 N.E.2d 258 (1947). It consequently follows that “when
circumstantial evidence forms the basis of a conviction, that evidence must prove
collateral facts and circumstances, from which the existence of a primary fact may be
15
Case No. 2021-P-0098
rationally inferred according to common experience.” State v. Windle, 11th Dist. Lake No.
2010-L-033, 2011-Ohio-4171, ¶ 34.
{¶85} As the Second District explained in State v. Erby, 2d Montgomery No.
27799, 2018-Ohio-3695, “a defendant may be guilty of reckless homicide for an
unintentional shooting if the evidence supports a finding that he handled a firearm in a
reckless manner, resulting in another person’s death.” Id. at ¶ 20; see, e.g., State v.
English, 10th Dist. Franklin No. 13AP-88, 2014-Ohio-89, ¶ 13; State v. Howse, 2012-
Ohio-6106, 985 N.E.2d 246, ¶ 30-31 (9th Dist.).
{¶86} In Erby, the Second District found the trial court had a reasonable basis for
finding that the appellant acted recklessly by “waving” what he knew to be a loaded gun
within two feet of where the victim was lying on the bed, with his finger on the trigger while
he was in an admittedly “hyped up” state. Id. at ¶ 23.
{¶87} In English, the appellant was sitting in the backseat of a car, holding a shot
gun, playing with its hammer (part of the firing mechanism) in close proximity to several
other people. Id. at ¶ 12. The shotgun went off, killing one of the individuals who was
standing near the left-side rear door area. Id. at ¶ 2. The appellant argued that he did
not have knowledge that the shotgun could discharge while manipulating the hammer
without applying any pressure to the trigger; thus, he could not have disregarded the
specific risk the gun posed to those around him. Id. at ¶ 9. The Ninth District determined
that “while appellant may not have specifically known that the shotgun in his hands had
a ‘sometimes operable hammer safety,’ it was clear that his actions created a risk of harm
to nearby individuals and that appellant perversely disregarded that risk by continuing to
play with the shotgun’s hammer mechanism.” Id. at ¶ 12.
16
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{¶88} Similarly, in this case, it is obvious Mr. Jones perversely disregarded the
risks associated with playing with a deadly weapon. As the Supreme Court of Ohio
recognized in State v. Widner, 69 Ohio St.2d 267, 431 N.E.2d 1025 (1982), “a firearm is
an inherently dangerous instrumentality, the use of which is reasonably likely to produce
death.” Id. at 270.
{¶89} We cannot say under the circumstances of this case that the state failed to
introduce sufficient evidence from which a jury could find beyond a reasonable doubt that
Mr. Jones recklessly caused the death of another by pointing and dry firing a gun with its
magazine attached at another person standing several feet away.
Tampering with Evidence
{¶90} Mr. Jones was convicted of one count of tampering with evidence in
violation of R.C. 2921.12, which states:
{¶91} “(A) No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following:
{¶92} “(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or investigation;
{¶93} “(2) Make, present, or use any record, document, or thing, knowing it to be
false and with purpose to mislead a public official who is or may be engaged in such
proceeding or investigation, or with purpose to corrupt the outcome of any such
proceeding or investigation.
{¶94} “(B) Whoever violates this section is guilty of tampering with evidence, a
felony of the third degree.”
17
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{¶95} Mr. Jones contends the evidence was insufficient to support a tampering
with evidence conviction because of the eyewitness accounts, i.e., Mr. Dickerson could
not account for what happened to the other handguns and did not see who removed them
from the scene, and Mr. Mercury could not recollect what happened to the handguns but
explicitly testified that Mr. Jones was not in possession of them after the shooting.
{¶96} As we already noted, “[c]ircumstantial evidence can have the same
probative value as direct evidence.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d
1 (1991). Simply because several of the eyewitnesses did not know what happened to
the handguns after the shooting occurred is irrelevant. All three eyewitnesses testified
that the handguns were present. Most fundamentally, focusing simply on exactly what
happened to the handguns after the shooting occurred is a red herring. It is what their
absence indicates, combined with eyewitness testimony that they were there, Mr. Jones’
proposition to his friends to report the shooting as self-inflicted, and the false reports, i.e.,
Mr. Dickerson’s 911 call reporting the shooting as a self-inflicted and Mr. Buchanan’s four
false witness statements to the police immediately following the incident, that is indicative
that evidence was tampered with to mislead the investigation. See, e.g., State v.
DeMastry, 193 Ohio App.3d 495, 2011-Ohio-1320, 952 N.E.2d 1151 (5th Dist.) (purposely
making a false statement to a 911 dispatcher is within the statutory definition of tampering
with evidence).
{¶97} Quite simply, Mr. Jones attempted to remove all traces of himself from the
scene with the aid of his cohorts. He discussed reporting the shooting as a self-shooting
with all of those present, left the scene of the crime, and discarded his clothing on the
highway. The handgun that remained at the scene contained no fingerprints, and if it
18
Case No. 2021-P-0098
were not for others eventually coming forward, the truth of the shooting may not have
come to light.
{¶98} Thus, the state presented considerable circumstantial evidence that Mr.
Jones disposed of his handguns with the intent to conceal them to remove any evidence
of himself at the scene of the incident and that he was more than cognizant that an
investigation was likely to ensue. Moreover, and most especially under these
circumstances where the seriousness of the injury and the manner it was inflicted is
obvious, “‘[w]hether [the] defendant had actual notice of an impending investigation is
irrelevant. When an offender commits an unmistakable crime, the offender has
constructive knowledge of an impending investigation of the crime committed.’” State v.
Kovacic, 2012-Ohio-219, 969 N.E.2d 322, ¶ 39 (11th Dist.), quoting State v. Schmitz, 10th
Dist. Franklin No. 05AP-200, 2005-Ohio-6617, ¶ 17.
{¶99} We cannot say under these circumstances that the evidence was
insufficient to sustain a conviction for tampering with evidence beyond a reasonable
doubt.
{¶100} Mr. Jones’ first assignment of error is overruled.
Crim.R. 29 Sufficiency of the Evidence Motions
{¶101} In his fourth and fifth assignments of error, Mr. Jones contends his counsel
was ineffective for failing to articulate any arguments to sustain his Crim.R. 29(A) motion
at the close of the state’s case in chief and his Crim.R. 29(C) motion once the defense
rested. In his sixth assignment of error, Mr. Jones contends the trial court abused its
discretion by overruling defense counsel’s Crim.R. 29 motions without entertaining
arguments.
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{¶102} Because we find Mr. Jones’ first assignment of error challenging the
sufficiency of the evidence to be without merit, Mr. Jones’ fourth, fifth, and sixth
assignments of error are necessarily without merit and/or moot. See State v. Henderson,
39 Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988) (“The grounds which underlie each of these
instances have already been separately addressed and found to be without merit.
Accordingly, we need not address the counsel-performance component of these
grounds.”); State v. Gideon, 165 Ohio St.3d 156, 2020-Ohio-6961, 176 N.E.3d 720, ¶ 26
(“[A]n assignment of error is moot when an appellant presents issues that are no longer
live as a result of some other decision rendered by the appellate court.”)
{¶103} Mr. Jones’ fourth, fifth, and sixth assignments of error are overruled.
Prosecutorial Misconduct
{¶104} In his second and seventh assignments of error, Mr. Jones alleges
prosecutorial misconduct. More specifically, in his second assignment of error, he
contends the prosecutor impermissibly questioned Mr. Dickerson whether he felt
intimidated as a witness. In his seventh assignment of error, he contends the prosecutor
impermissibly commented on his post-arrest silence during closing arguments, thereby
prejudicing the jury.
{¶105} The conduct of a prosecutor during trial is not grounds for error unless it
deprives a defendant of a fair trial. State v. Maurer, 15 Ohio St.3d 239, 266, 473 N.E.2d
768 (1984); State v. Anderson, 11th Dist. Portage No. 2008-P-0002, 2008-Ohio-6413, ¶
35. The test for prosecutorial misconduct is whether the alleged remark was improper
and, if so, whether it prejudicially affected the substantial rights of the defendant. State
v. Smith, 87 Ohio St.3d 424, 442, 721 N.E.2d 93 (2000). In reviewing allegations of
20
Case No. 2021-P-0098
prosecutorial misconduct, it is our duty to consider the conduct in the context of the entire
trial. See Darden v. Wainwright, 477 U.S. 168, 183, 106 S.Ct. 2464, 91 L.Ed.2d 144
(1986), fn. 15. Additionally, we recognize that an isolated comment, albeit improper, will
not constitute reversible error if it does not deprive the defendant of a fair trial. See State
v. Jenkins, 11th Dist. Trumbull No. 2006-T-0058, 2007-Ohio-4227, ¶ 54.
Witness Intimidation
{¶106} As our review of the facts indicates, the prosecutor questioned Mr.
Dickerson as to possible intimidation by others while the investigation was occurring and
shortly before he took the stand. Mr. Jones contends the prosecutor’s comments were
highly prejudicial since they misled the jury into presuming that the intimidation occurred
on behalf of Mr. Jones.
{¶107} It is clear from our review of the record that the prosecutor did not imply that
Mr. Jones himself attempted to intimidate Mr. Dickerson. The circumstances of the
incident and surrounding the witnesses’ trial testimony were emotionally charged since
they initially reported a self-inflicted gunshot wound and were reluctant to testify. There
were also allegations that Mr. Dickerson was threatened by his peers the night before he
testified and that spectators were waiting outside the courthouse threatening the witness.
Thus, it is apparent under these circumstances that the prosecutor’s questions were
meant to bolster Mr. Dickerson’s credibility.
{¶108} In State v. Grimes, 1st Dist. Hamilton No. C-030922, 2005-Ohio-203, the
First District confronted a similar situation where the appellant alleged that the trial court
erred by permitting the prosecutor to repeatedly allude to alleged witness intimidation by
the appellant’s family and friends. Id. at ¶ 54. The First District rejected the appellant’s
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argument, explaining that “the references to witness intimidation were not improper
because they were offered to demonstrate why the witnesses’ stories had changed, and
why some of the witnesses had not immediately come forward to the police with
information about the shooting.” Id. at ¶ 56.
{¶109} The Second District similarly upheld prosecutorial questioning of a witness
on intimidation where it was offered to bolster the credibility of the witness. Thus, in State
v. Carillo, 2d Dist. Clark No. 00CA0025, 2000 WL 1513912 (Oct. 13, 2000), the Second
District determined that “[a] review of the record demonstrates that the State offered
[testimony of witness intimidation] to explain why some of its witnesses had initially lied
to police when questioned about [the victim’s] murder. In offering this evidence, the State
was attempting to bolster the credibility of those witnesses whose credibility would
otherwise be suspect because they had previously lied. That is a legitimate and proper
purpose for eliciting evidence of this kind, and we see no abuse of discretion on the part
of the trial court in admitting it.” Id. at *4. See also State v. Jones, 8th Dist. Cuyahoga
No. 110840, 2022-Ohio-2270, ¶ 32 (finding testimony that a witness fears reprisal for
testifying is admissible because it is relevant to the witness’ credibility, which applies
equally to third-party intimidation that renders a witness reluctant to testify).
{¶110} Even if we did find the prosecutor’s questioning improper and confusing for
the jury, Mr. Jones failed to demonstrate any prejudice, substantial or otherwise. The
prosecutor’s questioning was not related to anything Mr. Jones did or caused to occur,
but whether Mr. Dickerson felt coerced into lying. Thus, any error would be, at best,
harmless since there is no indication it contributed to Mr. Jones’ conviction and there is
overwhelming evidence of guilt. See State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-
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5052, 24 N.E.3d 1153, ¶ 29, ¶ 32 (holding that if after excising the improper evidence
from the record, there remains overwhelming evidence of guilt or some other indicia that
the error did not contribute to the conviction, the error will be deemed harmless).
{¶111} Having determined that the prosecutor’s questioning was intended to
bolster Mr. Dickerson’s credibility in a situation where there were allegations of false
reporting, late reporting, and reluctance to testify, we overrule Mr. Jones’ second
assignment of error.
Remarks Regarding Post-Arrest Silence During Closing Argument
{¶112} As our review of closing arguments reveals, the prosecutor, on rebuttal,
commented on Mr. Jones’ post-arrest silence once he was in custody.
{¶113} The Fifth Amendment to the United States Constitution, which is
applicable to the states through the Fourteenth Amendment, provides that no person
“shall be compelled in any criminal case to be a witness against himself.” See also State
v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 11. The Fifth
Amendment guarantees a criminal defendant’s right against self-incrimination, which
includes the right to silence during police interrogation. Miranda v. Arizona, 384 U.S. 436,
474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “Once a person invokes his or her Fifth
Amendment right to remain silent, the State cannot use the person’s silence [either in pre-
arrest or post-arrest circumstances] as substantive evidence of guilt in its case-in-chief.”
State v. Bennett, 9th Dist. Lorain No. 12CA010286, 2014-Ohio-160, ¶ 63, citing
Wainwright v. Greenfield, 474 U.S. 284, 298-299, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986).
See also Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (“[T]he
use for impeachment purposes of [a defendant’s] silence, at the time of arrest and after
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Case No. 2021-P-0098
receiving Miranda warnings, violated the Due Process Clause of the Fourteenth
Amendment.”).
{¶114} In Leach, the Supreme Court of Ohio held that use of a defendant’s pre-
arrest silence as substantive evidence of guilt violates the Fifth Amendment and that the
use of a defendant’s post-arrest, post-Miranda invocation of his right to counsel as
substantive evidence of guilt violates the Fourteenth Amendment. Id. at ¶ 1.
{¶115} There is no question commenting on Mr. Jones’ silence once he was in
custody was improper. This does not, however, end our analysis, since “violations of a
defendant’s constitutional right against self-incrimination are subject to a harmless error
review.” State v. Castle, 2017-Ohio-942, 86 N.E.3d 813, ¶ 22 (7th Dist.). Error is
harmless under Crim.R. 52(A) if it does not affect substantial rights. In most cases, in
order to be viewed as affecting substantial rights, the error must have been prejudicial.
State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 36.
{¶116} An error will be deemed prejudicial if there is a reasonable probability that
it affected the outcome of the judicial proceedings. State v. Taylor, 2017-Ohio-4395, 93
N.E.3d 1, ¶ 15 (4th Dist.). In determining whether prejudice has resulted from the state’s
comment about the defendant’s assertion of his right to silence, courts consider factors
such as “the extent of the comments, whether an inference of guilt from silence was
stressed to the jury, and the extent of other evidence suggesting the defendant’s guilt.”
State v. Contreras, 8th Dist. Cuyahoga No. 89728, 2008-Ohio-1413, ¶ 34.
{¶117} It is troubling in this case that the trial court overruled defense counsel’s
objection and did not give a curative instruction to the jury. There is, however, as the
record reveals, overwhelming evidence of Mr. Jones’ guilt in this case. Thus, any error
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resulting from the prosecutor’s improper comment is harmless error. See State v.
Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph six of the syllabus
(holding that constitutional errors are harmless beyond a reasonable doubt if the
remaining evidence, standing alone, constitutes overwhelming proof of the defendant’s
guilt).
{¶118} In Castle, supra, the Seventh District similarly remarked that “[w]hile it is
troubling that the trial court failed to sustain the objections and did not instruct the jury to
disregard the two comments, in looking at the record as a whole in this case we cannot
say that they rose to the level of prejudice. Again, these comments were fairly brief and
intertwined within the actual thrust of the prosecutor’s argument that the Appellant
provided absolutely no evidence regarding his theory that the robbery occurred as a result
of some employee of the pharmacy’s involvement. Again, while these two statements
were improper, in order to find prejudice we must find that the evidence supporting
Appellant’s conviction was lacking in some regard. This record does not support such a
contention.” Id. at ¶ 24.
{¶119} Mr. Jones’ seventh assignment of error is overruled.
Improper Evidence
{¶120} Lastly, in his third assignment of error, Mr. Jones contends the trial court
erred in admitting evidence supporting the claim he engaged in tampering with evidence.
Specifically, Mr. Jones takes issue with Det. Kaley’s testimony regarding the allegedly
bloody clothing Mr. Jones discarded out the window while traveling on I-76 after the
shooting occurred. Det. Kaley testified over defense counsel’s objection that after the
25
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witnesses reported the occurrence, they attempted to retrieve the clothing but were
unable to locate it.
{¶121} A trial court’s determination as to the admissibility of evidence is generally
a matter within the sound discretion of the trial court. Davis v. Killing, 171 Ohio App.3d
400, 2007-Ohio-2303, 870 N.E.2d 1209, ¶ 11 (11th Dist.), citing Schaffter v. Ward, 17
Ohio St.3d 79, 80, 477 N.E.2d 1116 (1985). “Therefore, unless a trial court has clearly
abused its discretion and a party has been materially prejudiced, the trial court’s
determination will not be reversed on appeal.” Id., citing Maurer, supra, at 265.
{¶122} The term “abuse of discretion” is one of art, “connoting judgment exercised
by a court, which does not comport with reason or the record.” In re K.R., 11th Dist.
Trumbull No. 2010-T-0050, 2011-Ohio-1454, ¶ 29, citing Gaul v. Gaul, 11th Dist.
Ashtabula No. 2009-A-0011, 2010-Ohio-2156, ¶ 24, citing State v. Ferranto, 112 Ohio St.
667, 676-678, 148 N.E. 362 (1925). Stated differently, an abuse of discretion is the trial
court’s “‘failure to exercise sound, reasonable, and legal decision-making.’” State v.
Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62, quoting Black’s Law
Dictionary 11 (8th Ed.Rev.2004).
{¶123} When an appellate court is reviewing a pure issue of law, the mere fact that
the reviewing court would decide the issue differently is enough to find error (although
harmless errors and errors not preserved for appellate review are not reversible). Id. at
¶ 67, fn. 2. By contrast, where the issue on review has been confided to the discretion of
the trial court, the mere fact that the reviewing court would have reached a different result
is not enough, without more, to find error. Id. at ¶ 67.
26
Case No. 2021-P-0098
{¶124} The general principle that guides admission of evidence is that “[a]ll relevant
evidence is admissible * * *.” Evid.R. 402.
{¶125} “Relevant evidence” is defined as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Evid.R. 401. These
provisions produce a low threshold of admissibility, which “‘reflect[s] the policy favoring
the admission of relevant evidence for the trier of fact to weigh.’” State v. West, 2017-
Ohio-4055, 91 N.E.3d 365, ¶ 77 (5th Dist.), quoting State v. Kehoe, 133 Ohio App.3d 591,
606, 729 N.E.2d 431 (12th Dist.1999).
{¶126} Relevant evidence “is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury.” Evid.R. 403(A).
{¶127} Mr. Jones contends Det. Kaley’s testimony was the only testimony
regarding the discarded clothing and, as such, it was highly prejudicial. However, we fail
to see how the evidence was (1) not relevant and (2) prejudicial when it went to the heart
of the tampering with evidence charge. It was neither more prejudicial nor less relevant
than the testimony regarding the missing handguns and was more probative than not in
determining whether Mr. Jones tampered with evidence to remove any traces of himself
from the scene. From Det. Kaley’s testimony elicited on the stand, the jury understood
the discarded clothing was never found and that any evidentiary value it had as far as
linking Mr. Jones to the shooting was speculative at best. Thus, the jury was free to weigh
the credibility of such evidence. Moreover, we can find no caselaw that prohibits
admissible evidence when only one witness testifies to its existence.
27
Case No. 2021-P-0098
{¶128} Further, we cannot say that this was inadmissible hearsay evidence.
“Hearsay” is “a statement, other than one made by the declarant while testifying at trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Evid.R. 801(C). A
“statement” is “(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.” Evid.R. 801(A). The “declarant” is the person
who makes the statement. Evid.R. 801(B).
{¶129} As our review of Det. Kaley’s testimony revealed, he testified that “it was
indicated to us in the course of our investigation in speaking with these witnesses, that
he had specific clothes that were discarded on 76 going into Akron westbound.” Defense
counsel objected because there was no prior testimony from the eyewitnesses discussing
discarded clothing. The prosecutor responded that he would not inquire into the
witnesses’ testimony, and the trial court overruled defense counsel’s objection. During
cross-examination, Det. Kaley elaborated that “going off of what the witnesses reported,”
he investigated along I-76 to locate the discarded clothing. All he found, however, was
“a cow in a creek that got stuck that we had to help bail out. That’s all we found.”
{¶130} The hearsay rule does not apply when an out-of-court statement is
introduced to explain the subsequent actions of a witness. See State v. Thomas, 61 Ohio
St.2d 223, 232, 400 N.E.2d 401 (1980). For instance, in State v. Groves, 6th Dist. Wood
No. WD-13-065, 2014-Ohio-4337, the appellant was convicted of aggravated arson and
insurance fraud. Id. at ¶ 1. One of her employees testified that she spoke with the alarm
company after discovering that the alarm was not set when she entered the building. She
relayed that the alarm company informed her it was not able to identify why the alarm was
not set, that it had been turned off that previous Saturday, and that they were not able to
28
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reset the alarm. Id. at ¶ 7. The Sixth District found this testimony was not offered for its
truth but rather to explain the employee’s actions when she returned to the office after the
weekend. Id. Thus, the trial court did not err in ruling that the testimony was admissible.
Id.
{¶131} Similarly, in this case, the officer’s reference to “these witnesses” was to
explain what prompted his investigation along I-76 to locate discarded clothing, which
also informed the jury that the clothing was never located. Thus, if there was an error,
we cannot say it rose to the level of prejudicial error where there was other evidence of
tampering with evidence, i.e., the missing handguns, and the jury was aware of the
speculative nature of the discarded clothing. See also State v. Howard, 11th Dist. Lake
No. 2019-L-153, 2020-Ohio-5057, ¶ 42 (finding that a detective’s testimony regarding his
interview with appellant’s brother was not hearsay as it was necessary to explain how the
investigation turned to appellant).
{¶132} Finding the trial court did not abuse its discretion in allowing admissible
testimony directly relevant to the crime charged, Mr. Jones’ third assignment of error is
overruled.
{¶133} The judgment of the Portage County Court of Common Pleas is affirmed.
MATT LYNCH, J.,
JOHN J. EKLUND, J.,
concur.
29
Case No. 2021-P-0098 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482144/ | [Cite as Paeltz v. Paeltz, 2022-Ohio-3964.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
SANDRA R. PAELTZ, :
Appellee, : CASE NO. CA2022-05-031
: OPINION
- vs - 11/7/2022
:
EARL COY PAELTZ, :
Appellant. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. 19DR40910
Moskowitz & Moskowitz, LLC, and James H. Moskowitz, for appellee.
Robbins, Kelly, Patterson & Tucker, L.P.A., and Barry A. Spaeth, for appellant.
PIPER, P.J.
{¶1} Appellant, Earl Paeltz ("Father"), appeals from a decision of the Warren
County Court of Common Pleas, Domestic Relations Division, following a postdecree
petition involving his divorce from appellee, Sandra Paeltz ("Mother").
{¶2} Mother and Father divorced in 2019. At the time of their divorce, they had
been married approximately 14 years and had two minor children, one born March 3, 2007,
and the other born August 10, 2009. The parties entered into a shared parenting plan
Warren CA2022-05-031
regarding the care of their children. The parties also entered into a separation agreement
settling and providing for the division of all property and marital obligations. At the time,
Father had income of $215,000 per year and Mother had income of $123,364 per year. The
parties agreed there would be no child support.1 The trial court entered a final decree of
divorce on July 9, 2019.
{¶3} On November 16, 2020, Mother filed a petition for an ex-parte civil protection
order against Father for the benefit of the minor children due to an altercation between
Father and the older child. The ex-parte order was granted and set for a full hearing on
December 23, 2020.
{¶4} Prior to the full hearing, Father filed a motion to modify the shared parenting
plan. Father alleged that Mother was not supportive when it came to disciplining the
children. He further stated that his attempts to discipline his older child resulted in Mother
filing the ex-parte order against him.
{¶5} In response, Mother filed a motion to reallocate parental rights and sought to
terminate the shared parenting plan or otherwise modify the parenting time schedule.
Mother alleged that Father had been in a physical altercation with the older child and was
physically and emotionally abusive with the children.
{¶6} The record shows that Mother's request for a civil protection order on behalf
of the children was denied. However, Father’s motion to modify the shared parenting plan
and Mother’s motion to reallocate parental rights and terminate the shared parenting plan
continued with both parties filing additional motions. Eventually, the court held hearings on
Father's request for a more routine schedule with the children, coparenting classes, and
1. The parties' separation agreement provided that if Wife were to receive child support from Husband, the
amount would be, essentially, offset with an award that Wife pay Husband spousal support up to a defined
annual income level.
-2-
Warren CA2022-05-031
family counseling, in addition to Mother's request to terminate the shared parenting plan.
{¶7} In the hearings held on August 12, 2021, and October 5, 2021, the parties
presented testimony concerning the strained relationship between Father and the children.
The testimony included allegations of excessive discipline or physicality, including at least
one instance in which the police were called. In addition, Mother testified that Father has
not paid any of the children's expenses since November of 2020.2 She also testified that
Father informed her that he was going to switch his (and the children's) health insurance
plan to a high deductible plan so that she will incur additional expenses. Mother stated that
since she cannot seek child support from Father, she was requesting that Father be
responsible for the children's uncovered health care expenses.
{¶8} Father testified that he agreed to pay more marital debt in the separation
agreement in exchange for the zero child support order. Father disagreed with Mother's
testimony concerning his motivations for switching to a high deductible insurance plan.
Although he recognized that a switch would disadvantage Mother, he stated that his
motivation was not purely "so she gets stuck." Father stated that the reason for the switch
was because he and the children do not have many medical bills and thought the switch
would financially benefit himself to "catch up" for the sacrifices he made in the divorce.
{¶9} The record shows that Mother is employed at Cigna as a pharmacist working
forty hours per week for $108,160 per year. Father is employed in sales at PTC, Inc. where
he has a base salary of $111,750.08 per year, plus commissions and bonuses. Averaging
his income from 2018-2020, the magistrate found Father earns $279,832.08 per year.
{¶10} The magistrate's decision was issued on November 10, 2021. The magistrate
found it was in the children's best interest to terminate the shared parenting plan and name
2. Mother testified at the October 5, 2021, hearing that Father had not paid any child related expenses since
the filing of the protection order.
-3-
Warren CA2022-05-031
Mother the residential parent and legal custodian of the children. Father was provided
parenting time, but it was less than the amount previously agreed upon in the shared
parenting agreement. The magistrate found Father should continue to have a zero child
support order based upon its understanding of the parties' separation agreement and also
because it was going to make him responsible for the children's expenses. In pertinent part
the court stated:
Based on Father not paying child support, this Magistrate finds
effective December 16, 2020, it is in the children's best interest
for Father to be responsible for 100% of the children's
expenses, including but not limited to school fees including
uniform fees and equipment, haircuts, clothing, monthly cell
phone bill, driver's education class, car insurance, AP fees, and
testing fees.
{¶11} On November 12, 2021, Father filed a general objection to the magistrate's
decision. While Father had previously been represented by counsel, he filed this general
objection pro se. Mother filed a motion to dismiss the objection for lack of specificity. On
March 21, 2022, Father filed several pages in the form of a letter addressed to the trial court
stating reasons why he disagreed with the magistrate's decision.3 The record shows the
parties appeared for a hearing on Father's general objection, however, the transcript of that
proceeding was not filed for consideration by this court. On April 11, 2022, the trial court
granted Mother's motion to dismiss the objection for lack of specificity, overruled Father's
objection, and adopted the magistrate's decision. Father now appeals, raising the following
assignment of error for review:
{¶12} THE WARREN COUNTY, OHIO DOMESTIC RELATIONS COURT ABUSED
ITS DISCRETION WHEN IT RULED THAT APPELLANT FATHER MUST PAY ALL THE
CHILDREN'S UNCOVERED HEALTH CARE, SCHOOL AND ACTIVITY EXPENSES.
3. Handwritten in the top margin of the first page is the case name, case number, and the word "Objection."
-4-
Warren CA2022-05-031
{¶13} In his sole assignment of error, Father argues the trial court erred by ordering
him to pay for the children's uncovered health care, school, and activity expenses.
{¶14} Civ.R. 53(D)(3)(b)(ii) provides that "an objection to a magistrate's decision
shall be specific and state with particularity all grounds for objection." Should a party fail to
properly object, that party has waived the right of appeal except for plain error. Civ.R.
53(D)(3)(b)(iv); Roberts v. Roberts, 12th Dist. Clinton Nos. CA2012-07-015 and CA2012-
07-016, 2013-Ohio-1733, ¶ 19; Mustard v. Mustard, 12th Dist. Warren Nos. CA2009-06-
078 and CA2009-09-118, 2010-Ohio-2175, ¶ 28.
{¶15} In response to the magistrate's decision, Father filed a general objection to
the trial court. It stated that the magistrate's decision was "arbitrary, capricious, and was
against the manifest weight of the evidence." Father further stated that "the Magistrate's
decision was an abuse of discretion, made erroneous findings of fact, and was not in the
minor children's best interests, and erroneously penalized Father financially because of the
parties prior agreed upon divorce settlement proceedings."
{¶16} The trial court dismissed Father's objection for not filing a "specific, proper
objection that is required by law." However, the trial court stated that Father's objection
would have been without merit even if he had filed a proper objection. Apparently, through
discussions with the court at the hearing on Father's general objection, Father advised that
his "principal objection is to the requirement that he pay a laundry list of expenses for the
boys in lieu of support, which he regards as essentially a 'blank check' that could ruin him
financially." In its entry, the trial court noted that Mother had been sending Father a list of
expenses totaling approximately $500 per month. Considering the record before it, the trial
court found Father's objection would have been without merit.
{¶17} In his appellate brief, Father does not address the trial court's decision
granting Mother's motion to dismiss the general objection. He argues the trial court's
-5-
Warren CA2022-05-031
decision ordering him to pay the children's expenses was an abuse of discretion and
maintains, among other things, that the magistrate made no factual findings to support the
change. Mother responded by raising the relevant procedural history and arguing that
Father's assignment of error was limited to plain error review. In his reply brief, Father
argued that the letter he filed four months after his general objection should be considered
his supplemental objection.4 He further argues that even if this case was limited to plain
error review, it would indeed amount to plain error.
{¶18} We find Father's argument is without merit. It is well established that any new
arguments raised in appellants' reply brief are deemed waived and are not subject to review.
Phillips v. McCarthy, 12th Dist. Preble No. CA2015-08-017, 2016-Ohio-2994, ¶ 25. Father
chose not to argue that the trial court erred by dismissing his general objection based upon
lack of specificity. Father claims that the letter is a supplemental objection to his general
objection. However, since the trial court dismissed Father's objection based upon lack of
specificity and Father failed to contest that finding in his opening brief, this court's review is
limited to plain error, which is not readily invoked in civil cases. Roberts, 2013-Ohio-1733
at ¶ 19; New Holland v. Murphy, 4th Dist. Pickaway No. 19CA32, 2021-Ohio-2671, ¶ 22-
23. Moreover, although he claims these issues were raised and argued before the trial
court, Father failed to include a transcript of that proceeding in this appeal. Dasilva v.
Dasilva, 12th Dist. Butler No. CA2018-08-172, 2019-Ohio-2787, ¶ 4 (appellant has the
burden to order a written transcript for this court to use in our review of the lower court's
decision). When the portions of a transcript necessary for resolution of assigned errors are
omitted from the record, a reviewing court has nothing to pass upon and thus the court has
no choice but to presume the regularity of the lower court's proceedings and affirm. Id.
4. Father does refer to his March 21 letter as his "supplemental objection," but does not raise any argument
concerning the dismissal of his specific objection until his reply brief.
-6-
Warren CA2022-05-031
Therefore, for the reasons addressed above and because the trial court did not err, let alone
commit plain error, we find Father's arguments are without merit.
{¶19} Nevertheless, we agree with the trial court's analysis that even if Father had
specifically raised this objection, it would be without merit. In the case sub judice, the parties
had shared parenting of the children. However, the trial court terminated the shared
parenting plan following the final hearings. The magistrate found Mother had a salary of
$108,160 per year while Father had earnings of $279,832.08 per year. Despite terminating
the shared parenting plan and naming Mother as the residential parent and custodian of the
children, the magistrate did not award Mother child support. Rather, the magistrate
considered the parties' separation agreement and also noted that Father was going to be
responsible for the children's expenses.
{¶20} Although Father claims that the separation agreement and shared parenting
plan prohibit the trial court from reallocating responsibility for child-related expenses, review
of the relevant documents reveals that argument is misguided. While the terms of the
agreements set Father's child support obligation at zero, it clearly includes provisions for
the financial support of the children. The language of the shared parenting plan and the
separation agreement include language that contemplates a future modification of the
financial provisions related to the children. As stated in the shared parenting plan:
The parties acknowledge that this Plan may be modified either
by written agreement of the parties, or by Order of this Court.
Each party acknowledges and understands that she or he has
the right to seek modification of this Plan by appropriate Motion
to this Court.
The Divorce Decree further provides:
In the event that the Shared Parenting Plan is terminated, all
financial agreements set forth in the plan shall survive the
termination of the plan until and unless the Court modifies said
provisions.
-7-
Warren CA2022-05-031
{¶21} Consistent with their original agreement, the shared parenting plan at issue
was terminated and Mother was named the residential parent and sole custodian. While
Father complains about his obligation to pay child-related expenses, he ignores the fact that
the prior order was terminated, and the circumstances are very different from the time of
the original divorce decree. Father earns a significant income, does not pay child support,
and has a much more limited parenting schedule with his children. The trial court indicated
that Mother provided a list of child-related expenses totaling approximately $500 per month.
Following review, we find this would not amount to an abuse of discretion. Father's sole
assignment of error is overruled.
{¶22} Judgment affirmed.
S. POWELL and BYRNE, J., concur.
-8- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482139/ | [Cite as State v. Abdullah, 2022-Ohio-3977.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-051
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
RASHIED M. ABDULLAH,
Trial Court No. 2020 CR 000601
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Rashied M. Abdullah, appeals from his convictions
and sentence for Rape, Felonious Assault, and Kidnapping, following a jury trial in the
Lake County Court of Common Pleas. For the following reasons, we affirm the decision
of the lower court.
{¶2} On August 14, 2020, the Lake County Grand Jury issued an Indictment,
charging Abdullah with Rape (Count One), a felony of the first degree, in violation of R.C.
2907.02(A)(2); two counts of Felonious Assault (Counts Two and Three), felonies of the
second degree, in violation of R.C. 2903.11(A)(1) and (2); and three counts of Kidnapping
(Counts Four, Five, and Six), felonies of the first degree, in violation of R.C. 2905.01(A)(2),
(3), and (4).
{¶3} A jury trial was held on January 26-28, 2021. The following pertinent
testimony and evidence were presented:
{¶4} On June 26, 2020, T.W., a 17-year-old, was walking to various locations
near her home to fill out job applications. T.W. testified that, as she was walking, a man
unknown to her, later identified as Abdullah, pulled up in a vehicle and asked her name.
T.W. wanted to get to know him and accepted his offer for a ride home. He requested
her phone number and later sent her a text message asking to “chill.” T.W. agreed and
he picked her up. They went to a lake and walked around, sat together, and hugged. He
touched her buttocks and she asked him to stop, which he did. She subsequently asked
him to drive her home and he responded that he needed to pick something up from his
residence. He drove to a hotel and told T.W. that he was staying there because he travels
often. After Abdullah paid at the front desk, the two went to a hotel room.
{¶5} According to T.W., after entering the room, Abdullah went to the restroom,
exited with his shirt off, sat on the bed, and asked her to “come over.” She then requested
to go home. He began kissing her, she pulled away and said no, telling him she needed
to return home because she had snuck out. He became aggressive, grabbed her arm,
got on top of her and kissed her. She tried to push him off and said she did not want to
have sex. After she told him to get off of her multiple times, he punched her in the face.
She asked to leave again, he said no, and continued to punch her in the face.
{¶6} According to T.W., Abdullah then started to pull down her pants, she
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Case No. 2021-L-051
grabbed his hand, and he punched her in the face again. She testified that he “put his
fingers in me.” She explained that she was wearing her underwear at the time, and he
placed his hand inside the top of her underwear. He then exposed himself. She tried to
use the restroom and he jumped up and stopped her. She asked him to turn on the light
in an attempt to get him to walk away and then removed a box cutter from her purse. He
removed his clothes and asked her to get on top of him and she did so because he
ordered her to. He kissed her, and when she again said she did not want to have sex
with him and he should get a prostitute, he became mad, grabbed her by the neck and
punched her again. She then cut him on the neck with the box cutter, and they began
pushing each other. She ran to the door to leave but he kicked it with his foot, bit her on
the back and punched her in the face, causing her to fall and black out. During the
struggle, Abdullah grabbed her hand with the boxcutter and “made [her] cut [her]self on”
the thigh. After he bit her on the face, there was a struggle and she was able to get away.
T.W. found a guest at the hotel who called police. When police arrived, she told them
Abdullah had taken her from her house at gunpoint because she did not want her parents
to know she snuck out.
{¶7} On cross-examination, T.W. stated that she had been voluntarily hugging
Abdullah and was voluntarily at the hotel, although she believed they were just there for
him to pick up his clothing.
{¶8} Anthony DiDona, a Wickliffe Police Department Patrolman, responded to a
dispatch at the Quality/Econo Lodge, and saw the victim, who was wearing a towel
stained in blood and had a swollen forehead and cheeks and cuts on her body. She was
out of breath, stated “he just tried to rape me,” and described Abdullah. According to
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Case No. 2021-L-051
DiDona, T.W. told him she had encountered Abdullah earlier that day and he later
abducted her from her home at gunpoint. DiDona testified that T.W. described the events
in a manner similar to her testimony, including the denial of Abdullah’s physical advances
and the struggle within the hotel room. T.W. told DiDona that Abdullah inserted a finger
in her vagina. DiDona photographed her injuries at the hospital, which included bruising
and scrapes on her leg, chest, arms and shoulder, bite marks on her shoulder and cheek,
and swelling on her face. He testified that, by the way T.W. was acting, it appeared she
had been through a high stress event.
{¶9} Danielle Stoehr, a registered nurse, spoke with T.W. at the hospital.
According to her testimony, T.W. told her a version of events similar to her testimony,
which included Abdullah taking her to the hotel at gunpoint and her refusal to have sex.
Stoehr indicated that T.W. stated Abdullah had taken off her underwear and “put his
fingers in there.” Stoehr described T.W. as sad, upset, and tearful. After a physical
examination, she found no injury to T.W.’s vaginal area.
{¶10} Patrick Hengst, a former Wickliffe Police Department Lieutenant, spoke to
T.W. at the hospital to clarify whether she was taken at gunpoint, as he felt this fact was
inconsistent with the evidence and video from the hotel. She admitted that this statement
was untrue and that she snuck out of her house to meet with him. As to the assault, she
told him that he pulled her underwear down in order to rape her.
{¶11} Hengst testified that when Abdullah was subsequently arrested, Hengst
observed that he had cuts that were healing. He interviewed Abdullah and a video of the
interview was played for the jury. In that interview, Abdullah stated that T.W. pulled a
knife on him because he would not drive her home, that any activity between the two was
4
Case No. 2021-L-051
consensual, and that he did not “remember if a finger or two may have slid in her vagina.”
{¶12} Dr. Karen Zavarella of the Lake County Crime Laboratory testified that DNA
from swabs taken from a bitemark, T.W.’s hand, inner thigh, and fingernails, and the
interior crotch area of her shorts were consistent with Abdullah’s DNA. The box cutter
contained DNA from both T.W. and Abdullah. Vaginal swabs contained too much female
DNA to identify any male DNA.
{¶13} During the trial, the State moved to dismiss Count Four as duplicative. At
the close of the State’s case, the defense moved for acquittal pursuant to Crim.R. 29,
which motion was denied.
{¶14} The jury found Abdullah guilty of Rape, Felonious Assault, and two Counts
of Kidnapping, as charged in the indictment. The verdict was memorialized in a February
1, 2021 Judgment Entry.
{¶15} A sentencing hearing was held on March 29, 2021, and the sentence was
memorialized in a Sentencing Entry. The court merged the counts of Felonious Assault
and the counts of Kidnapping. Defense counsel indicated this was Abdullah’s first sex
offense and that most of his prior convictions were for theft related offenses. T.W. stated
that this had “put [her] through a lot.” The State argued that consecutive sentences were
necessary and requested a sentence of at least twenty years in prison. The court stated
its consideration of the factors under R.C. 2929.11 and .12 and that the imposed sentence
was “a minimum of six years and a maximum of nine years” for the counts of Rape and
Felonious Assault and “a minimum of eight years and a maximum of twelve years” for
Kidnapping, the aggregate minimum was 20 years, and the aggregate maximum was 24
years. The court ordered all three sentences to be served consecutively. The court
5
Case No. 2021-L-051
found, at the hearing and in its sentencing entry, that the consecutive sentences are
necessary to protect the public from future crime or punish the defendant, that they were
not disproportionate to the seriousness of his conduct and the danger posed to the public,
and the offenses were committed as part of a course of conduct and Abdullah’s history of
criminal conduct demonstrates consecutive sentences are necessary to protect the
public. In the sentencing entry, the court stated that the defendant “has been sentenced
to a minimum term on each qualifying count as detailed below” and included a chart which
stated the sentences for Rape and Felonious Assault as “6 years Minimum (Maximum 9
years)” and Kidnapping as “8 years Minimum (Maximum 12 years).” The entry also
stated: “Having imposed the minimum terms on Counts 1, 3, and 5, the Court further
sentences the defendant to an aggregate minimum term of 20 years and an aggregate
maximum term of 24 years.”1
{¶16} Abdullah timely appeals and raises the following assignments of error:
{¶17} “[1.] The trial court erred to the prejudice of the defendant-appellant when
it denied his motion for acquittal made pursuant to Crim.R. 29(A).
{¶18} “[2.] The trial court erred to the prejudice of the defendant-appellant when
1. Although not raised by the parties, we observe that the court stated both a minimum and maximum term
for all three offenses at the sentencing hearing and parenthetically in the entry. Pursuant to R.C.
2929.144(B)(2), if an offender is ordered to serve consecutive sentences for felonies, where at least one
felony is a qualifying offense, “the court shall add all of the minimum terms imposed on the offender under
division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code for a qualifying felony of the first or
second degree that are to be served consecutively and all of the definite terms of the felonies that are not
qualifying felonies * * *, and the maximum term shall be equal to the total of those terms so added by the
court plus fifty per cent of the longest minimum term or definite term for the most serious felony being
sentenced.” Here, although the trial court did mention maximum terms for each of the offenses, which were
qualifying offenses, it also correctly stated the minimum terms and added the three minimum terms to half
of the maximum for the most serious offense to arrive at the correct sentence, 20 to 24 years in prison. It
also indicated that it had “imposed the minimum terms on Counts 1, 3, and 5.” Since the prison term
ordered is consistent with R.C. 2929.144(B)(2), we find no reversible error as to the court’s sentence in
relation to this issue.
6
Case No. 2021-L-051
it returned a verdict of guilty against the manifest weight of the evidence.
{¶19} “[3.] The trial court’s order of consecutive sentences for an aggregate
minimum of twenty years pursuant to 2929.14(C) was not supported by the record and is
contrary to law.
{¶20} “[4.] The defendant-appellant’s constitutional challenges to the
indeterminate prison sentence of twenty to twenty-four years that was ordered pursuant
to the ‘Reagan Tokes Act,’ aka Senate Bill 201, are ripe for review.
{¶21} “[5.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, must be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.
{¶22} “[6.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, must be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine
of separation of powers.
{¶23} “[7.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, violates his constitutional right to trial by jury as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution and Article I, Section 5 of the
Ohio Constitution.
{¶24} “[8.] The defendant-appellant’s indeterminate prison sentence of twenty to
twenty-four years that was ordered pursuant to the ‘Reagan Tokes Act,’ aka Senate Bill
201, violates his constitutional rights to fair trial and due process as guaranteed by the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I,
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Case No. 2021-L-051
Sections 5 & 10 of the Ohio Constitution.”
{¶25} In his first and second assignments of error, Abdullah argues that the lower
court erred in denying his motion for acquittal and that his convictions were against the
weight and sufficiency of the evidence, raising similar arguments alleging that there was
a lack of credible evidence supporting the crimes for which he was convicted. Since these
issues are interrelated, we will address them jointly.
{¶26} “Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
to whether each material element of a crime has been proved beyond a reasonable
doubt.” State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. “Thus,
when an appellant makes a Crim.R. 29 motion, he or she is challenging the sufficiency of
the evidence introduced by the state.” (Citation omitted.) State v. Hastings, 11th Dist.
Portage No. 2020-P-0014, 2021-Ohio-662, ¶ 23. In reviewing the sufficiency of the
evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
{¶27} Whereas “sufficiency of the evidence is a test of adequacy as to whether
the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of the
evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio
St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). “[A] reviewing court asks whose evidence
8
Case No. 2021-L-051
is more persuasive—the state’s or the defendant’s?” Id. An appellate court must
consider all the evidence in the record, the reasonable inferences, the credibility of the
witnesses, and whether, “in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.” (Citation omitted.) Thompkins at 387. “Since there must be
sufficient evidence to take a case to the jury, it follows that ‘a finding that a conviction is
supported by the weight of the evidence necessarily must include a finding of sufficiency.’”
(Citation omitted.) State v. Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-
1842, ¶ 32.
{¶28} As an initial matter, we need not consider sufficiency or manifest weight
arguments as they relate to Counts 2 (Felonious Assault in violation of R.C.
2903.11(A)(1)) and 6 (Kidnapping in violation of R.C. 2905.01(A)(4))2, since these were
merged at sentencing. As this court has held, where allied offenses are merged and there
is sufficient evidence on the offense for which defendant is sentenced, errors relating to
sufficiency and weight of the evidence on the count that is merged are harmless and need
not be considered. State v. Mugrage, 11th Dist. Portage No. 2020-P-0066, 2021-Ohio-
4136, ¶ 133; State v. Whetstone, 11th Dist. Lake No. 2015-L-114, 2016-Ohio-6989, ¶ 26.
2. The State contends in its brief that renumbered Count 4 (original Count 5), Kidnapping in violation of
R.C. 2905.01(A)(3), was the offense that merged. However, this does not appear consistent with the court’s
statements at the sentencing hearing and in its sentencing entry. While the court renumbered the counts
one through five for the jury when original Count 4 was dismissed, in its sentencing entry, the chart of
offenses for which Abdullah was convicted retained the original numbers. The court stated at the hearing
and in the entry that “Counts 5 and 6 merge” and that the State elected to proceed on Count 5. It could
only have been referencing the counts as originally numbered, since Count 6 no longer existed when the
counts were renumbered. It further mentioned that for Count 5, inflicting serious physical harm was an
element, which relates to R.C. 2905.01(A)(3), original Count 5. Thus, although the State addresses only
the weight and sufficiency of the evidence as to original Count 6, we will address original Count 5,
Kidnapping for the purpose of inflicting harm, as this is consistent with the merger as stated by the trial
court.
9
Case No. 2021-L-051
{¶29} To convict Abdullah of Rape, the State was required to prove, beyond a
reasonable doubt, that he did “engage in sexual conduct with another when the offender
purposely compels the other person to submit by force or threat of force.” R.C.
2907.02(A)(2). Sexual conduct is defined as “vaginal intercourse between a male and
female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex;
and, without privilege to do so, the insertion, however slight, of any part of the body or
any instrument, apparatus, or other object into the vaginal or anal opening of another.”
R.C. 2907.01(A).
{¶30} As to sufficiency, Abdullah argues that there was “little to no evidence” to
support a finding that he penetrated the victim. Regarding manifest weight, he argues
that there was no physical evidence to corroborate the victim’s testimony and she lacked
credibility.
{¶31} We emphasize that there was evidence of penetration through the victim’s
testimony that he penetrated her with his fingers. Nurse Stoehr and Patrolman DiDona
also testified that the victim told them this occurred. This evidence supports the element
of sexual conduct as defined above and is sufficient to support a Rape conviction.
{¶32} As to the weight of the evidence, the lack of physical evidence does not
preclude a conviction where there is testimony demonstrating sexual conduct. State v.
Henderson, 11th Dist. Trumbull No. 2001-T-0047, 2002-Ohio-6715, ¶ 36 (the State may
prove that sexual conduct occurred “through either physical evidence and/or witness
testimony”); State v. Waskelis, 11th Dist. Portage No. 2011-P-0035, 2012-Ohio-3030, ¶
46, citing In re N.Z., 11th Dist. Lake Nos. 2010-L-023, et al., 2011-Ohio-6845, ¶
79 (“no physical evidence is required to corroborate a victim’s testimony in a rape case,
10
Case No. 2021-L-051
and the sole testimony of the victim can support a conviction”). It is not unexpected that
there would be no sign of physical injury since the victim did not testify as to any injury
that occurred from the sexual conduct. Additionally, the lack of Abdullah’s DNA in T.W.’s
vaginal area was explained by Dr. Zavarella: “there was far too much female DNA to ever
elucidate or detect a male DNA profile,” and, due to the high concentration of female cells
in that area of the body, “the small amount of DNA left behind by any kind of digital
penetration is typically difficult to ever get * * * a DNA profile using standard means.”
{¶33} Further, as to the issues of credibility raised by Abdullah, particularly that
the victim lied about being abducted at gunpoint, we do not find these issues rise to the
level of removing the decision of credibility from the hands of the jurors. “Since the jury
is in the best position to assess credibility, we generally decline to second guess its
credibility determinations.” State v. Tiggett, 11th Dist. Trumbull No. 2018-T-0036, 2019-
Ohio-1715, ¶ 34. The fact that T.W. lied about being taken at gunpoint does not
necessarily mean the jury should or would find she was untruthful about the other parts
of her story, particularly where she provided a credible explanation for her dishonesty,
i.e., that she did not want her parents to know she snuck out, and where she immediately
told the truth when confronted. Other minor alleged inconsistencies in her story, such as
whether she felt safe when entering the hotel, did not bear on the conduct that later
occurred in the hotel room which gave rise to the convictions or render the convictions
unsupported by the weight of the evidence. See State v. Carswell, 6th Dist. Sandusky
No. S-20-001, 2021-Ohio-3379, ¶ 51 (where cross-examination “arguably revealed some
inconsistencies in [a witness’] testimony, the jury's resolution of factual and credibility
disputes in this case against appellant does not equate to a finding that the jury’s verdict
11
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was against the manifest weight of the evidence”). Her statements regarding whether her
underwear were on or off may have been inconsistent immediately after the event when
she was in a state of distress but she gave clear testimony that Abdullah reached into the
top of her underwear and the jurors were in the best position to evaluate whether this
detail impacted her credibility. Furthermore, the Assault and Kidnapping convictions were
corroborated by other evidence, such as her extensive physical injuries and the state of
the hotel room where the incident occurred, buttressing her credibility.
{¶34} In relation to Felonious Assault, Abdullah argues that there was insufficient
evidence to show he knowingly caused physical harm since biting and use of the
boxcutter occurred only after he was attacked by the victim and that the victim’s claims of
physical assault were not substantiated by the physical injuries. He reiterates these
arguments as to the manifest weight.
{¶35} To convict Abdullah of Felonious Assault for Count Three, the State was
required to prove that he knowingly “[c]ause[d] or attempt[ed] to cause physical harm to
another * * * by means of a deadly weapon or dangerous ordnance.” R.C. 2903.11(A)(2).
{¶36} As to Abdullah’s claim that he bit the victim and/or cut her with the box
cutter only after he was attacked by her, this is rebutted by T.W.’s testimony. She testified
to using the box cutter only after she had been punched and attacked by Abdullah,
utilizing it to defend herself from his physical assault. She testified specifically that she
was bitten after she tried to escape the room. Under this version, while T.W. tried to exit
the room, Abdullah continued to physically harm her, which would rebut allegations that
his actions were justified to defend himself. While Abdullah’s statement to police
reiterated that he physically assaulted T.W. only to defend himself, this version of events
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contained inconsistencies, including the presence of blood on the bed although he stated
no assault occurred there, his failure to recall biting T.W. although she had bite marks
with his DNA on her body, and his fleeing of the scene and failure to seek immediate
medical treatment although he claims he acted in self-defense. “The choice between
credible witnesses and their conflicting testimony rests solely with the finder of fact and
an appellate court may not substitute its own judgment for that of the finder of fact.” State
v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 (1986). If the victim’s version of events
was believed, which was the case here, all of the elements of Felonious Assault were
supported by the evidence, as she testified not only to physical assault through punching
and bites, but also that Abdullah cut her with the box cutter, which caused wounds
requiring stitches.
{¶37} Abdullah’s argument that T.W.’s mouth and nose did not bleed despite her
claims that she was punched in the face, advanced to prove her untruthfulness, is
unavailing. Regardless of whether her face bled, there can be no legitimate dispute that
she suffered injuries, as she had various cuts and bruises all over her body and witnesses
indicated she had facial swelling.
{¶38} Finally, to convict Abdullah of Kidnapping, the State was required to prove
that he, “by force, threat, or deception, * * * remove[d] another from the place where the
other person is found or restrain[ed] the liberty of the other person * * * [t]o terrorize, or to
inflict serious physical harm on the victim.” R.C. 2905.01(A)(3).
{¶39} Abdullah argues that there was a lack of evidence to demonstrate that he
“acted with purpose to terrorize or inflict serious physical harm on T.W.” as she admitted
she went to the hotel room with him voluntarily.
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{¶40} In the present matter, while it is accurate that there is evidence showing
T.W. went to the hotel voluntarily, it also demonstrates he was deceptive in stating he
was going there to pick something up rather than to make inappropriate sexual advances.
Nonetheless, even presuming T.W. was in the room voluntarily, kidnapping can occur not
only by removing the victim to a certain place but also by restraining her liberty within that
place. Here, the evidence showed that T.W. attempted to leave the room but was
prevented from doing so by Abdullah through physical force, which is sufficient to support
the restraint of liberty element. See State v. Purvis, 9th Dist. Medina No. 05CA0053-M,
2006-Ohio-1555, ¶ 22-23 (preventing the victim from leaving the home constituted
kidnapping where the defendant restrained and beat her as part of a course of conduct).
Further, the evidence showed that, after preventing her from leaving, Abdullah continued
to assault her, demonstrating that she was restrained for the purpose of assaulting and
terrorizing her. As to issues raised regarding the victim’s credibility, this has been fully
addressed above.
{¶41} As noted above, the trial court’s sentencing entry indicates that the
conviction for Kidnapping for the purpose of sexual activity was merged, and thus,
consideration of this issue is not required. Nonetheless, we briefly observe that similar
arguments apply to the weight of the evidence here. The testimony, if found credible,
supported a contention that sexual activity occurred and that T.W. was restrained and
prevented from leaving due to Abdullah’s intent to attempt sexual activity with her. See
R.C. 2905.01(A)(4) (Kidnapping occurs when the liberty of a victim is restrained “[t]o
engage in sexual activity * * * with the victim against the victim’s will”).
{¶42} The first and second assignments of error are without merit.
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{¶43} In his third assignment of error, Abdullah argues that the imposition of
consecutive sentences was not supported by the record, emphasizing that he does not
have a history of committing sex-oriented offenses and the harm to the victim was not so
great that it prevented her from lying in relation to the allegations.
{¶44} “The court hearing an appeal [of a felony sentence] shall review the record,
including the findings underlying the sentence * * * given by the sentencing court.” R.C.
2953.08(G)(2). “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand the
matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * *
* [t]hat the record does not support the sentencing court’s findings under division * * *
(C)(4) of section 2929.14, or * * * [t]hat the sentence is otherwise contrary to law.” R.C.
2953.08(G)(2)(a) and (b).
{¶45} “Under R.C. 2929.14(C)(4), a sentencing court is required to make three
distinct findings in order to require an offender to serve consecutive prison terms: (1) that
consecutive sentences are ‘necessary to protect the public from future crime or to punish
the offender’; (2) that consecutive sentences are ‘not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public’; (3) ‘and * *
* also’ that one of the circumstances described in subdivision (a) to (c) is present.”
(Citation omitted.) State v. Claar, 11th Dist. Portage No. 2019-P-0091, 2020-Ohio-1330,
¶ 11. The applicable factors here, subdivisions (b) and (c), require findings that “[a]t least
two of the multiple offenses were committed as part of one or more courses of conduct”
which caused harm so great a single prison term would not reflect the seriousness of the
conduct or “[t]he offender’s history of criminal conduct demonstrates that consecutive
15
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sentences are necessary to protect the public from future crime by the offender.” To
impose consecutive terms, the court “is required to make the findings mandated by R.C.
2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing
entry, but it has no obligation to state reasons to support its findings.” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.
{¶46} In relation to findings necessary to order consecutive sentences, this court
has explained that “the court of appeals * * * must clearly and convincingly find that the
record does not support the court’s findings,” a standard characterized as “extremely
deferential.” (Citation omitted.) State v. Guth, 11th Dist. Portage No. 2015-P-0083, 2016-
Ohio-8221, ¶ 23, quoting State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, et
al., 2013-Ohio-5759, ¶ 31; State v. Forsell, 11th Dist. Portage Nos. 2019-P-0116, et al.,
2020-Ohio-5381, ¶ 15. “[A]s long as the reviewing court can discern that the trial court
engaged in the correct analysis and can determine that the record contains evidence to
support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.
{¶47} As to the findings that consecutive sentences are necessary to protect the
public from future crime, Abdullah argues that he does not have a history of this type of
crime or an extensive criminal record. However, the Presentence Investigation Report
indicates that he has several convictions for misdemeanor theft offenses and multiple
felony convictions for Forgery, Attempted Aggravated Assault, Grand Theft, and Having
Weapons While Under Disability. His repeated criminal activity warrants a finding that
this sentence was necessary to protect the public from future crime. Further, the PSI
indicates that Abdullah had other pending Rape and Kidnapping charges in Cuyahoga
County at the time of sentencing.
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{¶48} The cases cited by Abdullah, wherein consecutive sentences were vacated,
are factually distinguishable. The defendant in State v. Hawley, 2020-Ohio-1270, 153
N.E.3d 714 (8th Dist.), had only misdemeanor convictions and had not been charged with
any sex offenses while the defendant in State v. Regalo, 8th Dist. Cuyahoga No. 108430,
2020-Ohio-917, had no criminal record at all. Here, the defendant’s history of felony
offenses as well as charges for sex offenses differentiates this case from the foregoing
and justified the sentence.
{¶49} Abdullah also argues that the finding regarding the level of harm caused
was not supported by the record, primarily emphasizing that T.W. lied about being held
at gunpoint, which demonstrated that the harm was “not so severe.” It is unclear how the
victim’s dishonesty about this fact, which she explained was due to her fear of getting in
trouble for sneaking out, demonstrated that the harm from the crimes was not severe.
She suffered a variety of physical injuries, including two bites and serious cuts on her
body as well as a swollen and bruised face. Testimony from several witnesses
demonstrated the distress she was in after the incident and her statement at the
sentencing hearing indicated she was “still hurt about what happened” and that Abdullah
“put [her] through a lot.” The conduct of raping her, threatening to kill her, and repeatedly
hitting her while disallowing her to leave the hotel room was serious and we cannot clearly
and convincingly determine this finding was unsupported by the record.
{¶50} The third assignment of error is without merit.
{¶51} In his fourth through eighth assignments of error, Abdullah challenges the
Reagan Tokes Act, arguing that indeterminate sentences raise constitutional concerns.
{¶52} The Reagan Tokes Act requires the sentencing court to order a minimum
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Case No. 2021-L-051
prison term for sentences under R.C. 2929.14(A)(1)(a) or (2)(a) and a maximum prison
term as determined by R.C. 2929.144(B). The Act includes a presumption that an
offender shall be released on the expiration of his minimum term or earned early release
date, but the Department of Rehabilitation and Corrections “may rebut the * *
* presumption if it determines at a hearing that certain statutorily enumerated factors
apply.” State v. Ferguson, 11th Dist. Lake No. 2020-L-031, 2020-Ohio-5578, ¶ 8. “If the
DRC rebuts the presumption, it may maintain the offender’s incarceration after the
expiration of the minimum prison term or presumptive earned early release date for a
reasonable period of time, which ‘shall not exceed the offender’s maximum prison term.’”
Id., citing R.C. 2967.271(D)(1).
{¶53} As to all challenges raised by Abdullah, we observe that “we are to presume
that [a] state statute is constitutional, and the burden is on the person challenging the
statute to prove otherwise beyond a reasonable doubt.” State v. Lowe, 112 Ohio St.3d
507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17.
{¶54} In his fourth assignment of error, Abdullah argues that the constitutional
issues are ripe for review.
{¶55} In State v. Maddox, __ Ohio St.3d __, 2022-Ohio-764, __ N.E. 3d __, the
Ohio Supreme Court recently held that the Reagan Tokes Law is ripe for review. In
Maddox, the Court held that a “challenge to the statute’s constitutionality is ripe for review
on direct appeal because (1) [appellant] has been sentenced under the statute, (2) no
further factual development is necessary for a court to analyze the challenge, and (3)
delaying review would result in duplicative litigation forcing [defendants] to endure
potential violations of their constitutional rights in order to challenge the law.” Id. at ¶ 11.
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Therefore, we hold that Abdullah’s challenge to the constitutionality of the Reagan Tokes
Law is ripe for review and will proceed to consideration of the merits of the remaining
assigned errors.
{¶56} Abdullah’s fourth assignment of error is with merit to the extent discussed
above.
{¶57} In Abdullah’s fifth assignment of error, he argues that R.C. 2967.271(C) is
void for vagueness and does not provide him with a sufficient understanding of what
conduct could result in the indeterminate portion of his sentence being invoked, citing in
support of his argument State v. Delvallie, 2021-Ohio-1809, 173 N.E.3d 544 (8th Dist.),
which was vacated by the Eighth District sitting en banc in State v. Delvallie, 2022-Ohio-
470, 185 N.E.3d 536 (8th Dist.) (upholding the constitutionality of the Reagan Tokes Law).
{¶58} “‘[A] law will survive a void-for-vagueness challenge if it is written so that a
person of common intelligence is able to ascertain what conduct is prohibited, and if the
law provides sufficient standards to prevent arbitrary and discriminatory enforcement.’”
(Citations omitted.) Klein v. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779, 795 N.E.2d 633,
¶ 16. A tripartite analysis must be conducted to address a void for vagueness challenge:
the statute must provide “adequate notice and fair warning to persons of ordinary
intelligence so that they can conform their conduct to the dictates of the statute;” it cannot
permit arbitrary and discriminatory enforcement; and it cannot unreasonably hinder
fundamental constitutional freedoms. State v. Collier, 62 Ohio St.3d 267, 270, 581 N.E.2d
552 (1991). See also Perez v. Cleveland, 78 Ohio St.3d 376, 378, 678 N.E.2d 537 (1997)
(“when a statute is challenged under the due process doctrine of vagueness, a court must
determine whether the enactment (1) provides sufficient notice of its proscriptions and (2)
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contains reasonably clear guidelines to prevent official arbitrariness or discrimination in
its enforcement”).
{¶59} In State v. Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000), the Ohio
Supreme Court found a sex offender classification statute was not vague where it did not
prohibit specific conduct but established remedial registration and notification, since such
remedial measures “require less specificity to satisfy a void-for-vagueness challenge than
do criminal statutes.” Id. at 533. Applying this analysis, the Fifth District found that
postrelease control enactments were also not unconstitutionally vague, emphasizing that
they did not prohibit specific conduct. State v. Hopkins, 5th Dist. Stark Nos.
2000CA00053 and 2000CA000054, 2000 WL 1751286, *4 (Nov. 27, 2000).
{¶60} The foregoing is applicable to the Reagan Tokes Law. R.C. 2967.271(B)
establishes a rebuttable presumption that the offender shall be released upon the
expiration of the minimum prison term or early release date, whichever is earlier. Division
(C) provides a detailed description of means by which that presumption may be
overcome, including commission of institutional rule infractions, the offender’s security
level classification, and when the behavior while incarcerated demonstrates a continued
threat to society. As in Williams, R.C. 2967.271 does not prohibit any specific conduct.
Therefore, the statute requires less specificity than a typical criminal enactment.
{¶61} Further, Abdullah contends that Reagan Tokes is vague in that he is
unaware of what constitutes an “unprosecuted” violation or a lack of rehabilitation that
justifies rebutting the presumption of release. As he raises a similar argument in relation
to due process in the eighth assignment of error, this will be addressed below.
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Case No. 2021-L-051
{¶62} We observe, however, that, as the en banc panel in Delvallie explained, the
Reagan Tokes Law does not create a new prison rule infraction system; Ohio Adm.Code
5120-0-08 sets forth “an inmate’s rights and the procedures the Rules Infraction Board
are to follow in imposing any and all institutional infractions upon the inmates. See, e.g.,
Oko v. Lake Erie Corr. Inst., 11th Dist. Ashtabula No. 2010-A-0002, 2010-Ohio-2821,
2010 WL 2499702, ¶ 3 (overruling a constitutional challenge to the decision by the Rules
Infraction Board).” Delvallie, 2022-Ohio-470, at ¶ 86. An as applied challenge of an
infraction received under that Board would have to be raised through a separate writ upon
imposition of the infraction. Therefore, any challenges to the vagueness of the
enforcement of the Rules Infraction Board must be pursued through a writ of mandamus.
Id. at ¶ 87.
{¶63} Based on the foregoing, we conclude that the provisions in R.C. 2967.271
are not vague.
{¶64} The fifth assignment of error is without merit.
{¶65} In Abdullah’s sixth assignment of error, he argues that the Reagan Tokes
Law violates the separation of powers doctrine by giving the executive branch sentencing
authority and discretion.
{¶66} This argument has been consistently rejected by courts throughout this
state. State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36; State v.
Hacker, 2020-Ohio-5048, 161 N.E.3d 112, ¶ 22 (3d Dist.); State v. Bontrager, 2022-Ohio-
1367, 188 N.E.3d 607, ¶ 44 (4th Dist.); State v. Ratliff, 2022-Ohio-1372, 190 N.E.3d 684,
¶ 56 (5th Dist.); State v. Maddox, 2022-Ohio-1350, 188 N.E.3d 682, ¶ 7 (6th Dist.);
Delvallie, 2022-Ohio-470, at ¶ 38.
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Case No. 2021-L-051
{¶67} Abdullah cites the application of State ex rel. Bray v. Russell, 89 Ohio St.3d
132, 729 N.E.2d 359 (2000), in support of the argument that the Reagan Tokes Law
violates the separation of powers because it vests judicial power in the executive branch.
Bray addressed the constitutionality of R.C. 2967.11, which allowed the parole board to
punish a rule violation committed by the prisoner by extending the stated prison term. In
Bray, the Ohio Supreme Court held that R.C. 2967.11 was unconstitutional because the
parole board “act[ed] as judge, prosecutor, and jury” and its enactment intruded “well
beyond the defined role of the executive branch as set forth in our Constitution.” Id. at
135.
{¶68} Bray is inapplicable to the Reagan Tokes Act. R.C. 2967.11 authorized the
parole board to impose an additional prison term beyond the one the trial court imposed.
Under Reagan Tokes, the executive branch cannot impose additional time beyond the
maximum sentence imposed by the trial court at the time of sentencing. This situation is
more similar to that in Woods v. Telb, 89 Ohio St.3d 504, 733 N.E.2d 1103 (2000), where
the court found Ohio’s postrelease control statute, R.C. 2967.27, to be constitutional since
the postrelease control terms are made part of the sentence imposed by the court and
the parole board’s discretionary power to impose postrelease control sanctions did not
impinge on the judiciary’s mandate to impose sentence. Id. at 512. In Reagan Tokes
sentences, the court imposes both presumptive minimum and possible maximum prison
terms in its sentence. Thereafter, the ODRC determines whether the offender’s conduct
warrants more than the minimum imposed but cannot exceed the judiciary’s maximum
imposed sentence. This procedure has been characterized as “not meaningfully distinct
from Ohio’s current parole system, in which offenders may be kept in prison following
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service of the minimum term for parole eligibility” and as “similar, if not identical, to the
executive branch’s authority to release offenders from sentences under Ohio’s parole
system for indefinite life sentences.” Delvallie, 2022-Ohio-470, at ¶ 24-25. Therefore,
Bray does “not compel the conclusion that the Reagan Tokes Law violates the separation
of powers doctrine.” Barnes at ¶ 36.
{¶69} The sixth assignment of error is without merit.
{¶70} In Abdullah’s seventh assignment of error, he argues that the Reagan
Tokes Law violates his right to a trial by jury since it allows the DRC to engage in fact-
finding analysis, which is the role of jurors, citing the vacated opinion in Delvallie.
{¶71} In the en banc Delvallie opinion, 2022-Ohio-470, the Eighth District found
that R.C. 2967.271(C) and (D) do not violate the right to a jury trial. It rejected its prior
determination and found that, while Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), prevents the trial court from imposing a sentence in excess
of the statutory maximum without the factual circumstances justifying the enhanced
sentence first being found by a jury beyond a reasonable doubt, R.C. 2967.271 statutorily
requires a court “to impose the minimum and maximum terms upon the offender being
found guilty of the qualifying felony offense – similar to an offender being sentenced to
life with the possibility of parole under the indefinite life sentencing structure.” Id. at ¶ 40.
Reagan Tokes does not authorize “a sentencing court, or the ODRC for that matter, to
impose a sentence beyond the maximum set forth in the sentencing statutes or to elevate
the minimum term beyond the ranges set forth in R.C. 2929.14(A)(1)(a) and (A)(2)(a).”
Id. at ¶ 41. Further, it emphasized that under Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711,
172 L.Ed.2d 517 (2009), a state court’s imposition of consecutive sentences did not
23
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violate the right to a jury trial because juries historically “played no role in” the decision to
impose consecutive or concurrent sentences and that “specification of the regime for
administering multiple sentences has long been considered the prerogative of state
legislatures.” Id. at ¶ 42, citing Ice at 168. Under Reagan Tokes, the court cannot impose
a term greater than the maximum as prohibited under Apprendi nor does it impose a
sentence longer than the minimum term prescribed by statute based on findings of facts
in addition to those considered by the jury.
{¶72} The seventh assignment of error is without merit.
{¶73} In his eighth assignment of error, Abdullah argues that Reagan Tokes
violates his right to due process. He contends that it violates his right to a fair trial as the
statute does not delineate his rights at the hearing and that there is a lack of proper notice
of what type of conduct would rebut the presumption of release.
{¶74} As noted above, the rights in the present matter have been compared to
those involving parole. The Ohio Supreme Court has held that a right to parole
consideration does not create a “liberty interest sufficient to establish a right to procedural
due process.” State ex rel. Blake v. Shoemaker, 4 Ohio St.3d 42, 446 N.E.2d 169 (1983).
“However, if state law entitles an inmate to release on parole, that entitlement is a liberty
interest that is not to be taken away without due process.” Ratliff, 2022-Ohio-1372, at ¶
20.
{¶75} While no Ohio appellate district has held that R.C. 2967.271(C) violates due
process, some districts have reached different conclusions regarding whether requiring a
prisoner to remain in prison beyond the rebuttable presumption of release is analogous
to parole eligibility or parole revocation proceedings involving a termination of liberty
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which would require an “informal hearing” to verify facts supporting revocation. Morrissey
v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
{¶76} The Twelfth and Sixth Districts have concluded that hearings conducted
under the Reagan Tokes Law are analogous to parole revocation proceedings. In State
v. Stenson, 190 N.E.3d 1240, 2022-Ohio-2072 (6th Dist.), the court found that “the
Reagan Tokes Law creates a liberty interest more akin to probation revocation decisions,”
emphasizing that a parole release/eligibility is more discretionary and subjective than
parole revocation. Id. at ¶ 31. See also State v. Guyton, 12th Dist. Butler No. CA2019-
12-203, 2020-Ohio-3837, ¶ 17 (“[t]he hearings conducted by the ODRC under R.C.
2967.271(C) are analogous to parole revocation proceedings, probation revocation
proceedings, and postrelease control violation hearings”).
{¶77} In contrast, the Second District has concluded that “requiring a defendant
to remain in prison beyond the presumptive minimum term is akin to the decision to grant
or deny parole” since “if [the offender] commits rule infractions or crimes while in prison,
he may be required to serve the entire sentence already imposed by the trial court.” State
v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592, ¶ 17.
{¶78} We find it premature to reach a conclusion as to whether parole revocation
or parole eligibility procedures most closely resemble the present matter. Abdullah does
not raise a challenge to the statute as applied; since he has not yet been subject to a
sentence beyond the minimum term, his challenge necessarily is facial in nature. See
Stenson at ¶ 31 (the “ODRC has not sought to extend [appellant’s] term beyond the
presumptive minimum sentence * * * [and his] challenge to the Reagan Tokes Law is
necessarily a facial challenge”). “A facial challenge to a statute is the most difficult to
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bring successfully because the challenger must establish that there exists no set of
circumstances under which the statute would be valid.” Harrold v. Collier, 107 Ohio St.3d
44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. “The fact that a statute might operate
unconstitutionally under some plausible set of circumstances is insufficient to render it
wholly invalid.” Id. “If a statute is unconstitutional on its face, the statute may not be
enforced under any circumstances.” Wymslo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-
Ohio-2187, 970 N.E.2d 898, ¶ 21.
{¶79} It has been held that “the Reagan Tokes Law may not be found to be
unconstitutional, on its face, as violating due process merely because the specific
procedures for invoking an additional period of incarceration are not set forth in the Law
itself.” State v. Williams, 6th Dist. Lucas No. L-21-1152, 2022-Ohio-2812, ¶ 22. “[T]he
legislature is not required to codify all rules and procedures under the statutory provision
but instead can defer to the executive agency’s establishment of its own rules or
procedures to safeguard constitutional concerns, which must be challenged through the
appropriate mechanisms.” Delvallie, 2022-Ohio-470, at ¶ 59. We do not find that, as a
facial challenge, there are no circumstances under which the statute can be enforced.
Stenson at ¶ 33 (“given that this is a facial challenge to the Law, it cannot be said at this
juncture that the Law ‘cannot be applied constitutionally in any circumstances’”).
{¶80} We find that Abdullah’s arguments relating to R.C. 2967.271(C) and the
procedural safeguards of the hearing to rebut his presumptive release constitute an as
applied challenge which is not yet ripe for review, because those aspects of the statute
have not been applied to him.
{¶81} Further, as to Abdullah’s arguments that he does not have notice of the type
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of inmate behavior that results in rebutting the presumption of release, we disagree.
There are various procedures set forth in the Ohio Administrative Code for inmate
conduct. The rules for inmate conduct are set forth in Ohio Adm. Code 5120-9-06 and
the disciplinary procedures for infractions are provided in Adm. Code 5120-9-08. The
procedures for placing an inmate in a restrictive housing assignment are set forth in Ohio
Adm. Code. 5120-9-10. These procedures provide notice and an opportunity to be heard
and demonstrate under what circumstances a violation may occur which could ultimately
be used to rebut the presumption of release. Accordingly, we determine that an inmate
is provided with advance notice under the Revised Code and the Ohio Administrative
Code of the behavior and conduct that may contribute to or could result in the ODRC
rebutting the presumption of release.
{¶82} The eighth assignment of error is without merit.
{¶83} For the foregoing reasons, Abdullah’s convictions and sentence for Rape,
Felonious Assault, and Kidnapping, in the Lake County Court of Common Pleas, are
affirmed. Costs to be taxed against appellant.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
27
Case No. 2021-L-051 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482136/ | [Cite as State v. Habeeb-Ullah, 2022-Ohio-3979.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY
STATE OF OHIO, CASE NO. 2021-P-0102
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
NAIM A. HABEEB-ULLAH,
Trial Court No. 2018 CR 00374
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Naim A. Habeeb-Ullah, pro se, PID#: A760-153, North Central Correctional Complex,
670 Marion-Williamsport Road, P.O. Box 1812, Marion, OH 43302 (Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Naim Habeeb-Ullah, appeals, pro se, the judgment of the
Portage County Court of Common Pleas convicting him of one count Gross Sexual
Imposition and sentencing him to five years imprisonment. For the reasons set forth
herein, the judgment is affirmed.
{¶2} Appellant and K.H. were married in August 2005. At the time of the
marriage, K.H. already had a son, D.D., and a daughter, C.M. During the marriage,
appellant and K.H. had one son, E.H., who was born in 2008. In January 2008, appellant
and the family moved from Akron, Ohio to Kent, Ohio. They later returned to Summit
County in March 2012. And, in July 2015, the couple separated, although they did not
formally divorce.
{¶3} In early 2018, C.M. disclosed to K.H. two events which occurred between
her and appellant. In the first, which occurred in 2010, she awoke one night to find
appellant watching her sleep; he left when she asked him to. The second incident
occurred later in 2010. She disclosed that appellant had inappropriately touched her.
{¶4} As a result of the allegations, appellant was ultimately indicted on five
counts: Gross Sexual Imposition, Attempted Rape, Attempted Sexual Battery, Abduction,
and Kidnapping. Following a trial by jury, appellant was found guilty of Count One, Gross
Sexual Imposition, a felony of the third degree, in violation of R.C. 2907.05; Count Two,
Attempted Rape, a felony of the second degree, in violation of R.C. 2923.02 and R.C.
2907.02(A)(1)(b); and Count Three, Attempted Sexual Battery, a felony of the third
degree, in violation of R.C. 2923.02 and R.C. 2907.03(A)(5). Though the parties agreed
that all the counts merged for purposes of sentencing, the court nevertheless sentenced
appellant to five years in prison on Counts One and Three, and an indefinite term of five
to 25 years in prison on Count Two, all to run concurrently.
{¶5} Appellant appealed in 2019, and in State v. Habeeb-Ullah, 11th Dist.
Portage No. 2019-P-0006, 2019-Ohio-4517 this court affirmed in part, reversed in part,
and remanded the matter to the lower court. In his first appeal, appellant challenged, in
relevant part, the sufficiency of the evidence and the manifest weight of the evidence of
his convictions. This court determined that the counts should have merged for purposes
of sentencing and that the state intended to sentence on the count of Attempted Rape,
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even though the lower court erroneously sentenced him on all three counts. Accordingly,
this court only analyzed the sufficiency of the evidence as it related to Attempted Rape.
Ultimately, this court found that there was insufficient evidence to convict appellant of
Attempted Rape, vacated the conviction, and remanded the matter to the trial court.
{¶6} On remand, the lower court found that the state elected to proceed with
sentencing on Count One: Gross Sexual Imposition. In its revised judgment entry, the
court sentenced appellant to five years in prison, and informed him of his post-release
control and sex offender registration requirements.
{¶7} Appellant filed the instant appeal after the 30-day period provided by App.R.
4. However, this court granted his motion for delayed appeal, finding appellant stated
satisfactory reasons pursuant to App.R. 5(A), including delays due to COVID-19. The
state filed an untimely reply brief with a motion to reply instanter, which this court granted.
Appellant assigns one error, which states:
{¶8} The state failed to prove, beyond a reasonable doubt, the offense of
Gross Sexual Imposition, and such is insufficient, as a matter of law.
{¶9} Under his sole assignment of error, appellant challenges the sufficiency of
the evidence the state presented at trial to support his conviction of Gross Sexual
Imposition. “A ‘sufficiency’ argument raises a question of law as to whether the
prosecution offered some evidence concerning each element of the charged offense.”
Habeeb-Ullah, supra, at ¶34, citing State v. Windle, 11th Dist. Lake No. 2010-L-0033,
2011-Ohio-4171, ¶25. “‘[T]he standard of review for a sufficiency of the evidence claim
is “whether after viewing the probative evidence and the inference[s] drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found all
the elements of the offense beyond a reasonable doubt. The claim of insufficient evidence
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invokes an inquiry about due process. It raises a question of law, the resolution of which
does not allow the court to weigh the evidence.” * * * “In essence, sufficiency is a test of
adequacy[;] [w]hether the evidence is legally sufficient to sustain a verdict * * *.”’ (Citations
omitted.)” State v. Rice, 11th Dist. Lake No. 2018-L-065, 2019-Ohio-1415, ¶65, quoting
State v. McFeely, 11th Dist. Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶23.
{¶10} R.C. 2907.05, Gross Sexual Imposition, of which appellant was convicted,
states in pertinent part:
{¶11} (A) No person shall have sexual contact with another, not the spouse
of the offender; cause another, not the spouse of the offender, to
have sexual contact with the offender; or cause two or more other
persons to have sexual contact when any of the following applies:
{¶12} * * *
{¶13} (4) The other person, or one of the other persons, is less than thirteen
years of age, whether or not the offender knows the age of that
person.
{¶14} “Sexual contact,” as used in R.C. 2907.05, is defined as “any touching of an
erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic
region, or, if the person is a female, a breast, for the purpose of sexually arousing or
gratifying either person.” R.C. 2907.01(B).
{¶15} Appellant challenges the sufficiency of the evidence in three ways. First,
that C.M. testified that appellant touched her through her underwear, not her skin directly.
Second, he argues that C.M. “had no intention of disclosing” the incident but said it only
because she was angry. Third, he argues that the social worker, Julia Mothersbaugh,
testified that at the conclusion of her investigation, she found the allegation to be
“unsubstantiated.”
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{¶16} Our analysis necessarily begins with a discussion of the testimony and
evidence presented at trial. C.M. testified at trial regarding both incidents. The first
incident occurred in 2010, when she was 10-years-old. C.M. stated she awoke from sleep
to notice appellant sitting at the end of her bed. The child asked appellant what he was
doing. He responded he looked into her room, noticed what she was wearing (pajama
shorts and a tank top), and could not help but enter the room to look at her. C.M. was
concerned about the encounter and asked appellant to leave the room, which he did.
Nothing further happened.
{¶17} Then, later in 2010, C.M. had been playing outside and came in to take a
shower. Prior to doing so, she went downstairs to the laundry room wearing a shirt and
underwear. Unbeknownst to her, appellant was sitting in the living room in the dark.
Appellant pulled her into the living room and repeatedly stated “let me show you
something,” in a “low, eerie, * * * kind of seductive” voice. Appellant proceeded to place
C.M. on the couch, positioning her ankles on his shoulders and started “prying at [her]
vagina, like poking at it and touching around it” over her underwear for approximately a
minute. C.M. was able to “scoot” away, tell appellant “that wasn't okay,” and to stop.
Appellant stopped and begged C.M. not to tell anyone. There were no other allegations
of abuse.
{¶18} C.M. was asked why she waited over eight years to disclose the incidents,
she stated: “I watched my older brother grow up angry because he didn't have a father in
his life. And I didn't want [the incidents] to be the reason why my younger brother didn't
have a father in his life. That's why. I didn't want that for him. So I made the sacrifice and
just kept it to myself.” She also testified that although she did not disclose the incidents
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for years, during a conversation with her mother, K.H. implied that her bother’s poor
behavior was because he had a rough life, it angered her “a little bit” and she told her that
she had “been through things, too. Things nobody even knows about.”
{¶19} K.H. testified that C.M. disclosed the incident to her in January 2018. In
response, she, C.M.’s biological father, C.M.’s older brother, and C.M. all confronted
appellant, resulting in a physical altercation. She testified that after she was released
from jail following the confrontation, she took C.M. to the police to report the incident.
{¶20} Officer Burton testified that she took a written statement of the allegation
from C.M. in January of 2018 and referred the matter to Detective Travis. Detective Travis
testified that when she called appellant, he was cooperative. He spoke with her on the
phone twice. Detective Travis testified that in the first conversation with appellant he
denied anything had happened between him and C.M. but that he was at work at the time
of the call and could not discuss further. They made arrangements for a future phone
call. A partial recording of the second phone call was played at trial. In that call, appellant
admitted that there was an incident when C.M. was 11 years old and said that C.M. was
lying about the details. Appellant said one night, late at night, she came to him in her
underwear, disclosed a sexual encounter with a boy, asked him about sex, and started
touching herself in front of him. He stated that he told her to sit up, and she asked him
not to tell her mother because she was afraid of getting in trouble. He agreed not to tell
anyone.
{¶21} Ms. Peterson, a Pediatric Sexual Assault Nurse Examiner, testified that K.H.
brought C.M. in for an evaluation, during which C.M. disclosed the incident to her. C.M.
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declined a physical examination because she had recently been examined at another
medical facility. Ms. Peterson recommended C.M. attend counseling.
{¶22} Appellant, through counsel, presented testimony of a psychology expert
who testified that when a disclosure is delayed, the memory can become less clear. She
also admitted on cross-examination, however, that in this case, since both parties
remember the same event but disagree as to culpability, it is more likely that memory is
not the issue in this case, but the veracity of one of the versions of the incident.
{¶23} Appellant’s mother testified on his behalf that appellant, K.H., C.M., and
C.M.’s brothers lived with her between Thanksgiving 2011 and the end of the year. She
testified that during that time, she observed C.M. and appellant interact and that C.M.
embraced appellant like her biological father. Appellant’s sister testified appellant and
C.M. had a very loving relationship. Both appellant’s mother and sister testified that they
did not observe C.M. avoiding interaction with appellant.
{¶24} We turn now to appellant’s arguments, first addressing the argument that
the state failed to present sufficient evidence because C.M. testified that appellant
touched her over her clothes. However, contrary to appellant’s argument, “sexual
contact” does not require skin-on-skin contact, but any touching of an erogenous zone of
another even if through clothing. See State v. Mugrage, 11th Dist. Portage No. 2020-P-
0066, 2021-Ohio-4136, ¶124 (“[S]exual contact does not require that the offender have
skin-to-skin contact with an erogenous zone of the victim or, conversely, the victim with
the erogenous zone of the offender.”) and State v. Jones, 2nd Dist. Clark No. 2012-CA-
95, 2013-Ohio-3760, ¶21 (“Sexual contact does not require that the offender have skin-
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Case No. 2021-P-0102
to-skin contact with an erogenous zone of the victim; a touching of an erogenous zone
covered by the victim’s clothing is sufficient.”)
{¶25} Thus, appellant’s first argument under his sole assignment of error is
without merit.
{¶26} Second, he argues that C.M. testified she had no intention of telling anyone
and that she was angry when she disclosed the incident to her mom. Appellant argues
that this shows C.M.’s statements were unreliable. This argument is not one of sufficient
evidence, but of the weight of the evidence, which appellant has not appealed. However,
even if we were to consider the weight of this evidence, we do not find it militates against
the jury’s finding of guilty.
{¶27} “Weight of the evidence concerns ‘the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather the other.’”
State v. Thompkins, 78 Ohio St.3d 380, 387, quoting Black’s Law Dictionary 1594 (6th
Ed.1990) (emphasis omitted). “An appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider the credibility of the witnesses
determine whether, in resolving conflicts in the evidence, the [trier of fact] clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” (Citations omitted.) State v. Fiederer, 11th Dist. Lake
No. 2019-L-142, 2020-Ohio-4953, ¶12.
{¶28} “‘“Within a manifest weight of the judgment review, an appellate court
considers the credibility of the witnesses. Courts should only reverse based upon
manifest weight grounds in “the exceptional case in which the evidence weighs heavily
against the conviction.”’” Id., quoting Tompkins, supra, quoting State v. Martin, 20 Ohio
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App.3d 172, 175 (1st Dist.1983). “Moreover, ‘it is inappropriate for a reviewing court to
interfere with factual findings of the trier of fact (* * *) unless the reviewing court finds that
a reasonable juror could not find the testimony of the witness to be credible.’” Fiederer,
supra, quoting State v. Redman, 10th Dist. Franklin No. 10AP-654, 2011-Ohio-1894, ¶7.
{¶29} “Further, ‘[t]he trier of fact is free to believe or disbelieve all or any of the
testimony. * * * The trier of fact is in the best position to take into account inconsistencies,
along with the witnesses’ manner and demeanor, and determine whether the witnesses’
testimony is credible. * * * Consequently, although an appellate court must act as a
“thirteenth juror” when considering whether the manifest weight of the evidence requires
reversal, it must also give great deference to the fact finder’s determination of the
witnesses’ credibility. * * * ‘” State v. Elliott, 11th Dist. Portage No. 2008-P-0026, 2009-
Ohio-918, ¶37, quoting State v. Sevilla, 10th Dist. Frankin No. 06AP-954, 2007-Ohio-
2789, ¶13.
{¶30} We do not find this is the case in which the evidence weighs heavily against
the conviction. Certainly, C.M.’s state of mind when she disclosed the incident is relevant
to weighing the veracity of her statements. However, the jury, which was in the best
position to determine the witness’ credibility, was presented with this information and
determined C.M. to be truthful. Moreover, just because a statement is said in anger does
not necessarily make it untruthful. C.M.’s motive in telling her mother about the incident
could have been just to prove to her, as she stated, that she’s “been through things, too.”
We find a reasonable juror could find that C.M.’s testimony to be credible despite her
anger.
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{¶31} Third, appellant asserts that Julie Mothersbaugh, a social worker with
Summit County Children’s Services, testified that she found the allegation to be
unsubstantiated. However, the court did not permit Julie Mothersbaugh to testify to the
jury; her testimony was proffered. “Proffer testimony is not evidence.” In re Thomas, 5th
Dist. Tuscarawas Nos. 94AP060039 and 94PA060041, 1994 WL 728303, *1 (Dec. 27,
1994). As this testimony was not presented to the jury, it cannot be considered when
determining whether the jury lost its way in resolving conflicts in the evidence. Moreover,
any challenge to the court’s decision to exclude the testimony of Julie Mothersbaugh
could have been raised in appellant’s first appeal. As such, the doctrine of res judicata
prevents appellant from raising the matter now.
{¶32} Moreover, even if Julie Mothersbaugh’s testimony had been presented at
trial, we do not find it supports appellant’s argument. In her proffered testimony, Julie
Mothersbaugh found that C.M. had been removed from the abusive situation, had no
further contact with the perpetrator (appellant), that her mother was “getting her linked up
with Community Resources for counseling.” She also looked into concerns that there
was another young child, E.H., who was in the custody of the perpetrator. Ms.
Mothersbaugh determined that K.H. had stopped contact between appellant and E.H.,
which she apparently found satisfactory. She expressly stated, “the decision was since
the children were being protected by their mother, she was reaching out to resources,
she had community links to make those connections, the children were safe, we closed
the referral as unsubstantiated.” It appears from her proffered testimony that this
disposition was made not because she found the allegations against appellant to be
unsubstantiated, but because she determined that C.M. was safe in the care of her
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mother. Accordingly, even if Ms. Mothersbaugh’s testimony had been admitted at trial, it
does not support appellant’s argument in the appeal at bar.
{¶33} After careful review of the record, we find there was sufficient evidence to
convict appellant of Gross Sexual Imposition and that such conviction was not against the
manifest weight of the evidence. C.M. testified that appellant had touched her vaginal
area and that afterward, appellant had asked her to keep it secret. From these actions
and attempts at secrecy, the jury could have reasonably concluded that appellant had
touched C.M.’s erogenous zones for the purpose of his own sexual gratification. The
conviction for gross sexual imposition was, therefore, based upon sufficient evidence and
was not against the manifest weight of the evidence.
{¶34} Appellant’s sole assigned error is without merit.
{¶35} In light of the foregoing, the judgment of the Portage County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
11
Case No. 2021-P-0102 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482145/ | [Cite as In re L.E., 2022-Ohio-3962.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
IN RE: :
L.E. : CASE NO. CA2021-12-066
: OPINION
11/7/2022
:
:
:
APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2017 JI 23840
Kroener Hale Law Firm, and Sloan Thacker, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Mother, appeals from the decision of the Clermont County Court of
Common Pleas, Juvenile Division, designating the child's Father as residential parent and
legal custodian of their minor daughter.
{¶2} The child was born out of wedlock in September of 2012. Mother filed a
complaint to determine parentage in July of 2017. Father's parentage was established in
October of 2017, and he subsequently filed a complaint for shared parenting. In July 2018,
the court designated Mother as the child's legal custodian and residential parent and
Clermont CA2021-12-066
ordered parenting time for Father on alternating weekends and alternating Thursdays
overnight. The court also granted each party extended parenting time during the summer
and established a meeting place for exchanges.
{¶3} In the spring of 2019, Mother met R.C. ("Stepfather") and married him nearly
one month later. Mother and Stepfather live together with their infant son and Mother's
other son who is 12 years old.
{¶4} In the fall of 2019, Father discovered that Stepfather overdosed on July 12,
2019, while parked in front of Mother's residence. It was later discovered that Stepfather
had also overdosed on February 2 and July 2, 2019, with the later incident resulting in an
OVI conviction. After the July 12 overdose, Stepfather became a resident at a drug
treatment facility, Adult and Teen Challenge. Mother failed to notify the child's therapist,
the court-appointed guardian ad litem (GAL), and Father of these events. Stepfather has
been struggling with drug addiction since he was 18 years old, and he estimates that he
has participated in drug abuse treatment programs approximately 12 times. Stepfather also
estimates his longest period of sobriety to be three years.
{¶5} Upon learning of Stepfather's drug related events, Father filed a motion for
emergency custody. In November of 2019, the court held a hearing and ultimately
dismissed the motion, but ordered Stepfather to remain out of Mother's residence and
ordered no contact between Stepfather and the child.
{¶6} After Mother's marriage to Stepfather, Mother repeatedly denied Father his
parenting time. Father was unable to see the child for several scheduled visits, as well as
for Christmas in 2019, and a planned family beach vacation. On February 21, 2020, Father
filed a motion for contempt of visitation, and on March 18, 2020, Mother filed a motion to
modify visitation. On March 12, 2021, Father filed a petition for custody. The court held
hearings on all motions over a series of four days.
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Clermont CA2021-12-066
{¶7} On November 9, 2021, the trial court issued an order designating Father as
the child's residential parent and legal custodian, and granting Mother parenting time. It is
from this decision that Mother appeals, raising two assignments of error. We address the
assignments together.
{¶8} Assignment of Error No. 1:
{¶9} THE TRIAL COURT'S BEST INTEREST HOLDING AND CHANGE OF
CUSTODY CONSTITUTES AN ABUSE OF DISCRETION.
{¶10} Assignment of Error No. 2:
{¶11} THE TRIAL COURT'S DETERMINATION THAT THE HARM OF MOVING
THE CHILDREN [sic] WAS OUTWEIGHED BY THE ADVANTAGES CONSTITUTES AN
ABUSE OF DISCRETION.
{¶12} In Mother's first assignment of error, she argues that the trial court abused its
discretion by finding that a change of custody was in the best interest of the child.
Specifically, Mother asserts that the evidence was insufficient to show that Stepfather's drug
addiction has negatively impacted the child, and that Mother is less inclined to follow court
ordered visitation.
{¶13} R.C. 3109.04(E)(1)(a) governs the modification of an existing custody order.
The statute provides that "[t]he court shall not modify a prior decree allocating parental
rights and responsibilities" unless it finds that, based on new facts unknown to the court at
the time of the prior decree, that "a change has occurred in the circumstances of the child,
[or] the child's residential parent, * * * and that the modification is necessary to serve the
best interest of the child." R.C. 3109.04(E)(1)(a).
{¶14} Thus, when applying the statute, the court may not modify a prior custody
determination unless it first finds that a change has occurred in the circumstances of the
child or the child's residential parent. Cravens v. Cravens, 12th Dist. Warren No. CA2008-
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Clermont CA2021-12-066
02-033, 2009-Ohio-1733, ¶ 34. Second, after finding a change in circumstances, the court
must determine whether the modification is in the child's best interest. Id.
{¶15} In addition to these two requirements, the trial court "shall retain the residential
parent designated by the prior decree" unless "the harm likely to be caused by a change of
environment is outweighed by the advantages of the change of environment to the child."
R.C. 3109.04(E)(1)(a)(iii); Jillian F. v. Curtis C., 5th Dist. Tuscarawas No. 2018 AP 04 0016,
2018-Ohio-5373, ¶ 30. Thus, in order for the trial court to modify the residential parent, the
court must find that (1) there is a change in circumstances, (2) the modification serves the
best interest of the child, and (3) the harm resulting from a modification is outweighed by
the advantages of such a modification. In re Nentwick, 7th Dist. Columbiana No. 00 CO 05,
2002-Ohio-1560, ¶ 36. The record must support each of these findings or else the
modification of child custody is contrary to law. Id.
A. CHANGE IN CIRCUMSTANCES
{¶16} A change in circumstances is the threshold requirement intended to provide
stability to the residential status of the child. Davis v. Flickinger, 77 Ohio St. 3d 415, 417
(1997). Mother does not challenge the trial court's finding that there was a change in
circumstances. It is undisputed that since the June 2018 order, Mother married Stepfather,
and Stepfather's addiction became an integral part of the family dynamics. The trial court
found that Mother deliberately withheld this information from Father, the GAL, and the
child's therapist. The trial court also found that after the prior order, Mother demonstrated
a pattern of unwillingness to cooperate and facilitate Father's parenting time.
B. BEST INTEREST OF THE CHILD
{¶17} The determination of what is in the best interest of the child is within the sound
discretion of the trial court and will not be reversed absent an abuse of discretion. Bonifield
v. Bonifield, 12th Dist. Butler No. CA2020-02-022, 2021-Ohio-95, ¶ 11. An abuse of
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Clermont CA2021-12-066
discretion implies that the trial court's decision was arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). A trial court's
decision does not constitute an abuse of discretion "if it is supported by a discernible rational
basis." In re B.B., 12th Dist. Clermont No. CA2019-07-057, 2020-Ohio-4007, ¶ 16.
{¶18} With respect to the duty of deference to the trial court in disputes over the
custody of children, the Ohio Supreme Court has stated that "the discretion which a trial
court enjoys in custody matters should be accorded the utmost respect" considering the
impact the court's decision has on the lives of the parties involved. Miller v. Miller, 37 Ohio
St. 3d 71, 74 (1988). "The knowledge that the trial court gains through observing the
witnesses and the parties in a custody proceeding cannot be conveyed to a reviewing court
by printed record." Id. Thus, we are guided by the presumption that the trial court's findings
were correct.
{¶19} In determining the best interest of a child, the court is required "to consider all
relevant factors," including a non-exclusive list of ten specific factors. R.C. 3109.04(F)(1).
In addressing the best interest factors, the trial court found that both parents want legal
custody of the child, the child is bonded and integrated into each party's home, the child
has a healthy relationship with each parent's family, and though the child struggled in her
early grades, she is now progressing in school with the implementation of her I.E.P. 1 The
child also regularly participates in age-appropriate extracurricular activities, in which both
parents are involved. See R.C. 3109.04(F)(1)(a), (c), and (d). The court found that the
factors under R.C. 3109.04(F)(1)(b), (h), (i), and (j) are not applicable or relevant.2
1. An Individualized Education Program (I.E.P.) is a written education plan designed to meet a child's specific
learning needs. Here, the child was given an I.E.P. due to her diagnosis for ADHD and the general concern
shared by her teachers regarding her slow academic progress.
2. We note that while the trial court found R.C. 3019.04(F)(1)(i) was not applicable, the record supports a
finding that Mother continuously and willfully denied Father's right to parenting time.
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Clermont CA2021-12-066
1. WILLINGNESS TO FACILITATE PARENTING TIME
{¶20} The court found that Mother demonstrates an unwillingness to cooperate with
Father regarding his parenting time. See R.C. 3109.04(F)(1)(f). Mother does not challenge
the trial court's finding that she was in contempt for visitation, but the trial court's finding of
contempt is relevant to this factor of the best interest analysis. Mother instead challenges
the finding that she is less willing to cooperate with Father regarding parenting time, arguing
that the trial court "failed to note that it was the minor child's outbursts" and Mother's
"concerns for the child's safety at Father's" as her reason for limiting the child's time with
Father. Mother now contends that because her concerns regarding the child's safety have
been addressed, there is no evidence to support that she would not now facilitate Father's
parenting time. Given the evidence of Mother's past behavior, we are not convinced.
{¶21} On more than one occasion, Mother denied Father his parenting time in
violation of the court's July 2018 order for reasons unrelated to the child's safety. For
instance, in February of 2020, Mother requested that Father cancel his parenting time to
accommodate Stepfather's birthday. Father refused and Mother made herself and the child
unavailable when Father arrived to pick up the child. Mother testified that she thought
stepparents "got birthday time too," but provided no support for why she was justified in
denying Father's scheduled time.
{¶22} Most notably, Mother prevented Father from seeing the child on Christmas
Day of 2019. Instead, the child spent the week with Mother and Stepfather's family, and
Mother failed to communicate with Father until early January. Mother also prevented Father
from including the child on Father's family vacation to Myrtle Beach in May of 2020. Mother
gave Father no explanation for why the child could not attend the vacation. Instead, she
sent a photo of the minor child near the exchange location, almost two hours after the
scheduled drop off time, and shortly thereafter texted Father that she and the child were
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Clermont CA2021-12-066
back at Mother's home.
{¶23} Mother testified about a series of text messages in which Mother informed
Father that she would not bring the child to the exchange location unless he promised to
bring money "for childcare." Father was also told that the money was needed for "gas" to
transport the child. At the hearing, Mother was asked if she genuinely needed gas money,
and Mother indicated that there were times when she and Stepfather had to "make things
up" or give some sort of reason why they couldn't meet at the exchange location in order
to compel Father to come to their house to pick up the child. When Father would refuse,
Mother blamed any missed parenting time on Father.
{¶24} Mother provides no legal support for why she can unilaterally decide to deny
Father his parenting time. Mother alleges that she denied parenting time because she was
afraid for the child's safety based on the child's behavior prior to visits with Father, yet
Mother never filed any motions with the court to address her concerns. We also note that
the child never alleged, nor was there any evidence, that the child's time with Father put the
child in any danger. The GAL never recommended reducing Father's parenting time, and
the child repeatedly expressed to her therapist that her visits with Father were going well
and that she felt happy during the visits.3
{¶25} In denying Father's parenting time, Mother did not demonstrate any perceived
immediate serious physical harm to the child; she simply denied Father his parenting time.
See Williams v. McGuire, 9th Dist. Lorain No. 21CA011784, 2022-Ohio-3598, ¶ 26 (In
finding a father in contempt, the trial court noted that father's reasons for denying visitation
"did not include any perceived immediate serious physical harm and that he refused
3. We also point out that Mother repeatedly attempted to have the child undergo an evaluation at the Mayerson
Center for Safe and Healthy Children at Cincinnati Children's Hospital Medical Center, but the center refused
because there was never any disclosure of sexual abuse.
-7-
Clermont CA2021-12-066
visitation instead of seeking a modification of the visitation order."); see also In re S.J.S.,
2nd Dist. Montgomery No. 28801, 2020-Ohio-5105, ¶ 91 (finding that the court did not
abuse its discretion in granting legal custody to father when mother had "continuously and
willfully denied [f]ather's rights to parenting time by multiple means, including
unsubstantiated claims of child abuse and repeated interference and manipulation at
exchanges.").
{¶26} The trial court did not err in finding that Mother is less likely to honor and
facilitate court-approved parenting time rights. Mother tends to alter the parenting time
schedule in accordance with her own desires and her family's schedule as opposed to
following the orders of the court. The trial court found that Father, on the other hand, was
"undaunted in his attempts to maintain a consistent parenting time schedule." The record
reflects that Father regularly arrived at the exchange location for his parenting time, and
there were no instances of Father preventing or denying Mother from exercising her court
ordered parenting time.
2. CHILD'S RELATIONSHIP WITH PARENTS
{¶27} Mother also challenges the court's analysis of the child's relationship with
Father. See R.C. 3109.04(F)(1)(c). Father lives with his wife (the child's Stepmother), as
well as Stepmother's 15-year-old daughter, and Stepmother's aunt. Mother asserts in her
brief that Father and Stepmother are now divorced, and Father has moved to Kentucky.
These facts are not a part of the record and thus we will not address them. App.R. 12(A);
State v. Salim, 8th Dist. Cuyahoga Nos. 56925 and 57964, Ohio App. LEXIS 1933 (May 17,
1990) ("A reviewing court cannot consider matters not part of the record before it and then
decide the appeal on the basis of additional matters.").
{¶28} Mother argues that the court failed to consider the amount of time that the
child spends with Father during his parenting time, asserting that the child spends all of her
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Clermont CA2021-12-066
time with Stepmother while Father sleeps. While Father does have to work overnights,
Father testified that he spends time with the child after school completing homework,
playing, and having dinner together before bedtime. Father also changed his work schedule
so he could spend more time with the child during his parenting time.
{¶29} Mother argues that the child has a much closer relationship with Mother and
Mother's family than with Father, "as much of the child's time with Father was actually spent
with his now ex-wife." As noted above, we decline to consider facts not before the trial
court. At the time of the trial court's decision, Father and Stepmother lived together and
there was evidence to demonstrate that the child was bonded to the family unit. The GAL
stated that Father should spend more time with the child during visits, but it is important to
note that the child's relationship with family members is only one factor among many in the
best interest analysis. It is "the role of the trial court to determine the relative weight to
assign each factor, in relation to the others, when determining the children's best interest."
Ruble v. Ruble, 12th Dist. Madison No. CA2010-09-019, 2011-Ohio-3350, ¶ 18.
{¶30} Thus, it is within the purview of the trial court to place less weight on this factor
when determining the best interest of the child. "This court should not, and will not, second-
guess the domestic relations court's decision in regard to the appropriate weight to be given
to any one of those factors." Blessing v. Blessing, 12th Dist. Clermont No. CA2019-01-011,
2019-Ohio-3951, ¶ 18. As it is the role of the trial court to determine the relative weight to
assign each factor, we do not find that the trial court abused its discretion in placing less
weight on this factor.
3. MENTAL HEALTH OF THOSE INVOLVED
{¶31} The trial court was most concerned about the impact of Stepfather's drug
addiction on the child and how Mother handled the drug use. See R.C. 3109.04(F)(1)(e).
Mother challenges the trial court's analysis of this factor, asserting that there was no
-9-
Clermont CA2021-12-066
evidence presented to show that Stepfather's drug addiction impacted or harmed the child.
{¶32} Stepfather testified that he met Mother in April of 2019. At that time, he
resided in a residential treatment center. In June of 2019, Stepfather moved from his
residence at the recovery center into Mother's home, and married Mother a few weeks later.
In one of his interviews with the GAL, Stepfather informed the GAL that he first relapsed
around October of 2019 and that he left the home and stayed elsewhere when he relapsed.
{¶33} In January of 2020, Mother called the police to her home. The police report
stated that Mother wanted "documentation for court purposes," and that she was afraid to
go home due to Stepfather "using Meth daily." She also advised the police that Stepfather
"snorts, smokes and injects it daily," and that "she fears that the kids will find the Meth or
drug paraphernalia because he leaves it laying around the house." Mother later attempted
to explain away this report, claiming that she never made those statements to the officers.4
However, Mother also testified that sometime in January of 2020, she found a bag of brown
powder in the car, and that there was a time in February of 2020 when Stepfather was
staying in a hotel room while he was using drugs. During this time, Stepfather's presence
in the home was sporadic.
{¶34} On July 2, 2020, Stepfather was found unconscious in his vehicle with a
needle next to him. NARCAN was required to revive him, and he was subsequently charged
with an OVI.5 At roughly 8:30 a.m. on July 12, 2020, police responded to a call from Mother.
Stepfather was again found unconscious in his vehicle, this time parked just outside
Mother's home. The child was present in the home at the time. Emergency services
personnel found a syringe embedded in Stepfather's arm and administered two doses of
4. When asked if Mother was aware that there was a police report contrary to her testimony, she responded,
"I'm just going to have to give that one to God."
5. NARCAN is a medication designed to help reverse the effects of an opioid overdose.
- 10 -
Clermont CA2021-12-066
NARCAN to revive Stepfather, who was unconscious and in need of CPR. Mother advised
the responding officers that Stepfather had a history of drug use and had overdosed twice
before.
{¶35} The record demonstrates that Mother has downplayed Stepfather's drug
addiction and withheld information surrounding his extensive drug use. Mother has also
been out of touch with the reality of his addiction. During the November 2020 hearing on
Father's motion for emergency custody, Mother stated that the overdose on July 12 was
Stepfather's "first time" overdosing since his previous recovery. At the April 2021 hearing,
Mother was confronted with the information that Stepfather had overdosed on July 2. When
asked if that information changed her perception as to whether the July 12 incident was a
one-time drug use incident, Mother said, "no." She thereafter explained that he overdosed
on February 4 and immediately went to Teen Challenge. She also stated that she has "a
few receipts of him being in a hotel" and that "he was never home when he was using."
Mother has long been aware of Stepfather's drug issues, but she insists that these incidents
are not indicative of a severe problem, and her willingness to share any information
regarding Stepfather's addiction has been reluctant at best.
{¶36} Mother declined to inform those responsible for the care of the child—
including the child's own Father, the GAL, and the child's therapist—that Stepfather had
relapsed. The GAL visited Mother's home in August of 2020, well after the three overdose
incidents, and Mother did not inform the GAL of Stepfather's multiple relapses, or that he
was living at Teen Challenge. Stepfather himself failed to inform the GAL of his residence
and his history of drug abuse when he first spoke with the GAL. It is very concerning that
Mother and Stepfather chose to conceal Stepfather's drug use, as well as the resulting
instability in the home, from those responsible for the care of the child. As the GAL
observed, "Mother's need to be with Stepfather is overshadowing what is the best home
- 11 -
Clermont CA2021-12-066
environment for the child." During the time that Stepfather was struggling with his addiction,
overdosing, and sometimes staying out of the home for periods of time, Mother insisted that
the child have a father-daughter relationship with Stepfather.
{¶37} Mother paints the trial court's decision as being unfairly focused on
Stepfather's drug use. However, Mother fails to recognize that it is the combination of
Stepfather's drug use and her own inability to do what is best for the child that warrants a
change in the child's legal custodian. The GAL stated that "Mother does not seem to
perceive reality accurately" and continues to "blame others" for any issues the child
experiences while failing to own up to her own role that she and Stepfather have played in
causing disruption to the child's life. Based on her behavior, the GAL and the trial court
expressed concern for how Mother would proceed if Stepfather relapsed again. We share
those same concerns.
{¶38} We do not find that the trial court erred in weighing the best interest factors.
Mother demonstrated a pattern of withholding information to those involved in the child's
life. Furthermore, Mother's distorted perception of the reality of Stepfather's drug addiction
and its impact on the family unit is concerning. The trial court did not err in determining that
it was in the best interest of the child to award custody to Father.
C. THE POTENTIAL HARM CAUSED BY A CHANGE OF ENVIRONMENT IS
OUTWEIGHED BY THE ADVANTAGES
{¶39} In her second assignment of error, Mother argues that the facts do not show
that the harm of changing the child's environment was outweighed by the advantages. See
R.C. 3109.04(E)(1)(a)(iii). Mother asserts that there is great harm in changing the child's
environment due to the child's relationship with Mother, as well as the disruption caused by
switching schools.
{¶40} We previously addressed the child's relationship with Father in our discussion
- 12 -
Clermont CA2021-12-066
of the best interest factors. We reiterate, however, that the GAL noted in her supplemental
report that while the child and Mother do share a close relationship, the child's therapist and
the child have expressed that Father's parenting time is improving. As the trial court noted,
"[i]t is reasonable to expect that, under these extraordinary circumstances, the minor child
would suffer some adjustment issues as a result of being nearly five years old when she
met her father for the first time." We agree that the child is likely to experience some turmoil
in adjusting to having her Father in her life, but all of those involved in the care of the child
share no concerns with the development of Father and child's relationship.
{¶41} Mother also contends that the child requires the support of her current school
in order to facilitate her IEP and address her academic difficulties. Mother argues that
moving to an entirely new school district will have a severely negative impact on the child's
academic and social progress. This argument is not well taken given that the child
successfully transitioned schools at the start of second grade, and also successfully
transitioned back into a school setting after Mother unsuccessfully attempted to home
school the child for two months.
{¶42} The harm to the child caused by the change of environment would be specific
to the child leaving the primary caregiver and home she has known throughout her
childhood. The evidence established that the child was doing well in school and had a
group of friends around Mother's home, as well as participated in extracurricular activities
related to her school. "Undeniably, moving to a new home and school district would present
challenges to any child." In re R.A.S., 12th Dist. Warren No. CA2011-09-102, 20212-Ohio-
2260, ¶ 26. However, Mother demonstrates an inability to be forthcoming with information
regarding the environment of the child. The stability of Mother's home environment is also
highly questionable, considering that Mother quickly married a recovering drug addict who
proceeded to relapse several times. Mother is unable to recognize how her own decisions
- 13 -
Clermont CA2021-12-066
directly and indirectly impact the life of her child, and instead chooses to blame others for
her family's situation. In a supplemental report, the GAL shared that Mother had sent both
the GAL and the child's school counselor "numerous emails that display a range of
emotions." In these emails, Mother blamed the GAL and the child's therapist for the court's
issuance of a no contact order against Stepfather and the alleged harm caused to the child.
Mother has never taken ownership of how her own decision making and the decisions of
Stepfather contributed to any instability that the child may feel.
{¶43} Although Mother maintains that designating Father as residential parent
causes more harm than good, there is evidence to support the trial court's findings to the
contrary. There was competent, credible evidence to support the trial court's finding that
designating Father as the residential parent serves the best interest of the child, and that
the advantages of changing the child's environment was not outweighed by the likely harm.
Having found no abuse of discretion in granting Father as legal custodian and residential
parent, Mother's first and second assignments of error are overruled.
{¶44} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
- 14 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482137/ | [Cite as State v. Cortez, 2022-Ohio-3973.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NOS. 2022-A-0019
2022-A-0020
Plaintiff-Appellee,
- vs - Criminal Appeal from the
Court of Common Pleas
IVAN CORTES a.k.a.
EVAN CORTEZ,
Trial Court No. 2020 CR 00356
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Joseph F. Salzgeber, P.O. Box 799, Brunswick, OH 44212 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Ivan Cortes, appeals his sentence from the Ashtabula County
Court of Common Pleas. Appellant raises one assignment of error arguing that the trial
court erred in imposing consecutive sentences instead of concurrent sentences as the
State recommended at appellant’s plea hearing.
{¶2} After review of the record and the applicable caselaw, we find appellant’s
assignment of error to be without merit. The trial court properly imposed consecutive
sentences on appellant and the State was free to alter its plea recommendation after a
change in circumstances where appellant failed to appear for his sentencing hearing two
times and prolonged his sentencing by approximately four months.
{¶3} Thus, we affirm the judgment of the Ashtabula County Court of Common
Pleas.
Substantive and Procedural History
{¶4} In January 2019, appellant was indicted in the Ashtabula County Court of
Common Pleas in case number 2019 CR 444 for one count of Rape, in violation of R.C.
2907.02(A)(1)(b), a felony of the first degree. This charge was alleged to have been
committed on or between May 1, 2010, and April 30, 2011.
{¶5} In August 2020, appellant was indicted in the Ashtabula County Court of
Common Pleas in case number 2020 CR 356 for six counts of Gross Sexual Imposition,
in violation of R.C. 2907.05(A)(4), felonies of the third degree.
{¶6} On October 7, 2021, appellant pled guilty to an amended count of Attempted
Rape in case number 2019 CR 444 involving appellant’s daughter and one count of Gross
Sexual Imposition in case number 2020 CR 356 involving appellant’s niece. Both victims
were minors at the time of the offenses. The State dismissed the remaining counts
pursuant to the plea agreement.
{¶7} At the plea hearing, the State indicated that it “would argue at sentencing
for the full eight years in prison” on the Attempted Rape charge and that it would argue
for a five-year concurrent sentence on the Gross Sexual Imposition charge. “So in order
to resolve this case, we are recommending the maximum, but concurrent with 444.”
{¶8} Defense counsel expressed a similar understanding of the plea and said
that “we would argue sentencing after a presentence investigation report and my client
2
Case Nos. 2022-A-0019, 2022-A-0020
having an opportunity to speak during a presentence investigation. And that the State will
be arguing or recommending that number of years and the defense would like to – would
be recommending something other than what the State is recommending. But it will all
hinge on the presentence investigation and arguing at sentencing.”
{¶9} During the hearing, the trial court erroneously informed appellant that his
offense was a qualifying offense under R.C. 2967.271, which would include a potential
indefinite sentence.
{¶10} After discovering that appellant was not subject to an indefinite sentence,
the trial court conducted a revised plea hearing on October 12, 2021. At that hearing the
trial court explained that because the date of the offense for Attempted Rape was prior to
March 22, 2019, the qualifying offense provisions did not apply to appellant’s plea. The
court informed appellant that this change “actually benefits you, Mr. Cortes, because that
means that you face potentially less time in prison.” The State did not change the
recommendations, other than that appellant not be subject to an indefinite sentence. The
State indicated that conversations with the victim about the original plea recommendation
did not include discussions about the indefinite sentence. Therefore, the State did not
consider this change one that would prejudice or offend the victim of the offense.
{¶11} Appellant’s sentencing hearing was set for November 2021, however,
appellant failed to appear, and a warrant issued for his arrest. Sentencing was then set
for January 5, 2022. Appellant, again, failed to appear and another warrant was issued
for his arrest. After his arrest, appellant’s sentencing hearing was set for March 23, 2022.
{¶12} At that hearing the State said “obviously you know that -- the Court knows
that there is no stipulated and agreed-to sentence in this case, and that we are arguing
3
Case Nos. 2022-A-0019, 2022-A-0020
for eight years prison for the attempted rape * * *.” As to the Gross Sexual Imposition
charge, the State said that it was altering its recommendation. “[T]he State, in the Plea
Agreement, said it was going to ask for five years concurrent time on that case. The
Defendant has 26 days credit for that, for time served in that. * * * Your Honor, because
the Defendant failed to appear, I'd ask for that time to be run consecutive since we're
arguing that, and that it's not a stipulated sentence at all.” Appellant did not object to this
change in the State’s recommendation or seek to withdraw his plea.
{¶13} The trial court proceeded to sentence appellant saying that it had reviewed
the Presentence Investigation Reports, which were extensive and provided “much
information.” The court said that appellant does have a “substantial prior criminal record
as reviewed by the Court, including past misdemeanor and felony convictions, including
those for domestic violence. * * * He’s not been law-abiding for some time, for several
years, and continues to not respond favorably to sanctions previously imposed and has
committed these crimes.” Further, the court noted “that the offenses pled to in these
cases, they're sex offenses, and the victim in the 444 case was born in 2001 per the
Indictment of the offense pled to; and in the 356 case, the victim was born in 1992 per
the Indictment, making both of these victims young at the time of the offenses. The victim
in the 444 case is the Defendant's daughter; and in the 356 case, I believe his niece.”
{¶14} The trial court sentenced appellant to seven years imprisonment for the
Attempted Rape charge and four years for the Gross Sexual Imposition charge. The court
ordered that the sentences be run consecutive, for a total of an 11-year sentence. The
court made a finding pursuant to R.C. 2929.14(C)(4)(b) that “at least two of the multiple
offenses were committed as part of one or more courses of conduct, and the harm caused
4
Case Nos. 2022-A-0019, 2022-A-0020
by two or more of the multiple offenses so committed were so great or unusual that no
single prison term for any of the offenses committed as part of any of the courses of
conduct adequately reflect the seriousness of the Defendant’s conduct, two separate
sexually-related offenses, each with a separate young victim.” The court further made a
finding pursuant to R.C. 2929.14(C)(4)(c) that appellant’s “history of criminal conduct
demonstrates that consecutive sentences are necessary to protect the public from future
crime by the Defendant, and that’s per the review of your prior record and the Presentence
Investigation Reports.”
{¶15} Appellant timely appealed asserting one assignment of error.
Assignments of Error and Analysis
{¶16} Appellant’s sole assignment of error states:
{¶17} “The trial court erred and abused its discretion by imposing, contrary to law
and the constitutional prohibitions against cruel and unusual punishment, consecutive
prison sentences totaling twelve (11) [sic] years, instead of a total non-consecutive prison
sentence of eight (8) years as originally recommended by the State of Ohio as part of the
plea agreement resolving both cases.”
{¶18} Appellant cites several propositions of law relating to the imposition of
consecutive sentences and prohibitions against cruel and unusual punishment. However,
in support of his assignment of error, appellant’s sole argument is that the trial court erred
in imposing a sentence of 11 years rather than the eight years “as originally recommended
by the State of Ohio” in the plea agreement. He claims that the State’s consecutive
sentence recommendation at the sentencing hearing constituted a breach of the plea
agreement.
5
Case Nos. 2022-A-0019, 2022-A-0020
{¶19} Appellant cites R.C. 2953.08 as our standard of review for consecutive
sentences imposed under R.C. 2929.14. There are three ways an appellant can challenge
consecutive sentences on appeal. State v. Lewis, 11th Dist. Lake No. 2001-L-060, 2002-
Ohio-3373, ¶ 6. First, the appellant may argue that the sentencing court failed to state the
findings for consecutive sentences R.C. 2929.14(C)(4) requires. State v. Torres, 11th
Dist. Lake No. 201-L-122, 2003-Ohio-1878, ¶18; R.C. 2953.08(G)(1). Second, an
appellant may argue that the record clearly and convincingly does not support the findings
the sentencing court made to justify consecutive sentences. State v. Lewis, at ¶ 7; R.C.
2953.08(G)(2)(a). Third, an appellant may argue that the sentence is clearly and
convincingly otherwise contrary to law. R.C. 2953.08(G)(2)(b).
{¶20} However, appellant does not claim that the trial court failed to state the
findings for consecutive sentences, nor does he claim that the record does not clearly
and convincingly support the findings that the sentencing court made to justify imposing
consecutive sentences. Our review of the record indicates that the trial court properly
stated its findings for consecutive sentences and that the record supports those findings.
{¶21} Instead, appellant does assert that the State breached its plea agreement
to recommend concurrent sentences and that the trial court abused its discretion by
imposing consecutive sentences in excess of the State’s recommendation of eight years.
{¶22} First, appellant did not object to the State’s recommendation of consecutive
sentences at the sentencing hearing. Where there is a failure to object to the “State’s
alleged improper recommendation at a sentencing hearing” we apply a plain error
standard. State v. Thomas, 11th Dist. Lake No. 2013-L-032, 2013-Ohio-5365, ¶ 14.
6
Case Nos. 2022-A-0019, 2022-A-0020
{¶23} The standard of review for plain error is the same deferential standard
applied for “reviewing ineffective assistance of counsel claims.” State v. Payne, 114 Ohio
St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 17. “Crim.R. 52(B) affords appellate
courts discretion to correct ‘[p]lain errors or defects affecting substantial rights’
notwithstanding the accused's failure to meet his obligation to bring those errors to the
attention of the trial court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 22. Appellant bears the burden of demonstrating plain error by proving that
the outcome would have been different absent the plain error. Payne, at ¶ 17.
{¶24} Further, even when the error is obvious, “it must have affected substantial
rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”
Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Indeed, “even
if an accused shows that the trial court committed plain error affecting the outcome of the
proceeding, an appellate court is not required to correct it * * *.” Id. at ¶ 23. Courts are
cautioned “to notice plain error ‘with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.’” Barnes, at 27, quoting State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶25} In general, it is “highly desirable” for criminal charges to be disposed of
through plea discussions. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30
L.Ed.2d 427 (1971). In circumstances “when a plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.” Id. at 262. Ordinarily, when a defendant
negotiates a particular plea or sentencing recommendation from the prosecutor, the State
must honor that agreement. Id.
7
Case Nos. 2022-A-0019, 2022-A-0020
{¶26} However, “‘when a defendant, as a result of ‘plea bargaining,’ enters a plea
of guilty in exchange for the prosecutor's promise* * * there is an implied promise by the
defendant that the circumstances under which the bargain was made will remain
substantially the same. A subsequent change * * * is sufficient to justify and excuse the
prosecutor from fulfilling his promise * * *.’” State v. Cox, 11th Dist. Trumbull No. 92-T-
4753, 1993 WL 548082, at * 2 (Dec. 10, 1993), quoting State v. Pascall, 49 Ohio App.2d
18, 20, 358 N.E.2d 1368 (9th Dist.1972). Whether the plea agreement has been breached
is a matter left to the sound discretion of the trial court. State v. Willis, 6th Dist. Erie No.
E-05-026, 2005-Ohio-7002, ¶ 9; State v. McCartney, 12th Dist. No. CA2005-03-
008, 2005-Ohio-5627, ¶ 8 citing State v. Mathews, 8 Ohio App.3d 145, 146, 456 N.E.2d
539 (1982).
{¶27} This court has held that a defendant’s failure to appear constitutes a
subsequent change sufficient to excuse the prosecutor from a prior plea agreement. State
v. Randazzo, 11th Dist. Geauga No. 1420, 1988 WL 102604 * 6 (Sept. 30, 1988)
(“[F]ailure to appear for the original sentencing hearing excused the prosecutor from
fulfilling his promise to recommend probation.”); Cox, supra, at * 2 (Appellant’s failure to
appear “relieved” the State “of its duty to recommend concurrent sentences.”). Moreover,
this position has been met with approval by our sister districts. E.g., State v. Payton, 6th
Dist. Erie No. E-09-070, 2010-Ohio-5178, ¶ 11; State v. Grier, 3rd Dist. Crawford No. 3-
10-09, 2011-Ohio-902, ¶ 16; State v. Bembry, 7th Dist. Columbiana No. 13 CO 33, 2014-
Ohio-5498, ¶ 22; State v. Hill, 10th Dist. Franklin No. 12AP-463, 2013-Ohio-674, ¶ 22.
{¶28} In the case before us, the State initially recommended the maximum eight-
year sentence on the Attempted Rape charge and a five-year concurrent sentence on the
8
Case Nos. 2022-A-0019, 2022-A-0020
Gross Sexual Imposition. However, both the State and appellant indicated that the parties
would be arguing the sentence at the sentencing hearing. To the extent that any
sentencing agreement was made, it was that the State would recommend a concurrent
sentence on the Gross Sexual Imposition charge.
{¶29} However, appellant failed to appear for his sentencing hearing twice, and
each time a warrant issued for his arrest. At the sentencing hearing, held four months
after the initially scheduled hearing, the State indicated on the record that it was changing
the recommendation for concurrent sentences that it had made at the plea hearing. The
State said, “because the Defendant failed to appear, I’d ask for that time to be run
consecutive since we’re arguing that, and that it’s not a stipulated sentence at all.”
{¶30} Appellant did not object at this time and did not seek to withdraw his plea
on the basis that the State had breached the plea agreement. Under a plain error analysis,
appellant has the burden of demonstrating that the outcome of his sentencing would have
been different but for the trial court’s error. However, appellant’s own failure to appear
was the initial breach of the plea agreement. Thus, the State was no longer bound to its
agreement to recommend concurrent sentences. Because of this, the trial court did not
err when it allowed the State to alter its recommendation to consecutive sentences, nor
did the trial court err in imposing consecutive sentences.
{¶31} Accordingly, appellant’s sole assignment of error is without merit.
9
Case Nos. 2022-A-0019, 2022-A-0020
{¶32} For the foregoing reasons, the judgment the Ashtabula County Court of
Common Pleas is affirmed.
MATT LYNCH, J., concurs,
THOMAS R. WRIGHT, P.J., concurs in judgment only.
10
Case Nos. 2022-A-0019, 2022-A-0020 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482130/ | [Cite as State v. Woods, 2022-Ohio-3970.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-044
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
ANTHONY T. WOODS,
Trial Court No. 2020 CR 000681
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public
Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Anthony T. Woods, appeals his conviction after pleading guilty to
one count of burglary.
{¶2} Appellant was indicted and charged with four counts arising from a burglary
in Willoughby, Ohio on July 25, 2020. Pursuant to a plea agreement, three counts were
dismissed and Appellant entered a guilty plea on one count of burglary, a felony of the
second degree, in violation of R.C. 2911.12 (A)(2). Thereafter, the matter was set for
sentencing.
{¶3} Prior to sentencing, Appellant moved the trial court to declare the Reagan
Tokes Act, as applicable to his sentencing, unconstitutional. The trial court denied the
motion. Appellant was sentenced to a prison term of four to six years.
{¶4} Appellant timely appealed. This court initially decided this case on
September 13, 2021, holding that the constitutionality of the Reagan Tokes Law was not
ripe for review. Appellant filed a motion to certify this a conflict case and this court granted
the motion. The Ohio Supreme Court reversed and remanded for further proceedings
consistent with its decision in State v. Maddox, Slip Opinion No. 2022-Ohio-764, which
held constitutional challenges to the Reagan Tokes Law are ripe for review.
{¶5} Appellant raises five assignments of error, all of which challenge the
constitutionality of the Reagan Tokes Sentencing Act.
{¶6} “[1.] The Defendant-Appellant’s constitutional challenges to the
indeterminate prison sentence of four to six years that was ordered pursuant to the
‘Reagan Tokes Act,’ AKA Senate Bill 201, are ripe for review.
{¶7} [2.] The Defendant-Appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must
be reversed as the Reagan Tokes Act is unconstitutionally void for vagueness.
{¶8} [3.] The Defendant-Appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, must
be reversed as the Reagan Tokes Act unconstitutionally violates the doctrine of
separation of powers.
{¶9} [4.] The Defendant-Appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates
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Case No. 2021-L-044
the constitutional right to trial by jury as guaranteed by the sixth and fourteenth
amendments to the United States Constitution and Article I, Section 5 of the Ohio
Constitution.
{¶10} [5.] The Defendant-Appellant’s indeterminate prison sentence of four to six
years that was ordered pursuant to the ‘Reagan Tokes Act,’ AKA Senate Bill 201, violates
his constitutional rights to fair trial and due process as guaranteed by the fifth, sixth and
fourteenth amendments to the United States Constitution and Article I, Sections 5 & 10
of the Ohio Constitution.”
{¶11} As noted above, the Ohio Supreme Court recently held that constitutional
challenges to the Reagan Tokes Law are ripe for review in State v. Maddox, supra.
{¶12} In his second through fifth assignments of error, Appellant makes several
challenges to the constitutionality of the Reagan Tokes Law. Based on this court’s recent
holdings in State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371, and
State v. Joyce, 11th Dist. Lake Case No. 2021-L-006, 2022-Ohio-3370, the challenges
that Appellant advances against the constitutionality of the Reagan Tokes Law have
previously been overruled. Appellant does not advance any novel argument left
unaddressed by our prior decisions.
{¶13} Appellant’s second through fifth assignments of error are without merit.
{¶14} The judgment of the Lake County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
3
Case No. 2021-L-044 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482129/ | [Cite as Terrell v. Morgan Furniture, 2022-Ohio-3981.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
KAREN TERRELL, CASE NO. 2022-T-0033
Plaintiff-Appellant,
Civil Appeal from the
- vs - Niles Municipal Court,
Small Claims Division
MORGAN FURNITURE,
Defendant-Appellee. Trial Court No. 2022 CVI 00154
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Bruce M. Broyles, 1379 Standing Stone Way, Lancaster, OH 43130 (For Plaintiff-
Appellant).
J.P. Morgan, 173 West Market Street, Warren, OH 44481 (For Defendant-Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, Karen Terrell (“Ms. Terrell”), appeals the judgment of the Niles
Municipal Court, Small Claims Division, which found she failed to prove, by a
preponderance of the evidence, her breach of contract claim that arose from the purchase
of a defective chair from the seller, appellee Morgan Furniture.
{¶2} In her sole assignment of error, Ms. Terrell contends that the trial court erred
in applying the facts to preclude recovery upon her breach of contract claim.
{¶3} After a careful review of the record and pertinent law, we overrule Ms.
Terrell’s assignment since we are unable to review her assignment of error based on the
limited record before us. Ms. Terrell failed to provide us with a transcript or App.R. 9
equivalent on appeal. Thus, we are unable to evaluate whether Ms. Terrell proved a
breach of contract claim by the preponderance of the evidence, i.e., we have no
information regarding the supply chain issues, the disagreements between the parties,
Ms. Terrell’s purchase of a second chair, etc. As a result, we are unable to evaluate
whether the trial court’s determination to dismiss Ms. Terrell’s claim was appropriate,
and/or contrary to the manifest weight of the evidence. Without a transcript, we must
presume the regularity of the proceedings below and affirm.
{¶4} Thus, the judgment of the Niles Municipal Court, Small Claims Division, is
affirmed.
Substantive and Procedural Facts
{¶5} In February 2022, Ms. Terrell filed a complaint in the Niles Municipal Court,
Small Claims Division, alleging that she purchased a recliner, which broke two months
later. The chair was never repaired as Morgan Furniture promised. Ms. Terrell sought
judgment in the amount of $596.27 for the cost of the chair as well as court costs.
{¶6} Morgan Furniture filed an answer in which it confirmed that Ms. Terrell
purchased a chocolate-colored recliner rocker manufactured by Catnapper for the sum of
$596.27 on September 15, 2021. Several months after the purchase, on November 1,
Ms. Terrell notified Morgan Furniture that there was a repair/warranty issue. Morgan
Furniture contacted Catnapper, which approved a part replacement for the recliner.
Morgan Furniture received the part replacement and asserted that it “stands ready” to
install the part into Ms. Terrell’s recliner.
2
Case No. 2022-T-0033
{¶7} Thus, Morgan Furniture contended that (1) it performed all duties and
obligations under the sales contract, (2) Ms. Terrell’s claim should be dismissed for failure
to state a claim upon which relief can be granted, and (3) Ms. Terrell failed to add all
necessary parties, i.e., Catnapper, to the action.
{¶8} Morgan Furniture attached the sales contract, receipt, and Catnapper’s
warranty to its answer. In relevant part, the terms and conditions of the sales contract
included that “all sales are final. No refunds or exchanges will be accepted or given.”
Further, the section under “warranties” stated that “[y]our furniture comes with a
manufacture warranty (generally parts, labor against manufacturers defect or
workmanship) some components of your furniture may have additional warranties
coverage, consult individual company’s coverage. Labor costs are NOT covered beyond
one year. AS-IS merchandise has no warranty.”
{¶9} After holding a hearing, the trial court issued a judgment entry stating:
{¶10} “Case called. Both parties appeared. Plaintiff claims the chair purchased
by them [sic] from defendant had a defect, defendant agreed that there was a defect.
Defendant ordered a repair part, communicated this fact to plaintiff but defendant alleges
in the meantime, plaintiff bought another chair. Defendant submits they [sic] are honoring
the manufacturer’s warranty.”
{¶11} The court found that “the plaintiff did not prove her case by a preponderance
of the evidence. The manufacturer’s warranty was going to be honored by defendant, but
unfortunately, supply chain issues and disputes between the parties, precluded same.
Any litigation should be addressed with the manufacturer.”
{¶12} Ms. Terrell raises one assignment of error on appeal:
3
Case No. 2022-T-0033
{¶13} “The trial court erred in applying the facts to preclude recovery upon a
breach of contract claim.”
Standard of Review
{¶14} In her sole assignment of error, Ms. Terrell contends the trial court erred in
applying the facts to preclude recovery of her breach of contract claim. More specifically,
she contends that (1) Morgan Furniture beginning to address a warranty claim does not
prevent the recovery of a breach of contract claim; (2) her purchase of a second chair
does not absolve Morgan Furniture from paying damages for the defective chair; and (3)
the existence of a claim against the manufacturer does not preclude a claim against the
supplier.
{¶15} The standard of review for small claims proceedings is abuse of discretion.
Majecic v. Universal Dev. Mgt. Corp., 11th Dist. Trumbull No. 2010-T-0119, 2011-Ohio-
3752, ¶ 21. An abuse of discretion is the trial court’s “‘failure to exercise sound,
reasonable, and legal decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.2004). When a pure
issue of law is involved in appellate review, the mere fact that the reviewing court would
decide the issue differently is enough to find error. Id. at ¶ 67. By contrast, where the
issue on review has been confided to the discretion of the trial court, the mere fact that
the reviewing court would have reached a different result is not enough, without more, to
find error. Id.
{¶16} Ms. Terrell is challenging the facts as applied; thus, she is challenging the
manifest weight of the evidence. In the civil context, a judgment will not be reversed by
a reviewing court as being against the manifest weight of the evidence if there is some
4
Case No. 2022-T-0033
competent, credible evidence going to all the essential elements of the case. C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus; State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24. See, also Norwalk
MK, Inc. v. McCormick, 170 Ohio App.3d 147, 2006-Ohio-4640, ¶ 27 (6th Dist.).
{¶17} Although Ms. Terrell has presented her version of events in her brief, we do
not have a transcript of the hearing or a statement of agreed facts pursuant to App.R. 9.
Absent a transcript of the hearing or agreed upon statement, we cannot speculate what
the testimony was at trial, and we are constrained to presume the regularity of the
proceedings below unless the limited record for our review affirmatively demonstrates
error. Plump v. Firestone Grismer Tire, 2d Montgomery No. 23863, 2010-Ohio-6108, ¶
13; Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980)
(Without a transcript or App.R. 9 equivalent, we must presume the regularity of the lower
court’s proceedings and affirm).
{¶18} From the limited record before us, we do not know what evidence was
before the trial court except for the sales agreement, invoice, and manufacturer’s
warranty. We do know that both parties agreed the chair was defective and that Morgan
Furniture procured the replacement part for the defective chair. But we have no evidence
of and are unable to evaluate whether Ms. Terrell proved a breach of contract claim by a
preponderance of the evidence, i.e., we have no information regarding the supply chain
issues, the disagreements between the parties, Ms. Terrell’s purchase of a second chair,
etc. As a result, we are unable to evaluate whether the trial court’s determination to
dismiss Ms. Terrell’s claim was appropriate and/or contrary to the manifest weight of the
evidence. Hence, we must presume the regularity of the proceedings below and affirm.
5
Case No. 2022-T-0033
{¶19} As the Sixth District aptly stated in affirming the judgment of a small claims
court, which found the appellant did not prove his breach of contract case and entered
judgment for the appellee:
{¶20} “At the outset it must be noted that the appellant has failed to provide this
court with a transcript of the evidence. The assignment of error consisting of three
statements requests this court to reverse the lower court based on the manifest weight of
the evidence. The duty to file a transcript for appellate review falls upon the appellant.
This is so because an appellant bears the burden of proof of showing error by reference
to the matters in the record. State v. Skaggs (1978), 53 Ohio St.2d 162; Columbus v.
Hodge (1987), 37 Ohio App.3d 68. As stated in the syllabus of Farmers Production Credit
Assn. of Ashland v. Stoll (1987), 37 Ohio App.3d 76:
{¶21} “‘When no transcript of proceedings of the trial is included in the record on
appeal, as provided for by App.R. 9(B), nor any substitute statement of the evidence as
permitted by App.R. 9(C) and (D), and no App.R. 9(B) statement has been filed to indicate
that a transcript is not needed in order to consider the appeal, the appellant cannot
demonstrate the error of which he complains and the appellate court must affirm the
judgment.’” Gupta v. Graham, 6th Dist. Lucas No. L-90-075, 1990 WL 121862, *2 (Aug.
24, 1990).
{¶22} The judgment of the Niles Municipal Court, Small Claims Division, is
affirmed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
6
Case No. 2022-T-0033 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482142/ | [Cite as Total Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 2022-Ohio-3969.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
TOTAL QUALITY LOGISTICS, L.L.C., : CASE NO. CA2022-02-005
Appellant, : OPINION
11/7/2022
:
- vs -
:
JK & R EXPRESS, L.L.C., :
Appellee. :
CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2016 CVH 01684
Bricker & Eckler LLP, and Jeffrey P. McSherry, for appellant.
Whitten Law Office, and Chad M. Sizemore, for appellee.
M. POWELL, P.J.
{¶ 1} Appellant, Total Quality Logistics, L.L.C. ("TQL"), appeals a decision of the
Clermont County Court of Common Pleas granting judgment in favor of appellee, JK & R
Express, L.L.C. ("JK & R"), on TQL's claim for indemnification.
{¶ 2} TQL is a freight broker. As such, TQL arranges for the transportation of its
customers' freight and cargo from one location to another. A TQL customer contracts with
TQL for the transportation of its cargo by a motor carrier and TQL contracts with the motor
Clermont CA2022-02-005
carrier. JK & R is such a motor carrier. In January 2016, TQL and JK & R entered into a
broker-carrier agreement for JK & R to provide transportation services to TQL's customers.
As pertinent here, the parties' broker-carrier agreement includes the following provisions.
8. CARGO LIABILITY AND CLAIMS. * * * CARRIER is fully
responsible and liable for the freight once in possession of it,
and the trailer(s) is loaded, even partially, regardless of whether
a bill of lading has been issued, signed, and/or delivered to
CARRIER. CARRIER's responsibility/liability shall continue
until proper and timely delivery of the shipment to the consignee
and the consignee signs the bill of lading or delivery receipt
evidencing successful delivery.
10. INDEMNIFICATION. CARRIER agrees to defend,
indemnify, and hold BROKER and CUSTOMERS harmless
from and against any and all claims or liability (including, without
limitation, Workers' Compensation claims) arising out of or in
any way related to CARRIER's negligence, willful misconduct,
acts, omissions, or performance or failure to perform under this
Agreement, including, without limitation, claims or liability for
cargo loss and damage, theft, delay, damage to property, and
bodily injury and/or death. Except for Workers' Compensation
claims, CARRIER shall not be required to indemnify any party
(including BROKER) for claims or liability that are directly and
solely caused by the negligence or willful misconduct of that
party.
{¶ 3} In June 2016, Contél Fresh, a TQL customer, contracted with TQL for the
transportation of a load of Awe Sum Organics apples from Washington State to Missouri
and New Jersey for $6,500. TQL arranged for JK & R to transport the apples for $5,900.
JK & R picked up the apples in Washington State and signed the bill of lading for the load.
The bill of lading identified Awe Sum Organics as the shipper; Contél Fresh was not listed
on the bill of lading. While en route to Missouri, JK & R's trailer caught fire; the apples were
destroyed. TQL communicated with JK & R and Contél Fresh about the lost load.
{¶ 4} Contél Fresh submitted an invoice to TQL for $86,240 and included the
invoice from its supplier substantiating that value. On July 11, 2016, and September 30,
2016, TQL notified JK & R of the claim with a Standard Form for Presentation of Loss and
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Clermont CA2022-02-005
Damage Claim. However, before JK & R could respond, TQL paid Contél Fresh for the loss
of the apples by offsetting $86,240 from its open invoices with Contél Fresh. Contél Fresh
then released TQL and assigned all claims and causes of action it had against JK & R to
TQL.
{¶ 5} In addition to the amount it paid for the lost apples, TQL also lost the $6,500
freight-brokerage fee Contél Fresh had agreed to pay for the shipment. On December 7,
2016, TQL filed a complaint against JK & R, alleging breach of contract or, in the alternative,
unjust enrichment and promissory estoppel. The complaint sought $83,666 in damages.
TQL calculated the damages by combining the $86,240 it paid Contél Fresh for the lost
apples (the cargo loss claim) with the $6,500 freight-brokerage fee Contél Fresh would have
paid TQL had the apples been successfully delivered, and subtracting $9,074, the amount
TQL owed JK & R on open invoices. JK & R answered the complaint, denying TQL's claims
and seeking an award of attorney fees, costs, and expenses.
{¶ 6} On January 17, 2018, TQL and JK & R both moved for summary judgment.
TQL argued it was entitled to the balance owed under the broker-carrier agreement because
JK & R had breached the contract. JK & R argued that TQL was not contractually compelled
to pay Contél Fresh, nor was it compelled to pay Contél Fresh by a judgment of a court. JK
& R asserted that because TQL had no obligation to pay for the lost apples, TQL voluntarily
settled the claim merely as a business consideration and thus failed to satisfy the second
indemnification requirement under Globe Indemn. Co. v. Schmitt, 142 Ohio St. 595 (1944).
JK & R asserted it was therefore not required to pay TQL for the loss of the cargo. TQL
responded that Globe does not apply because there is an express indemnification provision
in the parties' broker-carrier agreement governing loss of cargo.
{¶ 7} TQL submitted the affidavit of Marc Bostwick, TQL's corporate representative,
with its motion for summary judgment. Bostwick averred that TQL reimbursed Contél Fresh
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Clermont CA2022-02-005
for the loss of the apples. Bostwick did not aver that TQL was required to pay Contél Fresh
for the lost apples. In his deposition, Bostwick denied knowledge of an agreement between
TQL and Contél Fresh for TQL to reimburse Contél Fresh for cargo loss. Bostwick testified
that TQL's reimbursement was a business decision to maintain TQL's business relationship
with Contél Fresh. JK & R's owner acknowledged in his deposition that JK & R, not TQL,
was responsible for the lost apples and that the parties' broker-carrier agreement imposes
such a liability upon JK & R.
{¶ 8} The trial court found that JK & R was entitled to judgment as a matter of law
on TQL's cargo-loss claim. The trial court determined that for TQL to prevail on its cargo-
loss claim, TQL must satisfy the three common-law requirements for indemnification
outlined in Globe. In that case, the Ohio Supreme Court held that when an indemnitee
settles a claim instead of litigating it, the indemnitee is entitled to indemnification if the
indemnitee proves that (1) he provided proper and timely notice to the indemnitor, (2) the
indemnitee was legally liable to respond, and (3) the settlement was fair and reasonable.
Globe, 142 Ohio St. at 604. The trial court found that TQL failed to show it was legally liable
for the loss of the apples, and thus, did not satisfy the second Globe requirement.
Accordingly, TQL was not entitled to indemnification from JK & R under Globe after it had
voluntarily settled the claim with Contél Fresh.
{¶ 9} TQL appealed the trial court's decision to this court. TQL argued that Globe
and its progeny did not apply because of the express indemnification provision in the broker-
carrier agreement. On January 7, 2019, we upheld the trial court's grant of summary
judgment to JK & R. Total Quality Logistics, L.L.C. v. JK & R Express, L.L.C., 12th Dist.
Clermont No. CA2018-05-034, 2019-Ohio-20. We found that Globe applies to cases in
which there is an indemnification provision in the contract between the parties. Id. at ¶ 16.
Accordingly, in order to prevail on its contractual-indemnity claim, TQL was required to
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Clermont CA2022-02-005
satisfy its burden under Globe. Id. Upon finding that TQL had failed to show it was legally
liable to respond to Contél Fresh's claim, we concluded that TQL had failed to establish the
second requirement in Globe and was therefore not entitled to indemnification from JK & R.
Id. at ¶ 19-21.
{¶ 10} The Ohio Supreme Court accepted TQL's discretionary appeal to consider
whether the common-law requirements for indemnification set out in Globe (hereinafter the
"Globe requirements") apply when the rights of the parties are governed by a contract that
includes an indemnification provision. Total Quality Logistics, L.L.C. v. JK & R Express,
L.L.C., 164 Ohio St.3d 495, 2020-Ohio-6816, ¶ 1. The supreme court held that the Globe
requirements "do not apply when the parties express a clear intent to abrogate those
common-law requirements in their contract." Id. "If the language used in the parties'
contract evinces a clear intent to abrogate the common-law Globe requirements, the
contract should be applied as written and the indemnitor is obligated to indemnify the
indemnitee under the terms of the agreement." Id. at ¶ 16. Noting that both this court and
the trial court applied the Globe requirements without considering whether the parties
intended to abrogate those requirements pursuant to the indemnification provision in the
broker-carrier agreement, the supreme court reversed this court's opinion and remanded
the matter to the trial court to make that determination. Id. at ¶ 19.
{¶ 11} On remand, the parties filed competing memoranda on whether the parties
intended to abrogate the Globe requirements in their broker-carrier agreement. On June
21, 2021, the trial court granted judgment in favor of JK & R and against TQL on TQL's
indemnification claim. The trial court found that the broker-carrier agreement did not
express a clear intent to abrogate the Globe requirements because "[n]owhere in the
[Agreement] does it state that TQL has any right, obligation, or option to voluntarily pay a
customer's claim, without legal liability on the part of TQL, and then seek reimbursement or
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Clermont CA2022-02-005
indemnity from JK & R[.] Nor does the Agreement, in any manner, refer or allude to the
common-law indemnity requirements set forth in Globe."
{¶ 12} The following day, JK & R filed a notice of its intent to seek an award of
attorney fees against TQL. By agreement of the parties, the trial court determined JK & R's
motion for attorney fees based upon the parties' memoranda and affidavits. On February
1, 2022, the trial court awarded JK & R $87,002.80 in attorney fees.
{¶ 13} TQL now appeals the trial court's June 21, 2021, and February 1, 2022
decisions, raising two assignments of error.
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED BY GRANTING SUMMARY JUDGMENT TO JK
& R ON TQL'S BREACH OF CONTRACT CLAIM AS TO CARGO LOSS.
{¶ 16} TQL argues the trial court erred in granting summary judgment in favor of JK
& R on TQL's indemnification claim, raising three issues for review.
{¶ 17} An appellate court reviews a trial court's decision on a motion for summary
judgment de novo, independently and without deference to the decision of the trial court.
Flagstar Bank, FSB v. Sellers, 12th Dist. Butler No. CA2009-11-287, 2010-Ohio-3951, ¶ 7.
Summary judgment is proper when there is no genuine issue of material fact remaining for
trial, the moving party is entitled to judgment as a matter of law, and reasonable minds can
only come to a conclusion adverse to the nonmoving party, construing the evidence most
strongly in that party's favor. See Civ.R. 56(C); Harless v. Willis Day Warehousing Co., 54
Ohio St.2d 64 (1978).
{¶ 18} On the same day the Ohio Supreme Court issued its decision in JK & R, the
court issued Wildcat Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., 164 Ohio St.3d 480,
2020-Ohio-6821. Both decisions considered whether the Globe requirements apply when
the parties' contract includes an indemnification provision. In JK & R, the supreme court
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Clermont CA2022-02-005
was concerned with the second Globe requirement—whether TQL was legally liable to pay
the loss. In Wildcat Drilling, the supreme court was concerned with the first Globe
requirement—whether Discovery Oil was required to notify Wildcat of its intention to pay
the loss. In both cases, the supreme court held that "the requirements set out in Globe for
determining whether an indemnitee may recover against an indemnitor when the
indemnitee has settled a claim without the indemnitor's involvement, do not apply when the
parties express a clear intent to abrogate those common-law requirements in their contract."
JK & R, 2020-Ohio-6816 at ¶ 14; Wildcat Drilling at ¶ 1. In both cases, the supreme court
reversed and remanded the matter for the trial courts to determine whether the parties'
contracts expressed a clear intent to abrogate the Globe requirements.
{¶ 19} In so holding, the supreme court observed, "In Ohio, parties have a
fundamental right to contract freely with the expectation that the terms of the contract will
be enforced." JK & R at ¶ 16. "That includes the right to include contractual terms that
abrogate the common law." Id. However, "the intent to do so must be clearly indicated.
That intent must be reflected in the language the parties used in their contract. This
principle applies to indemnification agreements." Id. Consequently, "[i]f the language used
in the parties' contract evinces a clear intent to abrogate the common-law Globe
requirements, the contract should be applied as written and the indemnitor is obligated to
indemnify the indemnitee under the terms of the agreement." Id. In Wildcat Drilling, the
supreme court further recognized that "the 'nature of an indemnity relationship is
determined by the intent of the parties as expressed by the language used' in the
agreement." Wildcat Drilling at ¶ 14, quoting Worth v. Aetna Cas. & Sur. Co., 32 Ohio St.3d
238, 240 (1987).
{¶ 20} The supreme court recognized that the parties' broker-carrier agreement
"does not expressly abrogate the Globe requirements. [However], no talismanic or magical
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Clermont CA2022-02-005
language is required in order for parties to abrogate the common law through contractual
terms. We must look to the language that the parties used in their contract to determine
their intent regarding an indemnification provision." JK & R, 2020-Ohio-6816 at ¶ 17. In
light of the lead opinion's conclusion that a contract's failure to expressly abrogate Globe is
not automatically outcome determinative and its declining to adopt Justice Donnelly's
dissenting analysis below, the lead opinion's language above suggests that a clear intent
to abrogate the Globe requirements may be implicitly expressed in the contract.
{¶ 21} Both supreme court decisions were plurality opinions. Justices French,
O'Connor, and Stewart joined in the lead opinion, holding that the Globe requirements apply
unless the parties' contract expresses a clear intent to abrogate those requirements.
Justice Kennedy concurred in judgment only, concluding that Globe was an inapplicable
tort opinion, its requirements were dicta, and the matter should be remanded to be decided
based solely on the parties' contract. Justices Fisher and DeWine concurred in judgment
only, stating that an express indemnification provision in a contract clearly indicates that the
parties want to be governed by the indemnification provision, and not by Globe. These
justices would have remanded the case for the trial court to resolve the matter based solely
on the contract. Justice Donnelly dissented, stating that Globe always applies, regardless
of whether there is an indemnification provision in a contract: "If the parties to a contract
intend to override [the Globe's requirements], they should do so expressly, not impliedly by
merely including an indemnification clause." Wildcat Drilling, 2020-Ohio-6821 at ¶ 44.
Thus, the lead opinion's three justices held that the Globe requirements may or may not
apply depending upon the contract between the indemnitee and the indemnitor; one justice
held that the Globe requirements always apply absent express abrogation; and three
justices held that the Globe requirements never apply in cases involving a contractual
indemnification provision.
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Clermont CA2022-02-005
{¶ 22} Whether the Plain Language of the Broker-Carrier Agreement
Demonstrates the Parties' Intent to Abrogate the Common-Law Indemnification
Requirements of Globe
{¶ 23} In its first issue for review, TQL argues the trial court erred in holding that the
parties' broker-carrier agreement does not abrogate the Globe requirements. TQL asserts
that the agreement is "replete with language that demonstrates [the parties'] intent to
abrogate the common law indemnity requirements," specifically Sections 8, 8(e), and 10.
TQL also cites Total Quality Logistics, L.L.C. v. New Vision Transp., Inc., Clermont C.P. No.
2016 CVH 00926 (Nov. 13, 2017), and Total Quality Logistics, L.L.C. v. Dadir, L.L.C.,
Clermont C.P. No. 2016 CVH 00705 (May 21, 2019), in support of its argument that Section
10 is unambiguous and enforceable.
{¶ 24} We first address the applicability of Dadir and New Vision. Both cases
involved similar cargo claims by TQL against its contracted carriers. In both cases, TQL
paid its customer for the cargo loss and sought indemnification from its carrier under the
same indemnification provision as here. In Dadir, the common pleas court found that
Section 10 clearly and unambiguously provided that the carrier, Dadir, agreed to indemnify
TQL for cargo loss. In New Vision, the common pleas court found that the claim TQL paid
to settle with its customer was a claim within the meaning of Section 10, and that "the
express terms" of Section 10 were an unconditional requirement for the carrier, New Vision,
to indemnify TQL for cargo loss. However, the Globe requirements were not implicated in
either case. As the issue of whether the broker-carrier agreement abrogates the Globe
requirements was neither raised nor addressed in Dadir and New Vision, these cases are
not applicable precedent here.
{¶ 25} We now turn to TQL's argument that Sections 8, 8(e), and 10 of the parties'
broker-carrier agreement evinces a clear intent to abrogate the Globe requirements. The
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pivotal question is whether the parties clearly intended to require JK & R to indemnify TQL
for voluntary settlements by TQL of a customer's claim under Sections 8, 8(e), and 10 of
the broker-carrier agreement.
{¶ 26} Legal issues involving contract interpretation are subject to a de novo
standard of review. Merritt v. Anderson, 12th Dist. Fayette No. CA2008-04-010, 2009-Ohio-
1730, ¶ 18. With the issue of contract interpretation, the intent of the parties is paramount.
Deerfield Twp. v. Mason, 12th Dist. Warren No. CA2011-12-138, 2013-Ohio-779, ¶ 16. A
court is to examine the contract as a whole and presume that the intent of the parties is
reflected within the contract language itself. Id. In determining the parties' intent, courts
must consider the meaning of the contract language "with reference to the object to be
accomplished by the contracting parties." McBride v. Prudential Ins. Co. of America, 147
Ohio St. 461, 463 (1947).
{¶ 27} Pursuant to well-established principles of transportation law, cargo damage
claims against interstate motor carriers are determined under the Carmack Amendment to
the ICCTA (Interstate Commerce Commission Termination Act) whereas the amendment
does not specifically govern brokers in the scheme of interstate cargo loss and damage
liability. Total Quality Logistics, L.L.C. v. Red Chamber Co., 12th Dist. Clermont No.
CA2016-09-062, 2017-Ohio-4369, ¶ 11.
{¶ 28} Consistent with the Carmack Amendment, Section 8 of the broker-carrier
agreement places the risk of cargo loss solely upon JK & R as the carrier. Pursuant to the
Carmack Amendment, TQL was not liable to Contél Fresh for the cargo loss. The record
does not include the contract between TQL and Contél Fresh to permit a determination of
whether TQL was contractually liable to Contél Fresh for the cargo loss. However,
Bostwick's affidavit and deposition suggest that TQL was not legally liable to Contél Fresh
and instead voluntarily paid Contél Fresh for the loss to maintain their business relationship.
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{¶ 29} Section 10 of the broker-carrier agreement, the indemnification provision,
provides in pertinent part that JK & R agrees to indemnify TQL and its customers for "any
and all claims or liability arising out of or in any way related to JK & R's performance or
failure to perform under this Agreement, including, without limitation, claims or liability for
cargo loss and damage." Thus, Section 10 explicitly provides that TQL is entitled to be
indemnified by JK & R for any and all claims or liability for cargo loss. Contél Fresh invoiced
TQL for the loss of its apples. Thus, ignoring whether TQL was legally liable for the loss,
TQL was subject to a "claim" for cargo loss which arose out of JK & R's failure to perform
under the broker-carrier agreement (failure to deliver the apples).
{¶ 30} Section 8(d) provides that
Except as provided in this Agreement, all liability standards, time
limitations, and burdens of proof regardless of whether
CARRIER has common or contract Operating Authority shall be
governed by common law applicable to common carriers and by
the Carmack Amendment codified in 49 U.S.C. § 14706.
CARRIER agrees to accept notice of a claim in the form issued
by BROKER, including electronic or facsimile transmission.
{¶ 31} Section 8(e) provides that
Notwithstanding the terms of 49 C.F.R. § 370.9, CARRIER shall
acknowledge a claim within 30 days of receipt, and pay, decline,
or make a settlement offer in writing on all cargo loss or damage
claims within 60 days from the receipt of the claim. Failure of
CARRIER to pay, decline, or offer settlement within this 60-day
period shall be deemed an admission by CARRIER of full
liability for the amount claimed and a breach of this Agreement.
Notwithstanding any other provision in this Agreement,
BROKER reserves the right to offset any claim(s) with
CARRIER's pending invoices.
{¶ 32} Consistent with the Carmack Amendment, Sections 8(d) and 8(e) make JK &
R, as carrier, exclusively liable for cargo loss. Section 8(e) defines how JK & R is to respond
to a notice of a cargo loss claim. JK & R acknowledges that Section 8(e) allows TQL to
offset cargo loss claims with JK & R's open invoices with TQL but argues it does not
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authorize TQL to use its own funds to pay its customer for cargo loss claims. However,
Section 8(e) relates to the carrier's liability for cargo loss and does not address the party to
whom it may be ultimately responsible. The language of Section 8(e) allowing TQL to offset
cargo loss claims with JK & R's open invoices with TQL indicates that JK & R is liable to
TQL for cargo loss.
{¶ 33} The parties' broker-carrier agreement is designed to make TQL the single
point of contact for its customers and contracted carriers, thereby preventing interaction and
communication between the customers and contracted carriers. Section 4(b) illustrates
such theme by providing that "CARRIER agrees that BROKER is the sole party responsible
for payment of CARRIER's invoices related to the Services and that, under no
circumstance, will CARRIER contact and/or seek payment from any shipper, consignee,
CUSTOMER, or any other party responsible for any payment related to the Services."
{¶ 34} Section 10, which plainly and unconditionally entitles TQL to indemnification
from JK & R for cargo loss claims, is part of that scheme. Section 10 plainly contemplates
that TQL may pay the customer for cargo claims, as otherwise there would be nothing for
the carrier to indemnify. The provision for indemnifying TQL for a cargo claim is consistent
with TQL making a voluntary payment to its customer. In other words, TQL's voluntary
payment to a customer qualifies as a "claim" under Section 10 because the broad "any and
all claims" phrase of Section 10 is not limited or modified by an introductory clause and
there is no language excluding voluntary payments or settlements by TQL. Moreover, JK
& R is not prejudiced by TQL making voluntary payment of cargo claims to its customers,
as JK & R's liability for the loss is unaffected. It is only a matter of whom JK & R pays for
the loss.
{¶ 35} Inclusion of an unqualified duty of JK & R to indemnify TQL for cargo loss
alone expresses a clear intent to abrogate Globe for two reasons. First, the Carmack
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Amendment places lability for cargo loss exclusively upon the carrier listed on the bill of
lading. Thus, TQL, as broker, has no liability for cargo loss and would have nothing to be
indemnified for in the event of cargo loss under Globe. Inclusion of a provision for
indemnification of TQL clearly expresses an intent that TQL has a right to be indemnified
for payments it makes without legal obligation to do so. Second, if Section 10 of the broker-
carrier agreement did not include the indemnification provision in TQL's favor, TQL would
still have the right under Globe to seek indemnification from JK & R for payments for which
it was otherwise legally liable. Thus, inclusion of the indemnification provision would be
redundant unless it was intended to provide rights beyond those recognized by Globe.
{¶ 36} Notwithstanding the foregoing, we need not rely solely upon inclusion of the
indemnification provision in TQL's favor to find an expressed clear intent to abrogate Globe.
The duty of JK & R to indemnify TQL for cargo claims set forth in Section 10 of the broker-
carrier agreement must also be read in the context of the entire agreement. The parties'
broker-carrier agreement provides that: (1) the carrier is fully responsible and liable for the
cargo once in possession of it and until it is properly and timely delivered; (2) the carrier
looks only to TQL for payment and agrees to neither contact nor seek payment from TQL's
customers; (3) the contact between the carrier and shipper is limited to "the minimum level
of contact necessary to perform the services"; (4) in the event a claim arises, the carrier
agrees to accept notice of the claim from TQL, as opposed to a shipper or customer, and
agrees TQL has the right to offset any claim with JK & R's open invoices with TQL without
any exception; (5) the carrier agrees to indemnify TQL and its customers for any and all
claims for cargo loss and damage arising out of or relating to the carrier's performance or
failure to perform; and (6) the only limitation on indemnification is when a claim or liability
arises directly and solely from the negligence or willful misconduct of TQL or another party,
not the carrier, which limitation is inapplicable here. The broker-carrier agreement,
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considered as a whole, is intended to make TQL the single point of contact for its contracted
carriers and responsible for the complete administration of the shipment, including resolving
cargo claims without involvement of the shipper or customer.
{¶ 37} For the reasons expressed above, we find the trial court erred in finding that
the parties' broker-carrier agreement does not evince a clear intent to abrogate the Globe
requirements. TQL's first issue for review is well taken.
{¶ 38} Whether the Trial Court Erred by Requiring Express Statements of
Abrogation or Specific Language Relating to the Globe's Second Requirement for
There to Be a Clear Contractual Intent to Abrogate the Globe's Indemnification
Requirements
{¶ 39} In its second issue for review, TQL argues the trial court erred in finding that
the broker-carrier agreement does not evince a clear intent to abrogate the Globe
requirements because the agreement lacks language explicitly abrogating the Globe
requirements or permitting TQL to voluntarily pay its customer's claim without legal liability
and then seek indemnification from JK & R. In support of its argument, TQL cites Glaspell
v. Ohio Edison Co., 29 Ohio St.3d 44 (1987), and Worth v. Huntington Bancshares, Inc., 43
Ohio St.3d 192 (1989).
{¶ 40} Glaspell involved a license agreement pursuant to which a cable television
company was granted a license to install its equipment upon a telephone company's utility
poles. The agreement contained an indemnification provision that required the cable
company to indemnify the telephone company for any loss it may suffer by reason of the
installation, maintenance, or use of the cable company's equipment on the poles. A cable
company employee sued the telephone company for injuries he sustained when he fell from
an alleged negligently maintained pole. The telephone company impleaded the cable
company into the litigation, claiming that the indemnification provision required the cable
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company to indemnify the telephone company for damages resulting from the cable
company's installation and maintenance of its equipment on the utility poles. The trial court
and the court of appeals found that the telephone company was not entitled to
indemnification because the license agreement "failed to express in clear and unequivocal
terms" that the cable company was required to indemnify the telephone company for the
latter's own negligence.
{¶ 41} The Ohio Supreme Court reversed, holding that the cable company was liable
to indemnify the telephone company even though the agreement did not specifically state
the telephone company could be indemnified for loss caused by its own negligence: "[T]he
word 'negligence' need not be utilized where an intention to exclude liability predicated upon
such is set forth by words excluding liability 'for any and all harms however caused.'"
Glaspell, 29 Ohio St.3d at 47-48. "What was intended by the parties, as evidenced by the
words utilized in the agreement at issue, was that in exchange for rights of access to [the
telephone company's] facilities, the cable company was obligated to bear all risk of
additional harm which might occur in connection with [the cable company's] right of access."
Id. at 48. "Since the subject of liability was anticipated in the indemnity agreement, such
indemnification must be provided to [the telephone company]." Id. Thus, the supreme court
found that the public policy-based rule that an indemnitee may not recover for its own
negligence was abrogated by the parties' contractual broad language providing for
indemnification "for any loss" occasioned by the cable company's installation or
maintenance of its equipment on the telephone company's property.
{¶ 42} Worth involved a bank executive's "golden parachute" agreement which
provided certain benefits should he separate employment from the company after a hostile
takeover. In particular, the agreement provided that the executive was entitled to employ
legal counsel at the company's expense "in connection with the initiation or defense of any
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litigation" relating to the "golden parachute" benefits. When the executive separated from
employment and the acquiring company refused to pay the "golden parachute" benefits, the
executive sued. The trial court found that the executive was not entitled to the benefits and
thus to reimbursement of his legal fees because he had not prevailed in the litigation.
{¶ 43} The supreme court reversed on the executive's claim for indemnification of
attorney fees, holding that
The provision's clear intent is to guarantee full indemnification
of Worth's legal expenses incurred in enforcing or defending the
agreement regardless of his ultimate success. While Worth was
not successful in this endeavor, his legal expenses were
indisputably incurred in an attempt to enforce the agreement.
Nothing in Section 5 suggests that successful enforcement or
defense is a prerequisite to recovery of attorney fees, and we
decline to read such a condition into the contract absent a
showing that Worth acted in bad faith or that he prosecuted this
action with no colorable claim of success.
Worth, 43 Ohio St.3d at 199. Thus, the supreme court found that the executive was entitled
to be indemnified for his litigation expenses because the contract did not condition indemnity
upon the indemnitee's success in the litigation.
{¶ 44} The supreme court cited Glaspell and Worth in JK & R as instances where
"talismanic or magical language" was unnecessary for parties to abrogate common-law
indemnity. JK & R, 2020-Ohio-6816 at ¶ 17-18 (finding that the indemnitee in Worth was
entitled to recover his attorney fees because the indemnification provision in the contract
did not condition the recovery of such fees on the indemnitee's success; and finding that
the contractual language in Glaspell reflected a clear intent by the parties to permit
indemnification for the indemnitee's own negligence, and that the contract was not required
to expressly refer to the indemnitee's own negligence).
{¶ 45} JK & R correctly points out that following the supreme court's remand in
Wildcat Drilling, the Seventh District Court of Appeals rejected Worth and Glaspell as
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guiding precedent in its opinion because neither implicated a Globe requirement. Wildcat
Drilling, L.L.C. v. Discovery Oil & Gas, L.L.C., 7th Dist. Mahoning No. 21 MA 0070, 2022-
Ohio-1125, ¶ 33-35. Nonetheless, as stated above, the supreme court cited Worth and
Glaspell in JK & R as examples of how contractual abrogation of common-law indemnity
requirements may be accomplished without "talismanic or magical language." JK & R at ¶
17-18. Rather, "[w]e must look to the language that the parties used in their contract to
determine their intent regarding an indemnification provision." Id. at ¶ 17. Despite there
being no Globe issues in Worth or Glaspell, each serves as an example of the kind of
contractual language that may be considered in determining if the parties to the contract
intended to abrogate common-law indemnity.
{¶ 46} Much like the golden parachute agreement in Worth and the indemnity clause
in Glaspell, the broker-carrier agreement provides unequivocally that JK & R, as carrier, is
to indemnify TQL for cargo loss. The agreement does not except JK & R's duty to indemnify
TQL in instances where TQL voluntarily pays its customer for cargo loss. Just as the
supreme court declined to read into the Worth golden parachute agreement a condition that
recovery of attorney fees was dependent upon prevailing in the litigation, and similarly
refused to read into the Glaspell indemnity clause a condition that indemnity did not apply
in cases of the indemnitee's own negligence, we decline to read into the parties' broker-
carrier agreement a condition that JK & R's duty to indemnify TQL for cargo loss is excepted
if TQL makes a voluntary payment.
{¶ 47} Furthermore, although the parties' broker-carrier agreement does not
expressly abrogate the Globe requirements or specifically refer to Globe, the Ohio Supreme
Court plainly found that such was not required and was not outcome determinative of the
issue at bar. The trial court, therefore, erred in finding that the broker-carrier agreement
does not evince a clear intent to abrogate the Globe requirements because the agreement
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does not expressly abrogate the Globe requirements, the agreement does not specifically
refer to Globe, and its language does not specifically waive the second Globe requirement.
TQL's second issue for review is well taken.
{¶ 48} Whether the Trial Court Erred by Construing the Broker-Carrier
Agreement against TQL as the Drafter
{¶ 49} In its third issue for review, TQL challenges the trial court's determination that
any ambiguity in the parties' broker-carrier agreement must be strictly construed against
TQL as the drafter of the agreement.
{¶ 50} In its June 21, 2021 decision, the trial court noted that TQL was the drafter of
the broker-carrier agreement, stated that "any ambiguity in the Agreement must be strictly
construed against TQL as the drafter," and cited our opinion in Drone Consultants, L.L.C.
v. Armstrong, 12th Dist. Warren No. CA2015-11-107, 2016-Ohio-3222, where we stated,
"'[W]here there is doubt or ambiguity in the language of a contract it will be construed strictly
against the party who prepared it. * * * In other words, he who speaks must speak plainly
or the other party may explain to his own advantage.'" Id. at ¶ 15, quoting McKay Mach.
Co. v. Rodman, 11 Ohio St.2d 77, 80 (1967).
{¶ 51} Notwithstanding the trial court's foregoing statement and its citation to our
Drone opinion, the trial court did not find that the provisions of the broker-carrier agreement
were susceptible to two or more reasonable interpretations, did not identify the ambiguity in
the agreement that it construed against TQL, and instead found that the parties' broker-
carrier agreement did not express a clear intent to abrogate the Globe requirements. While
the trial court noted that the agreement neither explicitly abrogates the Globe requirements
nor permits TQL to voluntarily pay its customer's claim without legal liability and then seek
reimbursement from JK & R, the absence of such language in the agreement does not
render the agreement ambiguous. As the trial court never incorporated the legal principles
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regarding ambiguous contracts in its analysis and ultimate decision, its statement above
and citation to Drone were merely surplusage without legal significance. We find no merit
to TQL's third issue for review.
{¶ 52} In light of the foregoing, we find that the trial court erred in finding that the
parties' broker-carrier agreement does not evince a clear intent to abrogate the Globe
requirements. Accordingly, we reverse the trial court's decision granting summary judgment
in favor of JK & R and against TQL on TQL's indemnification claim and remand the case to
the trial court for further proceedings. TQL's first assignment of error is sustained.
{¶ 53} Assignment of Error No. 2:
{¶ 54} THE TRIAL COURT ERRED BY AWARDING ATTORNEY FEES AND
EXPENSES TO JK & R AS THE PREVAILING PARTY DESPITE FAILING TO TIMELY
SEEK ATTORNEY FEES, NOT SUFFERING A LOSS, AND NOT PREVAILING.
{¶ 55} TQL argues that the trial court erred in awarding JK & R attorney fees because
(1) JK & R waived its claim for attorney fees or was otherwise barred by res judicata, (2) JK
& R incurred no attorney fees and costs in defending itself as all of its defense costs were
paid by its insurer, (3) the trial court improperly relied on State ex rel. Stricker v. Cline, 130
Ohio St.3d 214, 2011-Ohio-5350, and Bell v. Nichols, 10th Dist. Franklin No. 10AP-1036,
2013-Ohio-2559, two cases involving R.C. 2323.51, Ohio's frivolous conduct statute, and
the policy behind it, which are not at issue here, and (4) TQL, not JK & R, is the prevailing
party as it prevailed on its breach-of-contract claim (JK & R's failure to deliver the apples)
and was awarded $600 by the trial court.1
{¶ 56} In light of our resolution of TQL's first assignment of error, TQL's second
1. In its original decision granting judgment in favor of JK & R on TQL's cargo-loss claim, the trial court granted
summary judgment to TQL on its freight-brokerage-fee claim, determining that JK & R was fully liable for the
losses associated with the freight once the freight had been in its possession under the terms of the broker-
carrier agreement. The trial court determined that TQL was entitled to $600 on its freight-brokerage-fee claim.
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assignment of error is moot and need not be addressed. See App.R. 12(A)(1)(c); Poteet v.
MacMillan, 12th Dist. Warren No. CA2021-08-071, 2022-Ohio-876.
{¶ 57} Judgment reversed and remanded.
HENDRICKSON and BYRNE, JJ., concur.
- 20 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482138/ | [Cite as State v. Collins, 2022-Ohio-3971.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2021-L-109
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
MARVEL COLLINS, III,
Trial Court No. 2021 CR 000705
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).
Rick L. Ferrara, 2077 East Fourth Street, Second Floor, Cleveland, OH 44114 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Marvel Collins, III, appeals following his guilty plea to one count
of felonious assault in the Lake County Court of Common Pleas.
{¶2} Appellant raises six assignments of error arguing that the trial court abused
its discretion in denying a continuance of his change of plea hearing, that the trial court
erred in accepting his guilty plea when it was not knowing, intelligent, and voluntary, that
the State failed to disclose an exculpatory victim impact statement, that Loc.R. 8.06 of the
Court of Common Pleas of Lake County, General Division, is unconstitutional, that trial
counsel rendered ineffective assistance of counsel, and that the Reagan Tokes indefinite
sentencing law is unconstitutional.
{¶3} After review of the record and the applicable caselaw, we find appellant’s
assignments of error to be without merit. The trial court did not abuse its discretion by
proceeding with a plea hearing when appellant’s trial counsel raised concerns about his
mental status on the day of the hearing; the record demonstrates that appellant’s plea
was knowing, intelligent, and voluntary; the State did not commit prosecutorial misconduct
by failing to provide a victim impact statement that the State did not possess; Loc.R. 8.06
is not unconstitutional or in conflict with Ohio law; appellant’s trial counsel did not render
ineffective assistance of counsel; and we have previously upheld the constitutionality of
the Reagan Tokes Law in State v. Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-
Ohio-3371, and State v. Joyce, 11th Dist. Lake Case No. 2021-L-006, 2022-Ohio-
3370The judgment of the Lake County Court of Common Pleas is affirmed.
Substantive and Procedural History
{¶4} On May 14, 2021, appellant was admitted to the ICU. During his treatment,
a pair of nurses came to attend to him. Appellant attempted to stand up but was told not
to do so because of medication in his system. Appellant did stand up and then lunged at
one of the nurses, knocking her to the ground and punching her repeatedly in the face
and body. The victim suffered severe injuries including a concussion, a broken orbital
bone, and had two teeth knocked out. In addition, the victim now struggles with post-
traumatic stress from the event and has been unable to return to nursing because of the
mental trauma of the event.
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Case No. 2021-L-109
{¶5} On June 29, 2021, appellant was indicted on one count of felonious assault
in violation of R.C. 2903.11. After initially pleading not guilty, appellant’s trial counsel filed
a motion for leave to plead not guilty by reason of insanity, a plea of not guilty by reason
of insanity, and a motion for a competency evaluation. Appellant received an evaluation
through the Lake County Probation Department. The competency report found that
appellant was competent to stand trial and that he was sane at the time of his act. The
parties stipulated to these reports and the trial court found that appellant was competent
to stand trial.
{¶6} A change of plea hearing was scheduled for August 17, 2021. On that date,
appellant’s trial counsel suggested to the court that appellant appeared to be talking to
someone who was not present. Counsel said at the time that:
Prior to proceeding with the plea here today I would just like to
express a couple of concerns that I have in speaking with Mr. Collins
on several prior occasions obviously throughout the course of this
proceeding and Mr. Collins does seem to be exhibiting some
behavior today that is unlike previous behavior that I have seen. So
I know that we have previously stipulated to Mr. Collins’ competency
and Mr. Collins himself does feel like he is competent today and
would like to proceed with the hearing. However, Mr. Collins does
seem to be speaking with someone who is not present in the room
when him and I are having a conversation and so I would have some
concerns with proceeding today. Mr. Collins had some medication
changes recently while he’s been incarcerated in the jail and I think
it may be helpful to have Dr. Rindsberg to speak with him. * * * So I
think it may be helpful to delay the plea hearing for a week or two to
just be sure that Mr. Collins is capable of moving forward today.
{¶7} After this statement, appellant spoke and said that “I am competent, I know
what I did was wrong. Some things my lawyer just said, my public defender is lying, I don’t
understand.” The court asked appellant a series of questions about why appellant was in
court that day, the purpose of the plea hearing, how old appellant was, what medications
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Case No. 2021-L-109
he was currently taking, and other questions to gauge his ability to assist in his defense.
The court also engaged in a plea colloquy, asking appellant if he understood the rights
he was giving up. Appellant’s responses to each of these questions was appropriate,
reflected understanding of the proceedings, and in some cases, he asked appropriate
follow up questions.
{¶8} For instance, when the court said that appellant would not be sentenced on
the same day as his plea, appellant said “I understand it’s going to be a later date and
we’ll get to it.” When the court explained that the maximum fine was $15,000, appellant
asked how he would pay such a fine and if his prison term would be prolonged by an
inability to pay. The court reassured appellant that it does not customarily impose fines
on criminal cases. Appellant said he understood, and the court moved to the next subject.
The court explained that the State and his trial counsel would make a sentencing
recommendation but that the ultimate sentencing decision was left to the court alone.
Appellant responded “Yes, sir, I understand you can do whatever you want to, whatever
is right.”
{¶9} The court found that appellant had entered his plea knowingly, intelligently,
and voluntarily. Although trial counsel requested a continuance at the outset of the plea
hearing, counsel did not object to the court’s colloquy or finding that appellant had
knowingly, intelligently, and voluntarily entered his plea. Counsel did not seek to withdraw
the plea prior to sentencing and did not reference her concerns again at the sentencing
hearing.
{¶10} At the sentencing hearing, the trial court considered the pre-sentence
investigation, the competency report, the victim impact statement, letters in support of the
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Case No. 2021-L-109
victim, and one letter in support of appellant. The court imposed a prison term of 8-12
years with 768 days of appellant’s remaining post-release control time to be served
consecutive to his sentence. Trial counsel objected to the imposition of an indefinite
prison sentence. Appellant timely filed this appeal raising six assignments of error.
Assignments of Error and Analysis
{¶11} Appellant’s first assignment of error states:
{¶12} “[1.] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING A
CONTINUANCE ON THE DAY OF THE PLEA HEARING AFTER BEING INFORMED
THAT APPELLANT WAS EXPERIENCE HALLUCINATIONS ON THE DAY OF THE
PLEA HEARING.”
{¶13} In this assignment of error, appellant argues that it was an abuse of the trial
court’s discretion to not reschedule his plea hearing when trial counsel said, “it may be
helpful to delay the plea hearing for a week or two to just be sure that Mr. Collins is
capable of moving forward today.” To the extent that this statement constitutes a request
for continuance rather than a suggestion that delay may be helpful is debatable. However,
even construing this statement as a request for continuance, appellant’s first assignment
of error is without merit.
{¶14} An appellate court will not reverse a trial court’s decision to deny a motion
to continue unless the trial court has abused its discretion. In re Kangas, 11th Dist.
Ashtabula No. 2006–A–0010, 2006–Ohio–3433, ¶ 24. “The term ‘abuse of discretion’ is
one of art, connoting judgment exercised by a court which neither comports with reason,
nor the record.” State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208
[2009 WL 1177050], ¶ 30, citing State v. Ferranto, 112 Ohio St. 667, 676-678 [148 N.E.
5
Case No. 2021-L-109
362] (1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, 2014
WL 2881994, ¶ 9. Stated differently, an abuse of discretion is “the trial court’s ‘failure to
exercise sound, reasonable, and legal decision-making.’” Id., quoting State v. Beechler,
2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 62, quoting Black’s
Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate court is reviewing a pure issue
of law, ‘the mere fact that the reviewing court would decide the issue differently is enough
to find error[.] * * * By contrast, where the issue on review has been confined to the
discretion of the trial court, the mere fact that the reviewing court would have reached a
different result is not enough, without more, to find error.’” Id., quoting Beechler at ¶ 67.
{¶15} “To determine whether a trial court abused its discretion by denying a
motion for continuance, a reviewing court must consider (1) the length of the requested
delay, (2) prior continuances requests/received, (3) the presence or absence of legitimate
reasons for the requested delay, (4) the appellant’s contribution to the circumstances
giving rise to the request for delay, and (5) any other relevant factors. State v. Unger, 67
Ohio St.2d 65, 67–68, 423 N.E.2d 1078 (1981). While these factors provide basic
guidance, a reviewing court must be mindful that “‘[t]here are no mechanical tests for
deciding when a denial of a continuance is so arbitrary as to violate due process. The
answer must be found in the circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request is denied.’” Unger at 67,
quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).
{¶16} In this case, the court did not grant a continuance of the change of plea
hearing, but the court found no reason to do so based upon trial counsel’s request. The
record reflects that the trial court asked questions of appellant, that appellant answered
6
Case No. 2021-L-109
those questions appropriately and asked follow-up questions which indicated his
understanding of the proceedings. Appellant himself stated multiple times that he was
competent and expressed his desire to proceed with the plea hearing at that time.
{¶17} After trial counsel raised concerns about appellant’s mental state, the trial
court engaged in an appropriate colloquy with the defendant and determined that he was
fit to enter his plea. The trial court did not abuse its discretion in refusing to grant a
continuance because the trial court’s colloquy established that no continuance was
necessary.
{¶18} Accordingly, appellant’s first assignment of error is without merit.
{¶19} Appellant’s second assignment of error states:
{¶20} “[2.] THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S GUILTY
PLEA WITHOUT FIRST FINDING THAT IT COMPLIED WITH CRIM.R 11 TO
ESTABLISH THAT THE PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY.”
{¶21} Crim. R. 11(C)(2) requires that a court shall not accept a guilty plea before
doing the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the
court, upon acceptance of the plea, may proceed with judgment and
sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s favor,
and to require the state to prove the defendant’s guilt beyond a
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Case No. 2021-L-109
reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
{¶22} Typically, a defendant’s plea will not be vacated unless “he demonstrates
he was prejudiced by a failure of the trial court to comply with the provisions of Crim.R.
11(C).” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 16. “The
test for prejudice is “whether the plea would have otherwise been made.’” Id., quoting
State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶23} In this case, the trial court complied with the requirements of Crim.R. 11(C).
The court engaged in a colloquy with appellant and found no reason to believe that his
plea was not knowing, intelligent, and voluntary. As the prior assignment addressed, the
record supports the trial court’s conclusions that appellant entered his plea knowingly,
intelligently, and voluntarily.
{¶24} Accordingly, appellant’s second assignment of error is without merit.
{¶25} Appellant’s third assignment of error states:
{¶26} “[3.] THE STATE COMMITTED PROSECUTORIAL MISCONDUCT IN
FAILING TO DISCLOSE TO APPELLANT EXCUPLATORY EVIDENCE, VIOLATING
APPELLANT’S RIGHT TO DUE PROCESS AND CRIM.R. 16.”
{¶27} Appellant next argues that the State committed prosecutorial misconduct by
failing to disclose an exculpatory victim impact statement. Appellant claims Crim.R. 16(B)
and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), which require the disclosure
of exculpatory evidence, required the State to provide the victim impact statements to
appellant. He argues that one of the victim impact letters contained materials that
demonstrate that: (1) appellant was in the hospital of his own free will; (2) was placed
under restraints because he was not mentally stable; (3) witnesses at the hospital had
8
Case No. 2021-L-109
knowledge that he was not mentally stable; (4) a witness noticed psychotic behavior less
than an hour before the attack; (5) appellant may have not received a dose of medication
prior to the incident; and (6) witnesses knew appellant had not been properly taking his
medications for months.
{¶28} Appellant claims that this letter would have impacted the competency or
sanity findings made by the court, called for a withdrawal of his guilty plea, or influenced
sentencing. Appellant does not make explicit which of the victim impact statements he
believes constituted exculpatory evidence; however, our review of the sealed file indicates
one possible letter submitted to the court. This letter, along with the other victim impact
statements submitted on behalf of the victim, were prepared and submitted after
appellant’s plea of guilty to the offense and were generated for use in sentencing
appellant.
{¶29} “The suppression by the prosecution of evidence favorable to an accused
violates due process where the evidence is material either to guilt or punishment,
irrespective of the good faith or bad faith of the prosecution.” State v. Johnston, 39 Ohio
St.3d 48, 529 N.E.2d 898 (1988), paragraph four of the syllabus. Evidence is material
when there is a reasonable probability that the proceedings would have resulted in a
different outcome, had the evidence been disclosed. Id. at paragraph five of the syllabus.
Crim.R. 16, likewise, creates a duty for the prosecution to provide “any evidence favorable
to the defendant and material to guilty or punishment.” Crim.R. 16.
{¶30} In this case, neither the State nor appellant had access to this information.
The victim impact statements were prepared after appellant’s plea as part of the pre-
sentencing investigation that the trial court relied upon for sentencing purposes. The
9
Case No. 2021-L-109
victim impact statements are not evidence within the possession of the State. Crim.R.
16(B) merely requires that the State turn over evidence “within the possession of, or
reasonably available to the state[.]” Crim.R. 16(B). In this case, neither the State nor
appellant had any access to this material. Therefore, the State did not violate Crim.R. 16
or appellant’s due process by not turning over documents which the State itself did not
possess.
{¶31} Next, appellee’s brief notes that the State turned over all witness statements
that were available to it in this case, including witness statements from nurses present at
the time of the offense. Appellee notes that these witness statements included contact
information for each of the witnesses. Therefore, appellant was able to contact the
witnesses to seek additional information if the witnesses were willing to provide it.
Appellee also notes that appellant himself had access to his own medical records.
Therefore, the hospital notes indicating whether he had received medication or was
suffering from psychotic behavior would have been readily available to him but not
available to the State.
{¶32} Further, the victim impact letter that appellant claims is exculpatory was
written by a nurse who had not evaluated appellant for purposes of legal competency or
sanity. Unlike appellant’s formal evaluations performed during the course of his case, the
victim impact statement was an informal account of appellant’s behavior and conduct.
The letter did not express or intend to express a medical opinion about appellant’s mental
state at the time of his attack. The formal competency and sanity evaluations that
appellant submitted to indicated that although he suffered from mental health issues, he
10
Case No. 2021-L-109
was able to understand the legal process, assist in his own defense, and understood the
wrongfulness of his actions at the time he committed the offense.
{¶33} Finally, R.C. 2947.051 governs victim impact statements for use in
sentencing. Division (A) provides that a court “shall consider the victim impact statement
in determining the sentence to be imposed upon the offender.” Division (C) provides that
victim impact statements “shall be kept confidential” and that a court “may furnish copies
of the statement to both the defendant or the defendant’s counsel and the prosecuting
attorney.” (Emphasis added). This statute makes clear that the State does not control
these documents and that they are not documents “within the possession of, or
reasonably available to the state[.]” See Crim.R. 16.
{¶34} Next, R.C. 2930.14(A) states that the court “may give copies of any written
statement made by a victim to the defendant * * *. The court may redact any information
contained in a written statement that the court determines is not relevant to and will not
be relied upon in the sentencing or disposition decision.” Division (B) provides that if the
written statement made by a victim “includes new material facts, the court shall not rely
on the new material facts unless it continues the sentencing or dispositional proceeding
or takes other appropriate action to allow the defendant * * * an adequate opportunity to
respond to the new material facts.”
{¶35} Appellant’s assignment of error does not suggest that the trial court itself
committed some error or misconduct by not disclosing the victim impact statements.
However, courts may refuse to allow access to victim impact statements. In State v.
Stewart, 149 Ohio App.3d 1, 775 n.E.2d 563, 2002-Ohio-4124 (12th Dist.), the court held
that under R.C. 2947.051(C), a court may refuse to allow access to victim impact
11
Case No. 2021-L-109
statements with no violation of due process. Id. at ¶ 8. “[T]here is no clearly established
federal constitutional right to full disclosure of all information used by a trial judge in
determining a defendant’s sentence.” State v. Piesciuk, 12th Dist. Butler No. CA2007-04-
086, 2008-Ohio-4054, ¶ 33, quoting Stewart v. Erwin, 503 F.3d 488 (6th Cir.2007).
However, a due process violation may arise when a trial court relies on materially false
information at sentencing. Id. After appellant had the opportunity to review the sealed
victim impact statements, he did not assert that the trial court relied on materially false
information or that the trial court relied upon new material facts requiring the court to allow
appellant “an adequate opportunity to respond to the new material facts.” R.C.
2930.14(B).
{¶36} The State was not in the possession of the victim impact statement and the
State did not commit prosecutorial misconduct in violation of appellant’s due process
rights and Crim.R. 16. It is within the trial court’s discretion to provide victim impact
statements to the prosecution and the defense. Appellant has reviewed the victim impact
statements in furtherance of this appeal and has not asserted that the trial court relied on
materially false information or failed to provide an adequate opportunity to respond to new
material facts. Accordingly, appellant’s third assignment of error is without merit.
{¶37} Appellant’s fourth assignment of error states:
{¶38} “[4.] LOCAL RULE 8.06 IS UNCONSTITUTIONAL ON ITS FACE AND AS
APPLIED, DEPRIVING DEFENDANTS OF THE CHANCE TO OBTAIN AND REVIEW
EXCULPATORY EVIDENCE AND DENYING APPELLANT EXCULPATORY EVIDENCE
IN THIS MATTER THAT WOULD HAVE CHANGED THE OUTCOME OF THE
PROCEEDINGS.”
12
Case No. 2021-L-109
{¶39} In this assignment, appellant argues that a victim impact statement should
have been disclosed to him prior to his sentencing hearing. Here, appellant contends that
that Loc.R. 8.06 of the Court of Common Pleas of Lake County, General Division, is
unconstitutional. Loc.R. 8.06 provides that:
Presentence reports, * * * psychological or psychiatric examinations
and evaluations, and any other report or report of examinations for
purposes of sentencing, * * * competency, sanity, or civil
commitment, may be viewed and read by a defendant and his or her
counsel of record, or an attorney-designee of counsel of record, in
preparation for a hearing involving that defendant. These documents
are not public records. No copies, photocopies, images, or other
reproduction may be made of any portion of the documents. A Victim
Impact Statement and Adult Probation Department
recommendation shall not be exhibited to, or viewed or read by,
the defendant or counsel. For any violation of this rule, the court
will be notified and the court will take appropriate disciplinary action.
(Bold added).
{¶40} Initially, we note that appellant did not object to the application of Loc.R.
8.06 and did not challenge the prohibition on disclosing the victim impact statements at
the time of sentencing. Appellant has not asserted that the trial court relied on materially
false information or that the court failed to provide an adequate opportunity to respond to
new material facts contained in the victim impact statements.
{¶41} Since appellant did not raise this issue below, “under the circumstances of
this case, appellant has forfeited all but plain error on review.” State v. Carnes, 11th Dist.
Trumbull No. 2014-T-0120, 2015-Ohio-4429, ¶ 8. “Crim.R. 52(B) affords appellate courts
discretion to correct ‘[p]lain errors or defects affecting substantial rights’ notwithstanding
the accused's failure to meet his obligation to bring those errors to the attention of the trial
court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. The
appellant bears the burden of demonstrating plain error by proving that the outcome
13
Case No. 2021-L-109
would have been different absent the plain error. State v. Payne, 114 Ohio St.3d 502,
2007–Ohio–4642, ¶ 17. The plain error must be a deviation from a legal rule and an
obvious defect in the proceedings. Rogers, at ¶ 22.
{¶42} Further, even when the error is obvious, “it must have affected substantial
rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”
Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). This is the
same deferential standard applied for “reviewing ineffective assistance of counsel claims.”
Id. Indeed, “even if an accused shows that the trial court committed plain error affecting
the outcome of the proceeding, an appellate court is not required to correct it * * *.” Id. at
¶ 23. Courts are cautioned “to notice plain error ‘with utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Barnes, at 27,
quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus.
{¶43} Art. IV, Sec 5(B) of the Ohio Constitution provides that “Courts may adopt
additional rules concerning local practice in their respective courts which are not
inconsistent with the rules promulgated by the supreme court.” As noted in the discussion
of the previous assignment of error, R.C. 2930.14 and R.C. 2947.051(C) governs the use
of victim impact statements in sentencing and provides that victim impact statements
“shall be kept confidential” and that a court “may furnish copies of the statement to both
the defendant or the defendant’s counsel and the prosecuting attorney.” (Emphasis
added).
{¶44} In this case, the local rules of court cannot supersede the statutory
requirements of R.C. 2947.051 and R.C. 2930.14. However, neither of those provisions
14
Case No. 2021-L-109
requires a court to furnish to a defendant copies of a victim impact statement. A court has
the discretion to furnish copies of a victim impact statement to the parties under
R.C.2947.051. However, if a victim impact statement contains new material facts that the
court relies on, the court is not permitted to rely upon those facts without first continuing
the sentencing or taking other appropriate action to allow the defendant an adequate
opportunity to respond. Appellant has reviewed the victim impact statements and claims
that they contain exculpatory material. However, he has not claimed that the court relied
on new material contained in those statements which, regardless of the application of the
local rule, would have required the court to take appropriate action to allow appellant an
adequate opportunity to respond.
{¶45} We have reviewed the victim impact statements along with the other
material contained in appellant’s presentence report including a narrative from the police
report and appellant’s sanity and competency evaluations. We do not find that the trial
court improperly relied upon any new information from the victim impact statements in
sentencing, nor do we find that the victim impact statement was an exculpatory document
that appellant was legally entitled to receive, notwithstanding Loc.R. 8.06.
{¶46} When a court refuses to permit viewing of victim impact statements used to
determine a defendant’s sentence, there is no violation of due process rights of the
defendant. See Stewart, 149 Ohio App.3d 8; Piesciuk, 2008-Ohio-4054, at ¶ 33, quoting
Erwin, 503 F.3d 488.
{¶47} Accordingly, appellant’s fourth assignment of error is without merit.
{¶48} Appellant’s fifth assignment of error states:
15
Case No. 2021-L-109
{¶49} “[5.] APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
BY FAILURE OF COUNSEL TO MOVE TO WITHDRAW HIS PLEA AND FURTHER
REQUEST INDEPENDENT PSYCHIATRIC EVALUATION, WERE COUNSEL TO HAVE
RECEIVED THE EXCULPATORY DOCUMENT.”
{¶50} In this assignment of error, appellant raises a hypothetical ineffective
assistance of counsel claim. Appellant argues that if trial counsel had received the victim
impact statement, then counsel should have moved to withdraw his guilty plea.
{¶51} In reviewing an ineffective assistance of counsel claim, the standard we
apply is “‘whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.’”
State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An
appellant must demonstrate (1) his counsel was deficient in some aspect of his
representation, and (2) there is a reasonable probability, were it not for counsel's errors,
the result of the proceedings would have been different. Strickland, at 669. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure
to “satisfy one prong of the Strickland test negates a court’s need to consider the other.”
State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing
Strickland, at 697.
{¶52} An appellant “must be able to demonstrate that the attorney made errors so
serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth
Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49,
quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42.
16
Case No. 2021-L-109
Ohio courts presume that every properly licensed attorney is competent, and therefore a
defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d
1128 (1985). “Counsel’s performance will not be deemed ineffective unless and until
counsel’s performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance.” State v.
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally
do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72,
85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of
ineffective assistance of counsel, nor could such a failure be prejudicial.” State v.
Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.
{¶53} In this case, appellant cannot demonstrate that his trial counsel’s
performance fell below an objective standard of reasonable representation. Appellant’s
argument is built entirely on speculation, arguing that if trial counsel would have received
the victim impact statements that effective counsel would then have moved the withdraw
his guiltily plea. Such speculation also presupposes that the outcome of his prior
assignments of error resolves in his favor. As we have not found that the court erred in
appellant’s arguments about the victim impact statements, we cannot now find that trial
counsel was ineffective for not moving to withdraw his plea based upon documents he
did not receive and which he was not entitled to receive.
{¶54} Accordingly, appellant’s fifth assignment of error is without merit.
{¶55} Appellant’s sixth assignment of error states:
{¶56} “[6.] THE SENTENCING UNDER OHIO LAW VIOLATED THE
SEPARATION OF POWERS DOCTRINE OF THE CONSTITUTION OF THE STATE OF
17
Case No. 2021-L-109
OHIO AND UNITED STATES, DUE PROCESS OF LAW, ARE VOID FOR VAGUENESS,
AND CONFLICT INTERNALLY WITH OTHER OHIO LAW.”
{¶57} In this assignment of error, appellant challenges the constitutionality of R.C.
2967.271, the Reagan Tokes Act. Specifically, appellant argues that the Reagan Tokes
Act is ripe for review, violates the separation of powers, violates due process, and is void
for vagueness.
{¶58} In this assignment of error, appellant challenges the constitutionality of R.C.
2967.271, the Reagan Tokes Law. Based on this District’s recent holdings in State v.
Reffitt, 11th Dist. Lake Case No. 2021-L-129, 2022-Ohio-3371, and State v. Joyce, 11th
Dist. Lake Case No. 2021-L-006, 2022-Ohio-3370, the challenges that appellant
advances against the constitutionality of the Reagan Tokes Law have previously been
overruled. Appellant does not advance any novel argument left unaddressed by our prior
decisions.
{¶59} Pursuant to the above authorities, appellant’s challenges to the
constitutionality of the Reagan Tokes Law are overruled.
{¶60} We conclude that appellant’s sixth assignment of error is without merit.
{¶61} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
18
Case No. 2021-L-109 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482141/ | [Cite as Turnmire v. Turnmire, 2022-Ohio-3968.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
MARTHA TURNMIRE, :
Appellant, : CASE NO. CA2021-12-165
: OPINION
- vs - 11/7/2022
:
MARSHA TURNMIRE, :
Appellee. :
CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CV 2020 11 17547
Kirkland & Sommers, Co., and James R. Kirkland and Mickenzie R. Grubb, for appellant.
Law Office of David A. Chicarelli Co., LPA, and David Allen Chicarelli, for appellee.
S. POWELL, J.
{¶ 1} Plaintiff-appellant, Martha Turnmire, appeals the decision of the Butler County
Court of Common Pleas granting summary judgment in favor of defendant-appellee,
Marsha Turnmire, on her claims of unjust enrichment, breach of contract, conversion, and
Butler CA2021-12-165
fraud. For the reasons outlined below, we affirm the trial court's decision.
I. Factual and Procedural Background
{¶ 2} In May 2005, John and Martha Turnmire were granted a dissolution of their
marriage by a Florida court.1 John had retired from service in the military and participated
in the Survivor Benefit Plan (SBP), which, upon the service member's death, provides an
annuity payable monthly to the retired service member's designated beneficiary. John also
had a Veterans Group Life Insurance (VGLI) policy through the military.2 At the time of the
divorce, the designated beneficiary of the SBP annuity and the VGLI policy was John's wife,
Martha. The dissolution decree ordered John to keep Martha the beneficiary of both:
6. MILITARY RETIREMENT BENEFICIARY: Pursuant to the
provisions of 10 U.S.C. 1448 and 10 U.S.C. 1450, the Husband
shall irrevocably elect the Wife as his survivor beneficiary under
the terms of his military retirement plan within thirty (30) days
from the date of this final judgment. In the event that the
Husband shall, for any reason, fail to make said election as
ordered, upon presentation of a copy of this final judgment to
the Secretary of Defense, pursuant to 10 U.S.C. 1450 (f)(3), the
Husband shall be deemed to have made said election.
7. LIFE INSURANCE: In order to secure the alimony awarded
herein, the Husband shall continue to maintain the policy of life
insurance upon his life which he maintains through the
"Veterans Government Life Insurance" which shall provide for
death benefits in an amount not less than $200,000.00. The
Husband shall irrevocably designate the Wife as his beneficiary
to the extent of $200,000.00 under said policy. Upon entry of
this final judgment of dissolution of marriage the Husband shall,
within ten (10) days from the date hereof, supply the Wife with
written evidence that the said policy of life insurance remains in
full force and effect. Annually thereafter on the anniversary date
of this final judgment, the Husband shall provide the Wife with
written evidence that the said life insurance with the said
designated death benefits in favor of the Wife remains in full
force and effect.
1. Under Florida law, the Dissolution of Marriage Act is the state's no-fault divorce law. A marriage in Florida
is ended by either dissolution or annulment.
2. We refer to the principal players in this case by their first names to avoid confusion.
-2-
Butler CA2021-12-165
The dissolution decree also ordered John to pay Martha alimony (spousal support). Later
that same year, John married Marsha.
{¶ 3} In 2008, John asked the Florida court to reduce his alimony obligation. The
following year, after a hearing, the trial court agreed to do so. The 2009 modification order
again ordered John to keep Martha as the designated beneficiary of the SBP and the
beneficiary of his VGLI policy:
F. The Former Husband's obligation to name the Former Wife
as an irrevocable beneficiary of $200,000 in life insurance is
reduced to $150,000. The Former Husband shall be entitled to
make such a modification to his life insurance by January 31,
2009, or once alimony and arrearage payments are being made
to the Former Wife by Income Deduction Order, whichever
occurs first.
G. The Former Husband shall provide proof that a policy for life
insurance, naming the Former Wife as a beneficiary, consistent
with this Order, is in place and in good standing within ten (10)
days of the date such beneficiary is changed, pursuant to this
Order. The Former Husband shall thereafter provide such proof
to the Former Wife each year, by the same date.
H. The Former Husband's obligations, regarding survivorship
benefits, shall not change.
{¶ 4} In November 2020, John died, with Marsha as his surviving spouse. It was
then Martha discovered that John not only had reduced the VGLI policy to $50,000 but also,
in 2007, had changed the beneficial interest in the proceeds, leaving Marsha the bulk of
proceeds and Martha only a $5,000 annuity. In addition, Marsha, as the surviving spouse,
began receiving monthly payments from the SBP annuity because Martha had never been
elected as the beneficiary.
{¶ 5} Martha filed an action against Marsha asserting claims of unjust enrichment,
breach of contract, conversion, and fraud. Martha sought to impose a constructive trust
over the VGLI proceeds and the SBP payments. The parties filed cross-motions for
summary judgment. The trial court concluded that federal law preempted the state law
-3-
Butler CA2021-12-165
embodied in the Florida dissolution decree as to the beneficial interests in the VGLI policy
and the SBP annuity and concluded that it had no authority to order an equitable remedy
that circumvented federal law. The court therefore granted Marsha's motion for summary
judgment and denied Martha's motion.
{¶ 6} Martha appealed.
II. Analysis
{¶ 7} Martha's sole assignment of error alleges that the trial court erred by granting
Marsha's motion for summary judgment and denying her motion. Martha contends that she
is entitled to the VGLI proceeds and to the SBP annuity. We note that she does not allege
that Marsha is at all culpable in these matters. And based on the record, we agree that it
appears Marsha is innocent of any wrongdoing. Her role was entirely passive.
{¶ 8} Summary judgment, under Civ.R. 56(C), is appropriate if the moving party
shows "(1) that there is no genuine issue as to any material fact; (2) that the moving party
is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but
one conclusion, and that conclusion is adverse to the party against whom the motion for
summary judgment is made, who is entitled to have the evidence construed most strongly
in his favor." Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66 (1978).
A. The Veterans Group Life Insurance
{¶ 9} We first consider the VGLI proceeds. The federal Servicemembers' Group
Life Insurance Act (SGLIA), 38 U.S.C. 1965 et seq., makes life insurance coverage
available to members of the military. When a service member leaves the military, SGLI
coverage terminates, and the service member may convert the policy into a new policy
under the VGLI program. See 38 U.S.C. 1968(a)(1), 1977. The provisions of the SGLIA
that control the beneficiaries of the insurance also apply to VGLI policies. See 38 U.S.C.
1970(a). Simply put, "[f]ederal law and federal regulations bestow upon the service member
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an absolute right to designate the policy beneficiary" and to change the beneficiary at any
time. Ridgway v. Ridgway, 454 U.S. 46, 59-60, 102 S.Ct. 49 (1981). See also 38 U.S.C.
1917(a) (stating that a service member has "the right to designate the beneficiary or
beneficiaries of insurance" and has "at all times * * * the right to change the beneficiary or
beneficiaries"); 38 C.F.R. 9.4(b) ("A change of beneficiary may be made at any time and
without the knowledge or consent of the previous beneficiary"). In addition, an anti-
attachment provision in the SGLIA shields insurance payments to a beneficiary from "claims
of creditors" and states that the payments "shall not be liable to attachment, levy, or seizure
by or under any legal or equitable process whatever, either before or after receipt by the
beneficiary." 38 U.S.C. 1970(g).
{¶ 10} The Supreme Court held in Ridgway that these SGLIA provisions "prevail over
and displace inconsistent state law," which includes the state law embodied in a divorce
decree. In Ridgway, the Court considered the preemptive effect in a factual situation almost
identical to the one in the present case. At the time of the parties' divorce, the former wife
was the designated beneficiary of the husband's SGLIA policy. The husband agreed that
he would maintain the policy for the benefit of the parties' children, and his agreement was
incorporated into the divorce decree. The husband soon remarried and changed the
policy's beneficiary designation, directing the proceeds to be paid as specified "by law,"
which, under the SGLIA's order of precedence, begins with the surviving spouse. After the
husband died, both his former wife and his surviving spouse filed claims for insurance
proceeds. The former wife argued that the surviving spouse had been unjustly enriched
and that under state law a constructive trust should be imposed on the proceeds for the
children's benefit. But the Supreme Court rejected this argument, concluding that the
SGLIA preempts the divorce decree. The Court held invalid the decree's provision
restricting the husband's right to change his SGLI policy beneficiary. The Court also held
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that the imposition of a constructive trust on the proceeds was inconsistent with the SGLIA's
anti-attachment provision. "Any diversion of the proceeds," explained the Court, "by means
of a court-imposed constructive trust would * * * operate as a forbidden 'seizure' of those
proceeds." Ridgway at 60. In sum, the Court found that "'Congress has spoken with force
and clarity in directing that the proceeds belong to the named beneficiary and no other.'"
Id. at 56, quoting Wissner v. Wissner, 338 U.S. 655, 658, 70 S.Ct. 398 (1950). It matters
not, said the Court, that the husband "misdirected property over which he had exclusive
control" and "[i]n doing so, * * * deprived the [former wife and his children] of benefits to
which they were entitled under state law." Id. at 59, fn. 8.
{¶ 11} Martha does not dispute any of this. What she contends is that an exception
to preemption in cases of fraud applies in this case. The Supreme Court recognized this
exception in Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089 (1962). The issue in Free
concerned survivorship rights in U.S. savings bonds where federal regulations conflicted
with state law. A married couple had jointly purchased and owned savings bonds. When
the wife died, state law said that the bonds were community property and were subject to
probate as part of the deceased wife's estate, which meant that the husband had to pay the
estate for his wife's interest. But under federal regulations the husband had a right of
survivorship in the bonds. The Court held in Free that the federal regulations prevailed over
the inconsistent state law and that the husband was entitled to the bonds. In its decision,
the Court noted, but did not apply, an exception for fraud, saying that "[t]he regulations are
not intended to be a shield for fraud and relief would be available in a case where the
circumstances manifest fraud or a breach of trust tantamount thereto on the part of a
husband while acting in his capacity as manager of the general community property." Free
at 670.
{¶ 12} The Supreme Court considered the "scope and application" of fraud exception
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in Yiatchos v. Yiatchos, 376 U.S. 306, 307, 84 S.Ct. 742 (1964). Like Free, Yiatchos
concerned survivorship rights in savings bonds that were considered community property
under state law. "Under the federal regulations," said the Court, "petitioner is entitled to the
bonds unless his deceased brother committed fraud or breach of trust tantamount to fraud."
Yiatchos at 309. And "whether or not there is fraud which will bar the named beneficiary in
a particular case must be determined as a matter of federal law." Id., citing Free at 670-
671. In the end, the Court remanded the case to develop a factual record on whether the
conduct amounted to fraud or breach of trust for federal purposes sufficient to be an
exception to preemption. Id. at 310, 313.
{¶ 13} Importantly, in Ridgway, the Supreme Court distinguished Yiatchos and "in
effect limit[ed] Yiatchos to situations in which a person had fraudulently divested a victim of
the victim's own property." (Emphasis sic.) Metropolitan Life Ins. Co. v. Christ, 979 F.2d
575, 581 (7th Cir.1992), citing Ridgway, 454 U.S. 46, 58-60, 59, fn. 8, 102 S.Ct. 49. In
Ridgway "only [the husband] had the power to create and change a beneficiary interest in
his SGLIA insurance." Ridgway at 60. "By exercising that power," said the Court, "he hardly
can be said to have committed fraud." Id.
{¶ 14} Courts in other jurisdictions have also recognized that the fraud exception is
limited and have declined to extend it. The Ninth Circuit Court of Appeals in McNabb v. U.S.
Dept. of the Army, 623 Fed.Appx. 870 (9th Cir.2015), held that Yiatchos does not support
an exception for lack of notice of a change in beneficiary occasioned by a service member's
fraud. The court pointed out that Yiatchos involved a fraud "'"on the part of a husband while
acting in his capacity as manager of the general community property."'" McNabb at 873,
quoting Yiatchos at 307, quoting Free at 670. "A SGLI policy is not community property."
Id. A North Carolina appellate court in Lewis v. Estate of Lewis, 137 N.C.App. 112 at 117
(2000), held that "any alleged violation of state law by decedent or order of a state court
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does not defeat the provisions of SGLIA." The court noted that "the Ridgway court never
stated that fraud or breach of fiduciary duty by a servicemember would defeat the provisions
of SGLIA. In dicta, the Court merely pointed out that the beneficiary and anti-attachment
provisions of SGLIA may possibly be overcome in circumstances where a claimant had
property rights in the proceeds." Id. "Unlike Yiatchos," said the court, "the present case
does not concern federal bonds or community property." Id. The Tenth Circuit Court of
Appeals in Metropolitan Life Ins. Co. v. McMorris by McMorris, 786 F.2d 379 (10th
Cir.1986), held that the facts alleged by the wife, facts much like those in the present case,
did not amount to the kind of fraud warranting protection. The wife contended that there
was no preemption of the state law embodied in the divorce decree because the husband
had committed fraud by allowing the trial court to order that he maintain a particular life
insurance policy for her benefit when no such policy was then in effect, and by not
designating her as a beneficiary of another life insurance policy. See also Mills v. Prudential
Ins. Co. of America, 856 F.Supp.2d 1218 (D.Colo.2012) (holding that the wife of a deceased
service member was not entitled to benefits under SGLI policy designating the service
member's brother as beneficiary, where a restraining order in his divorce action prohibited
service member from changing the beneficiary designation and wife was the named
beneficiary at the time of the order).
{¶ 15} In Ohio, the Third District Court of Appeals in Concepcion v. Concepcion, 131
Ohio App.3d 271, 281-282 (3d Dist.1999), held that the SGLIA preempted state law with
respect to a SGLI policy and required that the designation of the new beneficiary be
recognized, even though the change violated a court order. The appellate court construed
Ridgway and Free "to stand for the proposition that in limited circumstances the imposition
of a state-based remedy may be appropriate," giving as an example "the case where the
insured has been coerced or unduly influenced in his or her selection of a beneficiary." Id.
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at 282. Thus the court limited the fraud exception to fraud related to the beneficiary change
itself. Ultimately, the court held that the facts of the case did not "fall within the ambit of
such an exception" and also concluded that imposing a constructive trust on the proceeds
of the SGLI policy was an inappropriate remedy. Id.
{¶ 16} In the present case, Martha alleges that during the 2008 dissolution-decree
modification proceedings John engaged in fraudulent behavior by not telling the Florida trial
court, or her, that he had, in fact, already changed his life insurance beneficiary to Marsha.
We agree with the rationale in the above cases and decline to extend the Yiatchos fraud
exception to the facts of the present case. The type of fraud that John allegedly committed
does not qualify for the fraud exception to preemption with respect to the VGLI policy. It is
not fraud in the beneficiary change per se. In other words, Martha does not allege that
John's decision to change the beneficiary to Marsha was affected by fraud. Rather, Martha
alleges that it was John's exercise of his power to make the change that was wrongful,
because the trial court had ordered him to keep her as the designated beneficiary. But John
had the absolute right to exercise his power to make the change and his doing so is not
fraud that warrants protection from preemption. See McMorris.
{¶ 17} We observe that this result is not quite as harsh as it might seem. The
dissolution decree explicitly orders John to provide Martha with annual proof that she was
the beneficiary. Evidently, he did not do this. But more importantly, it appears that Martha
never asserted her right to proof. If she had, she would have known about the beneficiary
change years ago and might have been able to do something then. Martha sat on her rights
for years and is now suffering the consequence.
{¶ 18} In sum, we conclude that John's alleged fraud—even if it could be proved—
does not bar preemption of the dissolution decree by the controlling provisions of the SGLIA.
Which means that Marsha is the proper beneficiary of the life insurance proceeds.
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B. The Survivor Benefit Plan Annuity
{¶ 19} Next, we consider Martha's claim to John's Survivor Benefit Plan annuity. The
Survivor Benefit Plan (SBP), 10 U.S.C. 1447 et seq., was created to provide an annuity
payable to survivors of a retired military service member. Under the SBP, premiums are
deducted from the service member's retirement pay, and when the service member dies, a
monthly annuity is paid to the service member's designated beneficiary. The former spouse
of a service member may be designated the beneficiary. Under federal law, if the service
member is required by court order to elect the former spouse as beneficiary and fails or
refuses to do so, the service member is "deemed" to have made the election, provided that
the former spouse sends the appropriate military Secretary a written request for a deemed
election, along with a copy of the court order. 10 U.S.C. 1450(f)(3)(A). A deemed election
must be made within one year of the court order: "An election may not be deemed to have
been made under subparagraph (A) in the case of any person unless the Secretary
concerned receives a request from the former spouse of the person within one year of the
date of the court order or filing involved." 10 U.S.C. 1450(f)(3)(C). Federal law also contains
a provision exempting a SBP annuity from certain legal processes: the annuity "is not
assignable or subject to execution, levy, attachment, garnishment, or other legal process."
10 U.S.C. 1450(i).
{¶ 20} Martha does not dispute that the controlling provisions of federal law
governing SBP annuities preempt state law, including her dissolution decree. Nor does she
dispute that if a deemed election is not timely made under federal law, the former spouse
has no right to the SBP annuity. What Martha argues is that there is a genuine issue of
material fact as to whether a deemed election was made. She contends that the evidence
shows that a proper deemed election was made and that the Secretary or the Defense
Finance Accounting Service (DFAS), which maintains SBP election records and processes
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SBP election changes, has erred by not recognizing her as the rightful beneficiary.
i. No evidence that a deemed election was timely made
{¶ 21} Martha concedes that she did not file a election request herself. Rather, she
maintains that the attorney who handled her divorce submitted a timely written request and
that the attorney received written acknowledgment of the submission from DFAS. Martha
contends that her deposition testimony on this matter creates a genuine issue of fact as to
whether a deemed election was properly made. This was her testimony:
Q. [The attorney talks about the form that needs to be filed
within one year to convert SBP coverage. Then he asks:] Did
you do that?
A. Sir, I have an attorney that did all that paperwork for me. I
believe he did it. (Martha Dep. 11).
Q. * * * You would be receiving benefits had you done that, and
you're not receiving benefits.
A. My attorney did it, sir.
Q. Okay. That's what you believe?
A. Yes, sir, I believe my attorney did it.
Q. Have you asked your attorney did you submit within a year
of the divorce the appropriate documentation to elect from
spouse to former spouse coverage within one year?
***
[A.] The attorney did receive paperwork back that he had filed
whatever paperwork was necessary. (Id. at 12).
Q. You, yourself, didn't do it. You believe your attorney did it?
A. Correct, sir. (Id. at 13).
Q. Okay. And just let me summarize just to make sure and
formalize again my request. You've told me that you believe
your Florida attorney made the election within one year of the
divorce decree in '05 to designate you after the divorce as the
survivor, correct?
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A. My Florida attorney handled all that paperwork, yes, sir.
Q. Right, and that's what you've told me, and you believe he did
it, correct?
A. I do believe he did it, yes, sir.
Q. And you're going to contact him and get—I'm making a
formal demand for copies of that demand, that election that you
believe he made. Okay? You're going to contact him and get
copies of those papers, correct?
A. If that's what I'm supposed to do, yes, sir.
Q. Yes, it is, ma'am. You're being asked under oath during a
deposition to produce those documents.
{¶ 22} In addition to the election request and the acknowledgment from DFAS, there
is one other piece of documentary evidence to consider. In her briefs, Martha states that
she provided Marsha's attorney with "a detailed letter from [her] former counsel outlining
the exact arguments as to why the paperwork was timely filed." But this letter was not
submitted as evidence, is not in the record, and may not now be added to the record, see
State ex rel. Harris v. Turner, 160 Ohio St.3d 506, 2020-Ohio-2901, ¶ 16 ("A reviewing court
generally may not add matter to the record before it and then decide the appeal on the basis
of the new matter"). While Marsha's attorney admitted during oral arguments that he had
received the letter, Marsha never stipulated to or formally admitted anything about it. In
short, the letter is not evidence and is irrelevant for summary judgment purposes. See
Civ.R. 56(C) (stating that a summary judgment must be rendered "only from the evidence
or stipulation").
{¶ 23} Neither the written election that Marsha asserts her attorney submitted nor
the acknowledgment from DFAS that she asserts her attorney received are in the record.
There is only her testimony.
{¶ 24} When ruling on a motion for summary judgment, a trial court generally may
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consider only evidence that would be admissible at trial. Lowe v. Cox Paving, Inc., 190
Ohio App.3d 154, 2010-Ohio-3816, ¶ 27 (12th Dist.), citing Tokles & Son, Inc. v. Midwestern
Indemn. Co., 65 Ohio St.3d 621, 631, fn. 4 (1992) ("Only facts which would be admissible
in evidence can be * * * relied upon by the trial court when ruling upon a motion for summary
judgment"). Deposition testimony, in particular, must be admissible under the rules of
evidence, Evid.R. 32(A), and, like affidavit testimony, must be based on personal
knowledge. Civ.R. 56(D); Reardon v. Hale, 12th Dist. Warren No. CA2006-09-105, 2007-
Ohio-4351, ¶ 21-22.
{¶ 25} Martha's deposition statement concerning the acknowledgment received by
her attorney is hearsay. She was asked whether she had asked her attorney if he had
submitted the written request for the election. She responded: "The attorney did receive
paperwork back that he had filed whatever paperwork was necessary." In context, then,
Martha's statement is plainly based on what her attorney had told her and was intended to
prove that an election request had been submitted. Hearsay—a statement other than one
made by the declarant while testifying at the trial offered in evidence to prove the truth of
the matter asserted—is not admissible at trial unless an exception applies. Evid.R. 801 and
802. Accordingly, "[b]ecause Civ.R. 32 and Civ.R. 56(D) both specifically limit the court's
consideration to admissible evidence, hearsay evidence may not be properly considered
when proffered by a party in a deposition or affidavit in opposition to a motion for summary
judgment unless a specific exception applies." Reardon at ¶ 23. See also N. Am. Herb &
Spice Co., LTD, LLC v. Appleton, 12th Dist. Butler No. CA2010-02-034, 2010-Ohio-4406, ¶
49; Bank of America, N.A. v. Shailer, 2d Dist. Montgomery No. 29036, 2021-Ohio-3939, ¶
15 ("Absent an exception, hearsay may not be considered in a motion for summary
judgment"). Martha did not submit an affidavit from her attorney to support her testimony,
nor, as we said, are there any election documents in the record. Martha's statement
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constitutes inadmissible hearsay to which no exception applies.
{¶ 26} The rest of Martha's testimony lacks a personal-knowledge basis. If a witness
does not have firsthand, personal, knowledge of the matter, the witness is incompetent and
her testimony is inadmissible. Evid.R. 602.
{¶ 27} The problem with the testimony is not that Martha was a little unsure what her
attorney had done. Almost all her answers are prefaced with "I believe," suggesting that
she was somewhat uncertain whether her attorney had, in fact, submitted a written request
for a deemed election. But "expressions of uncertainty affect the weight, not the
admissibility, of the evidence." 1 Baldwin, Ohio Practical Evidence, Rule 602 (4th Ed.
2021). Evidence is inadmissible under Evid.R. 602 only if the witness could not have
actually perceived or observed what she is testifying about. See M. B. A. F. B. Fed. Credit
Union v. Cumis Ins. Soc., Inc., 681 F.2d 930, 932 (4th Cir.1982), citing 2 Wigmore,
Evidence, Section 658 (Chadbourn Rev.1979), and 3 Weinstein & Berger, Weinstein's
Evidence, Section 602(02) (1981). So "[a] witness's expression of uncertainty, such as 'I
think,' 'I believe,' or 'I'm not positive,' is not ground for exclusion so long as the witness 'had
an opportunity of personal observation and did get some impressions from this
observation.'" 1 Baldwin, Ohio Practical Evidence, Rule 602 (4th Ed.2021). See also id.
("[Federal] Rule 602 * * * does not require that the witness' knowledge be positive or rise to
the level of absolute certainty").
{¶ 28} The problem is that Martha's testimony lacks a permissible basis. Her
testimony that she "believed" her attorney had submitted an election request has one of
three possible bases: she saw him submit the request, he told her that he submitted it, or
he told her that he would submit it. Martha did not testify that she saw her attorney submit
the request, nor does her testimony support such an inference. The first basis, then,
violates the firsthand-knowledge rule. The second two bases implicate a statement of
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another person (her attorney) to prove submission, so they violate both the firsthand-
knowledge rule and the hearsay rule. Ultimately, considering the whole of Martha's
deposition testimony on this matter, it is reasonable to infer that all of it is based solely on
what her attorney had told her. Which means that all Martha's testimony is inadmissible
both because it is based on hearsay and because she lacks personal knowledge. See
Lowe, 190 Ohio App.3d 154, 2010-Ohio-3816, at ¶ 28 (deposition testimony on which
appellant relied was hearsay and inadmissible in the summary judgment context); In re
D.K., 185 Ohio App.3d 355, 2009-Ohio-6347, ¶ 24 (6th Dist.) (testimony about the contents
of records inadmissible where the records themselves were not in evidence and the witness
testified only that he had seen the records and there was no testimony that the witness had
any direct knowledge of the events recorded in the records). In essence, Martha was
merely speculating about what her attorney had done. And "[m]ere speculation is
insufficient to create a genuine issue of material fact to avoid summary judgment." (Citation
omitted.) Fontain v. H&R Cincy Properties, LLC, 12th Dist. No. CA2021-02-015, 2022-
Ohio-1000, ¶ 67 (stating that plaintiff offered only "mere speculation in support of his
contention" that an attorney filed certificates of judgment).
{¶ 29} We recognize that there was never an objection to Martha's deposition
testimony, either directly during the deposition or to the trial court. "[O]bjections to hearsay
evidence are not waived by failure to make them during the taking of a deposition." Golden
v. George Gradel Co., 6th Dist. Lucas No. L-88-091, 1989 WL 24210, *2 (Feb. 17, 1989)
(citing Civ.R. 32[D][3][a]). Although a court may consider nonconforming summary
judgment evidence if neither party objects, it is not required to consider such evidence.
Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393, 2010-Ohio-1945, ¶ 12
(12th Dist.); A-M.R. v. Columbus City School Dist., 10th Dist. No. 14AP-1066, 2015-Ohio-
3781, ¶ 38; Armaly v. City of Wapakoneta, 3d Dist. Auglaize No. 2-05-45, 2006-Ohio-3629,
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¶ 23; Bell v. Holden Surveying, Inc., 7th Dist. Carroll No. 01 AP 0766, 2002-Ohio-5018, ¶
22. A court may "on its own, without objection," determine that proffered evidence is "not
permissible evidence under Civ.R. 56(C)." Spagnola v. Spagnola, 7th Dist. Mahoning No.
07 MA 178, 2008-Ohio-3087, ¶ 40 (concluding that the trial court "could have on its own,
without objection from appellant, determined that the report was not permissible evidence");
see also Bell at ¶ 22 (stating that the trial court was permitted "to sua sponte determine that
the documentation attached to the summary judgment is not in conformity with the
requirements of Civ.R. 56[C]"). We have concluded that Martha's deposition testimony on
the election question is inadmissible both because it is hearsay and because it is not based
on her personal knowledge. We do not consider this evidence in our de novo review of
Martha's genuine-issue-of-material-fact argument.
{¶ 30} Martha has failed to show that a genuine issue of fact exists as to the SBP
benefits. Once her testimony is excluded for Civ.R. 56 purposes, no evidence remains on
which it would be reasonable to find that a deemed election was made. Therefore, under
federal law, Martha is not entitled to the SBP annuity.
ii. No authority to grant relief
{¶ 31} Summary judgment is also appropriate for the reason that the trial court
intimated in its decision: the court has no authority to do anything for Martha and any relief
must come from the Secretary. Martha argues that the Secretary or DFAS erred in applying
the applicable federal statutes and that the only just way to resolve this matter now is either
to allow the case to continue until full discovery is completed, and any communications with
DFAS are revealed, or to impose a constructive trust to carry out the legislative intent of the
SBP program. Implicit in this argument is the premise that the trial court can grant a legal
remedy or equitable relief. But if state law is preempted, as Martha concedes, even if she
could prove that the election request was timely filed and that the Secretary or DFAS has
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made a mistake, the trial court has no authority to correct the mistake. The trial court cannot
order a change to the beneficiary designation of the SBP annuity. Nor would it be
appropriate for the trial court to impose a constructive trust over the annuity payments.
{¶ 32} It appears that no Ohio court has addressed the issue whether, more than a
year after the divorce decree, a state court can designate a former spouse the beneficiary
of a deceased service member's SBP annuity. But there are cases addressing this issue
in other jurisdictions, and they uniformly hold that if a deemed election is not timely made,
the former spouse has no right to the SBP annuity, regardless of what the divorce decree
says.
{¶ 33} The first case to have really considered the issue is King v. King, 225 Ga.App.
298 (Ga.App.1997). In King, the husband voluntarily entered into a written agreement to
provide his former wife with former-spouse SBP coverage and that agreement was
incorporated into the divorce decree. But neither husband nor wife complied with the
applicable provisions of the SBP governing election of a former spouse as the beneficiary
of the annuity. Husband eventually remarried, and after he died, his surviving spouse began
receiving payments as the beneficiary of the annuity. The former wife brought an action
against the surviving spouse seeking imposition of a constructive trust over the benefits
being paid to her, claiming, based on the divorce decree, that she was the rightful
beneficiary of the SBP benefits.
{¶ 34} The appellate court concluded that the federal law governing SBP annuities
prevailed over the divorce decree. The court explained that
the provisions of the SBP specifically set forth the conditions
under which a former spouse awarded SBP benefits in a state
court divorce decree may thereafter be elected as the
beneficiary of the annuity under the SBP and become entitled to
receive the annuity. Moreover, Congress has declared that an
annuity under the SBP "is not assignable or subject to
execution, levy, attachment, garnishment, or other legal
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process."
King at 301, quoting 10 U.S.C. 1450(i). The court continued:
In providing the means by which former spouses may become
entitled to SBP annuity benefits, Congress enacted plain and
precise statutory language placing conditions and limits on that
right and made clear that any annuity benefits paid in
compliance with the provisions of the SBP are not subject to
legal process. Since the provisions of the SBP unambiguously
preclude the rights asserted under the divorce decree, we
further conclude that the consequences of enforcing the
conflicting state law principles sufficiently injures the objectives
of the SBP so that federal law preempts the authority of state
law.
Id. The court thus concluded that the right to the annuity asserted by the former wife under
the divorce decree "clearly conflicts with the express provisions of the SBP" under which
the surviving spouse is the beneficiary and held that the surviving wife did not have a right
to receive the SBP annuity. Id.
{¶ 35} King's ultimate holding—that federal law preempts state law as to a former
spouse's right to claim entitlement to an SBP annuity—has been adopted by courts in
several other states. See Silva v. Silva, 333 S.C. 387 (S.C.App.1998) (finding King's
reasoning persuasive); Wise v. Wise, 765 So.2d 898 (Fla.App.2000) (citing King and Silva);
Dugan v. Childers, 261 Va. 3 (2001) (finding the reasoning in King persuasive); Watson v.
Watson, 263 N.C.App. 404 (2018) (holding that it lacked authority to preempt the time
restrictions in the federal SBP provisions); McCallister v. McCallister, 105 N.E.3d 1114
(Ind.App.2018) (holding that trial court's order directing husband to reinstate his former wife
as the SBP beneficiary could not be enforced).
{¶ 36} In McCallister, which features a situation quite like the one in the present case,
the husband voluntarily entered into an agreement to designate his wife as the beneficiary
of the SBP. At the hearing on wife's motion for rule to show cause, the husband testified
that upon signing the agreement, he submitted the paperwork the next day designating his
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wife as the beneficiary of the SBP. The wife testified that her attorney at the time apparently
received some paperwork and told her that there was nothing more she needed to do. At
the time of the designation, however, husband and wife were still married. Their divorce
was not finalized until later, after which husband failed to comply with the court's order and
execute the necessary forms to ensure that his now former wife was designated as
beneficiary. The husband remarried and changed the SBP beneficiary designation from his
former wife to his current wife, which was a clear violation of the terms of the parties'
agreement. There was no evidence that the husband made any attempt to inform his former
wife that she was no longer the designated beneficiary on the SBP. And it was not until
three years later that the former wife learned that she was not the designated beneficiary.
The Indiana appellate court agreed with Wise and King and concluded that, despite the
husband's violation of the agreement, the trial court's order directing him to reinstate his
former wife as the beneficiary of the SBP could not be enforced. Said the court: "because
[husband] failed to comply with the divorce decree and the SBP statutory deadline of one
year for election of a former spouse as beneficiary and [former wife] did not request within
one year that an election be deemed, [former wife] cannot now obtain beneficiary status
with regard to [husband's] SBP." McCallister at 1119.
{¶ 37} The Virginia Supreme Court explained in Dugan why a constructive trust
cannot be imposed. In that case, the former spouse brought an equity proceeding against
the surviving spouse seeking imposition of a constructive trust over SBP annuity payments.
The divorce decree incorporated a property settlement agreement in which the husband
agreed to elect his former spouse as the beneficiary of the SBP annuity. The husband
remarried and changed the SBP beneficiary to his new wife. The trial court found him in
contempt, and he was ordered to change the beneficiary back to the former spouse. But
husband died without making the change, and his surviving spouse began receiving the
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benefits. The former spouse did not make a timely request for a deemed election. The
surviving spouse argued that the governing federal law preempted state law as to the former
spouse's entitlement to the SBP benefits and that the former spouse's failure to timely
request a deemed election barred her recovery based on a theory of constructive trust. The
supreme court agreed, finding the reasoning in King persuasive. The court emphasized
that King's conclusion is well supported, that "the consequences of enforcing the conflicting
state law principles sufficiently injure[s] the objectives of the SBP so that federal law
preempts the authority of state law." King at 383. To award the former wife the SBP
benefits, said the Virginia Supreme Court, "would seriously conflict with and effectively
cancel both the 'plain and precise' one-year limitation Congress placed on a former
spouse's right to claim the benefits and the clear prohibition against subjecting an annuity
to legal process." Dugan at 10. The court emphasized that "[t]he 'non-alienation' provision
[in 10 U.S.C. 1450(i)] would be sufficient alone to require a finding of preemption in this
case," saying that "other legal process" "encompasses the imposition of a constructive trust
upon annuity benefits." Id. The court pointed out that "[a] constructive trust is just as
effective in thwarting the purposes of an annuity as an execution, levy, attachment, or
garnishment, and the 'non-alienation' provision is intended to protect federal annuity
benefits from all such legal processes." Id.
{¶ 38} We find the reasoning in King, and its progeny, including Dugan, convincing.
Following those courts, we conclude that federal law governing SBP annuities preempts
Ohio state law as to a former spouse's right to claim entitlement to an SBP annuity. Thus,
the trial court could not provide Martha the relief that she seeks. It could not order that the
beneficiary of John's SBP annuity be changed or impose a constructive trust.
{¶ 39} Which is not to say that Martha is necessarily without recourse, but only to
say that if she is entitled to relief, it likely cannot come from a state court. As we have
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concluded, the matter of SBP beneficiaries is preempted by federal law. Federal law
provides that it is the Secretary of the military department concerned who may "correct or
revoke any election" "to correct an administrative error," 10 U.S.C. 1454(a), and may
"correct any military record" "to correct an error or remove an injustice," 10 U.S.C.
1552(a)(1). The latter correction is done through a civilian board within the military service,
whose decisions are "'are subject to judicial review [by federal courts].'" Clinton v.
Goldsmith, 526 U.S. 529, 538, 119 S.Ct. 1538 (1999), quoting Chappell v. Wallace, 462
U.S. 296, 303, 103 S.Ct. 2362 (1983). Cases in other states show that claims like Martha's
should be pursued under 10 U.S.C. 1552. In Ellison v. Ellison, 242 N.C.App. 386 (2015),
the court said that "[t]he ultimate decision of whether Plaintiff is designated the beneficiary
of the SBP continues to lie with DFAS." Ellison at 393. "Plaintiff will have to try and convince
the Board that correction of the relevant records to include her as the former spouse
beneficiary will 'correct an error or remove an injustice[.]'" Id., quoting 10 U.S.C. 1552(a)(1).
Similarly, in Bridges v. Bridges, 267 N.C.App. 511 (2019), the court said: "The decision on
whether to correct defendant's military records to show appellee as the SBP beneficiary lies
with the Board, not the trial court. The proper place for appellant to make her arguments
regarding appellee's alleged failure to timely request the designation, and regarding federal
preemption is not in our courts but before the board." Id. at 570. And in Alston v. Alston,
960 So.2d 879 (Fla.App.2007), after the former wife’s application for SBP benefits was
rejected as untimely, she sought relief from the Army Board for the Correction of Military
Records. Martha too should bring her SBP claim before the appropriate military Secretary.
{¶ 40} Whether because there is no genuine issue of material fact or because no
relief can be granted, summary judgment is appropriate on Martha's claim for the SBP
benefits. See Bailey v. Bailey, Case No. 1:13-CV-00039-DMB-DAS, 2014 WL 4716345
(N.D.Miss.2014) (holding that summary judgment was appropriate on similar facts).
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III. Conclusion
{¶ 41} Martha fails to convince us that the trial court erred by denying her summary
judgment and granting Marsha summary judgment. The sole assignment of error is
overruled. The trial court's judgment is affirmed.
BYRNE, J., concurs
PIPER, P.J., concurs in part and dissents in part.
PIPER, P.J., concurring in part and dissenting in part.
{¶ 42} The majority concludes Martha" "fails to convince" them, yet it is Marsha who
needs to demonstrate as a matter of law she is entitled to summary judgment. I concur in
Martha as movant not receiving summary judgment, therefore, I only address the
circumstances herein where Martha as the nonmovant had summary judgment awarded
against her. It is in this respect I disagree.
A. PRELIMINARY OVERVIEW
{¶ 43} My colleagues fail to address Marsha's initial burden in these summary
judgment proceedings, instead moving directly to examining whether Martha, as the
nonmovant for summary judgment, disproved the allegations levied against her.3 In so
doing, for the first time on appeal, the opinion of my colleagues constructs an argument,
previously forfeited in the trial court, that Martha's deposition testimony was objectionable
even though there was no objection. The reasoning of the construct then proceeds to label
Martha's testimony as "speculation" unworthy of considering it in favor of Martha, the
nonmoving party. ¶ 21-28 above.
3. The majority’s analysis spends considerable effort in isolating and dispelling Martha’s arguments as to why
she believes summary judgment shouldn’t be granted. Yet the analysis should begin with examining what
evidentiary support exists which support Marsha’s arguments (the moving party) as to why summary judgment
must be granted.
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{¶ 44} This construct ignores the fact that it was the moving party, Marsha's counsel,
asking the questions as if on cross, developing the testimony. The reasoning, not briefed
or argued on appeal, then concludes Martha's testimony is prohibited from consideration
because Martha was an incompetent witness and her testimony inadmissible. ¶ 25 above.
However, it must first be noted that summary judgment for either party is premature because
dueling allegations require more. There must be affirmative evidentiary support for their
respective allegations, which the record lacks.
{¶ 45} Furthermore, even assuming Marsha produced evidentiary support for her
summary judgment motion, Martha reciprocated by sufficiently raising genuine issues of
material fact disputing Marsha is entitled to summary judgment as a matter of law.
Reasonable minds could well conclude John's alleged misconduct is tantamount to fraud
such that it creates an exception to federal preemption. The majority opinion oversimplifies
the nature of John's misconduct then applies similar examples as dispositive. However, a
broader perspective of John's misconduct, not so narrowly construed, would find the facts
in those examples distinguishable and inapplicable.4
B. SUMMARY JUDGMENT REVIEW
{¶ 46} It is noted in the majority's opening analysis that Martha, as the nonmovant,
is entitled to have all facts construed most strongly in her favor. However, Martha has not
had the existing, albeit shallow, record construed most strongly in her favor.
{¶ 47} Summary judgment is to be used with caution resolving all doubts in favor of
the nonmoving party. This is because it precludes the nonmovant's access to a jury's
4. The majority simplifies Martha’s allegations as though the wrongful conduct she complains of is only "John’s
exercise of his power to make the change [of beneficiary]" and that she doesn’t allege the change of
beneficiary itself was fraudulent. ¶ 16 above. Yet, Martha makes it clear she considers John’s going to the
Florida court a second time seeking a reduction in the amount of support to be paid while knowing he was not
providing her support payments any protection, but concealing it from the Florida court, leading her, and the
Florida court, to believe protection was being provided, was misconduct resulting in conversion, fraud, and
breach of trust.
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determination upon a full presentation of the evidence for resolution of disputed issues.
State ex rel. Yost v. Settlers Walk Home Owners Assn., 12th Dist. Warren No. CA2021-11-
102, 2022-Ohio-3106, ¶ 24. Due to the nature of summary judgment as a truncated
proceeding, Ohio courts have routinely determined it must be used "sparingly." Id.
1. Movant has the Initial Burden before Shifting Burden to Nonmovant
{¶ 48} In Dresher v. Burt, 75 Ohio St.3d 280, 285 (1996), the question being
answered by the Ohio Supreme Court was, may "a court grant summary judgment when
neither the movant nor the non-movant provides evidentiary materials demonstrating that
there are no material facts in dispute and the movant is entitled to judgment as a matter of
law?" The answer was that a court may not grant summary judgment to a moving party in
the absence of supporting evidentiary materials. Id. at 296.
{¶ 49} The court's rationale determined that the moving party does not discharge its
initial burden with a mere assertion the other party has no evidence to prove its case. Id.
at 293. The moving party must specifically point to evidence that affirmatively demonstrates
the nonmoving party has no evidence to support its claims. Id. Only after the moving party
meets its initial burden does the nonmoving party have a reciprocal burden. Civ.R.56(E).
{¶ 50} "The forgoing principles have been firmly established in Ohio jurisprudence
for some time." Dresher at 294. The party moving for summary judgment must present
affirmative proof that the nonmovant cannot prove their claim before the nonmovant has a
burden to make an evidentiary response. Busch v. Premier Integrated Med. Assocs., Ltd.,
2d Dist. Montgomery No. 19364, 2003-Ohio-4709, ¶ 61-62; Bohl v. Travelers Ins. Group,
4th Dist. Washington No. 03CA68, 2005-Ohio-963, ¶ 19-20.
{¶ 51} Marsha, as the party seeking summary judgment, must discharge the initial
responsibility to identify depositions, answers to interrogatories, admissions, together with
any affidavits which demonstrate the absence of a genuine issue of material fact. Here
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Marsha merely makes accusations that Martha can't prove John's misconduct as being an
exception to preemption. Marsha attempts to characterize Martha's answers when being
deposed, yet Martha's responses are subject to interpretation and must be viewed in the
light most favorable to her. Marsha accuses Martha of not having proof of her claims, but
Martha doesn't receive a reciprocal burden based upon mere accusations. The majority
analysis neglects to address Marsha's initial burden before any burden shifting takes place.
{¶ 52} Marsha's argument, accepted in the majority's analysis, is that the
nonmovant, Martha, "had every opportunity to present evidence of fraud and failed to do
so." However, as movant for summary judgment Marsha needed to first affirmatively
establish the absence of fraudulent misconduct before Martha receives a reciprocal burden
to present evidence establishing the fraudulent misconduct. Marsha is not entitled to merely
rest upon her allegations.
{¶ 53} Similarly, when considering the Survivor Benefit Plan, Marsha merely argues
that Martha offered "no proof that an election was made under the statute." Again, the mere
challenge to Martha to prove an actual election timely occurred does not place a Civ.R. 56
(E) reciprocal burden upon Martha. Marsha's arguments that minimize the significance or
meaning of Martha's responses fail to meet Marsha's initial burden as the moving party.5
{¶ 54} The majority finds Martha's deposition testimony meaningless because her
testimony relates "a statement other than one made by the declarant." ¶ 24 above. Yet,
Martha repeatedly indicated her attorney sent, and received a response, and that the
necessary paperwork was done on her behalf. She spoke of acts she had her attorney
perform for her, not of statements from another. Furthermore, Martha was never asked the
5. When questioned about making the appropriate election, giving notice of her claim, Martha said, "Sir, I have
an attorney that did all that paperwork for me.…My attorney did it, sir." Dep.11. Marsha’s counsel asked
follow up questions regarding the same subject wherein Martha answered, "My Florida attorney handled all
that paperwork, yes, sir." Dep.13. However, the majority seems skeptical, saying, "There is only her
testimony." ¶ 22 above. For summary judgment purposes, her testimony is sufficient.
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basis of her knowledge. In sua sponte excluding Martha's testimony, the majority does not
take into account that the testimony was actually elicited by Marsha's counsel. The majority
instead speculates as to whether Martha had personal knowledge supporting what her
attorney did for her but ignores that Martha was never asked what the basis of her testimony
was.
{¶ 55} In asking her attorney to send a letter on her behalf, the only reasonable
inference is that the letter was sent. When it came out at the deposition a letter existed
from the Florida attorney, Marsha's counsel formally requested a copy of it. Marsha
emphasizes that neither party has made the letter part of the record, yet the letter's
existence remains undisputed.
{¶ 56} The majority's construct undermining Martha's deposition testimony
acknowledges that Marsha's counsel never objected nor moved to strike the testimony he
himself developed. Marsha instead switches arguments saying that Martha must prove the
military Secretary received it timely. However, Marsha produced nothing supporting the
notion Martha's election was not received, or if received was untimely. Therefore, there
was no reciprocal burden placed upon Martha. Marsha could easily have solicited
information in discovery to support her accusations. She did not.
{¶ 57} In dismissing Martha's testimony as incompetent, the majority speculates as
to Martha's personal knowledge thereby negating the weight and credibility given to
Martha's testimony. The majority finds support for declaring Martha an incompetent witness
because Martha testified that she did "believe" her attorney did all the proper paperwork. ¶
26 above. In further cross-examining Martha, the attorney interjected the word "believe"
several times which the majority analysis determines means Martha didn't really know the
truth of what she was testifying to. I find this hyper-technical assumption a roundabout way
of weighing the testimony or judging her credibility. Such would be improper in appellate
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review of summary judgment proceedings. Turner v. Turner, 67 Ohio St.3d 337, 341 (1993).
2. Federal Preemption Law Not Supportive of Summary Judgment
{¶ 58} The majority opinion leans heavily on Yiatchos and Ridgway but neither case
dealt with summary judgment. Yiatchos v. Yiatchos, 376 U.S. 306, 84 S.Ct. 742 (1964);
Ridgway v. Ridgway, 454 U.S. 46, 102 S.Ct. 49 (1981). Both opinions discussed more the
initial application of preemption to state law and not the circumstances that define fraud, or
a breach of trust tantamount to fraud. Neither case defines what circumstances are
tantamount to fraud necessary for an exception to preemption. Significantly, the Yiatchos
court remanded the case to develop a factual record on whether the conduct was
tantamount to fraud qualifying as an exception to preemption. Yiatchos at 310, 313. This
case is no different and requires a remand as well.
3. Allegations Don't Satisfy Burden nor Shift Burden to Opposing Party
{¶ 59} As the party not moving for summary judgment, Martha possessed no burden
of producing demonstrative evidence in response to bare allegations. Marsha produced no
evidentiary material that Martha's attorney did not send a letter on Martha's behalf nor that
the letter was not received untimely. Similarly, Marsha produced no evidentiary material
which demonstrated that Martha cannot prove John's conduct was a breach of trust
tantamount to fraud. Thus, at such an undeveloped stage of summary judgment
proceedings, no reciprocal burden shifted to Martha. The majority failed to properly apply
Dresher v. Bert as Martha requested in her brief.
C. EXCEPTION TO PREEMPTION
{¶ 60} In Florida, to the extent necessary to protect an award of alimony the trial
court may order the obligor maintain existing life insurance, purchase life insurance, or
otherwise secure the alimony award with other assets. Fla.Stat. 61.08(3). The trial court is
authorized by sections 61.08(3) and 61.13(1)(c) to require the purchase or maintenance of
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life insurance to secure the award of alimony support. Evidentiary findings are required of
the special circumstances justifying the court's order. Kotlarz v. Kotlarz, 21 So.3d 892, 893
(Fla.App. 2009). In the instant case, Marsha acknowledges John was in arrears even
before he completely quit paying his support obligations in 2016. Therefore, the Florida
court's order to protect Martha's support award was appropriate foresight.
{¶ 61} There are numerous cases as examples cited by the majority supporting their
determination that John's deceptive conduct would not be recognized as an exception to
preemption. ¶ 7-10 above. All those cases, however, lack similar factual circumstances,
and none are binding authority. The attempt to define the extent of John's misconduct, and
whether it was fraudulent or a breach of trust tantamount to fraud, further illustrates that
summary judgment as a matter of law was inappropriate. The record demonstrates John's
misconduct was the very definition of fraud: the intentional deception or concealment to
secure unfair or unlawful gain or to deprive another of a legal right. Black's Law Dictionary
(6th Ed.1990). Importantly, the record must be construed, and all inferences made, in favor
of the nonmoving party, Martha. Hall v. Tucker, 4th Dist. Jackson No.04CA2, 2005-Ohio-
2674, ¶ 35.
1. No Definition for "Breach of Trust Tantamount to Fraud"
{¶ 62} In order to limit the circumstances that would create an exception to
preemption, the majority suggests that Metropolitan Life Ins. Co. v. Christ, 979 F.2d 575,
581 (7th Cir.1992), determines that Ridgway provides guidance that fraudulent conduct
must involve the victim's own property. However, on that point, Metropolitan Life v. Christ
only references a footnote in Ridgway which was dicta. The footnote was simply an attempt
to diminish Justice Powell's dissent which argued that preemption did not apply.
Furthermore, dicta is not authoritative and not instrumental to substantive law. Gissiner v.
Cincinnati, 1st Dist. Hamilton Co. No. C-070536, 2008-Ohio-3161, ¶ 15; State v. Gwynne,
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158 Ohio St.3d 279, 2009-Ohio-4761, ¶ 21 (Justice Kennedy concurring joined by Justice
DeWine, determining dicta should not be used by reviewing courts in establishing legal
precedent).
{¶ 63} In Metropolitan Life Ins. Co. v. Christ there was a simple failure to designate
a beneficiary. It did not involve circumstances where a dissolution resulted in the
irrevocable maintenance of existing life insurance to protect an alimony award, with a
subsequent appearance before the court concealing that the previous order had already
been breached. The only reasonable inference from the proceedings is that John knew in
seeking a reduction of the alimony support the court would simultaneously reduce the
amount of insurance required to protect the reduced amount. The truth was concealed from
the court—all of this orchestrated with an intention not to provide any insurance, from any
policy, for the former spouse. Clearly a design to deprive her of the right for protection of
her alimony support. Metropolitan Life Insurance v. Christ with its reference to the victim's
own property has little to offer in evaluating whether John's misconduct was a breach of
trust tantamount to fraud or his conduct comprised a fraudulent misrepresentation.
{¶ 64} The United States Supreme Court has acknowledged that federal law was not
to be used "as a shield for fraud or to prevent relief where the circumstances manifest fraud
or a breach of trust tantamount thereto * * *." Yiatchos, 376 U.S at 307. Later, the Ridgway
court considered whether the misconduct supported a claim of conversion. Ridgway, 454
U.S. at 58. The court did not limit itself to a strict and narrow interpretation of fraudulent
misconduct; it specifically broadened its consideration to include conversion as conduct
tantamount to fraud. With no definition of what constitutes an exception to preemption,
Martha's claims should have survived a premature motion for summary judgment.
{¶ 65} Circumstances must not be interpreted to favor implied preemption because
there is a legitimate state interest in avoiding unintended encroachment on the authority of
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the state. Therefore, a presumption against preemption is the proper starting place for any
analysis. Jenkins v. James B. Day & Co., 69 Ohio St.3d 541, 544, 1994-Ohio-63. Similarly,
exceptions must not be so narrowly interpreted with such disfavor as to actually favor
preemption. See State ex rel. Yost v. Volkswagen Aktiengesellschaft, 165 Ohio St.3d 213,
2021-Ohio-2121; and State v. Warner, 55 Ohio St.3d 31, 68 (1990) (security fraud
encompasses violations tantamount to fraud).
{¶ 66} At least one Ohio court has determined there is a rebuttable presumption
against preemption, and when considering "fraud or breach of trust tantamount thereto"
preemption can be avoided and a state remedy appropriate when "[f]or example such as
the case where the insured has been coerced or unduly influenced in his or her selection
of a beneficiary * * *." Concepcion v. Concepcion, 131 Ohio App.3d 271, 280-282 (3rd Dist.
1999). Factual scenarios of misconduct that qualify as an exception to preemption should
not be so narrowly interpreted as to favor preemption. When the degree of misconduct is
factually disputed, the exception should not be determined in summary judgment
proceedings as a matter of law.
{¶ 67} Both the trial court and the majority herein cite Metro. Life Ins. Co. v. McMorris,
786 F.2d 379, 380 (10th Cir.1986) as being most like John's misconduct. Yet, in McMorris,
the "fraud" was simply a beneficiary change after there had been a prior state order with a
different named beneficiary. There was no insurance in existence to be irrevocably
maintained to protect alimony support. There was no subsequent appearance in court to
lower the amount of alimony resulting in a reduction of the protective insurance. There was
no prehearing manifested intention not to provide any insurance no matter what the court
ordered at the hearing. Deception was employed so that additional insurance would not
have to be purchased. The circumstances in McMorris are more like those in Metropolitan
Life ins. Co. v. Christ and they offer little insight to defining the circumstances considered a
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breach of trust tantamount to fraud.
{¶ 68} It is undisputable Yiatchos indicates conduct tantamount to fraud can be an
exception to preemption. It is also undisputable that simply designating a beneficiary
different from the beneficiary ordered in a state decree may not alone amount to fraud. But
here the circumstances are surrounded in a different light. The majority portrays an
unnecessarily limited perception of John's misconduct, suggesting there "is not fraud in the
beneficiary change per se." Applying an overly simplified characterization of John's
misconduct is problematic due to reasonable inferences that arise from the Florida hearing.
What occurred here is more than a mere switch in beneficiary designation. John didn't want
to be ordered to purchase additional insurance, so he concealed his contempt of court and
perpetrated a falsehood.
{¶ 69} In Florida state law when alimony is awarded the court also may order the
purchase, or maintaining, of insurance to protect future payment of alimony. Because John
had his veteran's life insurance already in place at the time of the initial order with Martha
as beneficiary, the court had no need to order an additional policy. The dissolution resulted
in the existing insurance to be maintained "irrevocably" protecting owed alimony payments.
John subsequently changed the beneficiary designation to his current wife, Marsha; the
only reasonable inference is John concealed the fact he dropped the insurance to protect
her support. John obtained a court reduction of the amount he was obligated to pay Martha
in alimony and a reduction of the amount of life insurance to be maintained. He did this
knowing he was never going to maintain any insurance protecting the alimony because
despite the court's order, he had already terminated her protection.
{¶ 70} John deceived the court, and Martha, by fraudulently concealing he had
already dropped Martha as beneficiary. Had the truth not been concealed, the Florida court
would have ordered a separate life insurance policy on Martha's behalf to protect her future
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alimony payments. John's plan required he conceal the truth from the court in order to
benefit his current wife, yet to the detriment of his former wife, and in defiance of the Florida
court's order. The scenario here is distinguishable from those in McMorris and the other
cases cited by the majority. A reasonable person could easily find John's conduct was
fraudulent or a breach of trust tantamount to fraud.
{¶ 71} Any insinuation John had no obligation to be truthful when seeking a review
by the Florida court would be disturbing. John knew he had already deleted Martha as
beneficiary from the veteran's policy and that he had no intention of purchasing a separate
policy to comply with the court's order protecting the alimony payments. The integrity of
judicial decisions with a mission of fairness cannot acquiesce to silent deception or
gamesmanship aimed at thwarting that very mission. Those appearing before the court,
whether in person or on paper, are obligated to be completely truthful. John's misconduct
in seeking his best advantage required deceiving the court, and Martha, and could
reasonably be considered fraudulent or a breach of trust tantamount to fraud. Changing
beneficiaries may have merely been conduct evidencing a contempt of the Florida court's
initial order, but appearing before the court subsequently to obtain further modifications,
while withholding information known only to John, has the strong inference of fraudulent
concealment. Obviously, if John had disclosed to the court he was no longer protecting
Martha's support payments with the veterans policy , the court would have ordered a new,
separate policy be purchased in its place.
2. No Relevance to the Issues at Hand
{¶ 72} My colleagues suggest the result of these proceedings is not "as harsh as it
might seem" because Martha "sat on her hands" and hadn't "asserted her right to proof." ¶
17 above. Yet they fail to observe Martha's financial resources were lacking since payment
of her alimony support was erratic and then completely stopped in 2016. Whether she was
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distracted by other concerns, trusted John, or desired as little contact as possible, is not
relevant. Regardless, Martha's failure to hire an attorney doesn't mitigate the result of
John's hurtful gamesmanship involving fraudulent concealment.
D. SURVIVOR BENEFITS
{¶ 73} Marsha as the moving party claims that here was no proof offered by Martha
that a timely election was made to, or received by, the appropriate military Secretary
pursuant to 10 U.S.C. 1450(f)(3)(A). In supporting this argument Marsha, as does the
majority, interprets Martha's responses against Martha, instead of in her favor. Yet as
addressed previously, Martha has no reciprocal burden to prove anything until Marsha
offers proof supporting her allegation.
{¶ 74} Marsha cannot merely allege Martha's election for benefits was untimely and
demand Martha to prove differently. Both parties have a letter on the subject from Martha's
Florida attorney (confirmed at oral argument) and neither admitted it into the record. But it
is the movant that has the initial burden of producing evidence as to its untimeliness before
the nonmovant has a reciprocal burden.
1. The Election for Benefits
{¶ 75} If Martha acknowledged during her deposition no election letter was sent, or
if she had given an untimely date it was sent, Marsha would have met her initial Civ.R. 56(E)
burden. But these questions were not asked and the answers cannot be assumed. There
were no interrogatories, requests for admissions, or depositions eliciting support for
Marsha's allegations. In negating Martha's deposition testimony that she had her attorney
make the election regarding her claim for benefits, the majority concludes "Martha's
testimony lacks a permissible basis". ¶ 27 above. Respectfully, such conclusion is a
mistake in contravention of the requirement that appellate review consider summary
judgment evidence most favorably for the nonmoving party.
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{¶ 76} Marsha suggests that Martha did not make her election personally. The fact
that her attorney presented her claim on her behalf is of no consequence. Legal
jurisprudence has long recognized attorneys act as professional representatives for those
they serve. If we were to trample into the weeds, it's notable the statute does not require
the claim be presented personally–the purpose of sending a letter claiming entitlement is to
identify the claimant and put the governmental agency on notice. No authority has been
presented suggesting legal counsel cannot fulfill this purpose on behalf of the client;
therefore, we should not be persuaded differently.
2. No Authority to Grant Relief
a) Preemption may not apply due to exception
{¶ 77} The majority also sua sponte holds that summary judgment is correct because
the trial court had no authority to provide relief. This clearly places the cart before the horse.
Yiatchos specifically indicated that when the circumstances manifest fraud or a breach of
trust tantamount thereto, relief is not to be withheld. The first step in seeking that relief is
determining if an exception to preemption exists. Recognizing this, the parties by
agreement are having the funds placed in a trust account. The majority opinion presumes
no exception to preemption exists and speculates Martha faces a dead-end path. Yet the
road takes a significant turn if preemption does not occur because an exception to
preemption applies. An equitable constructive trust is a viable remedy.
b) Cited law also presumes no exception to preemption
{¶ 78} The majority opinion finds cases from other jurisdictions convincing, yet few
involve an exception to preemption. The cases cited are distinguishable, and none binding
authority. None of those cases involve circumstances where a former spouse was owed
significant arrears in alimony support, had a right to protection, and the obligor return to
court knowing he had already cancelled the insurance protection, in defiance of the court,
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and had no plans to provide the protection in the future. None of these cases involve a
person sitting silently before a court so that the court would reach a decision that couldn't
be fulfilled.
{¶ 79} In considering whether John's gamesmanship was a fraudulent concealment
or a breach of trust tantamount to fraud and thus an exception to federal preemption, we
should look for consistency in the federal statutory scheme. Where federal law
contemplates that those who are the victim of deceit should be compensated their actual
loss, 18 U.S.C. 3663A(c)(1)(A)(ii), an equitable remedy should do no less. Deceptive
gamesmanship when before a court is not to be rewarded and rightfully fears an equitable
remedy.
{¶ 80} John's lack of significant employment, and later health problems resulting in
death, gain my sympathies. Yet his decisions alone placed him between the proverbial rock
and a hard place. The Florida court was receptive to his declining financial situation once,
and a prudent, law-abiding person would have approached the court with clean hands
seeking further relief. John did not; he was content to abandon Martha's protection for
alimony support in defiance of the court and conceal the truth from the court.
c) Constructive trust – a relief not litigated
{¶ 81} The majority determines, although not briefed or litigated herein, that Ohio
courts have no relief available to Martha. ¶ 38 above. However in Metro Life Ins. Co. v.
Mulligan, 210 F.Supp.2d 894, 900 (E.D.Mich.2002), the court cited a Sixth Circuit decision
indicating "[t]he determination of whether a constructive trust should be imposed is a fact-
specific inquiry. The Court may not resolve competing factual claims at the summary
judgment stage." Id., citing Rodgers v. Monumental Life Ins. Co., 289 F.3d 442, 449 (6th
Cir.2002).
{¶ 82} The suggestion a constructive trust may not be imposed was refuted in Kent
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v. Klein, 352 Mich. 652, 657 (1958), where the court determined: "fraud in the inception we
do not require, nor deceit, nor chicanery in any of its varied guises, for it is enough that it
[the constructive trust] be unconscionably withheld." Similarly, "as noted previously, fraud
is not required in order for a court to impose a constructive trust." Fischbach v. Mercuri,
184 Ohio App.3d 105, 2009-Ohio-4790, ¶ 92 (2d Dist.).
{¶ 83} The anti-alienation provision referenced by the majority precludes imposition
of a constructive trust before distribution of benefits, but does not prohibit imposition of a
constructive trust after the benefits are paid to the beneficiary. While ERISA has a similar
anti-alienation provision, an Ohio court quoted Partlow v. Person, 798 F.Supp.2d 878, 881
(E.D.Mich.2011), indicating "[t]he law recognizes a distinction between a plan
administrator's obligation to pay over benefits to a named beneficiary and the beneficiary's
entitlement to keep those funds thereafter." Fletcher v. Estate of Fletcher, 11th Dist. Lake
No. 2013-L-084, 2014-Ohio-5377, ¶ 26. Thus, a constructive trust is indeed an appropriate
remedy.
d) Lack of relief not argued before the trial court or briefed on appeal
{¶ 84} Simply put, the trial court's authority to provide relief, or a remedy, was not
briefed or argued neither before the trial court in support of summary judgment nor on
appeal. The Ohio Supreme Court has cautioned appellate courts that if resolution of an
issue is to be premised on law not briefed or argued, the parties must have an opportunity
to brief the law. State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 21, quoting State v.
1981 Dodge Ram Van, 36 Ohio St.3d 168, 170 (1988) ("[A]ppellate courts should not decide
cases on the basis of a new, unbriefed issue without 'giv[ing] the parties notice of its
intention and an opportunity to brief the issue'"). Furthermore, the argument is forfeited for
appellate review purposes if not argued before the trial court. Capital Real Estate Partners,
LLC v. Nelson, 12th Dist. Warren Nos. CA2018-08-085 and CA2018-08-094, 2019-Ohio-
- 36 -
Butler CA2021-12-165
2381, ¶ 23. Therefore, appellate review missteps in determining summary judgment is
appropriate because there is no available relief to be offered by Ohio courts.
E. CONCLUSION
{¶ 85} There is a reason Martha requested we review and apply Dreshner v. Burt,
and it has been demonstrated there was good reason. The record is absent evidentiary
materials necessary to proceed with summary judgment. Dueling allegations are simply
insufficient to satisfy legal determinations in summary judgment proceedings. Therefore, I
would affirm the trial court in denying summary judgment against Marsha, but would reverse
the trial court in granting summary judgment against Martha.
{¶ 86} Furthermore, when considering an exception to preemption the phase "fraud
or breach of trust tantamount thereto" was not meant to deprive relief from deceptive
misconduct. The phrase "fraud or breach of trust tantamount thereto" does not exclude
from consideration scenarios other than those found in existing case law, but rather includes
various scenarios for consideration as they may arise. With no binding authority containing
similar facts and circumstances, I would reverse and remand, like the court in Yiatchos, for
the parties to develop the record as to whether the circumstances create an exception to
preemption.
- 37 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482146/ | [Cite as In re E.T., 2022-Ohio-3963.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
IN RE: : CASE NO. CA2022-07-011
E.T., et al. : OPINION
11/7/2022
:
:
:
:
APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. 18719; 18720; 18721
Kirsten Knight, for appellant.
David Fierst, for appellee.
Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant
Prosecuting Attorney, for Preble County Children Services.
Jill E. Hittle, guardian ad litem.
M. POWELL, P.J.
{¶ 1} Appellant Mother appeals from the decision of the Preble County Juvenile
Court awarding permanent custody of her minor children to appellee Preble County
Department of Job and Family Services (PCDJFS). We find no merit in Mother's
Preble CA2022-07-011
assignment of error, so we affirm.
Factual and Procedural Background
{¶ 2} PCDJFS initially filed a dependency complaint in August 2019 and obtained
temporary custody of Mother's three minor children. That case was dismissed due to
statutory time constraints. In June 2021, PCDJFS refiled the complaint, along with a
request for permanent custody of the children. At Mother's request, and after she had
submitted an affidavit of indigency, the trial court appointed her counsel. The following
September, the trial court filed an entry stating that PCDJFS had decided to pursue only
temporary custody and terminating the appointment of Mother's counsel. The entry noted
that "[t]he parents may petition the Court for reappointment of counsel anytime during the
pendency of the case should they feel it is warranted. They will be required to submit a
current Affidavit of Indigency with their request."
{¶ 3} PCDJFS soon changed its mind on custody. On October 11, 2021, the
agency filed a motion for permanent custody of the children. The next day, the trial court
scheduled an initial hearing on the motion. The scheduling entry stated that the parents
have the right to counsel, including appointed counsel, and that the Juvenile Deputy Clerk
should be contacted to arrange for appointment. Later that month, Mother was served with
a summons, which also stated that she was entitled to court-appointed counsel.
{¶ 4} On November 9, the trial court held an initial permanent custody hearing. An
entry filed by the court a few days later stated that Mother had been present at the hearing,
that the court had notified her of her right to counsel and her right to be appointed counsel,
and that Mother had indicated that she understood. The entry further stated that Mother
had asked the court to appoint counsel for her and that the court had instructed her to
complete a financial affidavit and return it within seven days. The trial court did not hear
from Mother again for several months.
-2-
Preble CA2022-07-011
{¶ 5} In January 2022, a pretrial hearing was held, which Mother did not attend.
The following month, on February 14, a permanent custody dispositional hearing was held.
A couple of hours before the hearing, the court received a phone call from Mother's adult
daughter who said that Mother was on her way to an outpatient rehabilitation facility and
would not attend the hearing. After the trial court announced this at the start of the
dispositional hearing, Father moved for a continuance. The court declined to continue the
hearing.
{¶ 6} Two months after the dispositional hearing, the trial court received a letter
from Mother saying that she had been unable to attend the hearing because she was in the
hospital. Mother asserted in the letter that she should have proper representation by
counsel and should be part of the permanent custody decision. But it was not until June
14, four months after the hearing, that Mother finally submitted the required affidavit of
indigency.
{¶ 7} On June 17, 2022, the trial court granted PCDJFS's motion and awarded the
agency permanent custody of the children.
{¶ 8} Mother appealed.
II. Analysis
{¶ 9} The sole assignment of error alleges:
{¶ 10} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
PREBLE COUNTY CHILDREN'S SERVICES BECAUSE THE COURT FAILED TO
PROVIDE COUNSEL TO MOTHER FOR THE PROCEEDING.
{¶ 11} Mother argues that the trial court should have provided her with counsel for
the permanent custody proceeding.
{¶ 12} The "parent-child bond" is "extremely important and when the state attempts
to permanently terminate the relationship between a parent and child, the parent '"must be
-3-
Preble CA2022-07-011
afforded every procedural and substantive protection the law allows."'" In re R.K., 152 Ohio
St.3d 316, 2018-Ohio-23, ¶ 5, quoting In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In
re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). Ohio law provides that "a parent has the
right to counsel at a permanent custody hearing, including the right to appointed counsel if
the parent is indigent." Id., citing R.C. 2151.352 and Juv.R. 4(A). But "the parent generally
must comply with certain procedures to secure counsel." In re M.S., 9th Dist. Summit No.
30164, 2022-Ohio-1579, ¶ 15. "When the parent is notified about the procedures for
obtaining court-appointed counsel but fails to comply with those requirements, the trial court
does not err in failing to appoint counsel." Id., citing In re Careuthers, 9th Dist. Summit No.
20272, 2001 WL 458681, *4 (May 2, 2001). See also In re P.H., 11th Dist. Trumbull No.
2018-T-0093, 2019-Ohio-418, ¶ 29 (concluding that "the [trial] court did not deny [the father]
counsel; [he] failed to accept counsel by not complying with the process by which counsel
is appointed"); In re T.N., 5th Dist. Delaware No. 19 CAF 02 0016, 2019-Ohio-2142, ¶ 20
("Appellant's failure to request counsel prior to November 15 after receiving several notices
of her right to do so, does not support her contention that her due process rights were
violated."); In re Ramsey Children, 102 Ohio App.3d 168, 170 (5th Dist.1995) (concluding
that the mother, who did not make contact with the public defender's office until her children
had been adjudicated, "was not denied her statutory right to counsel * * * but was notified
of her rights and did not pursue them").
{¶ 13} One of the requirements for obtaining appointed counsel is the submission of
an affidavit of indigency. In re E.T., 9th Dist. Summit No. 23017, 2006-Ohio-2413, ¶ 85
("Juvenile court procedures require that one who wishes appointed counsel must complete
an affidavit of indigency with the appropriate court employee."), citing R.C. 2151.314(D). It
follows, then, that if a parent has been notified of the indigency-affidavit requirement but
fails to timely comply, a court is not obligated to appoint counsel, and there is no denial of
-4-
Preble CA2022-07-011
the statutory right to counsel or denial of due process. In re M.S. at ¶ 15; In re T.F., 4th
Dist. Pickaway No. 07CA34, 2008-Ohio-1238; In re E.T. at ¶ 85 ("Where an individual has
been notified of the procedures to be followed in order to obtain appointed counsel, but fails
to make proper and timely application for counsel, as here, there is no denial of the effective
assistance of counsel."). For example, in In re Careuthers the mother contended that the
trial court had erred by holding an adjudicatory and then a dispositional hearing in the
absence of appointed counsel. "Juvenile court procedures," said the appellate court,
"require that one who wishes appointed counsel must complete an affidavit of indigency[.]"
In re Careuthers at *3, citing R.C. 2151.314(D). The mother had failed to submit an affidavit.
The record showed that before the hearings she had been notified of this requirement. She
had been served with a summons stating the procedures to obtain appointed counsel, and
a magistrate decision also stated the procedures. "Where the mother is notified of her
rights, but fails to pursue them," said the court, "she has not been denied her statutory right
to counsel." Id. at *4. "Therefore," the court concluded, "because [the mother] failed to
comply with the established procedures, the trial court was not required to appoint counsel
for her." Id. The case In re T.F. provides another relevant example. There, the father
contended that the trial court had denied him his due process rights by determining the
permanent custody action without his presence and without appointing counsel to represent
him. The record showed that the father had been served with the motion for permanent
custody and a notice of the hearing and that the summons stated how to obtain appointed
counsel. "Ohio courts hold," said the appellate court, "that where a parent is provided notice
of his or her 'right to counsel, but fails to pursue it, [the parent] has not been denied [the]
statutory right to counsel.'" In re T.F. at ¶ 15, quoting In re Williams, 10th Dist. Franklin No.
03AP-1007, 2003-Ohio-678, ¶ 13. The father had been provided notice of his right to
counsel during the proceedings, said the court, "but he never availed himself of that right."
-5-
Preble CA2022-07-011
Id. at ¶ 16. Therefore, the court concluded, the father "was not denied his due process right
to counsel." Id.
{¶ 14} In the present case, the record shows that Mother knew what she needed to
do to obtain court-appointed counsel. Most telling is that she had complied with the
procedures and had been appointed counsel earlier in the case. Even after her first
counsel's appointment was terminated, Mother was told directly and notified several times
of her right to appointed counsel and the procedures that she needed to follow to obtain
court-appointed counsel, including the submission of an affidavit of indigency. The first
notice came in the entry terminating the original appointment of counsel. Then, after
PCDJFS moved for permanent custody, and before the final permanent custody hearing,
Mother was notified several more times. The scheduling entry setting the date of the initial
permanent custody hearing stated that she had the right to be appointed counsel and stated
who she needed to contact to arrange for appointment. And the summons served on
Mother with the permanent custody motion stated that she was entitled to appointed
counsel. In addition, at the initial permanent custody hearing, the trial court told Mother
directly that she had the right to counsel for the proceeding and the right to be appointed
counsel. When Mother asked for an appointment, the court instructed her to submit an
indigency affidavit. As the trial court told it at the dispositional hearing:
On November 9th, the mother appeared. * * * I talked to her
about the need to ask for an attorney immediately if she wanted
one. We were clear that her previous attorney, because I
believe this was a refiled case on the more recent dependency,
technically terminated at the time of that and though that she
was entitled to an attorney on the motion for permanent custody,
again, that was November 9th. I do not believe that we had
seen mom since.
Yet, it was not until four months after the dispositional hearing that Mother finally got around
to filing her affidavit. By then, it was too late. Mother asserts that she did not understand
-6-
Preble CA2022-07-011
that she had to ask for an attorney a second time. But this assertion is plainly belied by the
record.
{¶ 15} As a final matter, though Mother does not expressly assign error to it, we
briefly consider the trial court's decision not to continue the dispositional hearing. A court
"may continue [a] case to enable a party to obtain counsel * * * or to be appointed counsel."
R.C. 2151.353; see also Juv.R. 23. The trial court's decision not to do so here was not an
abuse of discretion. See State v. Unger, 67 Ohio St.2d 65 (1981), syllabus ("The grant or
denial of a continuance is a matter that is entrusted to the broad, sound discretion of the
trial judge.").
{¶ 16} At the start of the dispositional hearing, Father moved for a continuance. In
response, PCDJFS pointed out that Mother had not requested a continuance and no
documentation had been submitted to the court, and argued that "it's her choice whether to
be here or to enter treatment at this time. And her choice not to be here is not a justification
to further set out this hearing." The trial court agreed with the agency:
* * * I'm not going to [grant a continuance] today because I just—
this has been pending. We had service in October. It is
February. * * *
But that's not even the reason, you know, I'm declining to
continue it. It's that it has been two-plus years. The kids need
some closure * * *.
* * * October to January was sufficient time to ask for an
attorney, and frankly it's just a situation we've got to do the best
we can do. And this is the best we can do.
{¶ 17} We note first that PCDJFS is right that Mother never sought a continuance of
the dispositional hearing. When her daughter called the trial court to say that Mother would
not be at the hearing, the daughter did not ask for a continuance. Nor may the telephone
call be construed as a request for a continuance, because the daughter is not an attorney
and may not take such legal action on Mother's behalf. See Cleveland Bar Assn. v.
-7-
Preble CA2022-07-011
CompManagement, Inc., 111 Ohio St.3d 444, 2006-Ohio-6108, ¶ 22 (defining the
unauthorized practice of law). We recognize that Mother had a significant interest in being
represented at the hearing. But it was plainly her own fault that she wasn't. Furthermore,
Mother did not take the necessary steps to obtain representation for four months after the
hearing. We see no abuse of discretion with the trial court's decision to proceed with the
dispositional hearing.
III. Conclusion
{¶ 18} The trial court did not deny Mother her right to counsel; Mother failed to trigger
her right to appointed counsel by not complying with the appointment procedures. Mother
knew that she needed to file an affidavit of indigency to obtain appointed counsel, having
done so before and having been notified of the requirement numerous times. She did not
comply with this requirement until late in the permanent custody proceedings, making her
earlier lack of counsel her own fault. The sole assignment of error is overruled. The trial
court's judgment is affirmed.
HENDRICKSON and BYRNE, JJ., concur.
-8- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482131/ | [Cite as State v. Walker, 2022-Ohio-3975.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2022-T-0035
Plaintiff-Appellee,
Criminal Appeal from the
- vs - Court of Common Pleas
JEFFREY T. WALKER, JR.,
Trial Court No. 2021 CR 00921
Defendant-Appellant.
OPINION
Decided: November 7, 2022
Judgment: Affirmed
Dennis Watkins, Trumbull County Prosecutor, and Ryan J. Sanders, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Jeffrey Walker, Jr., appeals his sentence after pleading guilty to
one count of Failure to Comply with Order or Signal of a Police Officer, a third-degree
felony, in violation of R.C. 2921.331(B), (C)(1), and (5)(a)(ii). Specifically, Appellant
contends that the trial court erred by: 1) transferring the case to a different judge on the
day of sentencing; and 2) not fully considering the purposes and principals of felony
sentencing. For the following reasons, we affirm the judgment of the Trumbull County
Court of Common Pleas.
{¶2} In January 2022, Appellant plead guilty to one count of Failure to Comply
with Order or Signal of a Police Officer. The court accepted the guilty plea. Judge Kontos
presided over the plea hearing.
{¶3} A sentencing hearing was held in April 2022. On the day of the sentencing
hearing, the court entered a judgment entry on the docket notifying the parties that the
case was being transferred from Judge Kontos to Judge Rice “due to unavailability” of
Judge Kontos. The judgment entry was signed by the administrative judge.
{¶4} At sentencing, the court asked Appellant, “Is there any reason you can think
of why we should not accept - - do your sentencing today?” Appellant made no objections,
other than stating that he didn’t “deserve really anything” for his actions. The court
proceeded to sentencing and stated that it “has considered the overriding principles and
purposes of felony sentencing, and further considered all relevant seriousness and
recidivism factors.” The court sentenced Appellant to twenty-four months in prison and a
three-year driver’s license suspension.
{¶5} Appellant timely appealed and raises two assignments of error.
{¶6} First assignment of error: The trial court erred when it transferred the case
from Judge Kontos to Judge Rice on the day of sentencing.
{¶7} Appellant first contends that it was improper to transfer the case from the
assigned judge to another judge for sentencing. Specifically, Appellant argues that but
for the transfer, his sentence may have been different.
{¶8} Crim.R. 25(B) provides, “If for any reason the judge before whom the
defendant has been tried is unable to perform the duties of the court after a verdict or
2
Case No. 2022-T-0035
finding of guilt, another judge designated by the administrative judge * * * may perform
those duties.”
{¶9} As a preliminary matter, we note that Appellant failed to raise any of these
arguments at the sentencing hearing, particularly, after the court asked Appellant if there
was any reason why it should not proceed with sentencing that day.
{¶10} “It is a well-established rule that ‘“an appellate court will not consider any
error which counsel for a party complaining of the trial court's judgment could have called
but did not call to the trial court's attention at a time when such error could have been
avoided or corrected by the trial court.”’” State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 15, quoting State v. Awan, 22 Ohio St.3d 120, 122, 489
N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968),
paragraph three of the syllabus.
{¶11} The Ohio Supreme Court has explained that “‘[A]ny party objecting to a
reassignment must raise that objection at the first opportunity to do so. If the party has
knowledge of the transfer with sufficient time to object before the new judge takes any
action, that party waives any objection to the transfer by failing to raise that issue on the
record before the action is taken.’” In re Disqualification of Cirigliano, 105 Ohio St.3d
1223, 826 N.E.2d 287, ¶ 26 (2004), quoting Berger v. Berger, 3 Ohio App.3d 125, 131,
443 N.E.2d 1375 (8th Dist.1981), overruled on other grounds.
{¶12} Thus, we review this assignment under plain error. State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-22. Plain error arises only when
“but for the error, the outcome of the trial clearly would have been otherwise” and should
be noticed “with the utmost caution, under exceptional circumstances and only to prevent
3
Case No. 2022-T-0035
a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804
(1978), at paragraph two and three of the syllabus.
{¶13} Here, the trial court complied with Crim.R. 25(B) because a judgment entry
stated that Judge Kontos was “unavailable” for sentencing and the administrative judge
signed the entry granting the order.
{¶14} Appellant contends that the transfer violated “all basic notions of
fundamental fairness and due process” arguing that Judge Kontos made “vague
assurances” to Appellant that he might get community control. Specifically, at the plea
hearing, Judge Kontos advised Appellant what he tells “everybody that gets a pre-
sentence investigation,” which was to show up for his interviews immediately after leaving
court, be truthful, and not get into any trouble prior to sentencing. This “vague” advice
that Judge Kontos tells all defendants who get pre-sentence investigations does not
demonstrate that but for the transfer of judges, Appellant’s sentence would be different.
{¶15} Therefore, in accordance with Crim.R. 25(B), it was not plain error for the
court to transfer the case at sentencing when Judge Kontos was unavailable, and
Appellant did not demonstrate that the outcome would have been different absent the
transfer.
{¶16} Appellant’s first assignment of error is without merit.
{¶17} Second assignment of error: The trial court erred when it imposed a prison
term of 24 months without fully considering the purposes and principles of felony
sentencing.
4
Case No. 2022-T-0035
{¶18} Appellant contends that his sentence is contrary to law because the trial
court failed to consider the principals and purposes of felony sentencing mandated under
R.C. 2929.11 and R.C. 2929.12.
{¶19} R.C. 2929.11(A) provides: “a court that sentences an offender for a felony
shall be guided by the overriding purposes of felony sentencing.”
{¶20} R.C. 2929.12 grants discretion to a sentencing court that imposes a felony
sentence to determine the most effective way to comply with the purposes and principles
of sentencing set forth in section 2929.11(A).
{¶21} R.C. 2953.08(G)(2) provides:
The appellate court may increase, reduce, or otherwise
modify a sentence that is appealed under this section or may
vacate the sentence and remand the matter to the sentencing
court for resentencing. The appellate court's standard for
review is not whether the sentencing court abused its
discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court's
findings under division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant,
(b) That the sentence is otherwise contrary to law.
{¶22} The Ohio Supreme Court has clarified the application of R.C. 2953.08(G)(2)
in relation to R.C. 2929.11 and 2929.12 in State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649. First, the Court held that R.C. 2953.08(G)(2)(a) does not
allow an appellate court to vacate a sentence based on “lack of support in the record for
a trial court's findings under R.C. 2929.11 and .12” because neither of those sections is
5
Case No. 2022-T-0035
enumerated within division (G)(2)(a) of the statute, and, more fundamentally, neither
statute requires the court to make “findings.” Id. at ¶ 29, ¶ 31. The Court reasoned,
“[n]othing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the
evidence in the record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.
{¶23} “A trial court is not required to give any particular weight or emphasis to a
given set of circumstances; it is merely required to consider the statutory factors in
exercising its discretion.” State v. Delmanzo, 11th Dist. Lake No 2007-L-218, 2008-Ohio-
5856, ¶ 23. A sentencing court fulfills its duty when it states that it has considered the
factors under R.C. 2929.11 and R.C. 2929.12. State v. DeLuca, 11th Dist. Lake No. 2020-
L-089, 2021-Ohio-1007, ¶ 18.
{¶24} Here, Appellant asks this court to independently weigh the seriousness and
recidivism factors under R.C. 2929.12 because the sentencing court “should have
exercised some compassion” for Appellant. We cannot do so.
{¶25} The sentencing court here fulfilled its duty by stating at sentencing and on
the judgment entry that it considered all factors under R.C. 2929.11 and R.C. 2929.12.
{¶26} Appellant’s second assignment of error is without merit.
{¶27} The judgment of the Trumbull County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.
6
Case No. 2022-T-0035 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482143/ | [Cite as State v. Cast, 2022-Ohio-3967.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-09-107
: OPINION
- vs - 11/7/2022
:
BRIAN D. CAST, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. 2020-10-1384
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant
Prosecuting Attorney, for appellee.
Jacob D. Long, for appellant.
S. POWELL, J.
{¶ 1} Appellant, Brian D. Cast, appeals his conviction in the Butler County Court of
Common Pleas after he was found guilty of single counts of aggravated vehicular assault
and vehicular assault following a jury trial and sentenced to serve a mandatory 36-month
prison term. For the reasons outlined below, we affirm Cast's conviction.
Butler CA2021-09-107
Facts and Procedural History
{¶ 2} On February 10, 2021, the Butler County Grand Jury returned an indictment
charging Cast with one count of third-degree felony aggravated vehicular assault in violation
of R.C. 2903.08(A)(1)(a) and one count of fourth-degree felony vehicular assault in violation
of R.C. 2903.08(A)(2)(b).1 The matter proceeded to a two-day jury trial held on July 6 and
7, 2021. During trial, the jury was presented with evidence that indicated Cast was
operating his motor vehicle well above the posted speed limit while under the influence of
alcohol on the evening of August 21, 2020. The jury was also presented with evidence that
indicated Cast crossed over the center yellow line while operating his vehicle that evening
and struck head-on another driver, D.C., at the intersection of Stahlheber Road and Gene
Avenue located in Hanover Township, Butler County, Ohio. There is no dispute that the
crash between Cast and D.C. resulted in D.C. suffering serious physical harm to his person
that required D.C. to stay in the hospital for two weeks, undergo physical therapy for a
period of approximately three months, and be off work for a total of six months.2 Following
deliberations, the jury found Cast guilty of those two offenses as charged.
{¶ 3} On August 5, 2021, the trial court held a sentencing hearing. At sentencing,
the trial court determined that the third-degree felony aggravated vehicular assault and
fourth-degree felony vehicular assault offenses were allied offenses of similar import that
would need to merge for purposes of sentencing. Upon the trial court merging the two
offenses as allied offenses of similar import, the state elected to proceed with sentencing
1. The indictment also charged Cast with one count of fourth-degree felony improperly handling firearms in a
motor vehicle and one count of fifth-degree felony improperly handling firearms in a motor vehicle. The state
later dismissed the fourth-degree felony charge and the jury found Cast not guilty of the fifth-degree felony
charge. This appeal, therefore, deals only with the third-degree felony aggravated vehicular assault and
fourth-degree felony vehicular assault charges.
2. D.C.'s nine-year-old son was also in the car at the time of the crash. D.C.'s son, however, was fortunately
not injured in the crash.
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on the third-degree felony aggravated vehicular assault offense. Following the state's
election, the trial court sentenced Cast to serve a mandatory 36-month prison term, less 37
days of jail-time credit. The trial court also notified Cast that he would be subject to an
optional postrelease control term of up to three years upon his release from prison. The
trial court further ordered Cast to pay restitution to D.C. in the amount of $2,600 and
suspended Cast's driver's license for a period of ten years.
{¶ 4} On September 1, 2021, Cast filed a timely notice of appeal. This court issued
a scheduling order on September 14, 2021, ordering Cast to file his appellate brief within
20 days of the filing of the complete transcript of proceedings. A notice of the filing of the
complete transcript of proceedings was filed with this court on September 24, 2021. Twenty
days later, on October 14, 2021, Cast moved this court for an extension of time to file his
appellate brief. This court granted Cast's motion and ordered Cast to file his brief on or
before November 8, 2021. Cast moved this court for another extension of time to file his
appellate brief on November 8, 2021. This court granted Cast's motion and ordered Cast
to file his brief on or before November 29, 2021. Cast did not file an appellate brief as
ordered by this court, thereby prompting this court to dismiss Cast's appeal. State v. Cast,
12th Dist. Butler CA2021-09-107 (Dec. 14, 2021) (Judgment Entry of Dismissal).
{¶ 5} On March 14, 2022, Cast filed an application to reopen his appeal pursuant
to App.R. 26(B). To support his application, Cast argued that he received ineffective
assistance of appellate counsel when his original appellate counsel failed to file an appellate
brief in accordance with this court's scheduling order, thus prompting the appeal being
dismissed. App.R. 26(B) allows for a defendant in a criminal case to "apply for reopening
of the appeal from the judgment of conviction and sentence, based on a claim of ineffective
assistance of appellate counsel." An application for reopening "shall be granted" if there is
"a genuine issue as to whether the applicant was deprived of the effective assistance of
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counsel on appeal." App.R. 26(B)(5). Ohio appellate courts, including this court, have
previously determined that appellate counsel's failure to file a brief resulting in the dismissal
of an appeal raises a genuine issue as to whether the appellant was deprived of the effective
assistance of appellate counsel. See, e.g., State v. Howard, 12th Dist. Warren No. CA83-
07-048, 2002-Ohio-3983, ¶ 7 (noting that this court's decision to grant appellant's delayed
application for reopening after appellant's appeal was dismissed due to appellant's original
appellate counsel's failure to file a brief).
{¶ 6} On May 4, 2022, this court granted Cast's application to reopen the appeal in
accordance with App.R. 26(B)(5). State v. Cast, 12th Dist. Butler CA2021-09-107 (May 4,
2022) (Judgment Entry Granting Application for Reopening). Two days later, on May 6,
2022, this court issued a revised scheduling order. Pursuant to this court's revised
scheduling order, Cast filed an appellate brief on June 1, 2022. The state filed its
responsive brief on August 1, 2022 and Cast filed a reply brief on August 15, 2022. Cast's
appeal was thereafter submitted to this court for decision on October 5, 2022. Cast's appeal
now properly before this court for decision, Cast has raised four assignments of error for
review.
Standard of Review
{¶ 7} Prior to addressing Cast's assignments of error, we note the well-established
principle that "relevant evidence is admissible and irrelevant evidence is inadmissible."
State v. Geddes, 12th Dist. Fayette No. CA2021-01-001, 2021-Ohio-4115, ¶ 13, citing
Evid.R. 402. We also note that "[t]he admission or exclusion of relevant evidence lies within
the sound discretion of the trial court." State v. Moore, 12th Dist. Warren No. CA2014-10-
121, 2015-Ohio-2466, ¶ 28, citing State v. Robb, 88 Ohio St.3d 59, 68 (2000). Given the
broad discretion afforded to trial courts in deciding evidentiary issues, State v. Darazim,
10th Dist. Franklin No. 14AP-203, 2014-Ohio-5304, ¶ 21, an appellate court will not reverse
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the trial court's decision to admit relevant evidence absent an abuse of discretion. State v.
White, 12th Dist. Warren No. CA2018-09-107, 2019-Ohio-4312, ¶ 30. An abuse of
discretion connotes more than an error of law or judgment; it implies the trial court's decision
was unreasonable, arbitrary, or unconscionable. State v. Grindstaff, 12th Dist. Clermont
No. CA2013-09-074, 2014-Ohio-2581, ¶ 21. "[T]he vast majority of cases in which an abuse
of discretion is asserted are claims that the decision is unreasonable." State v. Borts, 2d
Dist. Montgomery No. 23752, 2010-Ohio-4149, ¶ 5. A decision is unreasonable when it is
unsupported by a sound reasoning process. State v. Gearhart, 12th Dist. Warren No.
CA2017-12-168, 2018-Ohio-4180, ¶ 13. We are mindful of this standard when addressing
Cast's assignments of error.
Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED BY ADMITTING THE TOXICOLOGY REPORT
BECAUSE THE STATE FAILED TO PRESENT EVIDENCE ABOUT THE IDENTITY OF
THE LAB AND WHETHER THE BLOOD TEST WAS FORENSIC OR DIAGNOSTIC.
{¶ 9} In his first assignment of error, Cast argues the trial court erred by admitting
a toxicology report into evidence that showed he had blood-alcohol level over twice the
legal limit approximately one hour after Cast's accident with D.C. To support this claim,
Cast argues the trial court erred by admitting the report into evidence because the state
failed to lay a proper foundation for the report's admission under either R.C.
4511.19(D)(1)(a) or 4511.19(D)(1)(b). Specifically, Cast argues it was error for the trial
court to admit the "mysterious toxicology report" because the record contained "no proof"
about whether the report was "produced in a State forensic lab, a private lab, or a hospital
lab," thereby rendering the report inadmissible at trial. We disagree.
{¶ 10} Pursuant to R.C. 4511.19(D)(1)(a), in any criminal prosecution for a violation
of operating a motor vehicle while under the influence of alcohol in violation of R.C.
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4511.19(A)(1)(a), or for an equivalent offense that is vehicle related, such as aggravated
vehicular assault in violation of R.C. 2903.08(A)(1)(a) or vehicular assault in violation of
R.C. 2903.08(A)(2)(b), the results of a non-forensic, diagnostic blood-alcohol test may be
admitted "with expert testimony" to be considered with any other relevant and competent
evidence in determining the guilt or innocence of the accused. Thus, for a blood-alcohol
test to be admissible pursuant to R.C. 4511.19(D)(1)(a), "the sample must be both
withdrawn and analyzed by a health care provider." State v. Schubert, 5th Dist. Licking No.
2020 CA 00040, 2021-Ohio-1478, ¶ 11. R.C. 4511.19(D)(1)(b), on the other hand, permits
a trial court to admit the results of a forensic, non-diagnostic blood-alcohol test in a criminal
prosecution when the person being tested submits to the test at the request of a law
enforcement officer under R.C. 4511.191, or where the blood was obtained pursuant to a
search warrant, provided that the blood was withdrawn from the accused within three hours
of the time of the alleged offense and analyzed in accordance with methods approved by
the director of health by an individual possessing a valid permit issued by the director of
health.
{¶ 11} Despite what Cast claims in his appellate brief, the record in this case clearly
demonstrates that the toxicology report at issue was generated based upon non-forensic,
diagnostic blood-alcohol test conducted by staff at the health care provider where he was
taken for treatment following the crash, Fort Hamilton Hospital.3 The report, in fact, includes
the phrase "DIAGNOSTIC RESULTS" directly above a notation indicating the report was
generated as a result of "orders placed or performed" while Cast was at Fort Hamilton
Hospital for treatment, thus demonstrating the test was not done pursuant to a request of a
3. The term "health care provider" is defined by R.C. 2317.02(B)(5)(b) to mean "a hospital, ambulatory care
facility, long-term care facility, pharmacy, emergency facility, or health care practitioner." There is no dispute
that Fort Hamilton Hospital is a "health care provider" as that term is defined in R.C. 2317.02(B)(5)(b).
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law enforcement officer or a search warrant. The report was admitted along with the expert
testimony of Robert G. Topmiller, the chief of toxicology at the Hamilton County Coroner's
Office located in Cincinnati, Ohio. Topmiller testified that he had reviewed Cast's medical
records, including the toxicology report at issue, and noted that the blood-alcohol test
performed on Cast's blood was conducted at Fort Hamilton Hospital's laboratory, not a state
forensic or other private laboratory. Topmiller also testified that, based on his training and
experience, if Cast's blood had been taken to a different laboratory for testing other than
the laboratory at Fort Hamilton Hospital that there would have been a note stating as much
on Cast's medical records, which there was not. Topmiller further testified that, although
he did not have any direct knowledge of what test Fort Hamilton Hospital laboratory used
to test Cast's blood, it was likely an enzymatic immunoassay test, a test that, according to
Topmiller, is not generally used for "forensic purposes."
{¶ 12} Under these circumstances, we find the state presented sufficient evidence to
overcome the foundational requirements necessary for the trial court to admit the
challenged toxicology report into evidence under R.C. 4511.19(D)(1)(a). "That statute
allows for the admission of blood or urine tested by hospitals, even if such a test does not
comply with the Ohio Administrative Code, in certain circumstances where a defendant was
transported to the hospital after an accident and underwent a non-forensic, medical blood
or urine test." State v. Abner, 12th Dist. Warren No. CA2021-05-048, 2021-Ohio-4549, ¶
21. That is exactly what occurred here and, when faced with a nearly identical factual
scenario, what this court previously determined to be the correct application of R.C.
4511.19(D)(1)(a) in these circumstances. See, e.g., State v. Davenport, 12th Dist. Fayette
No. CA2008-04-011, 2009-Ohio-557, ¶ 17-21 (noting this court's agreement with the trial
court's application of R.C. 4511.19[D][1][a] in that case upon finding the results of
appellant's non-forensic, diagnostic blood-alcohol test were admissible for purposes of
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establishing appellant's aggravated vehicular homicide offense). Therefore, finding no error
in the trial court's decision to admit the challenged toxicology report into evidence in
accordance with R.C. 4511.19(D)(1)(a), Cast's first assignment of error lacks merit and is
overruled.
Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT ERRED BY ADMITTING THE HOSPITAL RECORDS,
INCLUDING THE TOXICOLOGY REPORT, WHERE NO RECORD CUSTODIAN
TESTIFIED THE DOCUMENTS WERE AUTHENTIC AND ADMISSIBLE BUSINESS
RECORDS, AND THE R.C. 2317.422(A) CERTIFICATION WAS INVALID.
{¶ 14} In his second assignment of error, Cast argues the trial court erred by
admitting the medical records generated by Fort Hamilton Hospital when treating him for
the injuries he sustained in the crash that indicated he was suffering from acute alcoholic
intoxication after having consumed five or six beers prior to the crash with D.C. To support
this claim, Cast argues the medical records were not admissible because they were not
properly authenticated under R.C. 2317.422(A), thereby rendering the records inadmissible
at trial.4 We agree. This error, however, was harmless given the other evidence properly
admitted into evidence at trial establishing Cast was intoxicated at the time of the crash.
4. As set forth within his second assignment of error, Cast also argues the toxicology report discussed above
was not admissible because it was not properly authenticated under R.C. 2317.422(A). However, rather than
R.C. 2317.422(A), the toxicology report was properly authenticated in accordance with R.C. 2317.422(B).
Pursuant to that statute, R.C. 2317.422(A) does not apply to any "certified copy" of the results of any test
given to determine the presence or concentration of alcohol at any time relevant to a criminal offense that is
submitted in a criminal action or proceeding in accordance with R.C. 2317.02(B)(2)(b). "R.C. 2317.02(B)(2)
applies to 'official criminal investigation[s],' where a law enforcement officer requests that a healthcare provider
supply the officer with [certified] copies of any tests 'administered to the specified person to determine the
presence or concentration of alcohol, a drug of abuse, [or] a combination of them' in the person 'at any time
relevant to the criminal offense in question.'" Skorvanek v. Ohio Dept. of Rehabilitation & Corrections, 10th
Dist. Franklin No. 17AP-222, 2018-Ohio-3870, ¶ 61, citing R.C. 2317.02(B)(2)(a). If the healthcare provider
possesses such a record, "in lieu of testifying, 'the custodian of the records may submit a certified copy of the
records.'" Id., citing R.C. 2317.02(B)(2)(b). A "certified copy" is "[a] duplicate of an original (usu. official)
document, certified as an exact reproduction usu. by the officer responsible for issuing or keeping the original."
Cincinnati Bar Assn. v. Newman, 124 Ohio St.3d 505, 2010-Ohio-928, ¶ 6, quoting Black's Law Dictionary
385 (9th Ed.2009). That is what occurred here. Therefore, as it relates to Cast's argument that the toxicology
report was not properly authenticated under R.C. 2317.422(A), such argument lacks merit.
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{¶ 15} "To be admissible, hospital records must be authenticated." State v. Miller,
2d Dist. Greene No. 09-CA-74, 2012-Ohio-211, ¶ 19. R.C. 2317.422(A) provides a
simplified means of authenticating a hospital's records that generally eliminates the need
for in-court testimony. State v. Wyatt, 12th Dist. Butler No. CA2010-07-171, 2011-Ohio-
3427, ¶ 18, citing State v. Humphries, 79 Ohio App.3d 589, 595 (12th Dist.1992).
Specifically, R.C. 2317.422(A) provides that the records, or copies, or photographs of the
records, of a hospital, "in lieu of the testimony in open court of their custodian, person who
made them, or person under whose supervision they were made," may be qualified as
authentic evidence if "any such person endorses thereon the person’s verified certification
identifying such records, giving the mode and time of their preparation, and stating that they
were prepared in the usual course of the business of the institution." Therefore, under the
plain language found in R.C. 2317.422(A), it is not necessary for the custodian of records,
the person who made them, or the person under whose supervision they were made, to
appear in open court and testify to the records' authenticity. Hope v. Shiveley, 12th Dist.
Clermont No. CA2000-04-022, 2000 Ohio App. LEXIS 4006, *4 (Sept. 5, 2000). A hospital's
records may instead be accompanied by a verified certification from their custodian, person
who made them, or person under whose supervision they were made endorsing and
attesting to their authenticity. In re Z.S., 2d Dist. Montgomery No. 25986, 2014-Ohio-3748,
¶ 58.
{¶ 16} Cast initially argues that his medical records were not properly authenticated
under R.C. 2317.422(A) because the records were not certified and endorsed as authentic
by either the person who made the records or the person under whose supervision the
records were made. However, while we agree that Cast's medical records were not certified
by the person who made the records or by the person under whose supervision they were
made, the record firmly establishes that Cast's medical records were certified by the duly
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authorized custodian of the records who had the authority to certify the records. The
language found in R.C. 2317.422(A) plainly states that a hospital's medical records may be
qualified as authentic evidence if the records were endorsed thereon and certified by the
records' custodian in addition to the person who made the records or the person under
whose supervision the records were made. See, e.g., Bohl v. ALCOA, Inc., 8th Dist.
Cuyahoga No. 108584, 2020-Ohio-2824, ¶ 34 (R.C. 2317.422[A] provides that "a custodian
of the records may certify the records as authentic business records. Requiring a
certification from the doctor who made the record is unnecessary and would defeat the
purpose of R.C. 2317.422[A]"). Therefore, although we agree that Cast's medical records
not were not certified by either the person who made the records or the person under whose
supervision the records were made, Cast's medical records were nevertheless certified and
endorsed as authentic by the records' custodian as permitted by the plain language found
in R.C. 2317.422(A). Cast's first argument lacks merit.
{¶ 17} Cast also argues that his medical records were not properly authenticated
under R.C. 2317.422(A) because the certification accompanying his medical records was
not "verified" given that the records' custodian's signature endorsing and attesting to the
records' authenticity was not "sworn to in the presence of an authorized officer." If a
hospital's records are properly endorsed and certified by a qualified representative in
accordance with 2317.422(A), "no further authentication is needed for them to be
admissible." State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 97;
State v. Gerth, 1st Dist. Hamilton No. C-120392, 2014-Ohio-4569, ¶ 16. Beyond
authentication, however, R.C. 2317.442(A) "does not make inadmissible evidence
admissible." State v. Johnson, 2d Dist. Clark No. CA 2361, 1987 Ohio App. LEXIS 10446,
*6 (Dec. 30, 1987); see, e.g. Smith v. Egleston, 12th Dist. Warren No. CA84-10-068, 1986
Ohio App. LEXIS 7200, *20 (June 16, 1986) ("[w]hile R.C. 2317.422 provides a method
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whereby certified copies of hospital records may be placed before the jury, it does not
circumvent the authority of the trial court, based on Evid.R. 403, to exclude otherwise
relevant evidence where it will confuse the jury or waste their time").
{¶ 18} Pursuant to a plain reading of R.C. 2317.422(A), for a hospital's records to be
properly endorsed and certified, thereby satisfying the authentication requirement for
admissibility, the certification accompanying the records must be endorsed thereon by the
records' custodian, the person who made the records, or the person under whose
supervision the records were made, with such person's "verified certification" attesting to
the records' authenticity. The phrase "verified certification" is not defined within the Ohio
Revised Code. Neither are the separate terms "verified," "verification," "certified," or
"certification." "When words are not defined in a statute, they are to be given their plain and
ordinary meaning absent a contrary legislative intent." State v. Jackson, 12th Dist. Butler
No. CA2011-06-096, 2012-Ohio-4219, ¶ 34, citing State v. Conyers, 87 Ohio St.3d 246,
249-250 (1999) ("[w]hen engaging in statutory interpretation, courts will give the words in a
statute their plain and ordinary meaning absent a contrary legislative intent"). We must
therefore look to the common, ordinary meaning of these words to determine what the
phrase "verified certification" means in the context of R.C. 2317.422(A).
{¶ 19} The term "verified" means "supported by an affidavit as to the truth of the
matters set forth; sworn to." State ex rel. Clink v. Smith, 16 Ohio St.2d 1, 2 (1968), citing
Osborn v. Whittier, 103 Cal. App.2d 609, 230 P.2d 132 (1951); and Agricultural Bond &
Credit Corp. v. Courtenay Farmers Co-op. Assn., 64 N.D. 253, 251 N.W. 881 (1933). The
term "verification" means a "'formal declaration made in the presence of an authorized
officer, such as a notary public, by which one swears to the truth of the statements in the
document.'" Chari v. Vore, 91 Ohio St.3d 323, 327 (2001), quoting Black's Law Dictionary
1556 (7th Ed.1999); Jordan v. Johnson, 12th Dist. Madison No. CA2013-03-007, 2013-
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Ohio-3679, ¶ 16. "The term 'certify' means '[t]o authenticate or verify in writing' or '[t]o attest
as being true or as meeting certain criteria.'" State ex rel. Orange Twp. Bd. of Trustees. v.
Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 2013-Ohio-36, ¶ 37, quoting Black's
Law Dictionary 258 (9th Ed.2009). The term "certify" also means "to confirm or attest often
by a document under hand or seal as being true, meeting a standard, or being as
represented." State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-
Ohio-333, ¶ 43, quoting Webster's Third New International Dictionary 367 (1986). "A
certification means that the statement certified is claimed to be true as of the time it is
made." Sinmast of Ohio, Inc. v. Central Trust Co., N.A., 1st Dist. Hamilton No. C-790433,
1980 Ohio App. LEXIS 10033, *11 (Dec. 24, 1980). The term "certification" has also been
defined to mean "[t]he act of attesting," "[t]he state of having been attested," and "[a]n
attested statement." Black's Law Dictionary 241 (8th Ed.2004).
{¶ 20} Given the frequent use of the word "attest" or "attesting" when defining the
terms "certify" and "certification," the definition "attest" is also relevant. The same is true
as it relates to the definition of "attested copy." The term "attest" means "'to certify to the
verity of a copy of a public document formally by signature'" and an "attested copy" of a
document is "'one which has been examined and compared with the original, with a
certificate or memorandum of its correctness, signed by the persons who have examined
it.'" State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, ¶ 22, quoting
Black's Law Dictionary 127-128 (6th Ed.1990). "These definitions are consistent with
common usage." Id. at ¶ 23, citing Black's Law Dictionary 138 (8th Ed.2004) (defining
"attest" as "to affirm to be true or genuine; to authenticate by signing as a witness"); and
Webster's Third New International Dictionary 141 (1986) (defining "attest" as "to witness
and authenticate by signing as a witness"). Most of the definitions of "attest," in fact, "require
a signature, a statement made under oath, someone witnessing the act, or some official
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authentication or verification." (Emphasis deleted.) Id. at ¶ 25, citing Black's Law Dictionary
138 (8th Ed.2004) (defining "attest" to also mean "to bear witness; testify," "to affirm to be
true or genuine," and "to authenticate by signing as a witness"); and Webster's Third New
International Dictionary 141 (1986) (further defining "attest" to include "to bear witness to,"
"affirm to be true or genuine," "to witness and authenticate by signing as a witness," "to
authenticate officially," "to establish or verify the usage of," "to be or stand as proof of," "to
call to witness," and "to put on oath or solemn declaration").
{¶ 21} When considering the various definitions set forth above, it should be no
surprise that the Ohio Supreme Court has found the phrase "verified certification" as used
in R.C. 2317.422(A) to mean "a sworn, written certification * * *." State v. Spikes, 67 Ohio
St.2d 405 (1981), paragraph one of the syllabus; State v. Witt, 6th Dist. Williams No. WM-
04-007, 2005-Ohio-1379, ¶ 34. This requires something more than merely identifying the
records as confidential records that had been sent from a hospital's medical records
manager. See State v. Worship, 12th Dist. Warren No. CA2020-09-055, 2022-Ohio-52, ¶
15. "A party's attempt to certify the genuineness of medical records by submitting his
attorney's affidavit stating that the documents are accurate copies of the originals is [also]
insufficient." Boyd v. Elsamaloty, 10th Dist. Franklin No. 15AP-533, 2015-Ohio-5578, ¶ 22.
The same is true as it relates to a person's own medical records. See Howard v. Seaway
Food Town, 6th Dist. Lucas No. L-97-1322, 1998 Ohio App. LEXIS 3684, *6 (Aug. 14, 1998)
("appellant stated in an affidavit that the copies of [his] medical records were true and
accurate, however, that fact does not render them admissible at trial" under R.C.
2317.422[A]). The certification must instead be set forth within an affidavit endorsed by the
records' custodian, the person who made the records, or the person under whose
supervision the records were made. See, e.g., State v. Wooden, 9th Dist. Summit No.
27250, 2015-Ohio-2633, ¶ 11. Or, at the very least, by having a certification page
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accompanying the records that includes a notarized endorsement sworn to by one of the
authorized persons explicitly named in the statute. See, e.g., In re J.T., 3d Dist. Wyandot
No. 16-10-12, 2011-Ohio-3435, ¶ 28.
{¶ 22} In this case, the certification page accompanying Cast's medical records was
not "verified" given that the records' custodian who endorsed the certification and attested
to the records' authenticity was not sworn to. The records' custodian's endorsement
contained on the certification page was, in fact, not even notarized. Under these
circumstances, we find it was error for the trial court to admit Cast's medical records into
evidence because the records were not properly authenticated under R.C. 2317.422(A).
See, e.g., State v. Miller, 2d Dist. Greene No. 09-CA-74, 2012-Ohio-211, ¶ 19 (finding no
error in the trial court's decision to exclude victim's medical records from evidence where
appellant neither called the records' custodian, person who made such records, or person
under whose supervision they were made, as a witness, nor did appellant satisfy the
requirements of R.C. 2317.422[A] by having by any such person endorsing on the records
"the person's verified certification identifying such records, giving the mode and time of their
preparation, and stating that they were prepared in the usual course of the business of the
institution"); State v. Ellis, 8th Dist. Cuyahoga No. 91116, 2009-Ohio-852, ¶ 25 (finding no
error in the trial court's decision to exclude appellant's medical records from evidence where
appellant's medical records did not contain "a written certification and, therefore, they were
not admissible under R.C. 2317.422[A]");
{¶ 23} But, as previously noted, although we believe it was error for the trial court to
admit Cast's medical records into evidence under R.C. 2317.422(A), such error was
harmless given the other evidence establishing Cast's intoxication at the time of the crash.
This includes, but is not limited to, the toxicology report discussed above under Cast's first
assignment of error that showed Cast had a blood-alcohol level over twice the legal limit
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approximately one hour after his accident with D.C. This also includes the testimony and
evidence indicating Cast was driving well above the speed limit on the opposite side of the
road at the time of the crash. "A finding of harmless error is appropriate where the
admission of the evidence was merely cumulative to evidence already presented at trial
because it does not result in any prejudice." State v. Stevens, 12th Dist. Butler No. CA2015-
09-020, 2017-Ohio-498, ¶ 48. The fact that Cast was able to provide several witnesses
who testified they did not smell the odor of alcoholic beverage on Cast's person in the time
immediately after the crash does not change this fact for it is well established that the jury,
as the trier of fact, was free to believe all, part, or none of each witnesses' testimony who
appears before it. State v. Spencer, 12th Dist. Warren No. CA2018-08-082, 2019-Ohio-
2165, ¶ 27. Therefore, because the trial court's error in admitting Cast's medical records
under R.C. 2317.422(A) was harmless in that it did not subject Cast to any resulting
prejudice, Cast's second assignment of error also lacks merit and is overruled.
Assignment of Error No. 3:
{¶ 24} THE TRIAL COURT ERRED BY ADMITTING THE ACM DATA BECAUSE
THE DEPUTY THAT OBTAINED IT WAS UNAVAILABLE AND THE TESTIFYING
DEPUTY LACKED KNOWLEDGE ABOUT THE PROGRAM USED TO DOWNLOAD THE
ACM DATA FROM VEHICLES, IF THE DOWNLOADED ACM DATA WAS ACCURATE,
AND WHETHER THE ACM DATA WAS PROPERLY STORED TO PRESERVE ITS
ACCURACY.
{¶ 25} In his third assignment of error, Cast argues the trial court erred by admitting
into evidence the event recorder data downloaded from both his and D.C.'s airbag control
modules ("ACM") that showed how fast their respective vehicles were traveling in half
second intervals in each of the five seconds prior to when their vehicles collided (herein
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after, "data" or "ACM data").5 To support this claim, Cast initially argues the trial court erred
by admitting this data into evidence because it was a sergeant with the Butler County
Sheriff's Office, Sergeant Stephen Poff, and not the Butler County Sheriff's Office deputy
who actually downloaded the ACM data to a desktop computer at the Butler County Sheriff's
Office, Deputy Nathan Ellcessor, who testified about the data's authenticity at trial. 6 This,
according to Cast, violated the authentication requirement set forth under Evid.R. 901(A)
because Sergeant Poff "was unfamiliar with the ACM downloading program, and could not
say the ACM program's requirements in downloading and storing the ACM data were
followed."7 We disagree.
{¶ 26} Pursuant to Evid.R. 901(A), "[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims." "This threshold
requirement for authentication of evidence is low and does not require conclusive proof of
authenticity." State v. Blake, 12th Dist. Butler No. CA2011-07-130, 2012-Ohio-3124, ¶ 28,
citing State v. Easter, 75 Ohio App.3d 22, 25 (4th Dist.1991). "The state instead needs only
to demonstrate a 'reasonable likelihood' that the evidence is authentic." State v. Panzeca,
12th Dist. Warren No. CA2019-03-023, 2020-Ohio-326, ¶ 26. "Both circumstantial evidence
5. A vehicle's ACM, which includes as a subcomponent the "event data recorder," records the vehicle's
deceleration and speed based on wheel speed sensors. State v. Bluhm, 10th Dist. Franklin No. 15AP-938,
2016-Ohio-7126, ¶ 31. A vehicle's event data recorder has also been referred to more colloquially as the
vehicle's "black box," like that which is used to record flight data of an aircraft. See State v. Wolfe, 9th Dist.
Lorain No. 16CA011027, 2018-Ohio-124, ¶ 19; and State v. Godfrey, 3d Dist. Wyandot No. 16-14-03, 2014-
Ohio-5392, ¶ 34.
6. Deputy Ellcessor was not available to testify because he was on military leave at the time of trial.
7. The ACM data at issue in this case was downloaded to a desktop computer at the Butler County Sheriff's
Office by Deputy Ellcessor using a crash data retrieval program developed by Bosch Diagnostics. The Bosch
software takes the raw data from the ACM and generates what is known as a "crash data report." The
relevant portions of the two crash data reports generated in this case, which included the speed of the two
vehicles, the degree to which the vehicles' accelerators and/or brakes were engaged, and the two vehicle's
engines' revolutions per minute, were labeled and admitted into evidence as State's Exhibit 43 and State's
Exhibit 44.
- 16 -
Butler CA2021-09-107
and direct evidence may be used to prove the authenticity of evidence." State v. York, 12th
Dist. Butler No. CA2021-11-147, 2022-Ohio-2457, ¶ 14, citing State v. Vermillion, 4th Dist.
Athens No. 15CA17, 2016-Ohio-1295, ¶ 14. Evid.R. 901(B) provides examples of the
various ways that the authentication requirement set forth under Evid.R. 901(A) may be
satisfied. State v. Carter, 8th Dist. Cuyahoga No. 104874, 2018-Ohio-2238, ¶ 41. "The
most common method is oral testimony that a matter is what it is claimed to be under Evid.R.
901(B)(1)." State v. Biswa, 2d Dist. Montgomery No. 29383, 2022-Ohio-3156, ¶ 28.
{¶ 27} After a thorough review of the record, we find no error in the trial court's
decision to admit the ACM data into evidence even though it was Sergeant Poff, not Deputy
Ellcessor, who testified about the data's authenticity at trial. Sergeant Poff was a supervisor
in the Butler County Sheriff's Office's traffic investigation unit who oversaw Deputy Ellcessor
activities. This would include, for instance, overseeing Deputy Ellcessor's downloading the
ACM data at issue in this case. The record also indicates that, based on Sergeant Poff's
testimony, once the ACM data had been downloaded by Deputy Ellcessor that the data
could not, and was not, manipulated or changed in any way. The record further indicates
that the ACM data, which was kept by the Butler County Sheriff's Office in its regularly
conducted activity as a law enforcement agency, was verified by Sergeant Poff to be the
same data that the sheriff's office provided to the state. Therefore, while Sergeant Poff was
not himself a records custodian with the Butler County Sheriff's Office, Sergeant Poff was
certainly a qualified witness who could testify regarding the authenticity of the ACM data
being presented by the state at trial. The extent to which Sergeant Poff was purportedly
unfamiliar with the program used to download the ACM data, as well as Sergeant Poff's
supposed lack of knowledge regarding whether the program's requirements in downloading
and storing the ACM data were followed, goes to the weight of the evidence rather than to
its admissibility. Cast's first argument lacks merit.
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Butler CA2021-09-107
{¶ 28} In reaching this decision, but expressly without rendering any opinion on the
matter, we note that the admissibility of event recorder data taken from a vehicle's ACM like
what was presented at trial in this case has generally been met with "an overwhelming
chorus of approval in jurisdictions across the country, without a single voice raised in
dissent." State v. Byard, Del. Sup.Ct. No. 1604019011, 2018 Del. Super. Lexis 199, *7
(May 1, 2018); State v. Diaz, N.M. App. No. 35,563, 2017 N.M. App. Unpub. LEXIS 53, *10,
fn. 2 (noting "that out-of-jurisdiction case law, at least to the extent our limited research has
revealed, is unanimous in accepting [crash data report] or [event recorder data] or vehicular
'black box' evidence as scientifically or technologically reliable"). This includes, for
example, the Appeals Court of Massachusetts, which found the event recorder data taken
from a vehicle's crash recorder was sufficiently reliable to be admissible given the general
acceptance of such data in the relevant scientific community. See Commonwealth v.
Zimmermann, 70 Mass.App. No. 357, 364-365, 2007 Mass. App. LEXIS 1050 (Oct. 3,
2007); see also Bachman v. GMC, 332 Ill. App.3d 760, 779-782, 2002 Ill. App. LEXIS 659,
*779-*780 (July 29, 2002) (noting that "crash sensors" have been "in production in
automobiles for over a decade" and are generally accepted as a tool of accident
reconstruction). This also includes the Court of Appeal of Florida, Fourth District, which
concluded that the process of recording and downloading event recorder data was not a
novel technique or method, and when used as a tool of automotive accident reconstruction,
the data has generally been accepted as reliable. See Matos v. State, 899 So.2d 403, 407
(Fla.App.2005).
{¶ 29} Cast also argues the trial court erred by admitting the ACM data into evidence
because the data constitutes inadmissible hearsay under Evid.R. 802. However, when
recently faced with this exact same issue, the Ohio Eighth District Court of Appeals
determined that such data is not inadmissible hearsay given that it "does not consist of
- 18 -
Butler CA2021-09-107
'statements' made by a 'person' as contemplated by the Rules of Evidence." State v.
Thompson, 8th Dist. Cuyahoga No. 109253, 2021-Ohio-376, ¶ 39. In so holding, the Eighth
District cited to one of its earlier decisions, wherein it found information generated by
computer aided detection ("CAD") in mammography was not inadmissible hearsay. Gray
v. Fairview Gen. Hosp., 8th Dist. Cuyahoga No. 82318, 2004-Ohio-1244, ¶ 8-12. In that
case, the Eighth District stated:
[T]he CAD device is not a person. The results were not the
consequence of a search of database of information created by
a person, the accuracy of which would depend upon the
accuracy and completeness of the database. * * * Rather, the
result was a scientific analysis conducted by a computer which
performed a series of complex mathematical calculations based
upon detailed information it drew from an x-ray. Therefore, we
do not find the computer analysis to be hearsay.
(Emphasis sic.) Id. at ¶ 11.
{¶ 30} The Eighth District also cited to another of its prior decisions, wherein it found
testimony relating to information a witness received from the Google Maps application on
his cell phone was not hearsay. Dickerson v. Miller's TLC, Inc., 8th Dist. Cuyahoga No.
96995, 2012-Ohio-2493, ¶ 12-13. In that case, the Eighth District stated:
By its very nature, calculation of distance, or of weight, volume,
speed, and the like, is impossible without the use of a tool that
has been calibrated to show a relevant unit of measure, e.g. a
ruler, a tape measure, a wheel, a scale, or, at a more
sophisticated level, a radar gun, a breathalyzer, or a blood test.
When employed to measure something, none of those tools
makes a "statement." * * * Instead, the only "statement" is the
testimony of a witness about observations of distance, speed,
weight, percentage, or volume he made as a result of using the
tool.
(Internal citation omitted.) Id. at ¶ 13.
{¶ 31} To further support their decision, the Eighth District then cited to several other
cases from around the country setting forth similar holdings. See State v. Kandutsch, 336
Wis.2d 478, 507, 2011 WI 78, ¶ 66 (2011) ("a computer-generated report is not hearsay
- 19 -
Butler CA2021-09-107
when it is simply the result of an automated process free from human input or intervention");
People v. Rodriguez, 16 Cal.App. 5th 355, 381 (2017) ("[t]he computer-generated report of
the GPS data generated by defendant's ankle monitor did not consist of statements of a
person as defined by the Evidence Code, and did not constitute hearsay as statutorily
defined"); State v. Stuebe, 467 P.3d 252, 256, 249 Ariz.127 (2020) ('"machine-produced'"
statements "were not made by a 'person' and are not hearsay"); People v. Hamilton, 452
P.3d 184, 2019 COA 101, ¶ 24 (Colo.App.2019) ("[r]eports would not be hearsay if a
machine generated them automatically * * * because no 'person' or 'declarant' made a
communicative 'statement' within the meaning of [Evid.R.] 801"). The Eighth District then
concluded by noting that "[t]he historic purpose behind the rule against hearsay is 'to
exclude statements of dubious reliability that cannot be tested by cross-examination.'"
Thompson, 2021-Ohio-376 at ¶ 42, quoting State v. Yarbrough, 95 Ohio St.3d 227, 2002-
Ohio-2126, ¶ 70. Therefore, because "[i]t is axiomatic, at least at this point in time, that a
computer cannot be cross-examined," the Eighth District determined that it would continue
to "adhere to this well-established principle." Id.
{¶ 32} We agree with the Eighth District's decision in Thompson and adopt its
rationale as if it were our own. Cast's second argument is therefore also without merit. In
so holding, we note a recent decision issued by the Court of Appeals of Texas, Fifth District,
which also found data taken from a vehicle's ACM does not constitute inadmissible hearsay.
Nguyen v. State, Tex.App. No. 05-20-00241-CR, 2022 Tex. App. LEXIS 6533 (Aug. 29,
2022). Specifically, as that Texas court found:
We conclude the crash data report constitutes computer-
generated data containing objectively recorded facts. The black
box of appellant's vehicle is a computer and, by definition,
cannot be a declarant for purposes of the rule against hearsay.
* * * Further, to the extent appellant argues that the report
constitutes hearsay because it records inputs from the driver,
we conclude that such inputs are not "statements" within the
- 20 -
Butler CA2021-09-107
meaning of the hearsay rule. The types of inputs the black box
records, such whether the brake or accelerator pedals were
depressed or whether the steering wheel was being turned, do
not constitute the driver's "oral or written verbal expression, or
nonverbal conduct that [the driver] intended as a substitute for
verbal expression." Tex. R. Evid. 801(a).
(Internal citation omitted.) Id. at *21. We also agree with the rationale expressed by this
Texas court. Therefore, for the reasons outlined above, and finding no merit to either of the
arguments advanced by Cast herein, Cast's third assignment of error likewise lacks merit
and is overruled.
Assignment of Error No. 4:
{¶ 33} IT WAS DEFECTIVE PERFORMANCE TO FAIL TO FILE A TIMELY BRIEF
AND THERE WAS PREJUDICE BECAUSE THE DIRECT APPEAL WAS DEFAULTED,
AND THE MERITORIOUS ASSIGNMENTS OF ERROR WOULD HAVE BEEN
SUSTAINED FOR A NEW TRIAL.
{¶ 34} In his fourth assignment of error, Cast argues he was provided with ineffective
assistance of appellate counsel when his original appellate counsel failed to file an appellate
brief in accordance with this court's initial scheduling order, thus prompting this court to
dismiss the appeal. See State v. Cast, 12th Dist. Butler CA2021-09-107 (Dec. 14, 2021)
(Judgment Entry of Dismissal). However, given this court's decision granting Cast's
application to reopen the appeal pursuant to App.R. 26(B)(5), we were, in fact, compelled
to find Cast's application for reopening had merit given Cast's original appellate counsel's
conduct. State v. Cast, 12th Dist. Butler CA2021-09-107, p. 2 (May 4, 2022) (Judgment
Entry Granting Application for Reopening) (finding "[c]ounsel's conduct in this case compels
us to find that the application for reopening has merit"). Although Cast was originally
provided with ineffective assistance of appellate counsel, the granting of Cast's App.R.
27(B) application and the timely filing of an appellate brief by new appellate counsel, any
- 21 -
Butler CA2021-09-107
prejudice resulting from original appellate counsel's failure has been remedied, thereby
allowing Cast's appeal to be decided on its merits and rendering this assignment of error
moot.
{¶ 35} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
- 22 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482147/ | USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12143
Non-Argument Calendar
____________________
MARQUICE D. ROBINSON,
Plaintiff-Appellant,
versus
AKAL SECURITY, INC.,
THE UNITED STATES MARSHALS SERVICE,
by and through U.S. Attorney General,
MICHAEL HOLMAN,
Defendants-Appellees.
____________________
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 2 of 12
2 Opinion of the Court 20-12143
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-03658-WMR
____________________
____________________
No. 20-13479
Non-Argument Calendar
____________________
MARQUICE D. ROBINSON,
Plaintiff-Appellant,
versus
AKAL SECURITY, INC.,
THE UNITED STATES MARSHALS SERVICE,
by and through the U.S. Attorney General,
MICHAEL HOLMAN,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-03658-WMR
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 3 of 12
20-12143 Opinion of the Court 3
____________________
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Marquice Robinson appeals the district court’s judgment in
favor of two out of three defendants in his lawsuit alleging
retaliation in violation of Title VII of the Civil Rights Act of 1964
and raising state-law claims of assault and battery, defamation, and
false light invasion of privacy. He also challenges the district
court’s rulings on his pre-judgment motions for sanctions and his
post-judgment motion for reconsideration. On appeal, Robinson
asks this Court to impose sanctions against the appellees and their
counsel for alleged misconduct and fraud upon the Court during
the appeal proceedings. Two of the appellees, in turn, seek
attorneys’ fees incurred in responding to Robinson’s motion for
sanctions. They also move to strike one of Robinson’s filings.
We lack jurisdiction to consider the merits of the appeal
because the district court improperly certified its partial judgment
as final under Rule 54(b) of the Federal Rules of Civil Procedure.
We therefore dismiss the appeal.
We have jurisdiction over collateral matters, however,
including the parties’ motions for sanctions and attorneys’ fees and
the appellees’ motion to strike. Because the conduct complained
of is not so egregious as to warrant sanctions or attorneys’ fees, we
deny the pending motions. And because Robinson’s extra
“response” to the appellees’ motion for attorneys’ fees was not
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 4 of 12
4 Opinion of the Court 20-12143
allowed under this Court’s rules, we grant the appellees’ motion to
strike it.
I.
Robinson filed a complaint in state court against Akal
Security, Inc., the U.S. Marshals Service, and Michael Holman,
alleging Title VII retaliation claims against Akal and the Marshals
Service, defamation and false light invasion of privacy under
Georgia law against Akal, and Georgia assault and battery claims
against Holman. Akal and Holman removed the action to federal
court. After more than two years of litigation, the district court
granted summary judgment in favor of the defendants on all of
Robinson’s claims against Akal and the Marshals Service, leaving
only the assault and battery claims against Holman. The court also
denied Robinson’s motions for summary judgment and partial
summary judgment, and for sanctions against all three defendants.
At Robinson’s request, the court certified its partial judgment as
final under Rule 54(b).
Robinson appealed both the partial judgment in favor of the
defendants (along with the district court’s rulings on his motions
for sanctions) and the district court’s denial of his motion to
reconsider the judgment. We granted Robinson’s motion to
consolidate his appeals, and briefing is complete.
After the close of briefing, Robinson filed a motion seeking
sanctions against Akal and Holman based on procedural errors
made by their counsel during the course of these appeals, and
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 5 of 12
20-12143 Opinion of the Court 5
against the Marshals Service based on statements in its briefing and
the docket labeling for its supplemental appendix, all of which
Robinson claimed were false or misleading. Akal and Holman filed
motions to recover their attorneys’ fees incurred in responding to
Robinson’s motion for sanctions and his first motion to amend the
motion for sanctions. Akal and Holman also moved to strike one
of Robinson’s briefs as an impermissible surreply.
We begin, as we must, by evaluating our jurisdiction. See
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94–95
(1998); Lloyd Noland Found., Inc. v. Tenet Health Care Corp., 483
F.3d 773, 777 (11th Cir. 2007) (considering a district court’s Rule
54(b) certification sua sponte “because such certifications implicate
the scope of our appellate jurisdiction” (quotation omitted)). Then
we address the parties’ motions.
II.
With some exceptions not relevant here, we have appellate
jurisdiction to review only the “final decisions” of district courts
within our Circuit. 28 U.S.C. § 1291. “To constitute a final
decision, the district court’s order generally must adjudicate all
claims against all parties, thereby ending the litigation.” Corsello
v. Lincare, Inc., 276 F.3d 1229, 1230 (11th Cir. 2001). A district
court “may direct the entry of a final judgment as to one or more,
but fewer than all, of the claims or parties only if the court expressly
determines that there is no just reason for delay.” Fed. R. Civ. P.
54(b).
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 6 of 12
6 Opinion of the Court 20-12143
To certify a case under Rule 54(b), a district court must
follow a two-step analysis. Curtiss-Wright Corp. v. Gen. Elec. Co.,
446 U.S. 1, 7–8 (1980). First, the court must determine that its
judgment is a “final judgment.” Id. at 7. A final judgment is a
decision on a cognizable claim for relief that either completely
disposes of a separable claim or entirely dismisses a party from the
case. Id.; Lloyd Noland Found., Inc., 483 F.3d at 777. The district
court’s judgment here was a “final judgment” because it
completely resolved all of Robinson’s claims against two of the
three defendants.
Second, the district court must determine whether any “just
reason for delay” exists. Curtiss-Wright Corp., 446 U.S. at 8. “Not
all final judgments on individual claims should be immediately
appealable, even if they are in some sense separable from the
remaining unresolved claims.” Id. In addressing this issue, a
district court “must take into account judicial administrative
interests as well as the equities involved.” Id.; Ebrahimi v. City of
Huntsville Bd. of Educ., 114 F.3d 162, 165–66 (11th Cir. 1997).
Consideration of the former promotes the policy against piecemeal
appeals while the latter limits certification “to instances in which
immediate appeal would alleviate some danger of hardship or
injustice associated with delay.” Ebrahimi, 114 F.3d at 166. “As
these factors will often suggest contrary conclusions, Rule 54(b)
certifications must be reserved for the unusual case in which the
costs and risks of multiplying the number of proceedings and of
overcrowding the appellate docket are outbalanced by pressing
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 7 of 12
20-12143 Opinion of the Court 7
needs of the litigants for an early and separate judgment as to some
claims or parties.” Id. (quotation omitted); see Peden v. Stephens,
50 F.4th 972, 978 (11th Cir. 2022).
Generally, we review the district court’s assessment that
there is no just reason for delay only for abuse of discretion. Peden,
50 F.4th at 977. We must “scrutinize the district court’s evaluation
of such factors as the interrelationship of the claims so as to prevent
piecemeal appeals,” but we will disturb the court’s assessment of
the equities only if it was “clearly unreasonable.” Curtiss-Wright
Corp., 446 U.S. at 10.
The district court here found that judicial administrative
interests favored certification because Robinson’s remaining claims
against Holman for assault and battery required “a showing of law
and fact distinct from” his claims against the other defendants.
That is not entirely accurate. The facts surrounding the
confrontation between Robinson and Holman are relevant not
only to Robinson’s assault and battery claims against Holman, but
also to his claim that Akal should be held liable for the alleged
assault and battery. And those facts are also relevant to Robinson’s
employment retaliation claims to the extent that the defendants
rely on the confrontation as a nonretaliatory reason for Robinson’s
termination. The interests of efficient judicial administration
would not be served by certification of the partial judgment
because “we undoubtedly would be required to relearn the same
set of facts if and when the case returned to us on appeal from the
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 8 of 12
8 Opinion of the Court 20-12143
district court’s final judgment” on the assault and battery claims.
Ebrahimi, 114 F.3d at 167.
Under the circumstances, the district court’s assessment of
the equities was clearly unreasonable. The sole basis for the court’s
conclusion that the balance of the equities weighed in favor of
certification was that “Defendants Akal and Holman do not oppose
certification under Rule 54(b).” But a lack of active opposition
from the defendants cannot outweigh the additional burden of
duplicative appeals on our “already overcrowded” docket. Id. at
168. The defendants’ mere acquiescence to certification gives no
indication that the parties have any pressing need for an immediate
partial final judgment, or that any hardship or injustice would
result if the litigation were permitted to follow the usual course to
a final disposition of all claims. See id. at 166. Because we conclude
that the district court abused its discretion in certifying its partial
judgment as final under Rule 54(b), we must dismiss the
consolidated appeals for lack of jurisdiction. Lloyd Noland Found.,
Inc., 483 F.3d at 777.
III.
Although we lack jurisdiction to consider the merits of these
appeals, we may review “collateral” matters such as the imposition
of costs, attorneys’ fees, or sanctions. See Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 395–96 (1990); Hyde v. Irish, 962
F.3d 1306, 1309 (11th Cir. 2020). Motions for sanctions under our
inherent powers to maintain control of the proceedings before us
fall within our jurisdiction over collateral matters. See Hyde, 962
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 9 of 12
20-12143 Opinion of the Court 9
F.3d at 1310. Robinson’s two motions to amend or supplement his
motion for sanctions and Akal and Holman’s motion to strike one
of Robinson’s filings likewise raise collateral matters unrelated to
the merits of the appeal.
Robinson seeks sanctions against Akal and Holman under
our inherent powers because they (1) moved to dismiss the appeal
on the ground that Robinson had not met a briefing deadline, when
Robinson’s pending motion to consolidate the appeals had
automatically stayed the briefing schedule; and (2) filed a notice of
their intent to not file a surreply brief, when surreplies are not
authorized in this Court in any event. To succeed on a motion for
sanctions under our inherent powers, the movant must show
subjective bad faith. Id. “This standard can be met either (1) with
direct evidence of the attorney’s subjective bad faith or (2) with
evidence of conduct so egregious that it could only be committed
in bad faith.” Id. (quotation omitted). Robinson has shown, at best,
errors based on negligence or ignorance of our rules. Sanctions are
not warranted. See id. at 1311.
Robinson also seeks sanctions against the Marshals Service
under our inherent powers, alleging that it committed fraud upon
the Court by stating in its response brief that (1) “[t]here was no
evidence of a collective bargaining agreement” for employees of
Akal at the time of Robinson’s employment, when the Marshals
Service knew that a relevant agreement had been produced in
discovery; (2) “there is no evidence in the record regarding the
nature of the USMS’s presence in the federal courthouse,” when
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 10 of 12
10 Opinion of the Court 20-12143
two of its employees had testified that they worked in the federal
building where the court is located and that the Marshals Service
contracted with Akal to provide court security services; and
(3) “USMS never issued a concurrence letter for Robinson,” when
correspondence in the record showed that the Marshals Service
initially issued, and then retracted, a concurrence letter related to
one of Robinson’s coworkers who was disciplined at the same time
as Robinson and for similar reasons. Robinson also asserted that
the Marshals Service attempted to mislead the Court by (1) labeling
or failing to label documents in its appendix in a way that Robinson
believed “hid” the discovery responses that mentioned the
collective bargaining agreement; (2) labeling (and later correcting)
the docket entry for its supplemental appendix as filed on behalf of
all the appellees, when the Marshals Service and the other appellees
are not jointly represented; and (3) making statements in response
to the Court’s jurisdictional question implying that it had not had
an opportunity to respond to Robinson’s motion for Rule 54(b)
certification.
Robinson has not shown that the attorneys representing the
Marshals Service acted in bad faith. Read in context, the statements
at issue were neither false nor misleading, and the ministerial errors
he complains of were either insignificant or soon corrected (or
both). Again, sanctions are not warranted. See Hyde, 962 F.3d at
1310–11.
Appellees Akal and Holman ask us to award sanctions
against Robinson for filing his motion for sanctions, which they
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 11 of 12
20-12143 Opinion of the Court 11
characterize as frivolous and “beyond the limits of fair argument
and disparaging and wholly improper.” While we find no merit in
Robinson’s motion for sanctions, we are not persuaded that the
motion was so clearly made in bad faith that we should sanction
him for it. Robinson is representing himself, and although the
appellees have indicated that he is a law student, he apparently was
not an attorney at the time he filed the motion. Reading the
motion generously because of his pro se status, we conclude that
sanctions are not warranted at this time. We caution Robinson,
however, that moving for sanctions based on opposing counsel’s
minor procedural errors or ambiguous wording is not only unlikely
to succeed but also demonstrates a lack of professionalism and
civility. If repeated, time-wasting motions of this sort may indeed
result in sanctions.
Last, we consider Akal and Holman’s motion to strike
Robinson’s December 29, 2021 filing. Robinson labeled the filing a
“response” to the appellees’ motion for attorneys’ fees, but Akal
and Holman contend that it was an impermissible surreply because
Robinson had already responded to their request for attorneys’ fees
in the “reply” that he filed in support of his own motion for
sanctions. We agree, and we therefore grant the motion to strike.
See Fed. R. App. P. 27(a)(3) (providing for only one response to a
motion).
IV.
For the reasons stated in this opinion, we GRANT Akal and
Holman’s motion to strike Robinson’s December 29, 2021
USCA11 Case: 20-12143 Date Filed: 11/07/2022 Page: 12 of 12
12 Opinion of the Court 20-12143
Response to Akal Security and Michael Holman’s Cross-Motion for
Attorneys’ Fees. We also GRANT Robinson’s two motions to
amend his motion for sanctions to the extent that we have
considered the arguments therein. Robinson’s motion to impose
sanctions is DENIED as amended, and Akal’s and Holman’s
motions for attorney’s fees are also DENIED. We DISMISS the
appeal for lack of jurisdiction and REMAND to the district court
for further proceedings.
DISMISSED and REMANDED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8485400/ | *837Plaintiff filed this action for declaratory relief seeking a declaration by the Court that she is the owner of certain real property in American Samoa. She alleged that the grantor of that property conveyed it to her on December 14, 1973, and that she recorded her deed on February 19, 1974. The defendants, on March 16, 1973, entered into a contract with the same grantor for the purchase of a tract of land adjacent to that subsequently conveyed to the plaintiff. The deed to the defendants’ property, not delivered until May 28, 1974, was registered on June 4, 1974. The *838boundaries it describes encompass a small portion of the land described in the plaintiff’s earlier deed.
The usual manner of judicially settling the competing claims of various grantees of real property purchased from a common grantor is through a quiet title action. Although it has been said that an action to quiet title may be considered as one for declaratory relief, Amick v. Elwood, 314 P.2d 944 (Wyo. 1957), we are not ready to freely substitute one proceeding for the other. Therefore, except when the only method of settling a land ownership dispute is by an action for declaratory relief, and we do not anticipate the circumstances under which such a necessity might arise, we will entertain such disputes only in the form of an action to quiet title.
For two reasons, the instant case will be considered as though brought in the manner just described. First, the Court is reluctant to apply a newly announced rule in the ease in which it is expressed where to do so would merely result in dismissal of the cause without prejudice and subsequent refiling with the only necessary alteration being the title of the complaint. Second, under Federal Rule of Civil Procedure 15(b), the Court may consider a pleading amended to conform to the evidence introduced with the consent of the parties at the trial. This procedure is “intended to promote the objective of deciding cases on their merits rather than ... on the basis of a statement of the claim or defense that was made at a preliminary point in the action and later proves erroneous.” Wright & Miller, Federal Practice and Procedure: Civil § 1491. The rule further provides that the result of a trial should not be affected by the failure of a party to move for such an amendment.
Although the complaint filed here was for declaratory relief, the facts disclosed, the issues argued by the parties, and the relief prayed for were appropriate to a suit to quiet *839title. The plaintiff has alleged the existence of a deed belonging to the defendant, not invalid on its face, which is adverse to her interest in and may impair her title to certain real property that she has lawfully acquired possession of and to which she has prima facie legal title. The plaintiff has also alleged that the defendants have no “estate, right, title or interest whatever in said land” and asked that the Court declare her the owner and bar the defendants from asserting any adverse claim in the land. The complaint is clearly one to quiet title and we will not dismiss the action merely because it was called something else.
The Court finds that the plaintiff received her deed from the grantor and registered it, as required by 27 A.S.C. § 601(a), before the defendants’ deed was delivered. At that time, title to the property described in her instrument passed to her and the grantor lost all of his interest therein. The instrument the defendants signed on March 16, 1973, was an executory contract which contemplated a further instrument to pass title to the property. Under 27 A.S.C. § 601(b), the defendants are held to have had notice of the contents of the plaintiff’s duly registered, i.e. recorded, deed at the time they accepted delivery of their own. Their subsequent deed, therefore, has no effect on the plaintiff’s ownership of the property described in her instrument.
The defendants contend that although the plaintiff’s title to the disputed land may be superior to their own insofar as the common law of real property and the American Samoa registration, i.e. recording, act are concerned, the conveyance to the plaintiff is void nonetheless because she is not a “full-blooded Samoan.” The American Samoa Code allows the alienation of freehold land to a person with less than one-half Samoan blood, forbids, with one exception, the alienation of communal land to any person who is not a full-blooded Samoan, and *840allows any other land to be alienated to any person with at least “one-half [Samoan] blood.” 27 A.S.C. § 204(b). The property in the instant case is individually owned and therefore comes within the category of other land. As a result, the conveyance to the plaintiff is not void if she has at least one-half Samoan blood.
From the evidence introduced at the trial, we have concluded that the plaintiff was born in Western Samoa, that her mother was a full-blooded Western Samoan, and that her father had one-half Western Samoan blood. The question which arises, is whether an individual who has seventy-five percent Western Samoan blood but is not an American Samoan has, for the purposes of the statute referred to above, at least one-half Samoan blood? We think this must be answered in the affirmative.
As earlier stated, the Fono has restricted alienation of land in American Samoa, other than freehold,1 to persons with “native” blood. A “native” is defined in the Code as a “full-blooded Samoan,” not as a full-blooded American Samoan. We think that if the Fono had intended to restrict the alienation of individually owned land to persons having one-half or more American Samoan blood, it would have done so expressly.
In drafting these statutes, the Fono was acutely aware of the distinction between the words Samoan2 and *841American Samoan 'and of the implications of their use of one term rather than the other. This is evidenced by 27 A.S.C. § 204(b) which provides that a person who is not a full-blooded Samoan, but who has at least one-half Samoan blood, must also have been born in and be a resident of American Samoa as well as a “descendant of a Samoan family” before he can be conveyed communal land.
We find that the plaintiff has at least “one-half native blood” and that she registered her title to the property described in her deed before the defendants registered their title to the property described in their deed. We hold, therefore, that the defendants have no interest in, or right or title to, the land described in the plaintiff’s deed and that the plaintiff is now, and has been since February 19, 1974, the owner of that land as against the defendants.
“Freehold lands” are defined in 27 A.S.C. § 201 as:
“(2) ... all those lands included in court grants prior to 1900 which have not, at the request of the owner, been returned to the status of other land in American Samoa surrendering their freehold characteristics; .. .”
Section 401 of Title 27 of the American Samoa Code sets forth the only-statutory definition of a Samoan or a person of Samoan descent. It provides that those terms shall include residents of the territory who have “one-half Polynesian, Melanesian, or Micronesian blood. . . .” The application of this definition, however, is expressly restricted to Chapter 5 of Title 27 and so cannot be employed in the present case which involves the meaning of “Samoan” as used in an entirely different chapter.
We note, however, that the terms defined in 27 A.S.C. § 401 are never, in fact, used in Chapter 5, Title 27 and that the section is, for all practical purposes, a nullity. In Title 12 of the 1961 Edition of the Code, the provisions now comprising Chapter 5, Title 27, with the exception of section 401, were *841codified under Chapter 12.02. Section 401, however, was codified under Chapter 12.01 together with enactments in which the terms “Samoan” and “Samoan descent” were actually used. In the process of revision, it appears that the definitional section was simply mistakenly separated from those relevant provisions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486007/ | On March 14, 1989, Faipa Ta’ala filed her application with the Territorial Registrar to be registered as the holder of the matai title Fonoti, attached to the village of Aunu’u. This attracted the respective objection and counter-claims of Fonomaitu Fonoti, filed March 17, 1989, and Paueli Satele, filed May 15, 1989. Ensuing family meetings to select a matai, both in the village and before the Office of Samoan Affairs pursuant to Title 43 A.S.C.A. Chapter 03, were unsuccessful. Hence *23this litigation resulted.
When this matter came on for trial, we dismissed Faipa Ta’ala’s claim for failure to comply with the requirements of T.C.R.I.T. 3. Not only had she failed to respond to the questionnaire made and provided for in these cases, but she has also shown no real interest in pursuing her claim.1 Accordingly, we were left with the merits of the counter-claims.
Fonomaitu first presented his case. After he had rested, Satele moved to disqualify. him on the grounds that he did not meet the residency requirements of A.S.C.A. § 1.0404. Anticipating the motion, the latter in his testimony claimed to be a resident of Aunu’u, although at the same time he admitted that he has been living in California. However, Fonomaitu attributes his presence in California to his medical needs, and argues that he is, therefore, a resident of the territory within the contemplation of A.S.C.A. § 1.0404.2
*24The law requires, among other things, that a claimant seeking to register or object to matai succession be a resident of the territory for a period of "one calendar year immediately preceding the date of claim or objection." A.S.C.A. § 1.0404(a). Here the evidence failed to show that Fonomaitu had in fact resided in the territory for the calendar year immediately preceding the filing of his objection and counter-claim. Rather, the evidence showed that, but for the period between 1983 to 1985, Fonomaitu had actually been living off-island since he first departed the territory in 1969 to join the armed forces. He has periodically visited Samoa.3
We turn to Fonomaitu’s claim to permissible absence on the grounds of medical need. The law further provides that an absentee "bona fide” resident of the territory nonetheless remains eligible to claim or object to succession, if the reason for his absence comes within one of those enumerated grounds contained in § 1.0404(b)(1) through (5); and he has registered as an absent resident with the office of the Territorial Registrar in accordance with the provisions of A.S.C.A. § 1.0404(b) and (d).4
In support of his claim to permissible absence, Fonomaitu furnished a letter from his family doctor in California together with copies of his registration as an absent resident. Fonomaitu’s name was recorded on the absent resident register on March 15, 1988, and then again on November 7, 1988. He has complied with that aspect of the *25statute relating to absent resident registration.
The letter from his doctor, however, is at best equivocal on the other statutory requirement at issue; that is, whether Fonomaitu was absent from the territory during the year immediately preceding the filing of his objection/counterclaim (March 1988 to March 1989) by reason of "medical treatment and recuperation." A.S.C.A. § 1.0404(b)(3). His doctor’s letter, dated September 27, 1991, is a very brief, one-paragraph note, which hardly seems to have been prepared to specifically address the residency factors posed by the statute. The letter does not speak to any particular frame of time; it begins by alluding very generally to Fonomaitu being under the doctor’s care for "multiple medical problems." It then essentially explains that because of a past gastrectomy (date of operation unspecified), Fonomaitu has dumping syndrome "with other relative gastrointestinal problems" and that he gets his vitamin B12 by way of injections. Lastly, the letter mentions "arthritis and lower back syndrome" and concludes that Fonomaitu needs "continuous medical care."
The court is unable to conclude, on the extent of this evidence, that Fonomaitu was absent from the territory for the relevant calendar year period (March 1988 to March 1989) because of medical reasons. There is simply nothing to suggest that Fonomaitu’s medical needs could not have been accommodated had he lived on-island at the time. Nor has there been anything to suggest that his VA (Veterans Administration) benefits5 would have been prejudiced had he been living in the territory. Indeed, Fonomaitu quite candidly admitted on the stand that he is able to return to the territory and that the appropriate transfer of his VA records could be arranged. He further testified that if awarded the Fonoti title he would return to stay. On these facts, we conclude that Fonomaitu Fonoti is, for the time being, ineligible to claim succession to the title Fonoti in that he fails to meet the residency requirements of A.S.C.A. § 1.0404.
On the other hand, the evidence does show that Satele meets the basic qualifications and is eligible to claim succession to the matai title Fonoti. On the foregoing, it is the judgment of the court that Paueli Satele shall be registered as the successor to the matai title Fonoti, *26attached to the village of Aunu’u. Certification to the Territorial Registrar pursuant to A.S.C.A. § 1.0409 shall be made accordingly.
It is so ordered.
Faipa Ta’ala filed her application with the Territorial Registrar even before the family had met to address the appointment of a successor matai. She believes that the appointment of a Fonoti titleholder is within her gift and it seems that her application was motivated as an act of pule. She testified that she has pointed her finger to (and in support of) Fonomaitu.
A.S.C.A. § 1.0404 provides in pertinent part:
(a) Except as provided in subsection (b) and (c), no one is eligible to claim or object to the succession to a matai title unless he has resided in American Samoa for one calendar year immediately preceding the date of the claim or objection
(b) The territorial registrar shall keep a record of the names of those bona fide residents of American Samoa who are absent from the Territory for any of the following reasons:
(3) medical treatment and recuperation;
(c) Any person on such record is eligible to claim or object to the succession to a matai title as if he actually resided in American Samoa.
(d) A person’s name shall be recorded upon *24the petition of 5 adult members of his family. The recording shall be effective for 2 years.
We reject counsel’s submission to the effect that occasional visits to the territory coupled with the intent to some day return, constitute residency in American Samoa notwithstanding an extended absence. The statute in question talks of "bona fide residents," A.S.C.A. § 1.0404 (b), and permissible absences whereby an absentee may nonetheless file a claim or object to a succession "as if he actually resided in American Samoa." A.S.C.A. § 1.0404 (c) (emphasis added). Furthermore, the word "residence," as this Court has said before, "imports something of expected performance in way of personal presence." In re Matai Title Fagaima, 4 A.S.R. 83, 86 (1973) (emphasis added).
Such registration is good only for a period of two years. See A.S.C.A. § 1.0404(d).
Fonomaitu testified that he had undergone his gastrectomy in 1972 while still in the armed forces. As a result he was discharged on full medical disability. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486008/ | Plaintiff, a local corporation, was at all relevant times in the business of selling builder’s supplies. Defendant, a foreign corporation, was at all relevant times exporting lumber and other building material to the territory. Defendant had apparently shipped a quantity of building material to another on-island builder’s supplies dealer, Pacific Paradise *27Development Company, who could not pay.1 Consequently, defendant sought out interested third-party buyers.
Findings of Fact
In its efforts to find third-party buyers, defendant managed to sell some lumber and nails to plaintiff. This transaction took place around April 1988. Later on, around June 1988, defendant’s Mr. James Nava (hereinafter "Nava") approached plaintiffs Mr. Beaver Ho Ching (hereinafter "Ho Ching") regarding a concrete block making machine (hereinafter "block machine") which the defendant had also landed on island and wanted to sell. The block machine had been shipped disassembled, as "block machine parts," and at the time, it was still in its shipping container among other assorted items. After a series of inquiries from plaintiff and assurances from the defendant to the effect that the block machine was working and in good condition, plaintiff purchased the block machine for $25,000.00.
As it turned out, the block machine was in no condition to manufacture blocks — which prompted Ho Ching to ask for the return of his company’s money. Nava, on other hand, proposed to Ho Ching that he get the block machine working and that they would subsequently work out "something" between them in the way of sharing the cost of parts. Ho Ching was then given the name of the machine’s manufacturer, located in Vancouver, to contact for parts and repairs; which he did. The block machine did indeed prove to require extensive refitting and repairs. For parts and accessories alone, the total bill was in excess of $35,000; the block machine had apparently been sitting unused and deteriorating for many years somewhere in Minnesota before it was purchased by defendant. Eventually the block machine was restored to working order by plaintiff, and in January 1989, it finally started to manufacture concrete blocks.
The "something" which plaintiff had expected to be worked out on the cost of parts was not; hence this litigation. Plaintiff here seeks reimbursement for the cost of parts required to fix the block machine as well as damages for four months of lost profits while the block machine was being fixed. Defendant, on the other hand, denies liability by arguing an "as is" sale of "a [shipping] container containing a list of *28specific machinery and accessories that represented a 10AB Columbia Concrete Machine." Defendant’s Trial Memorandum, at pages 1-2.
Conclusions of Law
We find it difficult to believe, and hence reject the claim, that defendant had merely offered to sell plaintiff (and that plaintiff had in turn intended to spend $25,000.00 to buy) a miscellaneous assortment of concrete block machine parts. Rather, we find on the evidence that while defendant had offered-to sell plaintiff a concrete block machine which it had represented, and thus expressly warranted, to be in good working condition, it had in actuality sold plaintiff an assortment of parts or remnants of a 10AB Columbia Concrete Machine. There was therefore, in our view, a fundamental variance between the performance promised and that made. We conclude breach of contract on the part of defendant.2
As to damages, however, the evidence also shows that plaintiff now effectively has an asset, the restored block machine, worth significantly in excess of purchase price and cost of parts and accessories. A dealer in these types of machines, a Mr. Bill Stewart, testified to this effect. At the same time, Ho Ching had also testified that his company had purchased another block machine which they have been using, and that the block machine in question has since been dismantled and placed in storage. It is thus apparent that, for some time now, the block machine in question has been available for sale and disposition and that plaintiff should have thus made attempts to sell the machine in accordance with its duty to mitigate damages.
In the circumstances, we conclude that the only losses which may be appropriately considered are those relating to plaintiffs claim of lost sales opportunities while the block machine in question was being repaired. In this regard we assess, on the evidence presented, damages resulting from lost sales opportunities directly attributable to defendants breach of contract in the amount of $20,000, and direct that judgment be *29entered accordingly.3
It is so ordered.
This gave rise to other suits. See Pacific Reliant Industries v. Amerika Samoa Bank, 14 A.S.R.2d 41 (1990).
We are also satisfied that a second agreement was also concluded, and breached by defendant, resulting from defendant’s offer to share costs for parts and plaintiffs resulting forbearance from taking immediate action.
The proofs presented in this regard left something to be desired. The comparative sales picture presented for the months immediately preceding the period involved with repair work could have been more precise. Rather, Ho Ching testified, it seems from recollection, that production for the month of January 1989 was around six to eight hundred blocks per day, which he translated into a sales picture of $8,000 to $10,000 for the month. He further testified that sales then steadily increased, reaching a figure of $22,000.00 per month. Notwithstanding, we are satisfied that the range of sales figures presented are not without credible foundation. These were heyday times for the building industry following rebuilding and recovery efforts from the effects of hurricane Tusi in the Manu’a group. However, in our conclusion, we have necessarily held plaintiff to the quality of its proofs and given appropriate weight accordingly. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486750/ | ORDER GRANTING PARTIAL SUMMARY JUDGMENTS TO PLAINTIFF AND DEFENDANT
Petitioner Boral Gas of American Samoa, Inc. (“Boral”) brought this action to redetermine tax deficiencies, penalties, and interest assessed by respondent Faafetai Iaulualo (“Iaulualo”), as the Acting Treasurer of American Samoa and Commissioner of Internal Revenue under the Samoan Income Tax Act (“SITA”), for Boral’s 1994, 1996, 1997, 1998, and 1999 tax years, respectively ending June 30, 1995, 1997, 1998, 1999, 2000. Both parties filed motions for summary judgment. The motions were heard on April 29, 2002, with all counsel present.
■Tnrisdiftinn
This court has exclusive, original jurisdiction over all judicial, proceedings in American Samoa, both criminal and civil, with respect to SITA. A.S.C.A. § 11.0408. Actions pertaining to improperly assessed tax deficiencies and penalties are subject to the statutory requirements applicable to such actions brought in a Tax Court under the United States internal revenue code (“IRC”). Klauk v. Am. Samoa Gov’t, 13 A.S.R.2d 52, 55 n.2 (Trial Div. 1989) (the High Court sits as a Tax Court in deficiency proceedings); see also A.S.C.A. § 11.0401; 26 U.S.C.A. §§ 7441-7478 (2002). In this case, the court’s jurisdiction properly attached when a notice of deficiency was mailed to Boral, the taxpayer, and it filed this action contesting the deficiency within 90 days. See Stephens v. Comm’r of Revenue, 15 A.S.R.2d 87, 88 (Trial Div. 1990) (citing 26 *234U.S.C.A. § 6213(a)).
Summary Judgment Standard
Summary judgment is appropriate when there is “no genuine issue as to any material fact.” T.C.R.C.P. 56(c); Plaza Dep’t Store v. Dunchnak, 26 A.S.R.2d 82, 83 (Trial Div. 1994). The pleadings and supporting documents are viewed in the light most favorable to the non-moving party. Plaza Dep’t Store, 26 A.S.R.2d at 83. Furthermore, as in this case, “disputed ‘legal questions . . . present nothing for trial and [are] appropriately resolved on a motion for summary judgment.”’ Flair Broad. Corp. v. Powers, 733 F. Supp. 179, 184 (S.D.N.Y. 1990) (quoting Holland Indus. v. Adamar of New Jersey, Inc., 550 F. Supp. 646, 648 (S.D.N.Y. 1982)).
Discussion
A. Statute nf T .imitations Rar on Tax Years 1994 and 1996
Boral points out, and Iaulualo concedes, that the assessment of any additional income taxes, penalties, or interest for Boral’s 1994 and 1996 tax years, ending June 30, 1995, and June 30, 1997, are barred by the statute of limitations. The limitation period is three years after the tax return is filed. SITA § 6501(a). Boral’s tax returns for these two tax years were filed more than three years before Iaulualo asserted the assessed tax deficiencies, penalties, and interest for those tax years. Therefore, Boral is clearly entitled to summary judgment for these two tax years.
B. Undisputed Calculations
Boral’s calculations on the taxes owed for the remaining tax years in question, 1997, 1998, and 1999, ending June 30, 1998, 1999, and 2000, and Iaulualo’s calculations on the assessed tax deficiencies, penalties, and interest owed for the same years are undisputed. There is no genuine issue of material fact regarding the essential legal issue: whether the applicable corporate income tax rates are set forth in § 11(b) of the United States income tax law (“IRC”) through adoption by reference in A.S.C.A. § 11.0403(a), or in A.S.C.A. § 11.0533. The action is therefore ripe for summary judgment with respect to the corporate income tax rate issue.
C. Applicable Tax Rates
In 1963, American Samoa adopted by reference the IRC of 1954, as it was then in effect and may be later modified, as the income tax law of the *235territory. A.S.C.A. § 11.0403(a). Excepted were: (1) IRC provisions clearly inapplicable or incompatible with the intent of § 11.0403(a), id., and (2) amendments enacted by the Legislature of American Samoa. A.S.C.A. § 11.0501.
IRC § 11(b) sets forth the IRC income tax rates in general on corporations. This section is included in IRC’s subtitle A, which was specifically adopted as part of the SITA. A.S.C.A. § 11.0403(a). The corporate tax rates in IRC § 11(b) were substantially reduced by the federal Tax Reform Act of 1986, effective for tax years beginning on or after July 1, 1987. U.S. Pub. L. No. 99-514 (effective Oct. 22, 1986). Initially, the reduced tax rates automatically became the effective tax rates in the territory under A.S.C.A. § 11.0403(a). See, e.g., Patu v. Westervelt, 4 A.S.R. 812, 819-822 (Trial Div. 1974) (acknowledging amendment to Tax Court mies contained in the IRC as applicable in a High Court deficiency hearing under SITA).
The Legislature of American Samoa responded by enacting the “Revenue Recoupment Act of 1987,” adding A.S.C.A. § 11.0533 as a new amendment to the SITA. Am. Samoa P.L. No. 20-51 § 3 (approved by the Governor Feb. 29, 1988 and effective. June 4, 1988). The new amendment added a fourth tax bracket to SITA that was deliberately removed from IRC § 11(b).1 The rates established in the “Revenue *236Recoupment Act of 1987” were to remain in effect until July 1, 1989. A.S.C.A. § 11.0533(b); P.L. No. 20-51 § 3. However, in the following year, the Legislature amended § 11.0533 and removed this sunset provision by deleting subsection (b) in its entirety. Am. Samoa P.L. No. 21-8 § 1 (effective July 22, 1989). Thus, the corporate income tax rates created by the “Revenue Recoupment Act of 1987” in A.S.C.A. § 11.0533 effectively became permanent statutory law.
Boral argues, however, that when IRC § 11(b) was once again amended in 1993, see U.S. Pub. L. 103-66 (effective Aug. 10, 1993), it was reincorporated into the SITA through A.S.C.A. § 11.0403(a) and implicitly repealed A.S.C.A. § 11.0533. Needless to say, the current IRC corporate tax rates, enacted in 1993, are substantially less than the corporate rates found in A.S.C.A. § 11.0533.2 Iaulualo on the other hand *237counters that A.S.C.A. § 11.0533 is, and has been since it was passed, the corporate tax rate of American Samoa notwithstanding any. subsequent changes to the IRC. Both parties make valid points. Standing alone, A.S.C.A. § 11.0403 presently adopts the 1993 version of IRC § 11(b), which has not been subsequently modified by enactment of a local statute. Standing alone, A.S.C.A. § 11.533 presently eliminates the 1986 version of IRC § 11(b).
The decision in this case, therefore, is one of statutory interpretation, which is purely a question of law to be decided by the court. United States v. Blue Cross Blue Shield of Mich., 859 F. Supp. 283, 286 (E.D. Mich. 1994). The purpose of statutory interpretation is to effectuate the intention of the legislature. Id. We begin, as always, by determining “whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). We do so because “[o]ften these words are sufficient in and of themselves to determine the purpose of the legislation.” United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543 (1940). In this case, however, the two resulting sets of distinct corporate income tax rates established by reading the plain language of the two statutes creates an ambiguous and irreconcilable impasse at face value.
When the words are either reasonably susceptible to different meanings, conflict with the overall statutory purpose, or cause absurd results, a court must look beyond literal statutory language. Int’l Tel. & Tel. Corp. v. General Tel. & Elecs. Corp., 518 F.2d 913, 917 (9th Cir. 1975). We analyze “the design of the statute as a whole and ... its object and policy.” Crandon v. United States, 494 U.S. 152, 158 (1990). In this respect, it is “proper to' examine sources other than [the statute’s] language for evidence of legislative intent, and the legislative history of the statute in question is, of course, relevant.” Kennedy Bros. v. Property Tax Appeal Bd., 510 N.E.2d 1275, 1279 (Ill. App. Ct. 1987).3
*238A.S.C.A. § 11.0403 only adopts the income tax and income tax rules that are “not clearly inapplicable or incompatible with the intent of [that] section.” It does “not purport to supplant federal tax laws, but it merely creates an additional, territorial tax modeled on the federal tax.” Alamoana Recipe Inc. v. Am. Samoa Gov’t, 24 A.S.R.2d 156, 157 (Trial Div. 1993). This intent to create two different statutory schemes was evident in the adoption of § 11.0533.
The Legislature stated in the preamble to the act that its purpose was “[t]o restore tax revenues lost by American Samoa as a consequence of the enactment by the United States Congress of the Tax Reform Act of 1986.” The Legislature found that the economic considerations that led the U.S. Congress to reduce the corporate tax rates were “not applicable across the board to American Samoa’s island economy.” Am. Samoa P.L. No. 20-51 § 2(3). Such a reduction would “be expected to result in a substantial loss of tax revenues and in substantial budgetary deficits.” Id. at § 2(4). Therefore, “in order to secure the welfare of the Territory and its inhabitants,” the Legislature found it desirable to retain higher tax rates for “large corporate enterprises.” Id. at §§ 2(6), (7).4
Also compelling is the fact that the Legislature originally intended for § 11.0533 to last for one year, presumably to allow the government to adjust their budget to the expected losses in revenue. As already noted, the very next year the Legislature repealed the sunset provision. Am. Samoa P.L. No. 21-8 § 1. The Legislature could not have known at the time that the U.S. Congress would eventually readjust IRC § 11(b). We glean from this that when our Legislature repealed the sunset provision they intended to keep the higher corporate tax rate until they saw fit to change it. When IRC § 11(b) was amended in 1993, it therefore became a provision that was “incompatible” with the intent of A.S.C.A. § 11.0403 to create a “separate territorial income tax” as manifested through § 11.0533.
We cannot accept the interpretation Boral urges that whenever the IRC is amended, it automatically becomes the law of the territory. Citing A.S.C.A. § 11.0403, Boral latches onto the phrase that “the income tax and the income tax rules . . . enacted or adopted [under the IRC] shall be deemed to impose a separate territorial tax.” (emphasis added). Boral’s interpretation fails to look at the word “shall” in its proper context. As we have noted, IRC provisions “shall” become the law of the territory only when they are not “inapplicable or incompatible” with SITA.5
*239We conclude that the corporate income tax rates in effect in American Samoa are the tax rates set forth in A.S.C.A. § 11.0533. ASG is therefore entitled to payment of the assessed deficiencies for Boral’s tax years 1997, 1998, and 1999.
D. Penalties
Iaulualo also assessed an accuracy-related penalty of 20% against Boral for “negligence or disregard of rules or regulations” and/or a “substantial understatement of income tax.” SITA § 6662 (a)-(b). Iaulualo moved for summary judgment on this issue. Boral did not make a cross-motion for summary judgment on this point but instead opposed Iaulualo’s motion claiming that a material issue of fact existed.
In support of its opposition to Iaulualo’s motion for summary judgment, Boral submitted an affidavit from their vice president, Richard Young, Jr., who stated that he was in charge of filing Boral’s tax returns for the pertinent years. He stated that he engaged Daniel R. King (“King”) to *240prepare and file Boral’s returns and that he relied on King’s advice concerning which tax rate was applicable. Additionally, Boral submitted an affidavit by King, a Certified Public Accountant, who acknowledged that he prepared Boral’s tax returns for the pertinent years. Furthermore, King himself relied on advice from an ASG employee and tax advisor to the ASG Tax Office.
We need not dwell on this point. We agree with Boral that a material issue of fact remains. “While hiring an attorney or accountant does not insulate the taxpayer from negligence penalties, good faith reliance on professional advice concerning tax laws is a defense.” Betson v. C.I.R. Serv., 802 F.2d 365, 372 (9th Cir. 1986) (citing United States v. Boyle, 469 U.S. 241, 250-252 (1985)); see also SITA § 6664(c). But see Stroud v. United States, 906 F. Supp. 990, 997 (D.S.C. 1995) (plaintiffs failed to carry burden that IRS’s finding of negligence was erroneous when nothing in the record offered evidence that they relied on their attorney’s advice).
Clearly, Boral has alleged facts sufficient to survive a motion for summary judgment on the assessed penalties for Boral’s tax years 1997, 1998, and 1999.6 ASG is therefore not entitled to a summary judgment for payment of those assessed penalties.
E. Interest
SITA §§ 6601, 6621 provides for payment of interest on underpayment of income taxes owed. ASG is therefore also entitled to summary judgment requiring payment of interest on assessed deficiencies, but not on the assessed penalty amounts, for Boral’s tax years 1997, 1998, and 1999, in accordance with SITA §§ 6601, 6621.
F. Costs
SITA § 7430 provides for payment of reasonable litigation costs, including reasonable court costs and attorney’s fees, to the prevailing party. However, ASG is not a “prevailing party” by definition, SITA § 7430(c)(2)(A), and is therefore not entitled to recover reasonable litigation costs on its favorable summary judgment for Boral’s tax years 1997, 1998, and 1999.
On the other hand, Boral is a “prevailing party” by the same definition. *241It may therefore be entitled to recover reasonable litigation costs against ASG on its favorable summary judgment for Boral’s tax years 1994 and 1996. See SITA § 7420(b)(2). We do not, however, have enough information to make a proper determination as to the amount of those costs owed. We leave it to Boral to file in a timely manner appropriate supporting documentation of its reasonable litigation costs.
Order
1. ASG’s motion for summary judgment is granted as the motion pertains to the income tax deficiencies assessed against Boral in the amounts of $40,849.56 for its tax year 1997, $55,010.00 for its tax year 1998, and $52,599 for its tax year 1999, plus interest accrued to date and continuing to accme on each of the deficiency amounts, in accordance with SITA §§ 6601, 6621, until its summary judgment is paid in full. ASG’s summary judgment shall not include litigation costs.
2. ASG’s motion for summary judgment is denied as the motion pertains to the penalties assessed against Boral for its tax years 1997, 1998, and 1999. Genuine issues of material facts are triable as to the penalties assessed and interest on the penalties for Boral’s tax years 1997, 1998, and 1999.
3. Boral’s motion for summary is granted as the motion pertains to the income tax deficiencies, penalties, and interest assessed against Boral for its tax years 1994 and 1996, and is denied, as the motion pertains to the income tax deficiencies and interest assessed on each of the deficiency amounts for its tax years 1997, 1998, and 1999.
4. Either party may request the court to adjudicate the amounts of its respective entitlement to interest or reasonable litigation costs, including reasonable attorney’s fees, by filing with the court and serving on the opposing party one or more affidavits of its counsel or other suitable person(s) setting forth the amounts claimed. If the other party contests the amounts, the court will conduct an evidentiary or other appropriate hearing and determine the issues.
It is so ordered.
26 U.S.C.A. § 11(b), as amended by U.S. Pub. L. 99-514, reads:
(b) Amount of tax.—
(1) In general. -The amount of tax imposed by subsection (a) shall be the sum of~
(A) 15 percent of so much of the taxable income as does not exceed $50, 000,
(B) 25 percent of so much of the taxable income as exceeds $50,000 but does not exceed $75,000, and
(C) 34 percent of so much of the taxable income as exceeds $75,000.
In the case of a corporation which has taxable income in excess of $100,000 for any taxable year, the amount of tax determined under the preceding sentence of such taxable year shall be increased by the lesser of (i) 5 percent of such excess, or (ii) $11,750.
A.S.C.A. § 11.0533(b) reads:
11 (b) Amount of tax.
The amount of tax imposed by subsection (a) shall be the sum of~
(1) 15 percent of so much of the taxable income as does not exceed $50,000,
*236(2) 25 percent of so much of the taxable income as exceeds $50,000 but does not exceed $75, 000,
(3) 34 percent of so much of the taxable income as exceeds $75,000 but does not exceed $650,000, and
(4) 44 percent of so much of the taxable income as exceeds $650,000.
In the case of a corporation which has taxable income in excess of $100,000 for any taxable year, the amount of tax determined under the preceding sentence for such taxable year shall be increased by the lesser of (a) 5 percent of such excess or (b)$ 11,750.
26 U.S.C.A. § 11(b) currently reads:
(b) Amount of tax.—
(1) In general. -The amount of tax imposed by subsection (a) shall be the sum of—
(A) 15 percent of so much of the taxable income as does not exceed $50,0000,
(B) 25 percent of so much of the taxable income as exceeds $50,000 but does not exceed $75,000,
(C) 34 percent of so much of the taxable income as exceeds $75,000 but does not
exceed $10,000,000, and
(D) 35 percent of so much of the taxable income as exceeds $10,000,000.
In the case of a corporation which has taxable income in excess of $100,000 for any taxable year, the amount of tax determined under the preceding sentence for such taxable year shall be increased by the lesser of (1) 5 percent of such excess, or (ii) $11.750. In the case of a corporation which has taxable income in excess of $15,000,000, the amount of the tax *237determined under the foregoing provisions of this paragraph shall be increased by an additional amount equal to the lesser of (i) 3 percent of such excess, or (ii) $100,000.
Boral also argues that revenue-raising acts should be construed strictly against the government and in favor of the taxpayer. See United States v. Merriam, 263 U.S. 179, 187-88 (1923). While generally true, Boral’s contention sweeps too broadly. This canon of construction applies “only when there is doubt as to whether a statue or ordinance imposing or increasing a tax applies to certain taxpayers.” Kennedy Bros., 510 N.E.2d at L279. At issue here is not whether the corporate tax applies to Boral, but, rather, what rate Boral should pay. The rule of leniency is not invoked.
The Legislature, also replaced all references in the SITA to the IRC of 1954 with references to the IRC of 1986. Am. Samoa P.L. No. 20-51 § 5.
Boral argues that interpreting § 11.0533 in the manner we have, if *239applied to other SITA sections, will lead to absurd results. It notes that A.S.C.A. §§ 11.0504 and 11.0506 are incompatible with the current IRC provisions that those sections modified and to therefore uphold them as good law would create similar conflicts. For example, A.S.C.A. § 11.0504 amended IRC § 38, which applied to an “investment credit” for depreciable property. That section was repealed in 1984 and replaced with a general business credit. See U.S. Pub. L. No. 98-369, §§ 473(m) (1) & 612 (E)(1). Boral argues that the only logical course is to find that all these SITA provisions have been implicitly repealed by subsequently enacted IRC amendments.
Because the interpretation of these sections is not an issue before us, we are cautious to comment on Boral’s argument. We do note that we have not merely accepted § 11.0533 at its face value. Rather, we have reached our decision only after undertaking an exhaustive analysis, of all the relevant statutory provisions and legislative history. Were we ever to confront the seeming conflicts of § 11.0504 or § 11.0506, we would apply the same mode of analysis to reach a result that would be consistent with this court’s methodology and the Legislature’s intent.
We also note that in 2001, the Legislature froze the incorporation of the IRC as of December 31, 2001. Am. Samoa P.L. No. 27-15 (approved by the Governor and, as emergency legislation, effective on October 22, 2001). That amendment would surely affect our interpretation of any conflicting statutes. But that aside, because the Territory’s income tax laws are no longer subject to IRC amendments, it would behoove the Legislature to clean up Title 11 and delete the provisions, if any, that have been implicitly or explicitly repealed by their actions.
Boral’s uncontroverted reliance of professional advice stated under oath appears, however, sufficient to support summary judgment in Boral’s favor on the penalties issue should it remain undisputed upon Boral’s motion for summary judgment on this issue. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486751/ | ORDER GRANTING PLAINTIFFS AND DENYING DEFENDANT SUMMARY JUDGMENT
Plaintiffs Bruce Dameworth and Fe'ofa'aki Dameworth (“the Dameworths”) filed a complaint for an additional refund of income taxes for the year 2000 in the amount of $2,429.00. Defendant American Samoa Government (“ASG”) answered, denying any additional refund liability. First, the Dameworths, and then, ASG moved for summary judgment. The Court heard these motions of July 12, 2002. Counsel for both parties were present.
Discussion
A. Summary Judgment Standard of Review
Summary judgment is appropriate when there is “no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law. T.C.R.C.P. 56(c). If the moving party makes a prima facie case that would entitle the movant to a directed verdict if uncontroverted at trial, the burden shifts to the adverse party, who must set forth specific facts showing that there is a genuine issue for trial.” T.C.R.C.P. 56(e). The court must view the pleadings and supporting *244papers in the light most favorable to the non-moving party. Amerika Samoa Bank v. United Parcel Serv., 25 A.S.R.2d 159, 161 (Trial Div. 1994); Ah Mai v. Am. Samoa Gov’t (Mem.), 11 AS.R.2d 133, 136 (Trial Div. 1989).
B.
The Dameworths timely filed a joint American Samoa income tax return, Form 390, for the tax year 2000. They reported a tax liability of $7,384.00 and credits of $10,307.00, which resulted in an overpayment of $2,923.00. The stated tax credits consisted of $8,307.00 of income tax withheld from wages and $2,000.00 as the child tax credit ($500.00 for each of four qualifying children). The Dameworths also timely filed an amended tax return, Form 390X, for the tax year 2000 to report reduced wages and an additional overpayment of $379.00, which decreased their actual tax liability to $7,005.00. The two added overpayments are $3,302.00. ASG paid the Dameworths a refund of $873.00 for tax year 2000 after deducting a $50.00 penalty for not supplying a tax identification number for a dependent listed on their 1999 income tax return. The Dameworths accepted the penalty assessment. Thus, the stated net overpayment amount still outstanding is $3,302.00 less $923.00, or $2,379.00.
ASG does not contest the Dameworths’ calculations. However, it disputes the applicability of the child tax credit in American Samoa. On March 21, 2000, the Governor of American Samoa ordered the Treasurer of American Samoa to cease recognition and payment of any child tax credit claims. Then, on August 5, 2001, the Governor confirmed the earlier directive and ordered the Treasurer to pay the additional child tax credit only to the extent federal funds are received to pay the credit. In both directives, he cited the lack of locally appropriated funds as the reason for the directive. The Legislature of American Samoa has not appropriated funds for the payment of refunds for the basic child tax credit.
C. Legal Basis of the Child Tax Credit
American Samoa has adopted the income tax laws and mies of the United States through A.S.C.A. § 11.0403(a), which reads:
(a) The income tax and the income tax mies in force in the United States of America and those which may hereafter be enacted or adopted, where not clearly inapplicable or incompatible with the intent of this section, are adopted by American Samoa, and shall be deemed to impose a separate territorial income tax, payable to the government. These laws include, but are not limited to, the *245government. These laws include, but are not limited to, the following provisions of the United States internal Revenue Code of 1986; subtitle A; chapters 24 and 25 of subtitle C, with reference to. the collection of income tax at sources on wages; and all provisions of subtitle P which apply to the income tax, including provisions as to crimes, other offenses and forfeitures contained in chapter 75.1
The provisions of A.S.C.A. chs. 11.04 and 11.05 and of the United States Internal Revenue Code (“IRC”) adopted by § 11.0403(a) constitute the Samoan Income Tax Act (“SITA”). A.S.C.A. § 11.0403(b).
At issue is the child tax credit in the IRC, 26 U.S.C.A. § 24 (“SITA § 24”). The statute in part reads:
§ 24. Child tax credit
(a) Allowance of credit-There shall be allowed as a credit against the tax imposed by this chapter for the taxable year with respect to each qualifying child of the taxpayer an amount equal to $500 ....
Subtitle A of the IRC includes 26 U.S.C.A. § 24, and the child tax credit is therefore at face value a provision of the American Samoa income tax laws as SITA § 24.
ASG argues that the exception in A.S.C.A. § 11.0403(a) “where not clearly inapplicable or incompatible with the intent of this section” comes into play in this regard. The exception provides an ultimate safety valve, as ASG argues, to ensure that provisions contrary to the territory’s public interest are not enacted into law. ASG then attempts to illustrate a basis for finding an implicit legislative intent to disallow the credit
We disagree with ASG. The Legislature has not, as is discussed further below, enabled the Governor to enact laws, specifically for purposes of *246this action to repeal income tax laws, without legislative approval. Though not needed at all, as is also discussed further below, the lack of legislated appropriations for child tax credit refunds does not equate with any legislative intent to disallow the credit.
The Governor’s several proposals to remove the child tax credit from the SITA and the Legislature’s several rejections of the proposals, which we judicially notice as a matter of common knowledge, demonstrate just the opposite. Contrary to ASG’s reasoning, the Legislature has evidenced clear intent to recognize the child tax credit as the law of American Samoa. Moreover, ASG fails to articulate, let alone prove, any specific public interest rendering the basic child tax credit clearly inapplicable or incompatible with the intent of AS.C.A. § 11.0403.
We hold that the child tax credit is not clearly inapplicable or incompatible with the intent of A.S.C.A, § 11.0403(a), and therefore, the credit is the law of American Samoa.
D. Governor’s Non-Payment Directive
ASG contends that even if the basic child tax credit is the law in American Samoa, the Governor’s directive prohibiting any payment of the child tax credit was still a lawful exercise of the Governor’s authority as ASG’s chief executive.
ASG characterizes the Governor’s action as comparable with the Treasurer’s regulatory authority under the SITA. It rationalizes that the Governor, as the Treasurer’s superior, may fill the Treasurer’s role, denoted in AS.C.A. § 11.0401,2 in administering American Samoa’s income tax laws. As examples, ASG cites SITA § 481, 42, and 1502, which make reference to the Treasurer’s authority to prescribe regulations that further the implementation of the tax laws. It also notes the Governor’s constitutional authority to issue executive regulations not in conflict with laws of the United States applicable to American Samoa, laws of American Samoa, or with [the] Constitution.” AM. SAMOA Rev. CONST., art. IV, § 6.3 All of the cited statutory and constitutional *247regulatory authority relate to the power to provide administrative guidance to carry out, not effectively annul as does the Governor’s directive of non-payment of the child tax credit, the income tax or for that matter any other laws.4
The underlying principle in point is the time-honored doctrine of the separation of executive and legislative powers for sound government — a legislature makes the laws, and the executive branch undertakes the public role in the execution of those laws. See The Senate v. Lutali, 27 A.S.R.2d 126, 135 (Trial Div. 1995) (hereinafter Lutali I). Neither the Governor nor any other member of ASG’s Executive Branch may undo what the Legislature of American Samoa has put in place as law without having a statutory basis for such action. The Legislature has enacted the child tax credit as the law of American Samoa and only the Legislature may remove the credit from the SITA.
Therefore, we hold that as a matter of law the Governor’s directive to not pay the child tax credit abrogated neither the credit in American Samoa law, nor its benefit to the taxpayers of the territory.
E. Non-Appropriation of Funds
ASG next asserts that even if basic child tax credit is the law in American Samoa, and the Governor did not have authority to direct non-payment of credit refunds, the lack of appropriated funding to pay credit refunds, the reason for the Governor’s action cited in the two directives, legally justified non-payment of the refund to the Dameworths.
This argument first focuses on the anti-deficiency statute, A.S.CA. § 10.0601. This statute prohibits any ASG officer or employee from making or authorizing expenditures or obligations in excess of the amount of appropriated funds available for the purpose of the expenditure, or from expending before appropriations are made for the purpose of the expenditure unless authorized by law. See id. The argument proceeds with recognition of the constitutional prohibition on legislative appropriations in excess of available revenues. Am. SAMOA Rev. CONST, art. II, § 1(c). It concludes with the assertion that tax *248refunds are outlays of funds for which legislative appropriations are essential and have not been made.
ASG’s argument is abstractly valid. See Lutali I, 27 A.SR.2d at 133-35. Normally, the Executive Branch develops an annual budget, assessing projected revenues and anticipated expenditures, and the Legislature approves the final budget,: enacting the necessary appropriations. Id. at 135-137. The Legislature did not appropriate funds for payment of basic child tax credit refunds during the'fiscal year in which the Dameworths’ claimed refund would become payable (fiscal year 2001 from October 1, 2000, to September 30, 2001): It actually appears that no consideration was even made of past experience with the funding requirements for child tax credit refunds when the Executive Branch prepared the annual budget, or when the Legislature acted upon the Executive Branch’s annual budget submission. If anything, the Executive Branch can be faulted for the miscalculated shortfall of funds earmarked, within or without the annual budget, for payment of the credit.
However, tax credit refunds need not be expressly funded by appropriations. “ASG does not have, and cannot obtain, any ownership interest in monies representing tax refunds.” See The Senate v. Lutali, 27 A.S.R.2d 157, 159 (Trial Div. 1995) (hereinafter Lutali II). “ASG holds these monies with a fiduciary duty to 'account for and refund those monies to the taxpayers as the rightful owner, with interest if not timely paid.” Id. If the Legislature has neither authority to appropriate these private funds [owed as refunds] nor any legal role in the payment of the refunds.” Id
In short, we hold that as a matter of law, the absence of appropriated funds for the payment of the basic child tax credit refunds does not, and cannot, excuse ASG from its fiduciary obligation to pay the credit refunds.
F. Tmpracticality and Futility of Ordering Compliance
Finally, ASG argues that ordering compliance with the child tax credit provision would be an impractical and futile act.5
*249ASG again refers to the appropriations process to underpin the claimed impractical and futile nature of the relief requested by the Dameworths. First, ASG points out that unless obligated by the end of the applicable fiscal year, in this case September 30, 2001, any funds appropriated by the Legislature to pay refunds for the child tax credit would have lapsed at the end of that year and would no longer be available to ASG to expend in payment of the credit. See Lutali I, 27 A.S.R.2d at 131-33. ASG then returns to the actual lack of appropriated funds for basic child tax credit refund purposes for the tax year 2000 during fiscal year 2001 (October 1, 2000, to September 30, 2001). Hence, for both reasons, ASG argues that a court order requiring ASG to pay the child tax credit to the Dameworths would be an impractical and futile act.
ASG ignores once again the fact that tax refund monies ware never its property, and it holds the funds merely in a fiduciary capacity for the taxpayers. Lutali II, 27 A.S.R.2d at 159. As a fiduciary, ASG owed a duty to make sure this money was returned to those to whom it was owed. Id. Appropriations to pay tax refunds are unnecessary. Id. Thus, the appropriation process is irrelevant to the issue in this action.
It is not an equitable solution to find that as a result of ASG’s own breach of its fiduciary duty, ASG is now excused from making restitution as a matter of impracticality and futility. Such a holding would open up a slippery slope where ASG could conceivably refuse to pay any income tax refunds, and if it battled long enough in or out of court until payment was impracticable, it would be entitled to keep all the unpaid funds. The court has no role to instruct ASG on how to meet its responsibilities, rather it is to advise ASG as to what the law requires. In this instance, the law requires ASG to honor the child tax credit.
Generally speaking, tax credits fall into two categories: nonrefundable and refundable credits. See SITA § 21-26, 31-35. Nonrefundable tax credits “can only be used to offset tax that would otherwise be owed.” Sorenson v Sec’y of Treasury, 475 U.S. 851, 854 (1986); see also In re *250Dever, 250 B.R. 701, 706 (2000). On the other hand, “if an individual’s [refundable tax credits] exceeds his tax liability, the excess amount is considered an overpayment of tax under [SITA] § 6401(b).” Sorenson, 475 U.S. at 854. “Subject to specified setoffs, [SITA] § 6402(a) directs the [Treasurer of America Samoa] to credit or refund ‘any overpayment’ to the person who made it.” Id.
The child tax credit, SITA § 24, is codified within subtitle A of the IRC, and hence within that part of the SITA, that lists nonrefundable tax credits. A taxpayer having one or two children and claiming the credit is only able to offset income tax liability, in excess of the mandated alternative minimum tax for all American Samoa taxpayers (2 of adjusted gross income in tax year 2000), A.S.C.A. § 11.0503, but not recover any refund for the amount of the credit over the amount of tax liability. See In re Steinmetz, 261 B.R. 32, 33-34 (2001).
However, SITA § 24(d) provides, with certain limitations, that “if a taxpayer’s family has three or more children, a portion of the child tax credit is treated as refundable credit.” In re Steinmetz, 261 B.R. at 34. The Dameworths have four qualifying children, making them eligible for a refund under this additional child tax credit provision. Aside from ASG’s fruitless claim that it need not comply with the child tax credit provision at all, it does not dispute the Dameworths’- eligibility for the additional credit of $2,000.00 ($500.00 for each child) as the amount of the Dameworths’ credit entitlement.
The Dameworths are therefore entitled to recover by way of summary judgment $2,379.00 from ASG. They are also entitled to, in accordance with SITA §§ 6611 and 6621, interest on the outstanding principal amount and to, in accordance with SITA § 7430, reasonable court costs, which we find to be the ordinary local costs of suit, and reasonable attorney’s Fees not to exceed $125.00 per hour. ASG is not entitled to a summary judgment against the Dameworths.
Order
1. The Court grants summary judgment to the Dameworths against ASG, and denies summary judgment to ASG against the Dameworths. ASG shall pay the judgment to the Dameworths in the amount of $2,379.00, plus interest on the unpaid balance in accordance with SITA § 6611, 6621, and ordinary local costs of suit and reasonable attorney’s fees, not to exceed $125.00 per hour, in accordance with SITA § 7430.
2. It the Dameworths seek the court’s adjudication of the amounts of the interest, ordinary court costs, or reasonable attorney’s fees owed to them by ASG, they may file with the Court and serve on ASG one or more *251affidavits of their counsel or other suitable person(s) setting forth the amounts claimed.
If ASG contests the amounts, the Court will conduct an evidentiary or other appropriate hearing and determine the issues.
It is so ordered.
The original reference in A.S.C.A. § 11.0403(a) was to the United States Internal Revenue Code of 1954. In 1988, the reference was changed to the Internal Revenue Code of 1985. P.L. No. 20-51. In 2001, the Legislature froze the automatic adoption of congressional changes in the Internal Revenue Code to those in effect on December 31, 2000. P.L. No. 27-15. In other words, any subsequent congressional changes do not become law in American Samoa unless the Legislature sees fit to first enact them as positive territorial law. The basic child tax credit was the law of American Samoa prior to P.L. No. 27-15, and the freeze of this legislation did not impact the application of the credit in the territory.
ASG equates the phrase “except where it is clearly otherwise required” in A.S..C.A. § 11.0401 as somehow granting the Executive Branch legislative authority to limit the application of the IRC provisions on American Samoa taxpayers. The statute only pertains to sensible substitution of terms for purposes of the SITA. It has nothing to do with any regulatory power, whether legislative or administrative in nature.
ASG’s comment on this constitutional power is a gross non sequitur. The lack of appropriated funds to pay the basic child tax credit refunds simply does not remove the bald-faced conflict of the Governor’s *247directive with the existence of the credit as statutory law.
We point out, as further examples, that the Legislature has given the Governor statutory authority to legislate, in effect, by imposing import excise taxes, A.S.C.A § 11.1003, or by suspending the operation of laws and administrative regulations to cope with an existing or imminent natural disaster, A.S.C.A. § 26.0105, as short-term emergency measures (emphasis added). We stress that this gubernatorial authority is statutorily based.
The “impractical and futile” terminology comes from ASG’s cited case, Golden v. Virgin Islands Gov’t, CA No. 2001-0162 (V.I. Dist. Ct. Nov. 30, 2001) (order granting plaintiffs declaratory relief and granting defendants summary judgment). Golden is an unpublished case, and ASG has been unable to provide the complete document containing the order or other information about the case. It appears that the Golden court declared that U.S. taxpayers in the United States Virgin Islands were entitled to refunds from the Virgin Islands Government related to ah *249Tax Relief Act of 2001, Pub. L. 107-16, but then awarded the government summary judgment, holding that it would be “impractical and futile” to grant the “equitable relief’ sought by the plaintiffs when the government could not issue refund checks before a mandated deadline. The Golden decision is not very helpful in our case without having detailed information on the facts and issues, before the Virgin Islands court. Moreover, the District Court order has been vacated and the case remanded to that court for further proceedings on the plaintiffs’ standing. Golden v. Virgin Islands Gov’t, No. 02-1068, slip op. (3d Cir. July 19, 2002). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8486752/ | ORDER DENYING MOTION FOR NEW TRIAL
On August 22, 2002, defendant was convicted by jury of the crimes of trespass, a class A misdemeanor, and assault in the second degree, a class D felony. On September 4, 2002, defendant was adjudicated guilty of the two offenses and sentenced to concurrent terms of imprisonment of one year for the misdemeanor conviction and five years for the felony conviction. On September 10, 2002, defendant moved for a new trial. The Court heard and took under advisement the motion on October 11, 2002. Both counsel were present and submitted the motion on their written arguments.
Discussion
Defendant alleges as error entitling him to a new trial: (1) incompetent children were allowed to testify; (2) the report of the attending emergency medical technician was not admitted into evidence; (3) proposed defense instructions were not given to the jury; (4) the sentence exceeded the statutorily authorized period; and (5) the evidence was insufficient to sustain beyond a reasonable doubt the jury’s verdict of *253defendant’s guilt.
A. Child Witness Competency
Three children, ages 9, 10 and 11, were allowed to testify. Outside the jury’s presence, each child was questioned on voir dire examination, which included cross-examination by defendant’s counsel. The Court evaluated each child’s examination, using the standard recently enunciated in American Samoa Government v. Va'ai, 6 A.S.R.3d 223 (Trial Div. 2002). Based on each child’s answers as a whole and witness demeanor, we found that each child understood the obligation to testify truthfully, and had the mental capacity to accurately perceive the events at issue when they occurred, to recollect those events at the time of trial, and to understand questions about those events and express in words from memories of them. Defendant has not provided any persuasive challenge to our findings that each child was competent to testify.
B. The Emergency Medical Technician’s Report
We did not disallow as evidence the report of the emergency medical technician because, as defendant claims, of its hearsay content. Rather, the report was inadmissible as evidence because it was not certified as a public record in accordance with T.C.R.Ev. 902(4). Moreover, the emergency medical technician was available but was not called to testify. We stand by our ruling that the report was inadmissible without a proper foundation.
C. The Proposed Defense, Jury Instructions
Defense of Justification and Use of Force by Persons Responsible for Another’s Care, Discipline, or Safety— Requested Instruction No. 3 (A.S.C.A. § 46.3311 in part)
Definition of "Normal Parental Discipline” — Requested Instruction No. 11 (A.S.C.A. § 45.0103(20))
Cultural Child Rearing Practices — Requested Instruction No. 12 (A.S.C.A. § 44.2001(a)(2))
Defendant sought to interject with these three instructions the defense of justification as a person entrusted with the care, discipline, or safety of a minor. We rejected these instructions principally because this defense was not fairly raised by the evidence. Defendant’s matai status in the village and the child victim’s family standing alone did not establish any basis for a reasonable inference that he had any disciplinary authority with respect to the child victim. No other evidence was presented of any *254such entrustment in his matai capacity.
Proffered instruction No. 3 also omitted the statutory restraints in A.S.C.A. § 46.3311(a)(2) on the acceptable extent of force imposed. Furthermore, the concepts of “normal parental discipline” and “accepted child-rearing practices of the culture” are expressly applicable to child abuse or neglect proceedings under the juvenile code for the guidance to authorities handling such matters. They do not, at face value, have direct application to prosecutions under the criminal code. Besides, defendant was not the child victim’s parent. Finally and most importantly, the instructions on the second and third degree assaults adequately informed the jury on the standards for their factual findings at issue.
Lesser Included Offense of Assault in the Third Degree— Requested Instruction No. 6 (A.S.C.A. § 46.3522(a)(1), (3), (4), and (5))
Defendant sought to interject, as lesser-included offenses of second degree assault, several alternative means of committing third degree assault. The jury was instructed on the lesser offense of third degree assault committed when the actor attempts to cause physical injury to another person, as set forth in A.S.C.A. § 46.3522(a)(1). Under the evidence, defendant clearly struck the child victim. The evidence fit this means of committing third degree assault as a lesser-included offense of second degree assault, alleged as attempting to cause physical injury to another person by means of a dangerous weapon. The element of using a dangerous weapon, a bamboo stick in this case, was the difference between the two degrees of assault. Thus, under the evidence, the instruction given was the only appropriate third degree assault lesser-included offense instruction.
The evidence was not in keeping with assault in the third degree under A.S.C.A. § 46.3522(a)(3), (4), and (5). Those offenses focus more on the mental rather than physical effects that result when the victim is put in fear or at risk of injury, or experiences offensive or provocative contact. Defendant’s conduct in this case went substantially beyond the commission of a third degree assault in any of these three ways. None of these ways was raised by the evidence.
Lesser Included Offense of Disturbing Private Peace— Requested Instruction No. 8 (A.S.C.A. § 46.4502(a)(1) and (2))
Defendant also sought to interject private peace disturbance as a lesser offense of second degree assault. This offense does not appear to be a lesser-included offense. The commission of second degree assault *255does not require any finding on the nature of the location of the incident. The element of location on “private property” makes second degree assault and private peace disturbance apparently distinct offenses rather than greater and lesser included offenses.
In any event, as worded, the instruction included fighting on private property, which in no sense occurred in this case. The incident did not involve any fight between an adult male and nine-year-old female. Again, the emphasis in the offense of private peace disturbance is on the mental effect of causing the alarm, not the actual physical contact shown by the evidence in this case. This proffered instruction was clearly inapplicable under the evidence.
D. The Authorized Sentence
Defendant asserts that the sentences of imprisonment, totaling five years, imposed on him exceeded statutory authority. He points out that the accusation in the information of second degree assault solely charges that he “attempted to cause physical injury” to the child victim by means of using a bamboo stick as a dangerous weapon. Second degree assault is a class D felony carrying a maximum punishment of five years’ imprisonment and a $5,000 fine. See A.S.C.A. §§ 46.3521(c), 46.2301(4), 46.2101(a)(1). Defendant argues, however, that the word “attempt” necessarily brings into play the statutes that reduce an attempt to commit a class D felony to a class A misdemeanor carrying the maximum punishment of one year’s imprisonment and a $1,000 fine. A.S.C.A. §§ 46.3401, 46.3404(3), 46.2301(5), 46.2102(a)(1).
Defendant disregards the “[ujnless otherwise provided” introductory language in A.S.C.A. § 46.3404. Second degree assault is always a class D felony, as provided in A.S.C.A. § 46.3521(c), regardless of the circumstances constituting the offense set forth in A.S.C.A. § 46.3521(a). The sentence imposed on defendant simply did not exceed statutory authority.
E. Sufficiency of the Evidence
Defendant claims that the evidence was insufficient to convict him beyond a reasonable doubt. He bases this claim on his assertion that the child witnesses, who were the only eyewitnesses to the incident, were incompetent to testify and testified contradictorily.
As discussed above, we found, and still find, the three child witnesses competent to testify. The jury, as the trier of the facts, could believe their testimony, and the testimony of other witnesses, entirely, partially, or not at all. In doing so, the jury could resolve any contradictions in the *256testimony. The jury clearly believed the child witnesses’ testimony and resolved any contradictions in their testimony. On the basis of the evidence, the jury could, and clearly, did find beyond a reasonable doubt each and every element of the crimes of trespass as a lesser included offense of burglary in the second degree and assault in the second degree, and therefore defendant’s guilt of committing those crimes. The evidence was sufficient to sustain defendant’s convictions.
Order
Defendant’s motion for a new trial is denied. It is so ordered. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482148/ | USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10716
____________________
GLOBAL DIGITAL SOLUTIONS, INC.,
Plaintiff-Appellee,
versus
GRUPO RONTAN ELECTRO METALURGICA, S.A.,
JOAO ALBERTO BOLZAN,
JOSE CARLOS BOLZAN,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-80106-DMM
____________________
USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 2 of 6
2 Opinion of the Court 21-10716
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
Global Digital Solutions, Inc. contracted to acquire Grupo
Rontan. The acquisition fell apart when Rontan failed to satisfy cer-
tain closing conditions, and Global subsequently filed suit to force
the sale. Rontan almost entirely failed to participate in the district
court proceedings, and the court granted Global a default judg-
ment. Rontan re-engaged in the litigation after the entry of the de-
fault judgment but in time to participate in an evidentiary hearing
on the issue of damages. Even then, though, Rontan failed to raise
certain arguments until it submitted its proposed findings of fact
and conclusions of law, after the briefing and evidentiary hearing
had concluded. Rontan now seeks on appeal to make the argu-
ments that it should have timely made to the district court. Because
Rontan forfeited its liability arguments below, and because the ev-
idence showed to a reasonable certainty both that Global suffered
damages and the amount of those damages, we affirm.
I
We begin by addressing Rontan’s argument that by seeking
specific performance of the acquisition agreement despite Rontan’s
failure to satisfy certain closing conditions, Global waived those
conditions. While this might have been a winning argument had
USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 3 of 6
21-10716 Opinion of the Court 3
Rontan presented it to the district court in a timely fashion,1 it
failed to do so.
“[I]f a party hopes to preserve a[n] . . . argument, . . . [it] must
first clearly present it to the district court . . . in such a way as to
afford the district court an opportunity to recognize and rule on it.”
CSX Transp., Inc. v. General Mills, Inc., 846 F.3d 1333, 1336–37
(11th Cir. 2017) (alterations in original). It follows that a party for-
feits an argument by failing to present it to the district court in a
timely fashion. See United States v. Gonzalez, 834 F.3d 1206, 1217
(11th Cir. 2016) (explaining that “forfeiture is the failure to make the
timely assertion of a right” (quoting United States v. Olano, 507 U.S.
725, 733 (1933))).
Rontan forfeited its contention that Global waived the clos-
ing conditions by failing to timely present it to the district court.
Rontan first raised the issue in its proposed findings of fact and con-
clusions of law, after responsive briefing and the evidentiary hear-
ing on damages. The district court expressly declined to consider
the issue on the ground that Rontan was “afforded ample oppor-
tunity to raise this argument . . . [and] failed to do so.”
Forfeiture itself isn’t the death knell for Rontan’s claim—we
may forgive a forfeiture on consideration of five factors, see Access
Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th Cir.
1 We do not opine one way or the other on this issue.
USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 4 of 6
4 Opinion of the Court 21-10716
2004)—but Rontan hasn’t argued any of the forfeiture exceptions.
We decline to defend Rontan’s forfeiture sua sponte.
Because Rontan failed to raise the closing-conditions-waiver
issue until after the damages hearing, when it submitted its pro-
posed findings of fact and conclusions of law, it forfeited the issue.
We accordingly affirm the district court’s ruling for Global on lia-
bility.
II
What remains is Rontan’s challenge to the district court’s
damages award. We review findings of fact for clear error. Trav-
elers Prop. Cas. Co. of Am. v. Moore, 763 F.3d 1265, 1268 (11th Cir.
2014). “Proof [of damages] must show with reasonable certainty
that the plaintiff suffered damages and that the damages flowed as
the natural and proximate result of defendant’s wrongful conduct.”
Aldon Indus., Inc. v. Don Myers & Assocs., Inc., 517 F.2d 188, 191
(5th Cir. 1975).
The evidence on which the district court relied shows just
that. The district court used Global’s damages expert’s estimate of
Rontan’s outstanding tax liabilities—which relied on KPMG’s dili-
gence report, the deposition of KPMG’s due diligence manager, and
publicly available information on Rontan’s tax liabilities—and the
court confirmed the expert’s estimate against estimates provided by
Rontan’s CFO and a Brazilian tax attorney. The district court cal-
culated the value of real estate encumbrances on Rontan’s proper-
ties based on a public-records search and identified outstanding debt
USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 5 of 6
21-10716 Opinion of the Court 5
based on a 2018 audit. In none of these calculations did the district
court clearly err.
The district court did not abuse its discretion by excluding
Rontan’s damages expert and other evidence that it sought to intro-
duce at the damages hearing. Where, as here, a party fails to pro-
vide an expert report as required by Federal Rule of Civil Procedure
26(a)(2), “the party is not allowed to use that . . . witness to supply
evidence . . . at a hearing[.]” Fed. R. Civ. P. 37(c)(1). Rontan did
not timely provide Global with its expert report, and therefore the
district court did not abuse its discretion in excluding the expert.
Similarly, Federal Rule of Civil Procedure 37(b)(2)(A)(ii) authorizes
a district court to prohibit a party “from introducing . . . matters
into evidence[]” that were the subject of its adversary’s discovery
requests to which it failed to respond despite court orders. See OFS
Fitel, LLC v. Epstein, Becker & Green, P.C., 549 F.3d 1344, 1363
(11th Cir. 2008). Global’s discovery requests included information
on delinquent tax obligations and the value of Rontan’s shares. The
requests related to—and Rontan’s failure to respond ultimately
prejudiced—Global’s damages calculations. Rontan failed to turn
over these documents even though the magistrate judge had com-
pelled their production, and thus the district court did not abuse its
discretion by excluding them at the hearing.
Because the district court relied on sufficient and reasonably
certain evidence in calculating damages, we affirm the court’s
award.
* * *
USCA11 Case: 21-10716 Date Filed: 11/07/2022 Page: 6 of 6
6 Opinion of the Court 21-10716
For the foregoing reasons, we hold that Rontan forfeited the
closing-conditions-waiver issue and that the district court’s dam-
ages calculations were reasonably certain. Accordingly, the district
court’s judgment is affirmed.
AFFIRMED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482149/ | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-7123 September Term, 2022
FILED ON: NOVEMBER 7, 2022
J. H. C., BY HIS FATHER AND NEXT FRIEND: JOHN HARRISON CLARKE,
APPELLANT
v.
DISTRICT OF COLUMBIA, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01761)
Before: SRINIVASAN, Chief Judge, PILLARD, Circuit Judge, and SENTELLE, Senior Circuit
Judge
JUDGMENT
This case was considered on the record from the United States District Court for the District
of Columbia and the briefs of the parties. The Court has accorded the issues full consideration and
has determined that they do not warrant a published opinion. See D.C. Cir. R. 36(d). For the
reasons set forth below, it is
ORDERED AND ADJUDGED that the judgment of the district court dismissing the
complaint of Appellant for lack of jurisdiction be affirmed. As to Appellant’s First Amendment
retaliation claim against the individual defendants, we affirm on the separate ground that while
Appellant showed injury to support Article III standing, his claim plainly fails on the merits. See
Appellees’ Br. 33-41. Because this is de novo review of a decision on a motion to dismiss, we can
reach the same result on a different basis. Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80,
88 (1943) (“[I]n reviewing the decision of a lower court, it must be affirmed if the result is correct
although the lower court relied upon a wrong ground or gave a wrong reason.” (internal quotation
marks and citation omitted)).
No. 21-7123 September Term, 2022
Page Two
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate herein until seven days after the disposition of any
timely petition for rehearing or petition for rehearing en banc. See Fed R. App. P. 41(b); D.C. Cir.
R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482151/ | NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-NOV-2022
08:32 AM
Dkt. 45 ORD
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
AERICA CATES, individually and as Guardian Prochien Ami
for JANE DOE, a minor, Plaintiffs-Appellants, v.
STATE OF HAWAI#I; NICK PRIETO, Defendants-Appellees, and
JOHN DOES 1-10, Defendants.
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 5CC181000124)
ORDER (1) DISMISSING APPEAL IN CAAP-XX-XXXXXXX AND
(2) DENYING MOTION TO CONSOLIDATE APPEALS IN CAAP-XX-XXXXXXX
(By: Leonard, Presiding Judge, Nakasone and Chan, JJ.)
Upon consideration of Plaintiff-Appellant Aerica
Cates's (Cates) October 20, 2022 "Motion to Consolidate Appeals
in CAAP-22-393 and CAAP-22-510" (Motion), filed in case numbers
CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX, the papers in support, and
the record in case numbers CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX,
it appears that:
(1) Cates seeks to consolidate the appeals in case
numbers CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX;
(2) In case number CAAP-XX-XXXXXXX, Cates appeals from
the Circuit Court of the Fifth Circuit's (Circuit Court) May 27,
2022 "Order Granting Defendant State of Hawaii's Motion for
Summary Judgment, Filed on April 4, 2022" (MSJ Order);
(3) Thereafter, the Circuit Court clerk filed a Clerk's
Taxation of Costs (Clerk's Taxation) in favor of Defendant-
Appellee State of Hawai#i (State) and against Cates pursuant to
Hawai#i Rules of Civil Procedure (HRCP) Rule 54(d)(1), and the
Circuit Court entered judgment (Judgment) in favor of the State
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
and against Cates, in accordance with the MSJ Order and the
Clerk's Taxation, which further dismissed all remaining claims;
(4) In case number CAAP-XX-XXXXXXX, Cates appeals from
the MSJ Order, Clerk's Taxation, and Judgment. The Judgment is a
final, appealable judgment, HRCP Rule 58, Jenkins v. Cades
Schutte Fleming & Wright, 76 Hawai#i 115, 119, 869 P.2d 1334,
1338 (1994), and the notice of appeal filed in CAAP-XX-XXXXXXX
was timely, Hawai#i Rules of Appellate Procedure Rule 4(a)(1);
and
(5) Therefore, the appeal in case number CAAP-22-
0000393 is duplicative and unnecessary, as the court will review
all prior interlocutory orders, including the MSJ Order, when it
considers the appeal in case number CAAP-XX-XXXXXXX on the
merits. Ueoka v. Szymanski, 107 Hawai#i 386, 396, 114 P.3d 892,
902 (2005). Accordingly, the court will sua sponte dismiss the
appeal in case number CAAP-XX-XXXXXXX, making the requests for
consolidation moot. Ogeone v. Au, No. CAAP-XX-XXXXXXX, 2019 WL
972542, at *1 (App. Feb. 27, 2019) (Order).
Therefore, IT IS HEREBY ORDERED that the appeal in case
number CAAP-XX-XXXXXXX is dismissed as unnecessary, and all
pending motions in CAAP-XX-XXXXXXX are dismissed as moot.
IT IS FURTHER ORDERED that the Motion filed in CAAP-22-
0000510 is denied as moot.
IT IS FURTHER ORDERED that the appellate clerk shall
file this order in case numbers CAAP-XX-XXXXXXX and CAAP-22-
0000510.
DATED: Honolulu, Hawai#i, November 7, 2022.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Karen T. Nakasone
Associate Judge
/s/ Derrick H.M. Chan
Associate Judge
2 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482128/ | [Cite as Constance v. Constance, 2022-Ohio-3983.]
COURT OF APPEALS
MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JOHN D. CONSTANCE JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2021 CA 0012
LYDIA L. CONSTANCE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common
Pleas, Domestic Relations Division, Case
No. 2006 DR 00238
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 7, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. CONSTANCE BRENT L. ENGLISH
PRO SE LAW OFFICES OF BRENT L. ENGLISH
332 Chapman Way 820 West Superior Avnue, 9th Floor
Lexington, Ohio 44904 Cleveland, Ohio 44113-1818
Morrow County, Case No. 2021 CA 0012 2
Wise, J.
{¶1} Defendant-Appellant Lydia L. Constance appeals the August 27, 2021,
decision of the Morrow County Court of Common Pleas wherein the court modified the
property division set forth in the Agreed Judgment Entry and awarded conditional
damages for failure to comply within sixty days.
{¶2} Plaintiff-Appellee John D. Constance did not file a brief or otherwise appear
in this appeal.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} Plaintiff-Appellee John D. Constance (“Husband”) and Defendant–
Appellant Lydia L. Constance (“Wife”) entered into an antenuptial agreement on June 19,
1996. Relevant to this appeal, the antenuptial agreement stated in pertinent part:
(3) All assets and property held by the parties at the time of the
marriage shall continue to be separately held. All gifts, bequests, or devises
to either party individually during the course of the marriage shall also be
separately held by such party, subject to the control and management of
such party as if no marriage had been entered into.
Separate property shall include any increase in value during the
marriage (from whatever source derived) to property held by each party
prior to the marriage and gifts, bequests, and devises received by either
party individually during the marriage.
***
Morrow County, Case No. 2021 CA 0012 3
(5) The parties have made full disclosure to each other of all
properties and assets (including expectancies) presently owned by each of
them and of the income derived therefrom and from all other sources and
agree that each party shall have sole management, control, and disposition
of the property so owned as described in Exhibits A and B which are thereby
made a part of this contract.
{¶5} Exhibit A of the antenuptial agreement listed Wife's premarital assets. Wife
stated she had $5,000.00 interest in real estate located at 9296 Troy Township Road,
Lexington, Ohio. Wife also listed her retirement fund through the State Employees
Retirement System valued as $11,558.00 as of June, 1996.
{¶6} Exhibit B of the antenuptial agreement listed Husband's premarital assets.
He stated he had $39,000.00 interest in 9296 Troy Township Road, Lexington, Ohio.
{¶7} Husband and Wife were married on June 22, 1996. Two children were born
as issue of the marriage: J.C.C., born October 18, 1998 and E.L.C., born May 30, 2000.
{¶8} Husband and Wife separated on February 7, 2006.
{¶9} On June 12, 2006, Husband filed a Complaint for Divorce. In the Complaint,
Husband requested “the Court grant the enforcement of the parties’ Pre-nuptial
Agreement dated June 19, 1996.”
{¶10} On August 10, 2006, Wife filed an Answer and Counterclaim. In paragraph
5 of Wife's affirmative defenses, she stated the alleged antenuptial agreement was not
enforceable.
Morrow County, Case No. 2021 CA 0012 4
{¶11} The case came on for a final hearing in June, 2010. After trial, the parties
filed proposed findings of fact and conclusions of law. Wife submitted a child support
calculation worksheet as part of Wife's proposed findings of fact and conclusions of law.
{¶12} On October 20, 2010, the trial court issued a Judgment Entry with findings
of fact and conclusions of law. Husband was ordered to prepare a final judgment and
decree of divorce.
{¶13} On July 28, 2014, the trial court issued the Final Judgment and Decree of
Divorce, which stated:
The Court finds the antenuptial agreement to be valid.
***
Since the Court found the antenuptial agreement valid, it will control
the distribution of the personal property listed. All other items of personal
property, unless otherwise agreed, shall be divided by each party choosing
an item alternately after a coin flip to designate who picks first. This shall be
done within 30 days of the Final Judgment Decree of Divorce.
The Court would hope the parties would be able to divide said
property without a coin flip.
{¶14} (Final Judgment Decree of Divorce at 15,18).
{¶15} Wife appealed that Judgment Entry, raising thirteen (13) assignments of
error. By Opinion and Entry dated August 11, 2015, this Court affirmed the decision of
the trial court in part and overruled it in part.
{¶16} On June 20, 2018, Husband filed a Motion to Show Cause contempt motion
***
Morrow County, Case No. 2021 CA 0012 5
{¶17} On October 8, 2018, Wife filed a Memorandum in Opposition to Husband’s
motion to show cause arguing she could not be held in contempt because the trial court
had not conducted any proceedings or issued any orders on remand for more than three
(3) years.
{¶18} By Journal Entry filed January 17, 2019, the trial court, in accordance with
this Court’s remand, modified the Decree of Divorce with regard to Wife’s retirement fund,
the 2005 income tax refund, the timber sale proceeds and four motor vehicles.
{¶19} A hearing was then scheduled for March 14, 2019, to address matters left
unresolved following remand and the allegations raised in the Motion to Show Cause.
After a continuance, a hearing on the Motion to Show Cause was held on May 2, 2019.
With regard to the personal property which Husband claimed he was to receive, the trial
court referred the matter to mediation.
{¶20} The trial court then continued the hearing on the contempt motion and set
a hearing for August 14, 2019, to address the allegations raised in the Motion to Show
Cause, as well as any other issues which remained unresolved.
{¶21} On June 17, 2019, a mediation hearing was held wherein the parties
reached the following agreement:
The parties agreed plaintiff will be awarded the following personal
property if defendant has the property in her possession:
Framed pictures (collage, journeyman’s certificate and skiing)
Carved-4 post waterbed frame and mattress/heater, 3 machinist tool boxes
with all tools (micrometers, calipers, asealess [sic]), camping equipment,
trophies (motorcycle mx), record albums and tapes that belong to plaintiff,
Morrow County, Case No. 2021 CA 0012 6
10 foot satellite dish and receiver (plaintiff and defendant could not agree
on how to exchange dish), parts washer, roll around tool box, 8 mm & VCR
tapes of plaintiffs, Sears battery charger, 2 shop vacs, brass table lamp, boy
scout pocket knife & several other pocket knives, bowie knife, collection of
cassette tapes and albums of plaintiff, welding helmet and gloves, forstener
[sic] drill bits, zliss [sic] vise, and planes, Stereo and speakers (not sure
Sony), 2 TV (not sure GE and RCA), 2 VCRs, camcorder (not sure Sony)
TV and stereo cabinets, 2 end tables, coffee table, 2 antique clocks, dining
room table and chairs, oak bed and dresser, all woodworking tools and
equipment, chain saws and power saws, trimmers, 1977 Ford F-150 Pick-
up Truck, 1983 Ford Van, compressor, red filing cabinet, skiing equipment,
charcoal grill, 35 mm cameras with bags, 1 antique dresser, Lydia agreed
to copy some of the pictures and videotapes this winter and have sent to
plaintiff, some Christmas decorations, some cookware, 2 computers, printer
and accessories of computer, some blankets and linens, telephone, tape
recorder, answering matching [sic], any clothing of plaintiffs, motorcycle
accessories, vehicle titles and other important papers, guitars, amps and
related equipment.
The parties agreed defendant would return certain property that was
listed belonging to plaintiff’s father and mother. (emphasis in original).
{¶22} (Report of Mediation, June 17, 2019).
{¶23} On August 14, 2019, the parties, with the assistance of counsel, resolved
all issues involving personal property. Said agreement was placed on the record via
Morrow County, Case No. 2021 CA 0012 7
Journal Entry, filed August 15, 2019, and stated “[t]he parties set forth on the record an
agreement settling all remaining disputed matters.” The court ordered a detailed Journal
Entry be prepared by counsel and presented to the court within 30 days. Plaintiff’s motion
for contempt was withdrawn.
{¶24} By Journal Entry filed November 21, 2019, the trial court, noting counsel’s
failure to present the court with a detailed Journal Entry, ordered same to be done within
30 days. Failure to comply would result in a show cause hearing to be held on January 8,
2020.
{¶25} On December 2, 2019, counsel for Husband filed a motion for status
conference with regard to Wife’s failure to provide the Agreed Judgment Entry outlining
the agreement reached by the parties at the August 14, 2019, mediation hearing.
{¶26} An Agreed Judgment Entry, signed by counsel for both parties, was filed on
January 9, 2020. The Agreed Entry stated:
1. The items listed on page one of the mediation report prepared by
mediator Kathy Nicolosi dated June 17, 2019, except the 1977 Ford pickup
and the 1983 Ford van shall be provided to Defendant if they are in her
possession through the mechanism set forth in ¶4, below.
***
4. Defendant shall rent a storage unit for 30 days at Value Storage
in Lexington, Ohio and move all of the items listed in ¶1 (except the 1977
Ford pickup and the 1983 Ford van) to that facility within 30 days of this
judgment entry. Upon these items being moved to the storage unit,
Defendant, through her counsel, shall timely inform Plaintiff, through his
Morrow County, Case No. 2021 CA 0012 8
counsel, that the items are in the storage unit and provide Plaintiff with
access to the storage unit. Plaintiff shall, at his sole cost and expense,
remove the items from Defendant's storage facility within the same 30-day
period.
{¶27} There is no dispute that Wife delivered items listed on page 1 of the
Mediation Report to the storage facility in April, 2020, for Husband to pick up. However,
Husband claims certain items were not delivered.
{¶28} A number of motions were filed in 2020, including a motion for contempt
and a motion to compel with regard to Husband’s failure to cooperate with refinancing the
marital residence.
{¶29} On November 17, 2020, Husband filed a pro se “Motion to force Lydia L.
Constance to return all personal property belonging to the plaintiff John D. Constance”.
{¶30} The trial court scheduled a hearing for June 1, 2021, on all pending motions.
Neither Wife nor counsel for Wife appeared for said hearing.1 The trial court then
rescheduled the hearing to June 14, 2021.
{¶31} On June 14, 2021, the trial court held a hearing on all pending motions.
{¶32} At said hearing, Husband detailed personal property that he claimed he was
entitled to and that had not been returned to him.
{¶33} By Judgment Entry filed June 15, 2021, the trial court dealt with the pending
real estate issues.
1Counsel for Wife had filed a motion to continue the hearing but said continuance had
not been granted by the trial court.
Morrow County, Case No. 2021 CA 0012 9
{¶34} By Judgment Entry filed August 27, 2021, the trial court addressed the
issues concerning personal property. In said entry, the trial court ordered the return of
those items Husband was claiming and stated that the failure to return said items within
60 days would result in Wife being held in contempt. The trial court also ordered a “coin
toss” to determine ownership of a wood stove and a rocking chair.
{¶35} Wife now appeals from this decision.
{¶36} Husband in this appeal has not filed a responsive appellate brief. Pursuant
to App.R. 18(C), “[i]f an appellee fails to file the appellee's brief within the time provided
by this rule, or within the time as extended, the appellee will not be heard at oral argument
except by permission of the court upon a showing of good cause submitted in writing prior
to argument; and in determining the appeal, the court may accept the appellant's
statement of the facts and issues as correct and reverse the judgment if appellant's brief
reasonably appears to sustain such action.”
{¶37} Wife raises the following errors for review:
ASSIGNMENTS OF ERROR
{¶38} “I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
IMPERMISSIBLY MODIFYING THE PROPERTY DIVISION SET FORTH IN THE FINAL
DECREE OF DIVORCE AS MODIFIED BY THE JANUARY 9, 2020 AGREED
JUDGMENT ENTRY.
{¶39} “II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
CONDITIONALLY AWARDING DAMAGES TO APPELLEE IF APPELLANT DID NOT
RETURN CERTAIN ITEMS OF PERSONAL PROPERTY TO HIM WITHIN 60 DAYS OF
THE JUDGMENT ENTRY.
Morrow County, Case No. 2021 CA 0012 10
{¶40} “III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING
TO ISSUE FINDINGS OF FACT AND CONCLUSIONS OF LAW.”
I.
{¶41} In her first assignment of error, Appellant argues that the trial court erred in
modifying the property division in this matter. We agree.
{¶42} As set forth above, the Final Judgment Divorce Decree in this matter
provided that the division of personal property was controlled by the antenuptial
agreement. Any personal property acquired during the marriage was to be divided by a
coin toss if the parties did not otherwise agree. Such division of property never took place
but on August 14, 2019, the parties reached an agreement which was journalized by the
court on January 9, 2020. This January 9, 2020, Agreed Judgment Entry stated that the
items listed on page one of the mediation report … “shall be provided to Defendant if they
are in her possession.”
{¶43} The Agreed Judgment Entry incorporated by reference the first page of the
mediation report. This report also stated that it was the agreement of the parties that
Husband would receive the personal property listed therein “if defendant [Wife] has the
property in her possession.”
{¶44} The trial court, in its August 27, 2021, Judgment Entry, ordered Wife to
deliver certain personal property listed in the Agreed Judgment Entry and/or Mediation
Report or pay Husband certain amounts if she did not do so within 60 days. In addition,
the trial court also ordered ownership of certain personal property (rocking chair and wood
stove) not previously included in either the Mediation Report or the Agreed Judgment
Entry to be determined by a coin toss. Additionally, the trial court ordered Wife to return
Morrow County, Case No. 2021 CA 0012 11
other personal property (automobile/motorcycle repair manuals; cordless Sawzall and
battery) which was not listed in the Mediation Report of the Agreed Judgment Entry.
{¶45} “The existence of the trial court's subject-matter jurisdiction is a question of
law that we review de novo.” Yazdani-Isfehani v. Yazdani-Isfehani, 170 Ohio App.3d 1,
2006-Ohio-7105, 865 N.E.2d 924, ¶ 20 (4th Dist.).
{¶46} R.C. §3105.171(B) states:
In divorce proceedings, the court shall * * * determine what
constitutes marital property and what constitutes separate property. * * *
[U]pon making such a determination, the court shall divide the marital and
separate property equitably between the spouses, in accordance with this
section. For purposes of this section, the court has jurisdiction over all
property * * * in which one or both spouses have an interest.
{¶47} R.C. §3105.171(I), provides:
A division or disbursement of property or a distributive award made
under this section is not subject to future modification by the court except
upon the express written consent or agreement to the modification by both
spouses. 2
{¶48} However, “[t]he trial court retains ‘full power’ to enforce the divorce decree's
provisions. If the parties dispute the meaning of a provision in a decree or if the provision
is ambiguous, the trial court has the power to hear the matter, to resolve the dispute, and
2
Before being amended in 2010, R.C. §3105.171(I) provided that “[a] division or
disbursement of property or a distributive award made under this section is not subject to
future modification by the court.” The 2010 amendments added the following language:
“except upon the express written consent or agreement to the modification by both
spouses.” See Am. Sub. H.B. 238, Section 1, 2010 Ohio Laws 37.
Morrow County, Case No. 2021 CA 0012 12
to enforce the decree.” Freeman v. Freeman, 4th Dist. Lawrence No. 16CA14, 2016-Ohio-
7565, ¶ 9, citing Evans v. Evans, 4th Dist. Scioto No. 02CA2869, 2003-Ohio-4674, ¶ 8-
10. “ ‘In essence, a court may construe an ambiguous decree, but it must enforce an
unambiguous one as it is written.’ ” Id., quoting Pierron v. Pierron, 4th Dist. Scioto Nos.
07CA3153 and 07CA3159, 2008-Ohio-1286, ¶ 7; Pack v. Pack, 4th Dist. Lawrence No.
20CA4, 2021-Ohio-2233, ¶¶ 13-14.
{¶49} “ ‘[T]he initial determination of whether an ambiguity exists presents an
abstract legal question, which we review on a de novo basis.’ ” Pierron at ¶ 8.
{¶50} Upon review, we find that no argument as to ambiguity has been raised by
either party, nor do we find any ambiguity in the terms contained in the Mediation Report
or the Agreed Judgment Entry.
{¶51} Here, we find that the August 27, 2021, Judgment Entry is best understood
as a modification to a property division. The provisions of the Ante-Nuptial Agreement
and Final Decree of Divorce provided for the division of the marital personal property.
Later, pursuant to the Mediation Report and the Agreed Judgment Entry, the parties
agreed to certain modifications to the division of said property. Both the Mediation Report
and the Agreed Judgment Entry provided that Husband was to receive the listed items
only if Wife had the property in her possession. By ordering Wife to return property not
listed in either the Mediation Report or the Agreed Judgment Entry, or return property she
testified was no longer in her possession or be held in contempt of court, the trial court
modified the terms of the Agreed Judgment Entry with respect to the division of personal
property. The parties did not both consent to that modification to the property division, so
by the plain language of R.C. §3105.171(I), the court had no authority to order the change.
Morrow County, Case No. 2021 CA 0012 13
(See Walsh v. Walsh, 157 Ohio St.3d 322, 2019-Ohio-3723, 136 N.E.3d 460).
{¶52} Appellant’s first assignment of error is sustained.
II., III.
{¶53} In her second assignment of error, Appellant argues that the trial court erred
in conditionally awarding damages to Appellee if certain items were not returned within
60 days. In her third assignment of error, Appellant argues that the trial court erred in not
issuing findings of fact and conclusions of law.
{¶54} Based on our disposition of Appellant’s first assignment of error, we find
these assignments of error to be moot.
{¶55} Accordingly, the judgment of the Morrow County Court of Common Pleas,
Domestic Relations Division, is reversed and remanded for further proceedings in
accordance with the law and this opinion.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/kw 1101 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482153/ | NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210434-U
Order filed November 7, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
SARAH HERRON, Independent Administrator ) Appeal from the Circuit Court
of the Estate of Donald Herron, Deceased, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois.
Plaintiff-Appellant, )
)
v. )
)
IOWA HEALTH SYSTEM d/b/a )
UNITYPOINT HEALTH-METHODIST, a )
Foreign Corporation; THE METHODIST )
MEDICAL CENTER OF ILLINOIS d/b/a )
METHODIST, an Illinois Corporation; LINDA )
OKRA-BOATENG, M.D. a/k/a LINDA ) Appeal No. 3-21-0434
AMANKWAH, M.D.; COMPREHENSIVE ) Circuit No. 18-L-3
EMERGENCY SOLUTIONS, S.C. d/b/a )
COMPREHENSIVE SCRIBE SOLUTIONS, )
S.C., an Illinois Corporation; KIMANTI A. )
FITZGERALD, R.N. and SARINA A. )
WEIBERG, R.N., )
)
Defendants )
)
(Iowa Health System d/b/a Unitypoint )
Health-Methodist, The Methodist Medical )
Center of Illinois d/b/a Methodist, Kimanti )
A. Fitzgerald, R.N. and Sarina A. Weiberg, )
R.N., )
) Honorable Bruce Fehrenbacher,
Defendants-Appellees). ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Presiding Justice O’Brien and Justice Holdridge concurred with the judgment.
ORDER
¶1 Held: The trial court did not err in granting defendants’ motion to compel
disclosure of decedent’s mental health records. However, the court failed to
perform the required in camera inspection of the records. We vacate the
contempt finding and the accompanying fine imposed against plaintiff.
¶2 Plaintiff, Sarah Herron, as the independent administrator of the estate of her husband,
Donald Herron, appeals a discovery order granting defendants’ motion to compel disclosure of
Donald’s mental health records. She refused to disclose the records and the court held her in
contempt. She contends the records are privileged under the Mental Health and Developmental
Disabilities Confidentiality Act (Mental Health Act) (740 ILCS 110/1 et seq. (West 2020)). We
affirm in part and vacate in part, as modified.
¶3 I. BACKGROUND
¶4 Plaintiff filed a second amended complaint as the independent administrator of the estate
of her deceased husband, Donald. Donald was transported to Methodist Hospital’s emergency
room for treatment related to a reported overdose of blood pressure medication. Dr. Linda Okra-
Boateng, M.D., learned that Donald had attempted suicide by ingesting metoprolol and other
medications. Donald’s blood pressure continued to drop until he died. Plaintiff’s second amended
complaint contained 16 counts premised on the alleged negligent treatment provided by
defendants. Relevant to this appeal are the eight survival claims brought on behalf of Donald. Each
survival claim alleged that “[a]s a direct and proximate result of the foregoing negligent acts and/or
omissions, Donald Herron had a cause of action for said conscious pain and suffering, mental
anguish and emotional distress, medical expenses, disability, and loss of a normal life[.]”
-2-
¶5 Defendants filed a joint motion to compel the execution of an authorization form to obtain
Donald’s mental health records. Defendants claimed that plaintiff placed Donald’s mental health
condition at issue. In response, plaintiff argued that the mental health records were privileged
under the Mental Health Act. Plaintiff asserted that she did not seek any psychiatric, psychological,
or emotional damages on behalf of Donald. 1
¶6 On July 6, 2021, the trial court granted defendants’ motion to compel on the ground that
“[Donald]’s mental health at the time of the occurrence directly relates to issues of liability.” The
court did not perform an in camera inspection of the records. Instead, the court ordered plaintiff
to provide the executed authorization form to defendants within 30 days.
¶7 On August 9, 2021, defendants moved for an order finding plaintiff in contempt for failing
to comply with the court’s July 6 discovery order. The court held plaintiff in contempt and imposed
a $100 fine.
¶8 II. ANALYSIS
¶9 On appeal, plaintiff argues the trial court erred in finding her in contempt when she failed
to provide defendants with the executed authorization form for Donald’s mental health records.
Where an individual appeals a finding of contempt for violating a discovery order, the contempt
finding is final and appealable, presenting to a reviewing court the propriety of the discovery order.
Reda v. Advocate Health Care, 199 Ill. 2d 47, 54 (2002). The applicability of a statutory
evidentiary privilege, and any exceptions, are matters of law that we review de novo. Sparger v.
Yamini, 2019 IL App (1st) 180566, ¶ 16.
1
We note that had plaintiff simply amended the complaint, removing any claim for “mental
anguish and emotional distress,” or agreed to an order barring any such claim, this appeal may have been
avoided.
-3-
¶ 10 The parties agree the records qualify as mental health records that are normally privileged
under the Mental Health Act. The parties dispute whether plaintiff waived the therapist-recipient
privilege under the Mental Health Act by placing Donald’s mental condition at issue. Defendants
contend that plaintiff’s complaint affirmatively introduced Donald’s mental health condition as an
element of her claim.
¶ 11 Before turning to the merits, we first address plaintiff’s contention that defendants forfeited
this specific argument by failing to raise it in the trial court. A party seeking to affirm the trial
court does not forfeit an argument which is supported by the record. This is true, as we may affirm
on any basis appearing in the record, whether or not the trial court relied on that basis or its
reasoning was correct. Ray Dancer, Inc. v. DMC Corp., 230 Ill. App. 3d 40, 50 (1992). Therefore,
we reject plaintiff’s argument.
¶ 12 Returning to the merits, we must determine whether, as a matter of law, the mental health
records in this case fell within an exception to the protective privilege provided by the Mental
Health Act. Our review is de novo. D.C. v. S.A., 178 Ill. 2d 551, 559-61 (1997).
¶ 13 The Mental Health Act provides, in relevant part:
“(a) Except as provided herein, in any civil, criminal, administrative,
or legislative proceeding, or in any proceeding preliminary thereto,
a recipient, and a therapist on behalf and in the interest of a recipient,
has the privilege to refuse to disclose and to prevent the disclosure
of the recipient’s record or communications.
***
(2) Records or communications may be disclosed in a civil
proceeding after the recipient's death when the recipient’s
-4-
physical or mental condition has been introduced as an element
of a claim or defense by any party claiming or defending through
or as a beneficiary of the recipient, provided the court finds, after
in camera examination of the evidence, that it is relevant,
probative, and otherwise clearly admissible; that other
satisfactory evidence is not available regarding the facts sought
to be established by such evidence; and that disclosure is more
important to the interests of substantial justice than protection
from any injury which disclosure is likely to cause.” 740 ILCS
110/10(a)(2) (West 2020).
“A party may introduce his or her mental condition in several ways during the course of litigation,
including, e.g., in the pleadings, answers to written discovery, a deposition, in briefs or motions,
in argument before the court, or by stipulation.” Reda, 199 Ill. 2d at 61.
¶ 14 For example, in Phifer v. Gingher, 2017 IL App (3d) 160170, this court analyzed whether
plaintiff placed her mental condition at issue. Phifer involved a motor vehicle accident in which
plaintiff suffered bodily injury. Plaintiff filed a complaint alleging that she “suffered great pain
and anguish both in mind and body and will in the future continue to suffer.” Id. ¶ 4. Plaintiff’s
response to defendant’s interrogatories claimed “psychiatric, psychological and/or emotional
injuries,” as a result of the accident. Id. ¶ 28. In her deposition, plaintiff described her injuries as
including anxiety, memory loss, difficulty multitasking, headaches, frequent episodes of crying
and irrational fears interfering with her ability to drive. Id. ¶ 29. Plaintiff also disclosed two expert
witnesses. Id. ¶ 30. The depositions and medical records from those doctors showed that they
performed cognitive testing and treated plaintiff for anxiety, lowered professional confidence,
-5-
panic attacks, and depression. Id. This court concluded that “plaintiff did not restrict her damage
claims to physical/neurological injuries.” Id. ¶¶ 28, 31. This court held that plaintiff affirmatively
placed her own mental condition at issue. Id.
¶ 15 Doe v. Great America, 2021 IL App (2d) 200123, reached the same result as Phifer.
Plaintiff filed a complaint against Six Flags Great America seeking damages in connection with a
battery at defendant’s amusement park. Id. ¶ 3. The complaint alleged that Jane Doe suffered a
head injury when she was attacked by a group of “youths” and the park employees failed to
intervene. Id. Jane Doe answered interrogatories indicating that she was not claiming any
psychiatric, psychological, or emotional injury. Id. ¶ 4. Subsequently, Jane Doe committed suicide.
Id. ¶ 5. Plaintiff amended the complaint, adding a claim of wrongful death relating to Jane Doe’s
suicide. Id. Plaintiff alleged that, as a proximate cause of defendant’s acts or omissions, Jane Doe
“suffered severe, debilitating and permanent physical injuries that caused her conscious pain and
suffering, including physical injuries to her brain that rendered her bereft of reason and suicidal.”
Id. Defendant moved to compel the disclosure of Jane Doe’s mental health records, arguing that
plaintiff placed Jane Doe’s mental condition at issue by alleging that defendant’s acts or omissions
caused her to commit suicide. Id. ¶ 7. The appellate court held that plaintiff affirmatively placed
Jane Doe’s mental condition at issue because “a suicide directly implicates a psychological
condition or psychological damage.” Id. ¶ 21.
¶ 16 By contrast, our supreme court addressed whether the plaintiff in Reda placed his mental
condition at issue and reached the opposite conclusion. The complaint alleged that plaintiff
suffered “injuries of a personal and pecuniary nature” and caused damages, including loss of
society, companionship, and affection. Id. at 50. Plaintiff’s response to interrogatories explained
that he suffered injuries to his leg that resulted in disability, disfigurement, and pain and suffering.
-6-
Plaintiff also suffered a stroke, heart problems, and kidney problems. Id. at 51-52. Plaintiff’s wife
testified in her deposition that plaintiff suffered from headaches, loss of memory, decline in
comprehension, difficulties in performing daily activities, and changes in personality. Id. at 57.
¶ 17 Our supreme court held that plaintiff did not affirmatively introduce his mental condition.
Id. at 58. According to the court, neurological injury such as a stroke or brain damage does not
automatically place plaintiff’s mental condition at issue. Id. The court concluded that the
allegations in the complaint and the statements in discovery demonstrated that the injuries he
suffered were physical and neurological in nature and distinct from psychological damage. Id.
¶ 18 Similarly, the First District held that cognitive impairments consistent with a traumatic
brain injury do not place the plaintiff’s mental condition at issue. Yamini, 2019 IL App (1st)
180566, ¶ 24. In that case, plaintiff filed a medical malpractice claim after she developed
meningitis following surgery. Id. ¶ 1. Evidence showed that plaintiff suffered impaired cognitive
presentation after developing meningitis and presented symptoms consistent with traumatic brain
injury. Id. ¶ 24. Sparger distinguished the case from one in which the plaintiff alleged pain and
anguish in both mind and body and psychiatric, psychological, and emotional injuries. Id. ¶ 28.
¶ 19 Here, the complaint alleged that defendants negligently treated plaintiff’s overdose. The
complaint alleged that defendants’ negligence caused Donald to suffer “mental anguish and
emotional distress.” This is a specific allegation of psychological and emotional damages. Like
Phifer and Doe, plaintiff affirmatively introduced Donald’s mental condition as an element of her
survival claims. Consequently, we find that plaintiff waived the therapist-recipient privilege.
¶ 20 Plaintiff attempts to distinguish Phifer. Plaintiff notes that the plaintiff in Phifer responded
to discovery by indicating that she sought damages for psychiatric and psychological injury. She
also disclosed two expert witnesses who performed cognitive testing and treated plaintiff for
-7-
anxiety, lowered professional confidence, panic attacks, and depression. By contrast, in response
to defendants’ motion to compel, plaintiff in this case asserted that she was not seeking damages
for psychiatric, psychological, or emotional damages on behalf of Donald. Plaintiff also did not
disclose any of Donald’s mental health providers as potential witnesses. In plaintiff’s view, she
must do more than simply allege mental pain and suffering to affirmatively place Donald’s mental
condition at issue. We disagree. Phifer does not hold that a party must do more than allege
psychological damages. There are many ways a party may affirmatively place an individual’s
mental condition at issue. As noted above, “[a] party may introduce his or her mental condition in
several ways during the course of litigation, including, e.g., in the pleadings, answers to written
discovery, a deposition, in briefs or motions, in argument before the court, or by stipulation.” Reda,
199 Ill. 2d at 61. The complaint in this case placed Donald’s mental condition at issue as an element
of damages.
¶ 21 In reaching our conclusion, we distinguish both Reda and Sparger. Unlike this case, the
plaintiffs in Reda and Sparger did not specifically allege psychological or emotional damages in
their complaints. Instead, both cases focused on the types of injuries which affirmatively place an
individual’s mental condition at issue. The courts in both Reda and Sparger determined that
traumatic brain injury alone did not directly implicate psychological damage. The complaint here
does not allege traumatic brain injury, but specifically alleges psychological and emotional
damages. Thus, as the complaint currently stands, it places Donald’s mental condition at issue and
defendants must be prepared to fully litigate the issue of emotional damages as framed in the
complaint. Such preparation obviously requires relevant discovery.
¶ 22 Our analysis, however, does not end there. As both parties pointed out on appeal, the trial
court failed to perform the safeguard of an in camera review of the records to determine which, if
-8-
any, records should be disclosed. Instead, the court directed plaintiff to provide the release
authorization form directly to defendants. To the extent the order required plaintiff to provide the
authorization and records directly to defendants, the court erred. Before releasing any records, the
court must first make a determination “after in camera examination of the evidence, that it is
relevant, probative, and otherwise clearly admissible; that other satisfactory evidence is not
available regarding the facts sought to be established by such evidence; and that disclosure is more
important to the interests of substantial justice than protection from any injury which disclosure is
likely to cause.” 740 ILCS 110/10(a)(2) (West 2020). We modify the order to reflect that the
records must first be produced under seal directly to the trial court for in camera inspection.
¶ 23 Finally, both parties agree that we should vacate the contempt order and the accompanying
fine against plaintiff because she acted in good faith in seeking review of the trial court’s discovery
order. We agree. Though we affirm the trial court’s order as modified, we find it proper to vacate
the finding of contempt and the $100 fine. See Borg Warner, Inc. v. Kuhlman Electric Corp., 2014
IL App (1st) 131824, ¶ 35.
¶ 24 III. CONCLUSION
¶ 25 For the foregoing reasons, we affirm in part and vacate in part, as modified, the judgment
of the circuit court of Tazewell County.
¶ 26 Affirmed in part and vacated in part, as modified.
-9- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482154/ | 11/07/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2022
STATE OF TENNESSEE v. ELIJAH BOWMAN
Appeal from the Criminal Court for Knox County
No. 114447 G. Scott Green, Judge
___________________________________
No. E2021-00614-CCA-R3-CD
___________________________________
The Defendant-Appellant, Elijah Bowman, was convicted by a jury of first-degree felony
murder, two counts of attempted second degree murder, two counts of especially
aggravated robbery, and aggravated assault. He received a total effective sentence of life
imprisonment plus twelve years. The sole issue presented on appeal is whether the
evidence is sufficient to support his convictions of first-degree felony murder, attempted
second degree murder, and especially aggravated robbery. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JILL BARTEE
AYERS and JOHN W. CAMPBELL, SR., JJ., joined.
Mitchell T. Harper, Knoxville, Tennessee, for the Appellant, Elijah Bowman.
Herbert H. Slatery III, Attorney General and Reporter; Hannah-Catherine Lackey,
Assistant Attorney General; Charme P. Allen, District Attorney General; and Hector
Sanchez and Larry Dillon, Assistant District Attorneys General, for the Appellee, State of
Tennessee.
OPINION
The facts giving rise to the instant case stem from a 2018 robbery and shooting,
which resulted in the death of Denise Stevens and serious bodily injury to Deauntray
Woods and Hunain Abdul-Rasheed. Around 9:30 p.m. on January 28, 2018, the Defendant
and four of his friends-D.J. Wright, Amir Spears, Don Davis, and Christian Rader Jones-
arrived at Stevens’s home to purchase marijuana from Woods. Soon after arriving, the
Defendant, Wright, and Spears began shooting, killing Stevens and injuring Woods and
Rasheed. The Defendant took marijuana, an AR-15 rifle, and a backpack containing
$25,000 from the home as he fled the scene with his friends.
On December 5, 2018, the Knox County Grand Jury returned an indictment
charging the Defendant and co-defendant Amir Hassan Spears with alternative counts of
first-degree felony murder in the perpetration of a robbery of Stevens (count one) and first-
degree premeditated murder of Stevens (count two); attempted first-degree murder of
Rasheed (count three); attempted first-degree murder of Woods (count four); especially
aggravated robbery of Stevens (count five), especially aggravated robbery of Rasheed
(count six), and especially aggravated robbery of Woods (count seven).
The Defendant was tried jointly with co-defendant Spears, and the trial spanned
from December 2 to December 5, 2019. Woods testified that he arrived at the home of
Stevens, his cousin, around 11:00 a.m. on January 28, 2018. He and his friend, Rasheed,
“chilled, smoked, and relaxed all day.” Woods confirmed that he had been selling
marijuana out of Stevens’s home every day for the past year. Around 3:00 p.m., Woods
received a Snapchat message from the Defendant, who wanted to purchase marijuana.
Woods knew the Defendant because they had “gr[own] up together.” They arranged for
the Defendant to purchase “a half ton” of marijuana for a thousand dollars at Stevens’s
home later that day. The Defendant messaged Woods around 8:00 or 9:00 p.m. that he was
ready to meet, and Woods gave the Defendant Stevens’s address. Woods testified that the
Defendant, accompanied by Wright, arrived at around 9:30 p.m. When the Defendant
arrived, Woods and Rasheed were in the living room, Stevens was in her bedroom, and
Stevens’s three children were asleep in two other bedrooms in the house. After Rasheed
let the Defendant and Wright into the house, the Defendant greeted Woods. The Defendant
shook Woods’s hand, gave him a hug, and asked how Woods had been doing. Woods
responded that he was good and had the marijuana on the coffee table. There was also an
AR-15 rifle that belonged to Stevens and a backpack containing $25,000 that belonged to
Woods on the couch.
Woods testified, “not even [] five seconds after [the Defendant had greeted him],”
Stevens came to the doorway of the living room looking nervous and worried. She asked,
“Who is this walking up my driveway with this big ass rifle?” Woods testified that there
was a window in Stevens’s room overlooking the driveway. Woods stated that Rasheed,
Wright, and the Defendant all had “blank looks” on their faces, “like we didn’t know what
was going on.” Rasheed opened the front door, and co-defendant Spears was standing
there with an AR-15 rifle aimed at Rasheed’s chest. co-defendant Spears pointed the rifle
at Rasheed’s head and “that’s when the first shot [went] off.” Woods then stated, “Rasheed
kind of backs up when the first shot goes off and it misses him, and he turns and runs
towards [Stevens’s] bedroom, closing himself and Stevens inside the bedroom.” He said
that as Rasheed was running, co-defendant Spears was “aiming down the barrel shooting
rounds at [Rasheed].” The Defendant then pulled out a gun and shot Woods from no more
than “two feet away.” Woods testified that he and the Defendant made eye contact when
-2-
the Defendant shot him. Wright then took out a revolver and shot Woods, knocking him
to the ground. The Defendant, co-defendant Spears, and Wright turned and starting
shooting through Stevens’s closed bedroom door. When the gunshots ceased, Woods saw
the Defendant and Wright grab the marijuana from the coffee table along with the backpack
and AR-15 rifle from the couch as they ran out of the house.
Once the Defendant, co-defendant Spears, and Wright were gone, Woods got up
and tried to open Stevens’s bedroom door. He said he could only partially open it because
Stevens was lying on the floor in front of the door, mumbling in pain. He also saw Rasheed
crawling on the floor, who had been shot and “[could not] move.” Woods squeezed
through the door and checked on their injuries. He then went to the other bedrooms in the
house to check on the three children, who were asleep when the shooting started.
Woods testified he sustained two gunshot wounds-one to his right shoulder above
the clavicle and one to his groin, “straight through [his] penis.” He stated that the injury to
his groin was the most severe, caused “extreme physical pain,” and required surgery
because his penis had been “split like a banana.” He stated that it took six weeks to
completely recover from this injury and that he had a catheter for three or four weeks. He
also testified that his shoulder injury healed in about two weeks but that, at the time of trial,
the muscles in his arm were still affected and prevented him from doing a lot of heavy
lifting. The day after the shooting, Woods identified the Defendant from a photo array as
one of the shooters. The signed identification form was admitted into evidence. Woods
also identified the Defendant in court.
On cross-examination, Woods clarified that Rasheed was not involved in selling
marijuana. When asked if anyone said anything to him after the shooting started, he said,
“no, never, give me the money, never nothing.” He also stated that there were two rounds
of shooting that occurred over approximately eight minutes. During the first round of
shooting, he said co-defendant Spears fired about “four shots” at Rasheed as he was
running toward the bedroom door. Woods was then shot by the Defendant and Wright.
Woods said, “I don’t even know how many times [co-defendant Spears] fired the second
time, I just know I [saw] everybody shooting at the door . . . at the second point of
shooting.” He stated that he had never met co-defendant Spears or Wright prior to that
night.
Hunain-Abdul Rasheed testified that he was living at Stevens’s home on the night
of the shooting and had been friends with Woods since high school. He had planned to go
out and smoke with some friends on the night of the shooting but Woods had asked him to
stay until Woods had finished the sale of marijuana to the Defendant. When the Defendant
arrived at Stevens’s home, Rasheed let him and Wright into the house. He testified that he
had never met the Defendant but that he knew Wright from an after-school program. He
-3-
confirmed the testimony of Woods, noting that shortly after the Defendant and Wright
arrived, Stevens emerged asking, “Why is one of your friends running up here with a gun?”
This prompted Rasheed to open the front door only to find a man with a gun pointed at his
face. When the man shot at Rasheed, Rasheed turned and ran toward Stevens’s bedroom.
Rasheed pushed Stevens to the ground, closed the door behind him, and stood frozen as he
heard gunshots.
Rasheed said that Stevens got up and tried to open the door during a break in the
gunfire. As she did so, Stevens was hit by a bullet that came through the door, which
caused her to slide down the wall to the ground. When Rasheed tried to help Stevens, he
was also shot. The bullet struck Rasheed in “the top part of [his] butt[,]” caused his legs
to go “numb,” and he fell to the ground. When the shooting stopped, Rasheed crawled out
of the bathroom, got up, and limped into the living room to help the others. Rasheed’s cell
phone was used by Woods to call 911, the recording of which had been admitted previously
into evidence and played for the jury in court.
Rasheed was unable to identify the man at the door, and he had never met co-
defendant Spears prior to the shooting. The day after the shooting, Rasheed identified the
Defendant from a photo array as one of the shooters, and the signed identification form
was admitted into evidence. Rasheed was shot in his left leg, which caused a permanent
limp. He said that his leg now gives out when he exercises or “jump[s] too much.” He
also said that his lower back is “tore up,” that he wakes up in pain, and that he gets a
“twitch” in his back. He explained that the bullet was never removed from his body
because his doctors said it would have caused more damage to take it out.
On cross-examination, Rasheed said that Stevens had received the AR-15 rifle as a
gift from a friend “for protection.” He said the rifle would typically be kept in Stevens’s
room but that Woods had gotten the gun out for the “transaction” with the Defendant.
Don Davis testified that he was at his house with the Defendant, Wright, and Jones
on January 28, 2018. At some point, the four of them left in Jones’s car to pick up co-
defendant Spears. The men then drove to Stevens’s home for the Defendant to buy
marijuana from Woods. It was dark when they arrived at Stevens’s home. Jones parked
his car down the hill in front of Stevens’s house, and the Defendant and Wright got out,
walked up to the house, and knocked on the front door. Davis explained they were
supposed to watch the Defendant and Wright to “make sure [they were] safe.” Davis and
co-defendant Spears then got out of the car, walked to the house, and left Jones in the
driver’s seat of the car. As Davis and co-defendant Spears walked to the back side of the
house, they heard a gunshot and ran back to the car. Although Davis said co-defendant
Spears “stayed back,” Davis was unsure whether co-defendant Spears proceeded to the
front door. Davis confirmed that everyone at his house had a firearm; however, he was
-4-
unsure of the specific type of firearm the Defendant or Wright had that night. Davis first
became aware that co-defendant Spears was armed when co-defendant Spears pulled an
AR-15 rifle out of his pants.
Davis returned to the car, and he and Jones waited for everyone else. When the
Defendant, co-defendant Spears, and Wright came back to the car, the Defendant handed
Davis an AR-15 rifle. Davis confirmed that the Defendant did not have the rifle when he
went into the house, and he opined the rifle came from inside Stevens’s home. They
returned to Davis’s house, “split up” the stolen half a pound of marijuana, and Davis
received about two ounces. The AR-15 rifle taken from Stevens’s home was left at Davis’s
house until Wright retrieved it the next day.
Davis testified that he had an informal immunity agreement with the State, which
provided he would not be charged for his involvement in the case in exchange for his
cooperation and truthful testimony. Davis admitted that he was not truthful in his initial
interview with Investigator Charlie Lee because he “didn’t want to have nothing to do with
nothing.” On cross-examination, Davis agreed that he initially told Investigator Lee that
(1) he did not know what had happened on the night of the shooting because he was
intoxicated at his house and had passed out in the car on the way to Stevens’s house; and
(2) that he woke up after hearing gunshots right before everyone got back in the car.
Christian Rader Jones testified that on the day of the shooting, he called the
Defendant, whom he knew from high school, to get some marijuana. He met the Defendant
at his cousin Davis’s house. Jones said the Defendant, Davis, and Wright were at the house
when he arrived, and the Defendant eventually contacted Woods to buy marijuana. Jones
drove the Defendant, Wright, and Davis to pick up co-defendant Spears, and they
proceeded to Stevens’s house. Jones testified that he was unaware that anyone was armed
and that the Defendant directed him to back into Stevens’s driveway and park. The
Defendant and Wright then got out of the car and walked toward the house. Jones said that
they were “ten feet from the house [when] they looked back and waved at the car” to signal
co-defendant Spears and Davis to come up after them. Jones explained that the Defendant
and Wright were already in the house as co-defendant Spears and Davis were walking up
to the front porch. He said that he remained in the car the entire time.
As co-defendant Spears approached the house, Jones saw him remove a rifle from
his pants. He then heard “roughly four to six” gunshots. Soon after, everyone ran from
the house and back to the car. He said that everyone had firearms when they returned to
the car. Co-defendant Spears had a “rifle looking weapon,” Wright had a “black pistol,”
Davis had an “AR from the house which [Wright] handed to him as they were leaving the
[house],” and the Defendant had a silver revolver. Jones clarified that Davis did not
approach the house with a weapon. The Defendant told Jones to drive and Davis directed
-5-
him to take them back to Davis’s house. While driving back, Wright said that “he believed
he shot someone in their stomach.” The Defendant said “f[—]k with me, you know, I’ll
f[—]k around and get rich.” Once they returned to Davis’s house, everyone went inside
and began dividing the marijuana. Jones stated that he did not take any of the marijuana
and left. When asked if he had an agreement with the State, Jones stated that he was
promised immunity conditioned upon his truthful testimony at trial.
On cross-examination, Jones testified that no one in the car talked about robbing
anyone on the way to Stevens’s house. He also did not see anyone with a gun prior to the
shooting. Jones said he had no reason to suspect “anything out of the ordinary” as he
waited for his friends to return to the car.
Officer Rachel Britt of the Knoxville Police Department (KPD) testified that she
was on patrol the night of the shooting and responded to a 911 call at Stevens’s home. She
and two other officers arrived on the scene and entered the home to conduct a protective
sweep. She observed two male victims in the living room and eventually discovered three
children in a back bedroom. Officer Britt also observed a door with bullet holes in it and
attempted to open it; but it was blocked by what appeared to be a body. Officer Britt
ultimately found Stevens unresponsive and lying face down on the floor in front of the
door. She testified that Stevens was not breathing and appeared to have gunshot wounds
to her upper torso and one of her arms. Stevens was moved away from the door, turned
over, and administered first aid.
KPD violent crimes Investigator Jason Booker stated that the Defendant was
identified as a suspect thirty-four hours after the offense. Investigator Booker prepared a
search warrant for the Defendant’s home and went to the Defendant’s home along with
SWAT officers to execute the warrant. The SWAT team knocked on the Defendant’s door
and the Defendant answered. The Defendant was then taken into custody based on an
arrest warrant. Investigator Booker accompanied Officer Jacklyn Walkup on a
walkthrough of the home, during which she took numerous photographs. The photos taken
by Officer Walkup were admitted into evidence and depicted a handgun, an AR-15 rifle,
magazines for both firearms, spent shell casings, a bullet, and various documents
identifying the Defendant. Investigator Booker said all of these items were found in a
bedroom in the Defendant’s home.
KPD Officer Jacklyn Walkup, a crime scene and latent print investigator, testified
that she was called to the scene of the instant shooting to document and collect evidence.
Upon arrival, she extensively photographed the interior of the house. She also collected
six nine-millimeter shell casings from the scene. Of the six casings, five were “PMC
cartridge casings” and one was a “Winchester nine-millimeter cartridge casing.” The five
PMC casings were found “in the living room walking back towards the hallway and into
-6-
the back bedroom.” The Winchester casing was found in the back bedroom. She also
recovered four copper jacket bullets and one fragment of a copper jacket bullet. The
photographs, shell casings, and bullet fragments collected from the scene were admitted
into evidence.
Officer Walkup testified that she also documented via photography a search warrant
executed at the Defendant’s home. In addition to taking photographs, Officer Walkup
recovered two firearms that were admitted into evidence. The first firearm was a “Taurus
709 slim nine-millimeter handgun” found under a mattress at the Defendant’s home. The
first firearm had a package containing “two Winchester nine[-]millimeter cartridges, one
PMC nine[-]millimeter cartridge[,] and two FC nine[-]millimeter Hollow Point cartridges.”
When asked which types of nine-millimeter shell casings were recovered from the crime
scene, she replied, “five PMC nine-millimeter cartridge casings and one Winchester nine[-
]millimeter cartridge casing.” The second firearm recovered from the Defendant’s home
was an AR-15 found “underneath a bed against a wall.” While conducting her search,
Officer Walkup also documented several pieces of evidence identifying the Defendant,
including a community college ID badge, a W-2 form for a check made out to the
Defendant, and a bank statement for the Defendant. These were all found in the same
bedroom where the firearms were recovered. Photographs of these documents were
admitted into evidence at trial.
When asked if she was able to lift any fingerprints in this case, Officer Walkup
stated that she lifted a fingerprint from the magazine of the Taurus nine-millimeter handgun
recovered from the Defendant’s home. Officer Walkup also testified that, while she did
not conduct a fingerprint examination of the print, she “verif[ied] a finding of fingerprints”
made by the main print examiner in the case. Her identification of the print matched the
one made by the main print examiner, which concluded the print lifted from the handgun
belonged to the Defendant.
KPD Officer Edward Johnson, a certified latent print examiner of the forensic unit,
was accepted as an expert in the field of latent print identification. When asked how a
fingerprint was generally acquired and analyzed, Officer Johnson explained that prints
were recovered from items of evidence by various methods, such as fingerprint powder or
super glue processing, and then entered into the Automated Fingerprint Identification
System (AFIS) that would search that print against known prints and produce a list of
potential candidates. He said a visual comparison then takes place between the latent print
and those produced by the AFIS to identify the print.
Officer Johnson testified that he examined a latent print taken from the magazine of
a nine-millimeter Taurus handgun recovered from the Defendant’ home. He stated that he
analyzed the print and entered it into AFIS. From there, he received a list of about “10 or
-7-
15” candidates to compare to the print. Based on his visual comparison, he identified the
print lifted from the handgun as a match to the Defendant. He stated that his identification
was later verified by Officer Walkup.
On cross-examination, Officer Johnson clarified that, once he receives a list of
potential candidates, he compares them side-by-side using his judgment and expertise to
determine if there is a match. When asked about the verification process, he explained that
a second examiner would conduct a second independent analysis using the same process
used to make the initial identification. If the second examiner reaches a different
conclusion than the initial examiner, it is not verified and there is no identification. The
report containing Officer Johnson’s conclusions was admitted into evidence.
Sergeant Brian Dalton, a supervisor over the KPD forensic unit, was declared an
expert in the field of forensic firearms and tool mark examination. Sergeant Dalton
testified that he was called to supervise and assist Officer Walkup on the night of the
shooting. He stated that he assisted in the recovery of six nine-millimeter cartridge cases
and five bullets or bullet fragments from the scene. He conducted a forensic analysis on
four out of the five bullets and the six shell casings. Sergeant Dalton’s final report on his
examination of the firearms, bullets, and shell casings was admitted into evidence.
Sergeant Dalton testified that six shell casings and one bullet found at the crime
scene were fired from the Taurus pistol recovered from the Defendant’s home. He further
explained that there were three other bullets that he identified as not being fired from the
Taurus pistol, which indicated there was a second firearm used at the scene. Sergeant
Dalton testified that there were no shell casings or projectiles that appeared to be fired from
the AR-15 rifle recovered from the scene.
KPD Officer Michael Carter testified that he was dispatched to the University of
Tennessee Medical Center to take photographs of three gunshot victims in the emergency
room. He was shown photos of Stevens, Woods, and Rasheed, all of which were admitted
into evidence and published to the jury.
Dr. William Russell Oliver, an assistant medical examiner employed by Knox
County, conducted the autopsy on Stevens on January 29, 2018. He explained that there
were three gunshot wounds on her body, one to “the right chest that exited through the left
back, one to the left abdomen that exited through the right lower back, and one through the
right arm.” In his final report, Dr. Oliver concluded the cause of death was “multiple
gunshot wounds” and the manner of death was “homicide.” The final report was admitted
into evidence.
-8-
Based on the above proof, the jury convicted the Defendant as charged of first-
degree felony murder of Stevens (count one); the lesser included offense of second degree
murder of Stevens (count two) (merged into count one); the lesser included offense of
attempted second degree murder of Woods and Rasheed (counts three and four); as charged
of especially aggravated robbery of Stevens and Woods (counts five and seven); and the
lesser included offense of aggravated assault of Rasheed (count six). The trial court merged
count two into count one and sentenced the Defendant to life imprisonment. Following a
sentencing hearing, the trial court imposed a sentence of twelve years in counts three and
four, a sentence of twenty years in counts five and seven, and a sentence of six years in
count six. The trial court imposed concurrent terms of twelve and six years for counts
three, four, and six and concurrent terms of twenty years for counts five and seven, to be
served concurrently to count one. The twelve-year concurrent term for counts three, four,
and six was ordered to be served consecutively to count one, for an effective sentence of
life plus twelve years.
The Defendant filed a timely motion for a new trial, which was denied following a
hearing. The Defendant filed a timely notice of appeal, and this case is now properly before
this court for review.
ANALYSIS
On appeal, the Defendant argues that the evidence was insufficient to support his
convictions for first-degree felony murder, attempted second degree murder, and especially
aggravated robbery. The State contends, and we agree, that the evidence was sufficient to
support the convictions.
Sufficiency of the Evidence. “Because a verdict of guilt removes the presumption
of innocence and raises a presumption of guilt, the criminal defendant bears the burden on
appeal of showing that the evidence was legally insufficient to sustain a guilty verdict.”
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d
185, 191 (Tenn. 1992)). “Appellate courts evaluating the sufficiency of the convicting
evidence must determine ‘whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When
this court evaluates the sufficiency of the evidence on appeal, the State is entitled to the
strongest legitimate view of the evidence and all reasonable inferences that may be drawn
from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v.
Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
-9-
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); Hall, 976 S.W.2d at 140. The standard of review for sufficiency of the
evidence “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting Hanson, 279
S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of the witnesses,
determine the weight given to witnesses’ testimony, and reconcile all conflicts in the
evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the jury determines the weight
to be given to circumstantial evidence, and the inferences to be drawn from this evidence,
and the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State
v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the
evidence, this court “neither re-weighs the evidence nor substitutes its inferences for those
drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997)).
A. Felony Murder and Especially Aggravated Robbery. The Defendant argues
the evidence presented at trial was insufficient to support his convictions of first-degree
felony murder because the State failed to establish the underlying felony of robbery. Citing
State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971), the Defendant argues the State’s
proof of intent to commit a robbery was based entirely on circumstantial evidence which
did not “rise to the strength and cogency required to instill confidence in the jury’s verdict
of guilt.” Given the witness testimony and the forensic evidence, the State argues there
was sufficient evidence to support the Defendant’s convictions. We agree with the State.
As charged in this case, first-degree felony murder is the “killing of another
committed in the perpetration of or attempt to perpetrate any . . . robbery[.]” Tenn. Code
Ann. § 39-13-202(a)(2). Robbery is “the intentional or knowing theft of property from the
person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-
401(a). “A person commits theft of property if, with intent to deprive the owner of
property, the person knowingly obtains or exercises control over the property without the
owner’s effective consent.” Tenn. Code Ann. § 39-14-103(a). Especially aggravated
robbery is robbery “accomplished with a deadly weapon and where the victim suffers
serious bodily injury.” Tenn. Code Ann. § 39-13-403(a). “Deadly weapon” is defined as
“[a] firearm or anything manifestly designed, made or adapted for the purpose of inflicting
death or serious bodily injury.” Tenn. Code Ann. § 39-11-106(6). “Serious bodily injury”
includes any bodily injury that involves a substantial risk of death, extreme physical pain,
protracted or obvious disfigurement, or protracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty. Tenn. Code Ann. § 39-11-106(37).
- 10 -
To sustain a conviction for first-degree felony murder where the underlying offense
is robbery, the intent to commit the robbery must exist prior to or concurrent with the death
of the victim. See State v. Buggs, 995 S.W.2d 102, 107 (Tenn. 1999). The killing may
precede, coincide with, or follow the felony and still be considered as occurring “in the
perpetration of” the felony offense, so long as there is a connection in time, place, and
continuity of action. Id. at 106. Proof that such intent to commit the underlying felony
existed before, or concurrent with, the act of killing is a question of fact to be decided by
the jury after consideration of all the facts and circumstances. Id. (citing Hall v. State, 490
S.W.2d 495, 496 (Tenn.1973)). “[A] jury may reasonably infer from a defendant’s actions
immediately after a killing that the defendant had the intent to commit the felony prior to,
or concurrent with, the killing.” Id. at 108.
The Defendant argues that the State failed to prove the Defendant’s intent to commit
a robbery prior to the shooting, that the evidence was entirely circumstantial, and that none
of the State’s witnesses were able to establish a prior plan to rob Woods. However, the
Defendant cites Crawford for the proposition that a guilty verdict may result from purely
circumstantial evidence only if the facts and circumstances of the offense were “so strong
and cogent as to exclude every other reasonable hypothesis save the guilt of the
[appellant].” State v. Crawford, 470 S.W.2d at 612. Our supreme court rejected
the Crawford standard, holding that “direct and circumstantial evidence should be treated
the same when weighing the sufficiency of the evidence.” Dorantes, 331 S.W.3d at 381.
Accordingly, viewed in the light most favorable to the State, the evidence, direct and
circumstantial, is more than sufficient evidence to establish the Defendant’s intent to rob
Woods.
The proof at trial showed that the Defendant arranged a meeting with Woods at
Stevens’s home to purchase marijuana. The Defendant and four of his friends, each armed
with guns, drove to Stevens’s home and split into groups upon arriving at Stevens’s home.
The Defendant and Wright approached Stevens’s front door first, signaling for co-
defendant Spears and Davis to follow them before they entered the house. Jones stayed in
the driver’s seat of the car. As the Defendant greeted Woods, Woods and Rasheed were
alerted by Stevens that someone was walking up to the house with a gun. When Rasheed
opened the door to see who was coming, co-defendant Spears opened fire on Rasheed with
an AR-15 rifle covered by a bag. The Defendant and Wright then pulled out guns and shot
Woods. After Woods had fallen to the ground, the Defendant and Wright joined co-
defendant Spears in shooting through Stevens’s closed bedroom door, and Stevens was
fatally shot and Rasheed was seriously injured. The Defendant and his companions
grabbed the marijuana, an AR-15 rifle, and a backpack containing $25,000 cash from the
home as they fled the scene. The rifle belonged to Stevens and the backpack and cash
belonged to Woods. Woods sustained gunshot wounds to his right clavicle and groin,
which caused “extreme physical pain,” and required surgery and weeks of healing.
- 11 -
Woods and Rasheed identified the Defendant as being at Stevens’s house actively
taking part in the shooting and robbery. Of the four men who were in the car with the
Defendant prior to and after the shooting, Jones and Davis testified. Davis said that all of
the men were armed when they drove to Stevens’s house. Davis explained that the
Defendant and co-defendant Spears approached the house initially, signaled for the other
men to join them, but Davis retreated after he heard gunshots. Davis testified further that
the Defendant handed him the AR-15 rifle before they drove away. Jones testified that
when the Defendant returned to the car, he said “f[—]k with me, you know, I’ll f[—]k
around and get rich” as they drove away. When the men returned to Davis’s home, they
divided the marijuana stolen from Woods amongst them. Police recovered the AR-15 rifle
from the Defendant’s home along with a Taurus nine-millimeter handgun and shell casings
similar to those recovered from the scene. Expert testimony established that the
fingerprints found on the Taurus handgun matched the fingerprints of the Defendant and
that the bullets recovered from the crime scene were fired from the Taurus handgun.
The Defendant also hinges his argument on Woods’s testimony that when the
shooting began the Defendant had a “blank look” on his face, and the phrase “like we didn’t
know what was going on.” We interpret this phrase as characterizing whether Woods and
Rasheed knew they were being robbed, not the Defendant. The Defendant fails to explain
his active participation in the robbery after co-defendant Spears shot at Rasheed. The
remainder of the Defendant’s claims address the credibility of Jones and Davis, the
testimonies of which he insists were conflicting and self-serving. However, it is well-
settled that questions regarding the credibility of the witnesses, the weight and value of the
evidence, and resolution of conflicts in the evidence are matters entrusted to the jury as the
trier of fact and may not be revisited on appeal. See Byrge, 575 S.W.2d at 295; Bland, 958
S.W.2d at 659. Based on the evidence presented at trial, a rational jury could conclude that
the Defendant intended to rob Woods of his marijuana and money and Stevens of her
firearm and that during the perpetration of the robbery the Defendant shot at them, causing
serious injury to Woods and killing Stevens. See State v. Antonin Henderson & Marvin
Dickerson, No. W2015-00151-CCA-R3-CD, 2016 WL 3390627 at *7 (Tenn. Crim. App.
June 10, 2016) (evidence is sufficient to support aggravated robbery conviction when it
shows that property was taken, the taking was accomplished with a deadly weapon, and
the victim suffered serious bodily injury in connection with the taking). Moreover, there
is clearly a connection in time, place, and continuity of action between the killing of
Stevens and the taking of property, supporting an inference that Stevens was killed in the
perpetration of the theft. See State v. Andre Harris, No. W2011-02440-CCA-R3-CD, 2013
WL 2424115, at *13 (Tenn. Crim. App. June 5, 2013) (citing Buggs, 995 S.W.2d at 106-
07). The Defendant is not entitled to relief.
- 12 -
B. Attempted Second Degree Murder. The Defendant also contends the evidence
was insufficient to support his convictions for attempted second degree murder against
Woods and Rasheed because the State failed to show that he intended to kill anyone.
To establish that the Defendant attempted to commit second degree murder, the
State had to show that the Defendant acted with the intent to cause a result that would
constitute the offense of second degree murder, under the circumstances surrounding the
conduct as the Defendant believed them to be, and that the conduct constituted a substantial
step toward the commission of the offense. Tenn. Code Ann. § 39-12-101(a)(3). To
constitute a substantial step, the Defendant’s entire course of action had to be shown as
corroborative of the intent to commit the offense. Tenn. Code Ann. § 39-12-101(b).
Second degree murder is a knowing killing of another. Tenn. Code Ann. § 39-13-
210(a)(1). A person acts intentionally “when it is the person’s conscious objective or
desire” to cause the result. Tenn. Code Ann § 39-11-302(a). A “person acts knowingly
with respect to a result of the person’s conduct when the person is aware that the conduct
is reasonably certain to cause the result.” Tenn. Code Ann. § 39-11-302(b).
Viewed in the light most favorable to the State, the evidence presented at trial
showed that the Defendant shot Woods at close range, “no more than two feet away from
[him],” right after co-defendant Spears began firing multiple shots at Rasheed. Woods
testified that the Defendant looked him in the eye as he shot him. Wright, who was
accompanying the Defendant, then turned and shot Woods, knocking him onto his back.
The Defendant, along with co-defendant Spears and Wright, then turned to the closed door
of the bedroom where Rasheed had fled and began shooting through the door at Rasheed.
In addition to Woods’s and Rasheed’s testimony identifying the Defendant as one of the
shooters, the State presented forensic evidence connecting the Defendant to a handgun used
during the shooting. While the Defendant challenges the expert testimony as speculative,
the above evidence is more than sufficient evidence for a rational jury to conclude that the
Defendant intended to commit a knowing killing of both Woods and Rasheed when he shot
at them. See State v. Porter, No. 03C01-9606-CC-00238, 1997 WL 661419, at *3 (Tenn.
Crim. App. Oct. 24, 1997) (“Proof that a person has deliberately aimed a pistol and shot
several times at his intended victim is sufficient to support a conviction for
attempted second-degree murder.”). Accordingly, the evidence was sufficient to support
the convictions of attempt to commit second degree murder.
CONCLUSION
Based upon the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
- 13 -
____________________________________
CAMILLE R. MCMULLEN, JUDGE
- 14 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482163/ | NOTICE
2022 IL App (5th) 220446-U
NOTICE
Decision filed 11/07/22. The
This order was filed under
text of this decision may be NO. 5-22-0446 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re M.S., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Champaign County.
)
Petitioner-Appellee, )
)
v. ) No. 20-JA-90
)
Robert S., ) Honorable
) Brett N. Olmstead,
Respondent-Appellant). ) Judge, presiding.
______________________________________________________________________________
JUSTICE BARBERIS delivered the judgment of the court.
Justices Welch and Vaughan concurred in the judgment.
ORDER
¶1 Held: The circuit court’s findings that respondent father was an unfit parent and that
termination of his parental rights was in the minor’s best interest were not against
the manifest weight of the evidence.
¶2 Respondent, Robert S., appeals from the judgment of the circuit court of Champaign
County terminating his parental rights to his biological minor child, M.S. On appeal, Robert S.
argues that the court’s findings that he was an unfit parent and that it was in M.S.’s best interest to
terminate his parental rights were against the manifest weight of the evidence. For the following
reasons, we affirm the judgment of the circuit court.
1
¶3 I. Background
¶4 Robert S. and Heather O. 1 had one child, M.S., born on September 7, 2020. The Illinois
Department of Children and Family Services (DCFS) took protective custody of M.S. on
September 21, 2020.
¶5 On September 22, 2020, the State filed a petition for adjudication of neglect, alleging that
M.S. was neglected pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court
Act) (705 ILCS 405/2-3(1)(b) (West 2020)), because M.S. was in an injurious environment when
she resided with Heather O. and/or Robert S. in that the environment exposed M.S. to substance
abuse.
¶6 Also, on September 22, 2020, DCFS filed a shelter care report, which indicated that DCFS
received a hotline call regarding M.S. on September 15, 2020. The caller reported that M.S.
experienced prematurity complications and withdrawal symptoms after birth due to in utero
exposure to drugs of dependence. The report indicated that Heather O. tested positive for opiates
and cannabis at the time of M.S.’s birth. The report further indicated that Heather O., who suffered
from a heart infection due to intravenous drug usage, tested positive for opiates and benzodiazepine
when admitted to the hospital shortly before M.S.’s birth. Hospital officials did not prescribe the
substances to Heather O. and suspected that Robert S. brought the substances into the hospital for
Heather O. Robert S. admitted during an interview on September 21, 2020, that he sporadically
used heroin, and that he last used heroin the day prior. The report indicated that Robert S. and
Heather O. resided together with Heather O.’s mother, who suffered from dementia.
1
Although Heather O.’s parental rights were also terminated, she was not a party to this appeal.
Accordingly, we limit our recitation of the facts to those relevant to our disposition of the instant appeal.
2
¶7 Prior to the shelter care hearing on September 22, 2020, the circuit court entered an order
appointing a guardian ad litem (GAL) for M.S. Heather O. did not appear at the hearing, but Robert
S. appeared with court appointed counsel. Following the hearing, the court entered a temporary
custody order, placing temporary custody of M.S. with DCFS.
¶8 On November 2, 2020, DCFS prepared a family service plan, which indicated that the case
opened due to concerns of substance abuse by both parents. The service plan required Robert S.
and Heather O. to cooperate with DCFS and the Center for Youth and Family Solutions (CYFS)
in order to successfully complete all recommended services. The service plan required both parents
to perform the following tasks: complete parenting classes; complete domestic violence classes;
complete a substance abuse assessment; follow all recommendations and treatment plans from the
substance abuse assessment; present for random drug screens; engage in individual counseling;
follow all recommendations and treatment plans from individual counseling; and participate in
weekly supervised visitation with M.S.
¶9 On January 7, 2021, the State filed a first amended petition for adjudication of neglect,
which alleged two counts. In count I, the State again alleged that M.S. was neglected because she
was in an injurious environment when she resided with Heather O. and/or Robert S. in that the
environment exposed M.S. to substance abuse. In count II, the State alleged that M.S. was
neglected when she resided with Heather O. in that M.S. had a medical diagnosis at birth of
withdrawal symptoms from narcotics or barbiturates.
¶ 10 The matter proceeded to an adjudicatory hearing, which began on January 7, 2021, and
concluded on January 22, 2021. At the hearing, both parents admitted and stipulated to the State’s
allegation of neglect in count I, for which the circuit court found a factual basis in the shelter care
report. The court entered an adjudicatory order on January 22, 2021, dismissing count II of the
3
petition and finding that the State proved, by a preponderance of the evidence, the allegations in
count I of the petition.
¶ 11 On February 9, 2021, DCFS filed a dispositional hearing report, which was prepared by
CYFS caseworker Jamie Buskirk. Buskirk noted in the report that Robert S. and Heather O.
continued to reside together with Heather O.’s mother in a two-bedroom duplex, and that Robert
S. received monthly disability benefits in the amount of $800. Buskirk indicated that both parents
were in the process of beginning the classes and counseling recommended in the family service
plan. Buskirk noted that both parents completed a substance abuse screen on November 18, 2020,
and that she referred both parents to Rosecrance to complete a substance abuse assessment.
Buskirk noted that Robert S. voluntarily completed the assessment in October 2020, prior to the
substance abuse screen. Buskirk noted that Rosecrance recommended intensive outpatient
treatment for Robert S., and that she completed a referral for Robert S. on January 1, 2021. Buskirk
also noted that CYFS placed Robert S. and Heather O. on a drug screen calendar and call-in system
beginning on October 6, 2020, and November 4, 2020, respectively. Buskirk indicated that both
parents failed to appear for the majority of their scheduled drug screens, and that both parents
tested positive for various substances on dates they appeared for drug screens. Buskirk indicated
that both parents presented for weekly supervised visits with M.S., and that both parents
occasionally fell asleep during the visits. Buskirk additionally noted that M.S. resided in substitute
care with a paternal relative, and that M.S. appeared “very bonded and comfortable with her
caregiver.”
¶ 12 On February 17, 2021, the circuit court held a dispositional hearing. On February 18, 2021,
the court entered a dispositional order, adjudicating M.S. neglected and making her a ward of the
court. The court placed M.S. in the custody and guardianship of DCFS.
4
¶ 13 On May 27, 2021, DCFS filed a permanency hearing report, which was prepared by CYFS
caseworker Lasiema Burton and approved by case supervisor Natasha Mables. Burton noted that
both parents were currently engaged in all recommended services, aside from domestic violence
counseling. Burton also noted that both parents engaged in weekly visitation with M.S., and that
both parents remained awake during recent visits. Burton noted, however, that both parents failed
to appear for multiple drug screens and that both parents tested positive for various substances on
multiple occasions from February to May 2021. Specifically, Burton noted that Robert S. missed
two drug screens in May 2021 due to a “[m]ix up with CYFS front desk,” and tested positive for
methadone on May 14, 2021. Robert S. reported that he recently signed up to receive methadone
treatment through Recovery Concepts. Burton indicated that neither parent fully corrected the
conditions which brought M.S. into care, and that both parents needed to continue the
recommended services. Burton recommended a permanency goal of return home within 12
months.
¶ 14 On June 3, 2021, the circuit court held a permanency hearing. Following the hearing, the
court entered a permanency order, finding that neither parent made reasonable and substantial
progress or reasonable efforts toward returning M.S. home. The court ordered both parents to
continue to engage in the recommended services and to maintain sobriety. The court set a
permanency goal of return home in 12 months.
¶ 15 On August 30, 2021, CYFS caseworker Ashley Kerns, in coordination with DCFS,
prepared a family service plan, which summarized the progress of Robert S. and Heather O. Kerns
indicated in the service plan that both parents continued to engage in the recommended services,
aside from domestic violence counseling. Kerns noted that both parents planned to begin domestic
violence counseling after they completed their current services. Kerns noted that both parents
5
participated in parenting classes and appeared for weekly supervised visits with M.S. without
issue. Accordingly, Kerns rated the progress of both parents on the recommended parenting classes
and visitation as satisfactory. However, Kerns indicated that both parents inconsistently attended
substance abuse and individual counseling. Kerns further indicated that both parents missed
multiple drug screens and continued “to struggle with substances” at that time. Thus, Kerns rated
both parents’ overall progress as unsatisfactory.
¶ 16 On September 23, 2021, DCFS filed a permanency hearing report, which was prepared by
Kerns. Kerns indicated in the report that both parents made reasonable efforts towards the goal of
return home but that threats continued to exist. Kerns noted that Robert S. and Heather O.
completed the recommended parenting classes in September 2021, and that both parents planned
to begin the previously recommended domestic violence classes. Kerns noted that both parents
attended weekly supervised visitation with M.S. without issue. Both parents also continued to
engage in substance abuse and individual counseling, but their attendance remained inconsistent.
Kerns additionally noted that both parents failed to appear for seven drug screens, and that both
parents tested positive for multiple substances from June 7, 2021, to September 8, 2021. With
regard to Robert S., Kerns noted that he tested positive for methadone at each drug screen but
indicated that methadone was prescribed to him as treatment. Robert S. also tested positive for
alcohol on June 16, 2021, July 6, 2021, July 8, 2021, and August 25, 2021. Robert S. additionally
tested positive for alcohol and tetrahydrocannabinol (THC) on August 5, 2021, August 31, 2021,
September 3, 2021, and September 8, 2021. Kerns recommended that the permanency goal remain
return home in 12 months.
¶ 17 On September 30, 2021, the circuit court held a permanency hearing. Following the
hearing, the court entered a permanency order, finding that both parents made reasonable efforts
6
toward returning M.S. home but that neither parent made reasonable and substantial progress
toward returning M.S. home. The court ordered both parents to consistently engage in services and
maintain sobriety. The court ordered that the permanency goal remain return home within 12
months.
¶ 18 On January 13, 2022, DCFS filed a permanency hearing report, which was prepared by
Kerns. Kerns indicated that both parents made reasonable efforts towards the return home goal but
that neither parent made satisfactory progress on their respective service plan tasks. Kerns noted
that both parents were engaged in the recommended services but continued to abuse substances.
Kerns noted that Robert S. continued to test positive for THC, alcohol, and methadone.
Specifically, Robert S.’s drug screen results revealed the following: a positive screen for THC and
methadone on October 4, 2021; a positive screen for alcohol, methadone, and THC on October 12,
2021; failure to appear due to incarceration on October 22, 2021, and October 28, 2021; positive
screens for methadone and THC on November 11, 2021, and November 16, 2021; failure to appear
on November 24, 2021, December 2, 2021 due to quarantine, December 6, 2021 due to quarantine,
and December 17, 2021; a positive screen for alcohol, methadone, and THC on December 22,
2021; failure to appear due to a mistake by caseworker on December 27, 2021; and a positive
screen for alcohol, methadone, and THC on December 28, 2021. Kerns recommended a
permanency goal of return home within 12 months.
¶ 19 Kerns attached to the permanency report a family service plan she prepared on January 4,
2022. The service plan indicated that both parents completed the recommended parenting classes
and continued weekly supervised visitation with M.S. without issue. Accordingly, both parents
received satisfactory ratings for the recommended parenting classes and visitation. Kerns noted
7
that Robert S. began domestic violence services and was scheduled to begin “the CHANGE
program” but had not yet received a start date. Kerns included the following evaluation narrative:
“[Heather O.] and [Robert S.] continue to struggle with substances. [Heather O.] and
[Robert S.] are engaging in substance abuse services at this time. [Robert S.] and [Heather
O.] are in Domestic [sic] violence services, but had a domestic violence incident on
10/19/2021 that resulted in [Robert S.] getting arrested. Domestic violence services are not
completed, individual counseling is inconsistent, and substance abuse service is
inconsistent as well.”
Thus, Kerns rated the overall progress of both parents as unsatisfactory.
¶ 20 On January 20, 2022, following a hearing, the circuit court entered a permanency order.
The court found that neither parent made reasonable and substantial progress or reasonable efforts
toward returning M.S. home. The court ordered both parents to consistently engage in services and
maintain sobriety. The court ordered that the permanency goal remain return home within 12
months.
¶ 21 On February 15, 2022, the State filed a motion to terminate parental rights. The State
alleged that both parents were unfit, as defined in section 1(D)(m)(i) of the Adoption Act (750
ILCS 50/1(D)(m)(i) (West 2020)), in that they failed to make reasonable efforts to correct the
conditions that were the basis for M.S.’s removal during any nine-month period after the
adjudication of neglect. The State also alleged that both parents were unfit, as defined in section
1(D)(m)(ii) of the Adoption Act (id. § 1(D)(m)(ii)), in that they failed to make reasonable progress
toward M.S.’s return during any nine-month period after the adjudication of neglect. The State
identified the relevant nine-month period for both allegations as the time period from May 15,
2021, to February 15, 2022.
8
¶ 22 On February 16, 2022, the circuit court addressed the motion to terminate at a hearing,
where both parents were present with counsel. In a docket entry, 2 the court noted, “Motion seeking
finding of unfitness and termination of parental rights to be filed. Admonitions heard. Court finds
the respondent parents understand the same.”
¶ 23 On April 22, 2022, the circuit court held a fitness hearing. The State called Ashley Kerns
to testify at the hearing. Kerns testified that she became involved in the case in July 2021, and she
took over the case in August 2021. At all relevant times, Robert S. and Heather O. resided with
Heather O.’s mother in a two-bedroom duplex. Neither Heather O. nor Robert S. were employed,
but Robert S. received monthly disability payments. Kerns did not find the duplex appropriate for
M.S. because “[t]hey didn’t have a room for [M.S.] or a crib or necessary bottles or toys for [M.S.]”
Kerns also expressed concerns about Robert S. and Heather O. residing together. Specifically,
Kerns was concerned of a potential domestic violence situation and believed the two were in an
“unhealthy, controlling relationship.” Kerns explained that Robert S. exhibited signs of control
over Heather O. in that he controlled all communications with CYFS and DCFS. Kerns conducted
separate visits with Robert S. and Heather O. following a domestic violence incident in October
2021. Robert S. and Heather O. both claimed that the incident resulted from a misunderstanding
with a neighbor. Kerns never considered allowing Robert S. and Heather O. unsupervised
visitation with M.S. due to their substance abuse issues.
¶ 24 Kerns next testified regarding Robert S.’s progress on the tasks set forth in the family
service plan. Robert S. finished parenting classes in September 2021 but had not begun domestic
violence classes as of February 15, 2022. Robert S. attended individual counseling at CYFS, but
his attendance was inconsistent. Robert S. indicated to Kerns that he understood it was important
2
A transcript of the proceedings was not included in the record on appeal.
9
to maintain sobriety but continued to use substances throughout the case. When asked to specify
the substances Robert S. used, Kerns responded, “Alcohol and THC.” Kerns never considered
placing M.S. in Robert S.’s care due to his substance use, his history of domestic violence, and his
failure to complete the necessary services. Kerns explained that both parents tested positive for
THC and alcohol on days when they had supervised visits with M.S. When Kerns confronted
Robert S. about the test results, Robert S. became defensive. Robert S. advised Kerns that he knew
parents who used alcohol and THC but were still good parents.
¶ 25 On cross-examination, Kerns admitted that Robert S. consistently engaged in supervised
visitation with M.S. throughout her involvement in the case. Kerns agreed that the visits “were
good.”
¶ 26 The circuit court admitted the family service plan, dated August 30, 2021, into evidence at
the hearing over the objection of Robert S. and Heather O.’s respective counsels. Thereafter, the
State moved to continue the hearing for the testimony of a witness who failed to appear at the
hearing. The court granted the State’s motion.
¶ 27 On May 11, 2022, the fitness hearing resumed. At the outset of the hearing, Robert S. made
an oral motion for the appointment of new counsel, which the circuit court denied. The State called
case supervisor Natasha Mables to testify at the hearing. Mables testified that she supervised
M.S.’s case from April 2021 to March 2022. During that time, Robert S. and Heather O. resided
together and both parents were actively engaged in the recommended services. Robert S. was
actively engaged in substance abuse treatment, but Mables noted ongoing concerns about Robert
S. “being forthcoming about his substance use” during her involvement in the case. Mables
discussed the results of Robert S.’s drug screens with him, and he acknowledged his continued use
of alcohol. Mables reminded Robert S. that he needed to refrain from substance use throughout
10
the case. Robert S. indicated that he understood, but Mables never saw a change in Robert S.
Mables further noted that Robert S. did not consistently attend individual counseling sessions.
Robert S. advised Mables that he had difficulty attending counseling because Heather O. was
unable to travel by bus due to health issues. Mables noted, however, that Robert S.’s counseling
sessions were separate from Heather O.’s sessions and, thus, he could have attended the sessions
without Heather O. Robert S. advised Mables that he planned to complete the domestic violence
courses after he finished his other services. Mables reported that Robert S. consistently attended
visitation with M.S. Mables noted that Robert S. fell asleep during the initial visits, but that Robert
S. corrected the issue. Mables expressed concerns about the relationship between Robert S. and
Heather O., explaining that the two were “very codependent and there might have been some
overreliance on each other.”
¶ 28 Next, Robert S. testified on his own behalf. Robert S. explained that the caseworker
provided him with a bus pass to assist with transportation to and from the recommended services.
Robert S. claimed that he attended counseling regularly but there were times his assigned counselor
was unavailable. Robert S. testified that he completed the recommended parenting courses in
September 2021, and that he regularly attended visitation with M.S. Robert S. explained that the
visits with M.S. went well and that he occasionally fell asleep because he took methadone to “get
off the heroin.” Robert S. planned to begin domestic violence counseling after he completed the
other services. Robert S. claimed that his “whole week was always full” due to the parenting
courses, individual counseling sessions, and substance abuse counseling sessions. He explained
that both he and Heather O. suffered from medical issues and that they both missed medical
appointments due to the scheduled courses and counseling sessions.
11
¶ 29 After considering the parties’ closing arguments, the circuit court found the State proved,
by clear and convincing evidence, that both parents were unfit. In doing so, the court stated as
follows:
“The problem was from the very beginning substance abuse by both of these
parents. It—for each of them that was the problem. Each of these parents, [Heather O.],
[Robert S.], substance abuse, and it was affecting their home environment, affected the
environment that they could provide for M.S.
They were involved, as I said, in parenting. They finished those. They were
involved in individual counseling though their attendance was inconsistent. They were
involved for periods of time in substance abuse treatment but inconstantly with that, too,
and the screens were consistently a problem that was discussed with them by two different
caseworkers.
Visits they attended regularly, regularly and consistently. I’ve heard testimony
about [Robert S.] nodding off during visits. The explanation he’s given is because of
medication, specifically methadone, that was part of a substance abuse treatment protocol
for him that was helping with his heroin addiction which that—that whole process and his
participation in that substance assisted—or, medication assisted treatment I don’t think any
of that informs the decision of the Court here today because that wasn’t the substance or
substances that were creating the problem during this nine-month period.
The substances that were creating the problem during this nine-month period were
alcohol and THC, and the count to which both of these parents stipulated back at the time
of adjudication was about substance abuse affecting the home environment and the
substances we’re talking about were alcohol and THC. And what happened—and again I
12
don’t mean to lump the parents together. As I said, the State has the burden for each of
these parents, but their situation and the way they approached that problem was
inextricably intertwined. They remained together in this relationship and they remained
together in their relationship with alcohol and their relationship with THC, and that
relationship continued throughout that nine-month period and what they both did was
engage in every services as they could trying to overcome the logistical difficulties that
they had while consistently maintaining their relationship with alcohol and THC.
They completed the parenting because the parenting had no pressure to quit. They
were engaged in the individual counseling inconsistently because there wasn’t pressure
there to quit, either. They were engaged inconsistently in substance abuse treatment
because there is pressure there to quit and they were not about that. The screens were
consistently a problem that was discussed with them and they alternated between—and this
as for both of them. They alternated between recognizing there’s a problem and they need
to quit and then alternately not recognizing that it was a problem at all.
There were times that they said—this comes from the testimony of Ms. Kerns.
There were times they said they needed to be sober. There were times that they said they
didn’t understand why they would have to be sober, stop using alcohol, THC, because they
didn’t understand how that affected their parenting skills. To them they could continue to
parent even though they continued to drink and use THC in whatever manner they chose.
[Robert S.] said to Ms. Kerns that he knew parents who used substances and they’re
still good parents. He didn’t understand how that’s the problem. That was the problem.
That was the problem from the get-go of this case, and it—I would submit that the evidence
shows one specific fact in how that problem’s reflected.
13
They—both of these parents established a life for themselves where they made
room for alcohol, consistent constant alcohol use. They both made room for THC,
consistent constant THC use. They made zero room in their life for [M.S.] Zero.”
The court went on to state that, although visitation with M.S. went well, both parents came to visits
“completely unprepared with anything.” The court noted that the foster parent brought all
necessary supplies for the visit. The court also stated as follows:
“Their home had no place for [M.S.] No room, no crib, no diapers. None of that
was there for [M.S.] They were never in a position to do that because they didn’t have room
in their life for [M.S.] That room was being taken up by something else, alcohol and THC,
and they never made sincere concerted effort to address that problem and achieve a point
where they could maintain sobriety. They established for themselves a role, and the role
wasn’t somebody who could be full-time parent. The role was somebody who could be part
of [M.S.’s] life and have occasional contact with M.S. but could never be in a position to
be the person who’s full-time responsible for the safekeeping and caregiving for this very
young child.
That is lack of reasonable efforts. That is lack of reasonable progress. The State has
proven by clear and convincing evidence both of the counts of the motion as to each of the
Respondent Parents.”
¶ 30 On June 6, 2022, Kerns filed a best interest report, which included her recommendation
that both parents’ parental rights to M.S. be terminated. In addition to noting that both Robert S.
and Heather O. failed to prove their abilities to safely parent M.S. due to their continued substance
abuse throughout the case, Kerns summarized M.S.’s current foster placement with a relative as
follows:
14
“[M.S.] continues to do well in her foster placement with her paternal cousin. [M.S.]
appears to be very bonded with foster parent. There have been no concerns with [M.S.] at
her foster placement. Foster parent has proved to be able to provide [M.S.] with a loving
and caring environment. Foster parent has expressed wanting to adopt [M.S.] in order to
achieve permanency. [M.S.] has had all her needs met while in the foster home. [M.S.] has
her own room, bed, and toys at her foster home. Foster parent has shown her commitment
to [M.S.] and is willing to adopt [M.S.]”
¶ 31 On June 30, 2022, the circuit court held a best interest hearing. At the outset of the hearing,
the court reviewed the results of drug screens completed by the parents on May 12, 2022. The
court noted that Heather O. tested positive for alcohol and THC. The court also noted that Robert
S. tested positive for cocaine, THC, and alcohol. The GAL recommended that the court find it in
the best interest of M.S. that the parental rights of Heather O. and Robert S. be terminated. Robert
S.’s counsel requested that the court find it was not in the best interest of M.S. to terminate Robert
S.’s parental rights, arguing that Robert S. maintained visitation with M.S. and devotion to her.
¶ 32 The circuit court initially explained that the best interest hearing focused on M.S., not the
conduct of Robert S. and Heather O. The circuit court next reviewed the statutory best interest
factors, beginning with the physical safety and welfare of the child. The court noted that it was
clear throughout the case that neither parent was in a position to provide for M.S., and that there
was “no point visible on the horizon where they’d be able to do that.” While both parents appeared
to reside in a stable residence, the court noted that both parents were active substance abusers,
“who [had] not been able to find what they need to start out on a path to recovery.” The court
acknowledged that both parents regularly attended visitation with M.S. and expressed a desire to
be involved in M.S.’s life but noted that neither parent was ever in a position to exercise “24-hour-
15
a-day, seven-day-a-week care of this very young child.” In other words, the court found that neither
parent was in a position to provide for M.S.’s physical welfare or safety on an ongoing basis. The
court went on to state that it did not focus only on the parents’ ability to provide for M.S.’s safety
and welfare but focused on other factors as well.
¶ 33 With regard to the development of the child’s identity, the circuit court noted that M.S. was
placed in a foster home shortly after birth and remained in the same foster home at the time of the
hearing. As such, the court determined that the foster home was the place where M.S. grew up and
developed her identity. The court also noted that M.S.’s current home was consistent with her
culture and background because she was placed with a relative. The court additionally noted that
M.S. developed bonds and attachments with her foster family, stating that it was “the only home
she’s ever known.” The court found that removing M.S. from her current home would cause
disruption because her current placement provided her a sense of security, familiarity, and
continuity of affection. The court further noted that M.S. currently attended Little Legends
Learning Center and developed ties there. The court did not place great weight on M.S.’s wishes
and long-term goals, given her young age. The court found that M.S.’s best chance for permanence,
including the need for stability and continuity of relationships, was in her current foster placement.
¶ 34 After considering the factors, the court found that the State proved, by a preponderance of
the evidence and by clear and convincing evidence, that it was in the best interest of M.S. that the
parental rights of Heather O. and Robert S. be terminated. Robert S. timely appealed.
¶ 35 II. Analysis
¶ 36 On appeal, Robert S. challenges the circuit court’s judgment terminating his parental rights
to M.S., arguing that the court erred by finding him an unfit parent and by finding it in the best
interest of M.S. to terminate his parental rights. For the reasons that follow, we disagree.
16
¶ 37 “[T]ermination of parental rights is an extraordinarily serious matter.” In re M.F., 304 Ill.
App. 3d 236, 238 (1999). “The termination of parental rights constitutes a permanent and complete
severance of the parent-child relationship.” In re C.N., 196 Ill. 2d 181, 208 (2001). The Juvenile
Court Act establishes a two-step process for the involuntary termination of parental rights. See 705
ILCS 405/2-29(2) (West 2020). First, the State must prove, by clear and convincing evidence, that
the parent is an unfit person as defined by section 1(D) of the Adoption Act (750 ILCS 50/1(D)
(West 2020)). In re Tiffany M., 353 Ill. App. 3d 883, 889 (2004). Section 1(D) sets forth multiple
grounds “under which a parent may be found unfit, any of which standing alone may support” a
finding of unfitness. Id. If the circuit court finds the parent unfit under one of the enumerated
grounds, the court must then determine whether it is the child’s best interest that parental rights be
terminated. 705 ILCS 405/2-29(2) (West 2020). With this in mind, we consider the specific
arguments made by Robert S. on appeal.
¶ 38 A. Parental Unfitness
¶ 39 Robert S. first argues that the circuit court’s determination that he was an unfit parent was
against the manifest weight of the evidence. Specifically, Robert S. argues that the court’s findings
were against the manifest weight of the evidence, where the court determined that he failed (1) to
make reasonable efforts to correct the conditions that were the basis for the removal of M.S. during
the period from May 15, 2021, to February 15, 2022 (750 ILCS 50/1(D)(m)(i) (West 2020)), and
(2) to make reasonable progress toward M.S.’s return during the time period from May 15, 2021,
to February 15, 2022 (id. § 1(D)(m)(ii)). We disagree.
¶ 40 As noted, in the first step, the State must prove, by clear and convincing evidence, that the
parent is unfit as defined in section 1(D) of the Adoption Act (id. § 1(D)). 705 ILCS 405/2-
29(2), (4) (West 2020). Section 1(D) of the Adoption Act sets forth multiple grounds for unfitness.
17
750 ILCS 50/1(D) (West 2020). A finding of parental unfitness will not be disturbed unless it is
against the manifest weight of the evidence. In re R.L., 352 Ill. App. 3d 985, 998 (2004). A finding
is against the manifest weight of the evidence only if the opposite conclusion is clearly apparent
or the determination is unreasonable, arbitrary, or not based on the evidence presented. In re D.F.,
201 Ill. 2d 476, 498 (2002).
¶ 41 In the present case, the circuit court found that the State successfully proved two grounds
of unfitness against Robert S. While Robert S. first challenges the court’s finding that he failed to
make reasonable efforts, we begin by considering the court’s finding that Robert S. failed to make
reasonable progress. See Tiffany M., 353 Ill. App. 3d at 891 (“When parental rights are terminated
based upon clear and convincing evidence of a single ground of unfitness, the reviewing court
need not consider additional grounds for unfitness cited by the trial court.”). Specifically, we
consider whether the court’s finding that Robert S. failed to make reasonable progress toward the
return of M.S. during the time period from May 15, 2021, to February 15, 2022, was against the
manifest weight of the evidence.
¶ 42 One ground of unfitness is the failure by a parent “to make reasonable progress toward the
return of the child to the parent during any 9-month period following the adjudication of neglected
or abused minor under Section 2-3 of the Juvenile Court Act of 1987 or dependent minor under
Section 2-4 of that Act.” 750 ILCS 50/1(D)(m)(ii) (West 2020). “Reasonable progress is an
objective standard, focusing on the amount of progress toward the goal of reunification one can
reasonably expect under the circumstances.” (Emphasis omitted.) In re C.M., 305 Ill. App. 3d 154,
164 (1999). Reasonable progress requires, at a minimum, measurable or demonstrable movement
toward the goal of reunification. In re Jacorey S., 2012 IL App (1st) 113427, ¶ 21. “Reasonable
18
progress exists when the trial court can conclude that it will be able to order the child returned to
parental custody in the near future.” In re Daphnie E., 368 Ill. App. 3d 1052, 1067 (2006).
¶ 43 Although DCFS service plans are an integral part of the statutory scheme, our supreme
court has rejected the view that the sole measurement of parental progress is the parent’s
compliance with service plans. In re C.N., 196 Ill. 2d at 214-15. Instead, the supreme court ruled
that:
“[T]he benchmark for measuring a parent’s ‘progress toward the return of the child’ under
section 1(D)(m) of the Adoption Act encompasses the parent’s compliance with the service
plans and the court’s directives, in light of the condition which gave rise to the removal of
the child, and in light of other conditions which later become known and which would
prevent the court from returning custody of the child to the parent.” Id. at 216-17.
Moreover, the Fourth District has repeatedly stated that “a court is duty bound to ensure that
serious parental deficiencies of whatever nature have been corrected before the court permits one
of its wards to be returned to that parent’s custody.” In re L.L.S., 218 Ill. App. 3d 444, 464 (1991);
C.M., 305 Ill. App. 3d at 164; In re C.S., 294 Ill. App. 3d 780, 790 (1998).
¶ 44 Here, the evidence demonstrated that the condition which gave rise to the removal of M.S.
was both parents’ substance abuse issues. The testimony of Kerns, coupled with the family service
plan, demonstrated that Robert S. was required to perform the following service plan tasks:
cooperate with CYFS and DCFS; complete parenting classes; complete domestic violence
counseling; engage in weekly visitation with M.S.; complete individual counseling, along with any
other recommended treatment; complete substance abuse counseling, along with any other
recommended treatment; and complete random drug screens. The evidence showed that Robert S.
cooperated with CYFS and DCFS, successfully completed the parenting classes in September
19
2021, and engaged in weekly supervised visitation with M.S. without issue. The evidence also
showed that Robert S. engaged in individual and substance abuse counseling but that his
attendance was inconsistent from May 2021 to February 2022. The evidence additionally showed
that Robert S. tested positive for alcohol and THC on multiple occasions from May 2021 to
February 2022. In addition, Robert S. missed multiple drug screens from May 2021 to February
2022. Thus, although Robert S. complied with certain aspects of the service plan, he inconsistently
attended substance abuse counseling and continued to test positive for alcohol and THC throughout
the relevant time period.
¶ 45 In sum, the record reveals that although Robert S. actively worked to complete the tasks
set forth in the service plan from May 15, 2021, to February 15, 2022, he continued to abuse
substances—the condition which gave rise to the removal of M.S.—during the same time period.
Thus, the evidence supported the circuit court’s finding that Robert S. failed to make reasonable
progress toward the return home goal. Accordingly, we cannot say that the court’s finding that
Robert S. was unfit, as defined in section 1(D)(m)(ii) of the Adoption Act, was against the manifest
weight of the evidence.
¶ 46 Because a parent may be found unfit if the State proves only one alleged ground of
unfitness by clear and convincing evidence, we need not address Robert S.’s remaining argument
pertaining to the circuit court’s finding that he failed to make reasonable efforts. See Tiffany M.,
353 Ill. App. 3d at 891. Therefore, we conclude that the court’s determination that Robert S. was
an unfit parent was not contrary to the manifest weight of the evidence.
¶ 47 B. Best Interest Determination
¶ 48 Robert S. next argues that the circuit court’s determination tha it was in the best interest of
M.S. to terminate his parental rights was against the manifest weight of the evidence. We disagree.
20
¶ 49 As noted, if the circuit court finds the parent unfit, the matter proceeds to a second hearing,
where the State must prove, by a preponderance of the evidence, that it is in the child’s “best
interests” that parental rights be terminated. 705 ILCS 405/2-29(2) (West 2020); In re D.T., 212
Ill. 2d 347, 366 (2004). During the second step of the process, the focus of the court’s scrutiny
shifts from the rights of the parents to the best interests of the child. D.T., 212 Ill. 2d at 365. Section
1-3 of the Juvenile Court Act lists the “best interests” factors that should be considered by the trial
court when making a “best interests” determination. 705 ILCS 405/1-3(4.05) (West 2020).
Specifically, the circuit court must consider the following factors in the context of the child’s age
and developmental needs: (1) the physical safety and welfare of the child, (2) the development of
the child’s identity, (3) the child’s background and ties, (4) the child’s sense of attachments, (5) the
child’s wishes, (6) the child’s community ties, (7) the child’s need for permanence, (8) the
uniqueness of every family and child, (9) the risks attendant to entering and being in substitute
care, and (10) the preferences of the persons available to care for the child. Id. The court’s best
interest determination will be reversed only if it is against the manifest weight of the evidence.
In re T.A., 359 Ill. App. 3d 953, 961 (2005).
¶ 50 Here, the circuit court considered the best interest factors and found it in M.S.’s best interest
that Robert S.’s parental rights be terminated. The evidence showed that M.S. lived with a relative
foster parent in a home with no safety issues. M.S. appeared to be very bonded with her foster
parent and paternal cousin, who also resided in the home. M.S.’s foster parent provided her with a
loving and caring environment. All of M.S.’s needs were met in the foster home, where she had
her own room, bed, and toys. M.S. also attended daycare in her current placement. While there
was evidence that M.S. was bonded with Robert S., the evidence indicated that M.S. needed
permanency. M.S. lived with her relative foster parent since she was removed from the care of her
21
parents shortly after her birth. In other words, the foster placement was the only home M.S. had
ever known. Moreover, the foster parent expressed willingness to adopt M.S. Based on the
evidence presented, we conclude that the court’s determination that it was in M.S.’s best interest
to terminate Robert S.’s parental rights was not against the manifest weight of the evidence.
¶ 51 III. Conclusion
¶ 52 For the reasons stated, we affirm the circuit court’s judgment terminating the parental rights
of Robert S.
¶ 53 Affirmed.
22 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482165/ | NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2022 CU 084'
T.A. t
VERSUS
R.S.
Judgment Rendered: Nov o 7 2022
Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 2015- 11155
The Honorable Patrice W. Oppenheim, Judge Presiding
Kii 7S 7S lC 7'C G '* iC i1iX
Zara Zeringue Counsel for Plaintiff/Appellee,
Kathleen Legendre T.A.
Covington, LA
Ernest E. Barrow III Counsel for Defendant/Appellant,
Covington, LA R. S.
iC iC 5 This custody matter is before us on appeal by the mother, R.S., who appeals
a judgment of the trial court awarding her and the father, T.A., joint legal custody
of their minor child. For the following reasons, we dismiss the appeal.
PROCEDURAL HISTORY
R.S. and T.A,, who were never married, are the mother and father of L.A.,
who was born in October of 2014. On April 28, 2022, the trial court signed a
judgment on T.A.' s rule to modify custody, increase custodial time, for contempt,
and for R.S. to submit to alcohol and drug testing. On May 5, 2022, R.S. filed a
motion to appeal the April 28, 2022 judgment. On May 6, 2022, however, T.A.
timely filed a motion for new trial.' See LSA- C. C. P. art. 1974. The motion for
new trial was initially set for hearing on August 17, 2022, but pursuant to an
uncontested motion to continue, was reset for October 26, 2022. Prior to hearing
T.A.' s motion for new trial, the trial court signed an order of appeal on May 26,
2022.
Thus, following the lodging of this appeal, this Court issued a Rule to Show
Cause Order noting the prematurity of the appeal, given the pending motion for
new trial, and ordering the parties to show cause by briefs why the appeal should
or should not be dismissed for lack ofjurisdiction.3 Disposition of the rule to show
cause was referred to the merits panel of this appeal.
On October 26, 2022, the trial court held a hearing on the motion for new
trial. Thereafter, R.S. filed a motion to continue or stay this appeal, which was
Notice of the April 28, 2022 judgment was issued on April 29, 2022.
An order of appeal is premature if granted before the court disposes of all timely filed
motions for new trial, and the order becomes effective upon the denial of such motions. LSA -
C -CP. arts. 2087( D) and 2123( C); see also Lane v. Lane, 2015- 1572 ( La. App. Int Cir. 2126116),
2016WL770832, * 2 ( unpublished); Harris v. Louisiana _pejartment of Public Safely and
Corrections, 2019- 1657 ( La. App. 1" Cir. $ 13/ 20), 310 So. 3d 211, 214. Prematurity created by
the existence of an outstanding motion for new trial is a jurisdictional defect, which cannot be
waived. See Lane v. Lane, 2016WL770832 at * 2; Petitto v. McMichael, 552 So. 2d 790, 792
La. App. l' t Cir. 1989). Without jurisdiction, any review by this court would be premature.
Yohn v. Brandon, 2001- 1896 ( La. App. I" Cir. 9127/ 02), 835 So. 2d 580, 586, writ denied, 2002-
2592 ( La. 12/ 13102), 831 So. 2d 989,
2
opposed by T.A. Both parties agree in their flings that the trial court granted
T.A.' s motion for new trial in part and denied it in part. T.A. contends in his
opposition that this appeal is premature and there is no extraordinary cause that
would justify granting the requested continuance or stay. T.A. further avers that
the portion of the new trial that was granted concerns one of R. S.' s assignments of
error on appeal, and thus, the judgment appealed from by R.S. is not a final
judgment. According to the minute entry from the hearing, the trial court granted a
new trial as to the issue of the breathalyzer, ordering R. S. to install an interlock
device on the vehicle within seven days. In all other respects, the motion was
denied.
DISCUSSION
The granting of a new trial sets aside the original judgment, which cannot
thereafter afford the basis of an appeal. Lane v._Lane, 2015- 1572 ( La. App. 1" Cir.
2/ 26/ 16), 2016WL770832, * 3, n.2 ( unpublished), citin David Drive Enterprises
L.L.C. v. Subway Real Estate Corporation, 2009- 634 ( La. App. 5" Cir. 9129/ 09),
23 So. 3d 962, 963. The judgment from the new trial becomes the final judgment
from which an appeal may be taken. Therefore, a judgment that is set aside by a
later judgment granting a new trial cannot form the basis for a later appeal because
the original judgment is superseded by the later judgment. Accordingly, a court of
appeal has no jurisdiction to entertain an appeal from a judgment that has been
recast by the trial court because of post -trial motion practice. Lane v. Lane,
2016WL770832 at * 3, n. 2; David Drive Enterprises,_L.L.C., 23 So. 3d at 963- 964,
As such, we dismiss the present appeal of the April 28, 2022 judgment. This
decision in no way affects the parties' rights to appeal the later judgment within the
applicable delays for the taking of such appeal.
3
CONCLUSION
For the above and foregoing reasons, .R.S.' s motion for continuance or stay
is denied. The instant appeal of the April 28, 2022 judgment is dismissed. Costs
of this appeal are assessed to the appellant, R.S.
MOTION DENIED; APPEAL DISMISSED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482162/ | NOTICE 2022 IL App (4th) 210205-U FILED
This Order was filed under November 7, 2022
Supreme Court Rule 23 and is NO. 4-21-0205 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
BRUSHUN ADAMS, ) No. 18CF385
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court.
Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) the trial court’s denial of defendant’s
motion to suppress was proper where the traffic stop was justified and not
measurably prolonged and (2) the trial court did not rely on improper factors
when it sentenced defendant.
¶2 During a traffic stop, defendant Brushun Adams was found to be in possession of
two kilograms of cocaine. He was charged with two counts of unlawful possession with intent to
deliver more than 900 grams of a substance containing cocaine (720 ILCS 570/401(a)(2)(D)
(West 2018)). Defendant filed a motion to suppress, arguing the traffic stop was improper and
measurably prolonged. The trial court denied defendant’s motion to suppress. After a stipulated
bench trial, the court found defendant guilty of both counts, merged the two counts, and
sentenced defendant to 30 years’ incarceration. Defendant appeals, arguing the court (1) erred in
denying his motion to suppress and (2) relied on improper factors when it sentenced defendant.
We affirm.
¶3 I. BACKGROUND
¶4 In December 2018, the State charged defendant with two counts of unlawful
possession with intent to deliver more than 900 grams of a substance containing cocaine (720
ILCS 570/401(a)(2)(D) (West 2018)). At defendant’s preliminary hearing, Illinois State Police
Trooper Joseph Gray testified he observed a black Toyota Avalon, defendant’s vehicle, traveling
southbound on Interstate 55. Gray observed defendant cross the fog line on the right side of the
interstate. Gray attempted to move behind defendant’s vehicle, but another vehicle followed
closely behind defendant’s vehicle and Gray was not able to immediately move into the right
lane. Eventually, Gray moved to the right lane behind defendant’s vehicle, activated his dash
camera, and conducted a traffic stop. Defendant appeared nervous during the stop. Gray testified
he called for a K-9 officer to assist him. While waiting for the K-9 officer, Gray completed a
written warning for improper lane usage and began completing a ticket for expired insurance.
Defendant sat in Gray’s vehicle. Gray testified defendant seemed increasingly more nervous.
Trooper Justin Lankford arrived with his canine partner, Xander, and the dog alerted to the
presence of a controlled substance in defendant’s vehicle. The troopers searched the vehicle and
located a black bookbag containing two kilograms of cocaine.
¶5 A. Motion to Suppress
¶6 In July 2019, defendant filed a motion to suppress evidence. In his motion,
defendant argued for the suppression of all evidence “obtained as a result of the unlawful traffic
stop, unlawful seizure and unlawful detention of [defendant], as well as, all evidence seized
during the unlawful search of the vehicle he was driving.” Defendant argued, inter alia, that
-2-
(1) he did not violate any traffic laws and thus, there was no valid basis for the traffic stop and
(2) Gray improperly prolonged the stop to facilitate the free-air sniff.
¶7 At the September 2019 hearing on the motion to suppress, defense counsel’s
paralegal, Alice Rolf, testified that she had watched the audio and video recording of the traffic
stop from Gray’s dash camera approximately 40 to 50 times. She identified landmarks in the
video and used those to put together a collection of pictures obtained from Google Earth tracking
the roadway where the traffic stop took place. Rolf did not know the date the Google images
were originally taken. The trial court admitted exhibits of the referenced pictures and a
demonstrative exhibit noting the time of the recording as the trooper passed certain landmarks.
¶8 1. Defendant’s Testimony
¶9 Defendant testified he lived in Springfield and had worked as an “intern” for his
brother’s heating and cooling business for two years. On December 29, 2018, defendant was
traveling from the Chicago area with his two daughters when he had a “blowout” around Joliet,
Illinois. He called his insurance company, and the insurance company sent roadside assistance to
replace his flat front passenger tire with a donut—a small, space-saving spare tire. Defendant
testified that the roadside mechanic advised him that he would experience some pulling to the
right, the ride would be rough, and he would only be able to drive between 55 and 60 miles per
hour. Defendant confirmed that as he resumed driving, his vehicle “[d]efinitely was pulling to
the right.” Defendant felt nervous and a “little scared” driving on Interstate 55 with the donut, as
he was warned it was prone to another blowout.
¶ 10 Defendant was not aware of Gray behind him until Gray turned on his emergency
lights. Gray approached defendant’s passenger side window; upon Gray’s request, defendant
produced his driver’s license and insurance card. Defendant believed his insurance card was
-3-
valid, as he had just received it in August or September 2018, but he did not look at the card
before giving it to Gray. Defendant testified he has a medical condition, essential tremors, which
causes tremors in his arms and hands with movement. Defendant denied crossing the fog line.
On cross-examination, defendant stated he could control the vehicle and he did not have to
“fight” against the pull.
¶ 11 After defendant’s testimony, defense counsel argued he had demonstrated “there
was no Illinois Vehicle Code violation,” and the search was therefore unlawful, so the burden
should shift to the State. When the court appeared to disagree, defense counsel elected to call
Gray, and the cause was continued.
¶ 12 2. Dash Camera Video Recording
¶ 13 In February 2020, the hearing reconvened with the testimony of Gray. Defendant
presented an uncertified transcript of the dash camera and dispatch recordings for demonstrative
purposes, which was admitted without objection.
¶ 14 Defense counsel played the entire dash camera video recording, approximately 90
minutes in length. We note the recording is very grainy and of low quality, but it appears to show
the following. The recording begins with Gray following a vehicle traveling immediately behind
defendant’s vehicle. Gray moved into the left lane, passed the vehicle traveling immediately
behind defendant, and then moved to the right lane, between the two vehicles. As Gray followed
defendant, the recording shows defendant’s vehicle moving multiple times within his lane from
the far right fog line to the far left. Gray activated his emergency lights and initiated a traffic
stop. Defendant signaled, passed an exit ramp, and pulled his vehicle to the shoulder. Gray
approached defendant’s vehicle and informed him as follows: “The reason I stopped was you
were driving like 52 miles an hour down the interstate and you are all over the road. Okay? I
-4-
don’t know if you had something to drink tonight or (unintelligible) but that’s the reason.”
Defendant informed Gray he had a flat tire and was driving on a donut, which Gray visually
confirmed. Gray asked defendant where he was headed and defendant stated he was headed to
Springfield. Gray asked defendant, “[W]hat part of Springfield?” Defendant expressed
confusion, but then stated he lives in Springfield off Taylor Street. Gray advised defendant he is
also from the Springfield area and asked defendant where he attended high school. Defendant
responded, “Southeast,” and the two laughed over the confusion.
¶ 15 Gray returned to his vehicle and contacted dispatch to send a K-9 officer. Gray
had the following conversation with Trooper Lankford:
“I stopped this guy because he was all over the road. He’s uh, he’s on his way
back. He’s going to like Springfield from Chicago. There was a car following him
but I uh I barely had the chance to squeeze in here. They were following him and
they just went off. I don’t know where they are at. Just stopped over here at the
197. But uh this dude is like absolutely shaking and *** his heart is like literally
pounding out of his chest. He like uh and he’s got a little kid in the back so I don’t
know what this guy is going to do. *** [He]’s on one side of the lane and then the
other and then across the lane like 198 ½ or 199, right around there. But uh
anyway he’s freaking out so I don’t know if I’m going to try and just have him get
out and come back here and talk to me. So do you want him out of the vehicle for
the search? Because to be honest with ya, I’m nervous this dude is going to take
off if the dog’s out.”
¶ 16 Approximately eight minutes after returning to his vehicle, Gray approached
defendant’s vehicle a second time. Gray asked defendant to “come out and talk to me real
-5-
quick.” Gray informed defendant he would not write a ticket for the lane infraction but asked
about his insurance card. Following a pat down search of defendant, the two men walked to
Gray’s patrol vehicle. Gray informed defendant his insurance card had expired, and defendant
appeared surprised. Gray told defendant he was required to write a ticket for driving without
insurance, and they discussed how the process works. Gray then engaged defendant in casual
conversation about his daughters, the blown tire, and the earlier confusion.
¶ 17 Approximately 14 minutes and 40 seconds after the stop began, Lankford arrived
with the canine. The canine alerted on defendant’s vehicle. The video then continues through the
search and defendant’s arrest.
¶ 18 3. Trooper Gray’s Testimony
¶ 19 Trooper Gray testified that on the evening of December 29, 2018, he was
patrolling on Interstate 55 in Livingston County. Gray testified that he noticed defendant’s car
around mile marker 200 but did not turn on his video camera until mile marker 198½, after he
saw defendant cross the fog line. The warning ticket noted defendant crossed the fog line at mile
marker 199. Defense counsel noted the beginning of the video showed an exit ramp, which Gray
agreed was the exit ramp at mile marker 201, and his camera was therefore activated prior to
mile marker 198½. Gray followed defendant for “[a]pproximately two or three” miles before
conducting the stop.
¶ 20 Gray agreed he never used the words “crossed the fog line” when he approached
defendant about the stop because he “speak[s] to [drivers] like a human being.” Gray decided to
give defendant a written warning after he confirmed defendant was driving on the donut. Gray
spoke with defendant about his destination for safety reasons. He was, however, just making
-6-
conversation when he asked defendant where in Springfield he was going and what high school
he attended.
¶ 21 Gray did not use his flashlight to check defendant’s insurance card while standing
at defendant’s car because he “typically tr[ies] to get out of the highway as soon as [he] can.” In
his patrol vehicle, Gray was checking defendant’s documents before he spoke with Trooper
Lankford. Gray called Lankford to explain why he wanted Lankford to respond to the call and
precisely where he was located. Gray estimated it takes approximately 15 minutes to issue a
written warning, but some warnings take longer than others. Gray testified he routinely asks to
perform a pat-down search on anyone he brings back to his car, but he did not have any
particular suspicion defendant had a weapon.
¶ 22 When defense counsel asked Gray when he started writing the insurance ticket,
Gray could not recall. Defense counsel recalled Gray’s testimony from defendant’s preliminary
hearing, and the following colloquy occurred:
“Q. Do you remember being asked this series of questions and giving this
series of answers under oath?
[‘]Question by Mr. Yedinak: Is that when Trooper Lankford showed up
with his canine partner?
Answer: No. I had completed the written warning and reapproached the
vehicle because the insurance card he provided me was expired and I asked him to
come back to my vehicle.
Question by Mr. Yedinak: What happened after that?
Answer by you: As he sat in my vehicle, it seemed as though he was
becoming more excited, anxiety levels; and as Trooper Lankford pulled up, I had
-7-
explained to [defendant] that I was going to have to write him a ticket for the
insurance, comma, which he said that’s fine. I began writing him the ticket
waiting on the canine officer; and when Trooper Lankford and Xander showed up
and [defendant] saw the dog out the window, he questioned why the dog was
there.[’]
Did you give that, those answers to those questions?
A. Yes, sir.
Q. So you began writing the insurance ticket when you saw Trooper
Lankford pulling up?
A. Yes, sir.”
¶ 23 On cross-examination, Gray testified that several factors made him believe
defendant might try to flee if he saw the K-9 officer. Gray testified as follows:
“He was nervous when I walked up to the car. I attempted to make conversation
with him about where he was going and noticed he was breathing really hard. I
could see his clothes rising on him. I could see the pulse of his heart in his neck
and his hands were shaking when he gave me the documents I requested.”
Gray also testified there was a car following defendant closely. When Gray attempted to pull in
behind defendant’s vehicle, the other vehicle attempted to close the gap between it and
defendant’s vehicle. Gray believed defendant was traveling around 50 miles per hour, while
other traffic was moving at around 70 miles per hour. Gray testified he typically engages in
polite conversation when he conducts a traffic stop.
¶ 24 4. Trial Court’s Ruling
-8-
¶ 25 The trial court issued a written order denying defendant’s motion to suppress. As
part of its factual findings, the court determined Gray observed defendant’s vehicle “swerving
within its lane and had crossed the fog line.” The court found that when Gray returned to his
vehicle after initially speaking with defendant, he prepared the warning ticket and also had a
phone conversation with Trooper Lankford. The court also determined that “[a]lthough Trooper
Gray testified that he does not recall exactly when he started writing the insurance citation, you
can hear him typing on his laptop at 13:07 on the DVD and he then indicates he is working on
something at 13:31 on the DVD.” The court noted, about 4 minutes and 48 seconds after getting
in the car, Gray told defendant, “ ‘Listen, all I’m going to have you do is sign for this ticket so I
can give you your license back’ ” and the K-9 officer arrived 34 seconds after that statement.
¶ 26 The trial court disagreed with defendant’s characterization of Gray as an
“ ‘exaggerator’, a ‘fabricator,’ and a ‘delay[e]r.’ ” Rather, the court found Gray to be “credible,
consistent and his testimony was corroborated by the other evidence in this case.” Conversely,
the court found defendant’s testimony inconsistent, and the “inconsistency raise[d] serious
doubts about defendant’s credibility.”
¶ 27 The trial court found Gray had a “reasonable and articulable suspicion” to conduct
a traffic stop. Additionally, the court found, when looking to the totality of the circumstances,
Gray did not “unduly prolong[ ] the traffic stop beyond the time reasonably required to satisfy
the purpose of the stop.” Finally, the court found, assuming arguendo the stop was prolonged,
Gray had probable cause to justify detaining defendant until Lankford arrived.
¶ 28 B. Stipulated Bench Trial
¶ 29 In July 2020, the trial court held defendant’s stipulated bench trial. The State and
defendant presented an agreed stipulation of facts including, among other things, that the Illinois
-9-
State Police Division of Forensic Sciences conducted an analysis of two green plastic wrapped
packages recovered by Trooper Gray from the trunk of defendant’s vehicle. That analysis
established that the two packages contained cocaine and weighed 987.3 grams and 1001.5 grams,
respectively. The court found defendant guilty of two counts of unlawful possession with intent
to deliver more than 900 grams of a substance containing cocaine (720 ILCS 570/401(a)(2)(D)
(West 2018)).
¶ 30 Defendant filed a posttrial motion arguing the trial court erred in denying
defendant’s motion to suppress, which the court denied.
¶ 31 C. Sentencing
¶ 32 The trial court ordered a presentence investigation report (PSI). The PSI stated
defendant was 39 years old. Defendant’s criminal history included one prior felony charge in
Texas for money laundering, which was a deferred adjudication. The PSI reflected defendant’s
statement that he was employed full-time as of September 2020, but he had not worked more
than six months in the past year. Defendant described himself as a stay-at-home father for his
young daughter, who had developmental disabilities. His main sources of income were from his
mother and brother.
¶ 33 In mitigation, defendant presented eight letters to the court testifying to his
character.
¶ 34 The State argued defendant was transporting unusually high quantities of cocaine,
two kilograms, and had no other visible means of support. The State pointed to defendant’s
“prior felony conviction” in Texas for money laundering and argued as follows:
“It does not take too much thought to figure out what’s going on when you have
an individual caught money laundering down in Texas. Money laundering is when
- 10 -
you are using money that’s illegally obtained and trying to make it clean, and then
he’s caught up here with two kilos of cocaine. Again, it doesn’t take too much to
figure out the Defendant is running drugs. That’s what he’s doing. He got caught
doing it in 2005, or at least part of it; and now he’s got caught doing it again in
2018.”
Based on the factors in aggravation, the State recommended a sentence of 30 years in prison.
¶ 35 Defense counsel countered the State’s argument as to money laundering, arguing
that it was “very clear from the presentence report that this was a deferred adjudication offense,
meaning that there was no conviction.” Further, he argued the State connecting that adjudication
to drugs was “wildly speculat[ive].” Defense counsel argued defendant had been working for his
brother’s heating and cooling company, although it was not included in the PSI. Defense counsel
recommended a sentence of 15 years in prison.
¶ 36 Defendant made a statement in allocution apologizing to his family and
requesting leniency.
¶ 37 The trial court began by considering the following three factors set forth in
section 411 of the Illinois Controlled Substances Act (720 ILCS 570/411(West 2018)): (1) that
defendant’s offenses involved cocaine as a Schedule II controlled substance, (2) the offenses
involved unusually large quantities of a controlled substance, and (3) defendant lacked any other
visible means of support. The court then began discussing factors in aggravation, stating:
“There are strong factors in aggravation in this case. First of all, I would
argue and I believe the case law supports the Court’s argument or I guess the
Court’s, it’s not an argument, but the Court’s assessment that the Defendant’s
conduct threatened serious harm. Sure, nobody was, we have no evidence of who
- 11 -
received this cocaine; but there’s absolutely no doubt that it would have, it was
eventually going to be distributed to multiple sources. And those multiple
sources—And I mean hundreds, I think hundreds of people. You are talking about
four and a half pounds so that’s a lot of people that are going to, could have
access to this cocaine.
And when I think about delivery of a controlled substance, you know, here
we’re even talking possession with intent to deliver, my point, and I’m very well
aware not to double enhance, [defense counsel], my point is simply that
distributing or intending to distribute these drugs within the community does have
the potential of causing very serious harm not only to the people that use the drug
but emergency responders that may be responding to an overdose victim, law
enforcement that may be involved in responding, a heightened possibility of
accidents. We actually see that happen where law enforcement and first
responders are trying to respond to a scene and bam, there’s an accident.
So there is I believe a very real potential for harm in this case. Now thank
God nobody got those drugs. Thank God nobody got these drugs. Four and a half
pounds of cocaine. So that is a factor I believe in aggravation.”
The court went on to discuss deterrence as the strongest aggravating factor in this case. The court
discussed defendant’s history, stating:
“I’ve never seen I guess to quote [defense counsel], a mule come through here. It
is beyond me how someone bumps into somebody and agrees to deliver four and
a half pounds, two kilos of cocaine. Those people aren’t just at the grocery store.
They are not just like, oh, hey, can you take this head of lettuce to my mom.
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People don’t just give a stranger four and a half pounds of cocaine to deliver
somewhere. It just doesn’t happen unless you know the right people.
And I have to say I am persuaded by [the State’s] argument concerning
this strange money laundering issue out of Texas when you are from Illinois. You
have always been in Illinois. You went to school in Illinois. But you land yourself
in Texas for no other reason than money laundering? It is a little suspicious.
And so I do think that your record, your prior record is an aggravation.
More importantly, don’t try to tell me this is your first time in court. You know
the song and dance, and you knew what you were doing this time just like you
knew what you were doing in Texas.
***
What’s your job? Running money and drugs across the country. That’s
exactly what the record shows your job is. And this isn’t the first time because on
the first time I might be willing to say, okay, poor [defendant] got caught. No. It’s
the second time. You and I know it. You and I both know it’s the second time and
probably many more that you didn’t get caught. I didn’t just get off the train
yesterday.”
The court noted defendant had a college education and a supportive family but chose to be
involved with drugs. The court found defendant had not accepted responsibility for his actions
and there were no strong mitigating factors. The court sentenced defendant to the State’s
recommendation of 30 years’ imprisonment.
¶ 38 D. Defendant’s Motion to Reconsider His Sentence
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¶ 39 Defendant filed a motion to reconsider his sentence, arguing the trial court erred
by (1) considering the three section 411 factors (see 720 ILCS 570/411(West 2018)), (2) treating
defendant’s 2005 deferred adjudication in Texas as a conviction and drawing “a series of
unsupported inferences” about the offense, and (3) discussing a factor inherent in the offense,
namely the potential for serious harm. In deciding the motion, the trial court relied on People v.
McGath, 2017 IL App (4th) 150608, for the principle that the potential for serious harm may be
considered in the context of the serious nature of the charge. The court stated, “I accurately
stated at the sentencing hearing, this, this is a very serious matter. I did not consider [the
potential for serious harm] as a statutory aggravating factor, but it is certainly something that the
Court is mindful of and should be mindful of.”
¶ 40 As to the Texas adjudication, the trial court found the offense was identified in the
PSI as a deferred adjudication, and any reference to the offense as a conviction by the State was
corrected by defense counsel. Further, the court found it could “draw any reasonable inferences I
wish to from the evidence that’s presented at the sentencing hearing. And I do not think *** the
inference that the Court drew is unreasonable under all of the facts and circumstances that were
presented to me on the day of sentencing.”
¶ 41 The trial court denied defendant’s motion to reconsider his sentence.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 On appeal, defendant argues (1) the trial court erred in denying his motion to
suppress and (2) the court relied on improper factors when it sentenced defendant. We disagree
and affirm.
¶ 45 A. Motion to Suppress
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¶ 46 We review a trial court’s decision on a motion to suppress under a bifurcated
standard of review. People v. Salamon, 2022 IL 125722, ¶ 75. Under this standard, “the trial
court’s findings of historical fact are reviewed for clear error and may be rejected only if they are
against the manifest weight of the evidence, but the trial court’s ultimate ruling as to whether
suppression is warranted is reviewed de novo.” (Internal quotation marks omitted.) People v.
Aljohani, 2022 IL 127037, ¶ 28. “A finding is against the manifest weight of the evidence where
the opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not
based on the evidence presented.” (Internal quotation marks omitted.) People v. Peterson, 2017
IL 120331, ¶ 39.
¶ 47 Both the United States and Illinois Constitutions protect the rights of individuals
against unreasonable searches and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6.
“The touchstone of the fourth amendment is ‘the reasonableness in all the circumstances of the
particular governmental invasion of a citizen’s personal security.’ ” People v. Timmsen, 2016 IL
118181, ¶ 9 (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). In Illinois, courts interpret the
protections of the Illinois constitution against unreasonable searches and seizures in “limited
lockstep with its federal counterpart.” (Internal quotation marks omitted.) Aljohani, 2022 IL
127037, ¶ 31.
¶ 48 Although a police officer may stop and briefly detain a motorist when the officer
has observed the motorist committing a traffic offense (People v. Abdur-Rahim, 2014 IL App
(3d) 130558, ¶ 26), the traffic stop can become unlawful “if it is prolonged beyond the time
reasonably required to satisfy its initial purpose” (People v. Reedy, 2015 IL App (3d) 130955,
¶ 25). The United States Supreme Court has observed that “the tolerable duration of police
inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the
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traffic violation that warranted the stop.” Rodriguez v. United States, 575 U.S. 348, 353-54
(2015). According to the Supreme Court, “[a]uthority for the seizure thus ends when tasks tied to
the traffic infraction are—or reasonably should have been—completed.” Id. at 354. In a routine
traffic stop, the officer’s mission includes not only deciding whether to issue a ticket, but also
activities such as “checking the driver’s license, determining whether there are outstanding
warrants against the driver, and inspecting the automobile's registration and proof of insurance.”
Id. at 355. Although an officer may also conduct checks unrelated to the traffic stop’s mission,
“he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily
demanded to justify detaining an individual.” Id.
¶ 49 This court employs a segmented approach when reviewing a traffic stop pursuant
to a motion to suppress. People v. Sadeq, 2018 IL App (4th) 160105, ¶ 56. The relevant
questions are the following: “(1) Was the initial traffic stop *** valid? (2) Assuming the initial
stop to be lawful, was the stop prolonged beyond the time necessary to complete the mission of
the stop? (3) Assuming it was so prolonged, was the continued detention of defendant[ ]
supported by a reasonable suspicion?” Id.
¶ 50 1. Was the Initial Traffic Stop Valid?
¶ 51 Defendant first argues Gray’s traffic stop was unwarranted and therefore the stop
was unconstitutional from the outset.
¶ 52 “Pursuant to Terry, a police officer may conduct a brief, investigatory stop of a
person where the officer reasonably believes that the person has committed, or is about to
commit, a crime.” Timmsen, 2016 IL 118181, ¶ 9. Vehicle stops, a police officer’s act of
“stopping a vehicle and detaining its occupants,” constitute “seizure[s]” within the meaning of
the fourth amendment and are thus analyzed under the principles set forth in Terry. Id. “The
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officer must have a ‘reasonable, articulable suspicion’ that criminal activity is afoot.” Id.
(quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). While “reasonable, articulable
suspicion” constitutes a less demanding standard than probable cause, the “officer’s suspicion
must amount to more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal
activity.” Id. (quoting Terry, 392 U.S. at 27). Furthermore, “[t]he investigatory stop must be
justified at its inception[,] and the officer must be able to point to specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant the
governmental intrusion upon the constitutionally protected interests of the private citizen.” Id. In
judging the police officer’s conduct, this court applies an objective standard and considers,
“ ‘would the facts available to the officer at the moment of the seizure or the search “warrant a
man of reasonable caution in the belief” that the action taken was appropriate?’ ” Id. (quoting
Terry, 392 U.S. at 21-22). When evaluating a vehicle stop’s validity, “we consider the totality of
the circumstances—the whole picture.” (Internal quotation marks omitted.) Id.
¶ 53 Crossing a fog line is a violation of the Illinois Vehicle Code. “[W]hen a motorist
crosses over a lane line and is not driving as nearly as practicable within one lane, the motorist
has violated [Section 11-709 of the Illinois Vehicle Code].” People v. Smith, 172 Ill. 2d 289, 297
(1996) (citing 625 ILCS 5/11-709 (West 1992)). The trial court determined defendant “had
crossed the fog line.” This is a factual determination, and we will defer to the court’s finding
unless it is against the manifest weight of the evidence. See Aljohani, 2022 IL 127037, ¶ 28.
¶ 54 Defendant first argues the video recording does not show defendant crossing the
fog line. Defendant asserts the video recording is the “best evidence” of defendant’s driving but
acknowledges the recording is “less than ideal.” The video recording, though of poor quality,
shows defendant driving on the extreme left and extreme right-hand sides of a single lane at
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various points. The video does not show defendant’s vehicle crossing the fog line. However,
Trooper Gray explained that he activated his camera after he observed defendant cross the fog
line. The trial court, as it was entitled to do, credited Gray’s testimony in this regard.
¶ 55 Defendant nevertheless argues Gray’s testimony defendant crossed the fog line
was not reliable as Gray did not specifically inform defendant he crossed the fog line during the
traffic stop. Defendant argues Gray was trained to tell drivers of specific traffic violations they
had committed, and since he did not inform defendant he crossed the fog line, defendant must
not have crossed the fog line. However, Gray did inform defendant he was “all over the road.”
Although not a recitation of the section of the vehicle code Gray believed defendant violated, in
Gray’s words, “We’re not robots. I speak to them like a human being.” The trial court was not
required to discount Gray’s testimony concerning defendant crossing the fog line just because
Gray advised defendant he was “all over the road,” and not specifically that he had crossed the
fog line.
¶ 56 Defendant also argues he testified he did not cross the fog line. However,
defendant’s assertion he did not cross the fog line is insufficient for us to find the trial court’s
factual determination that defendant did cross the fog line was against the manifest weight of the
evidence. We note the court found Gray to be “credible, consistent and his testimony was
corroborated by the other evidence in this case.” Conversely, the court found defendant’s
testimony inconsistent, and the “inconsistency raise[d] serious doubts about defendant’s
credibility.”
¶ 57 We find that the trial court’s factual determination that defendant crossed the fog
line was not against the manifest weight of the evidence. Consequently, we find that Gray had
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reasonable suspicion defendant had violated the Illinois Vehicle Code and justification to
conduct a vehicle stop. See Timmsen, 2016 IL 118181, ¶ 9.
¶ 58 Defendant further asserts his driving was not suspicious. For example, defendant
argues he was not “weaving erratically.” However, no one argued defendant was driving
“erratically.” In the dash camera video, defendant can be seen moving between the extreme left
and right sides of his lane without visible cause. Defendant also argues he was not driving at the
exact speeds Gray testified to, offering detailed mathematical calculations in support of his
argument. However, even if Gray was incorrect about the exact speed defendant was traveling,
defendant readily admitted to driving 55 to 60 miles per hour because of the donut in an area
where the speed limit was 70 miles per hour, and the dash camera video recording showed
defendant traveling significantly slower than the surrounding traffic. The record shows several
factors that, together, showed defendant’s driving was concerning. We note Gray initially
suspected defendant may have been intoxicated when he approached the vehicle.
¶ 59 We note further that, in the video recording, defendant did not deny there was a
reason for Gray to find his driving suspicious. When Gray informed defendant he pulled
defendant over for driving well below the speed limit and “all over the road,” defendant
explained he was driving on a donut. “Even where there may be an innocent explanation for each
individual factor considered separately, the factors viewed in combination may constitute enough
reasonable suspicion to warrant further detention.” People v. Easley, 288 Ill. App. 3d 487,
491-92 (1997). However, in this case, the traffic stop was justified solely on defendant crossing
the fog line, and any further suspicious driving only bolstered Gray’s reasonable suspicion a
traffic stop was appropriate. See Timmsen, 2016 IL 118181, ¶ 9.
¶ 60 2. Was the Stop Impermissibly Long?
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¶ 61 Defendant next argues that, even if we find that the traffic stop was justified, the
stop was unreasonably prolonged to facilitate the free-air sniff by Trooper Lankford and his dog.
¶ 62 “A lawfully initiated traffic stop may violate the fourth amendment if it is
prolonged beyond the time reasonably required to complete its mission and attend to related
safety concerns.” People v. Bass, 2021 IL 125434, ¶ 16. “[O]fficers cannot lawfully pursue
unrelated investigations after quickly completing the mission by claiming that the overall
duration of the stop remained reasonable, nor by waiting to resolve the mission (such as by
writing a ticket or giving a verbal warning) until unrelated inquiries are completed.” Id. ¶ 20.
“Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.” Rodriguez, 575 U.S. at 354. Beyond the reason for the initial
stop, ordinary inquiries related to a traffic stop include checking the validity of the driver’s
license, running a warrant check on the driver, and checking the driver’s registration and
insurance. Bass, 2021 IL 125434, ¶ 16. Ordinary inquiries may include those that serve officer
safety as well as traffic enforcement. People v. Cummings, 2016 IL 115769, ¶ 14. “Unlike a
general interest in criminal enforcement, however, the government’s officer safety interest stems
from the mission of the stop itself. Traffic stops are ‘especially fraught with danger to police
officers,’[Arizona v. Johnson, 555 U.S. 323, 330 (2009)] (internal quotation marks omitted), so
an officer may need to take certain negligibly burdensome precautions in order to complete his
mission safely.” Rodriguez, 575 U.S. at 356. “The Supreme Court has made plain that an
officer’s inquiries into matters unrelated to the justification of the traffic stop do not convert the
encounter into something other than a lawful seizure, so long as those inquiries do not
measurably extend the duration of the stop.” Bass, 2021 IL 125434, ¶ 18 (quoting Johnson, 555
U.S. at 333).
- 20 -
¶ 63 “Determination of whether a traffic stop was unduly prolonged requires an
analysis of a totality of the circumstances.” Reedy, 2015 IL App (3d) 130955, ¶ 27; see also
People v. Baldwin, 388 Ill. App. 3d 1028, 1034 (2009). “Among the circumstances considered
are the brevity of the stop and whether the police acted diligently during the stop.” Reedy, 2015
IL App (3d) 130955, ¶ 27.
¶ 64 Defendant argues the stop was extended during four periods of time: (1) when
Gray was initially asking defendant questions; (2) when Gray returned to his vehicle to write the
written warning for a lane infraction; (3) when Gray returned to defendant’s vehicle and asked
him to step out; and (4) when defendant was seated in Gray’s vehicle.
¶ 65 a. Initial Approach
¶ 66 Defendant first argues Trooper Gray’s questions about why defendant was
traveling to Springfield and what high school he went to “measurably” extended the stop because
the questions had nothing to do with the mission of the stop. We disagree. A few indirect
questions confirming defendant’s destination do not convert the encounter into an unlawful
seizure. See Rodriguez, 575 U.S. at 356.
¶ 67 b. Return to Patrol Vehicle
¶ 68 Defendant next argues Gray impermissibly extended the stop when he returned to
his vehicle and called Trooper Lankford. The trial court found Gray was working on the written
warning while conversing with Lankford. We see nothing in the record to find the trial court’s
determination to be against the manifest weight of the evidence. Gray finished defendant’s
written warning in less than seven minutes. Defendant did not dispute Gray’s testimony such a
written warning could take up to 15 minutes to complete. Therefore, the logical conclusion is
that Gray worked diligently to complete defendant’s written warning while speaking with
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Lankford. Similarly, in the time after the phone call, which defendant describes as “an
unexplained four minutes,” Gray continued to work diligently to complete the written warning.
We find nothing in the record to dispute the court’s determination that Gray used the time in his
vehicle to write the written warning, and therefore, Gray’s actions did not impermissibly extend
the length of the stop.
¶ 69 Defendant further argues Gray “could have” checked defendant’s insurance card
immediately upon receipt or immediately returned to defendant’s car and questioned defendant
concerning the insurance card as soon as he noticed it had expired. If Gray had done so,
defendant contends, he could have written both the written warning for defendant’s lane
violation and the ticket for no insurance simultaneously, thus shortening the length of the traffic
stop. Defendant is correct that officers must pursue their traffic stop investigation “diligently.”
See Sadeq, 2018 IL App (4th) 160105, ¶ 76. However, defendant does not cite any authority, and
we can find none, that diligence in pursuing the mission of the stop requires an officer to perform
his duties with no inefficiencies, however slight. In hindsight, perhaps Gray could have
discovered defendant’s insurance card had expired at an earlier point in the traffic stop and
written both the ticket for no insurance and the written warning for crossing the fog line at the
same time. Defendant’s argument is speculative. We do not hold officers to a standard of
clairvoyance, but a standard of diligence. Reedy, 2015 IL App (3d) 130955, ¶ 27. Gray diligently
completed the task at hand and, after discovering the expired insurance card, returned to
defendant’s vehicle to determine whether defendant had a valid insurance card available.
¶ 70 c. Return to Defendant’s Vehicle
¶ 71 Defendant’s contention that he was improperly subjected to a pat-down search has
little impact on the decisions before us. The propriety of the pat-down search itself is not at issue;
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defendant consented to it. Defendant’s only possible argument here is that the pat-down search
measurably extended the length of the stop. See Bass, 2021 IL 125434, ¶ 18 (“[A]n officer’s
inquiries into matters unrelated to the justification of the traffic stop do not convert the encounter
into something other than a lawful seizure, so long as those inquiries do not measurably extend
the duration of the stop.”). The pat-down search took a matter of seconds and did not detract
from Gray’s diligent completion of the mission of the stop. See Reedy, 2015 IL App (3d)
130955, ¶ 27; see also Rodriguez, 575 U.S. at 356 (“[A]n officer may need to take certain
negligibly burdensome precautions in order to complete his mission safely.”).
¶ 72 d. Discussion in Gray’s Vehicle
¶ 73 Defendant next argues the five minutes Gray spent “asking all manner of
questions” of defendant measurably extended the traffic stop. As defendant sat in Gray’s vehicle,
Gray asked defendant about his insurance card, discussed with him the importance of carrying
his valid card, and explained the requirement that he write defendant a ticket for no insurance.
The trial court determined, at that point, Gray began diligently working on defendant’s ticket for
no insurance. The trial court noted that it was able to “hear [Gray] typing at 13:07 on the
dashcam video and at 13:31 he indicates he is working on something.” Although the recording’s
poor quality makes it difficult to discern the sounds in it, there is certainly a sound that could be
heard as fingers tapping on a keyboard. The court considered Gray’s statement that he was
working on something, as well as Gray’s initial testimony during the preliminary hearing, as
recited by defense counsel during cross-examination, in which Gray stated, “I began writing
[defendant] the ticket waiting on the canine officer.” Based on the totality of circumstances, the
court concluded Gray was diligently working on the no insurance ticket while engaging in casual
conversation with defendant, a finding not against the manifest weight of the evidence. Thus, we
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do not find the discussion measurably extended the length of the traffic stop beyond the mission.
See Bass, 2021 IL 125434, ¶ 18.
¶ 74 e. Totality of the Circumstances
¶ 75 When reviewing a motion to suppress, this court uses a totality of the
circumstances analysis. Reedy, 2015 IL App (3d) 130955, ¶ 27. After considering each of
defendant’s claimed delays, we find the traffic stop, which took a total of only approximately 15
minutes from the initial stop until the canine alerted, and during which Gray was diligently
pursuing the missions of the stop, was not measurably prolonged. Accordingly, the trial court
properly denied defendant’s motion to suppress.
¶ 76 3. Continued Detention
¶ 77 As we have already determined the traffic stop was not “prolonged beyond the
time reasonably required to complete its mission and attend to related safety concerns” (Bass,
2021 IL 125434, ¶ 16), we need not determine whether Gray had a reasonable suspicion of other
criminal activity. See Rodriguez, 575 U.S. at 355 (holding an officer may not prolong a traffic
stop without “the reasonable suspicion ordinarily demanded to justify detaining an individual”).
¶ 78 B. Sentencing
¶ 79 The trial court has broad discretion in imposing a sentence. People v. Jones, 168
Ill. 2d 367, 373 (1995). There is a strong presumption the trial court based its sentencing
determination on proper legal reasoning, and the trial court’s sentencing decision is reviewed
with great deference. People v. Dowding, 388 Ill. App. 3d 936, 942-43 (2009). However, the
question of whether the court relied on an improper factor in imposing a sentence ultimately
presents a question of law to be reviewed de novo. People v. Chaney, 379 Ill. App. 3d 524, 527
(2008). The burden is on the defendant to affirmatively establish that the sentence was based on
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improper considerations. People v. Conley, 118 Ill. App. 3d 122, 133 (1983). “In determining
whether the trial court based the sentence on proper aggravating and mitigating factors, a court of
review should consider the record as a whole, rather than focusing on a few words or statements
by the trial court.” Dowding, 388 Ill. App. 3d at 943.
¶ 80 1. Criminal History
¶ 81 Defendant argues the trial court erred by speculating that defendant’s 2005
deferred judgment for money laundering in Texas was related to transporting controlled
substances. Defendant contends the facts of the Texas case were not before the court, and
therefore any connection the court found between the Texas case and the present case, and the
court’s conclusion defendant had spent “13 years *** running drugs and money,” were in error.
¶ 82 A trial court has “wide discretion in the sources and types of evidence” it may
consider during sentencing. (Internal quotation marks omitted.) People v. Foster, 119 Ill. 2d 69,
96 (1987); People v. Eddmonds, 101 Ill. 2d 44, 65 (1984); People v. Adkins, 41 Ill. 2d 297, 300
(1968). “The only requirement for admission [of evidence] is that the evidence be reliable and
relevant [citations] as determined by the trial court within its sound discretion.” Foster, 119 Ill.
2d at 96. Moreover, the court is allowed to make reasonable inferences from the evidence when
sentencing a defendant. People v. Chapman, 194 Ill. 2d 186, 253 (2000); People v. Alexander,
127 Ill. App. 3d 1007, 1018 (1984).
¶ 83 Here, we find the trial court did not err during sentencing when it made a
reasonable inference that this was not defendant’s first time transporting drugs. The court
properly considered all the evidence, not just defendant’s deferred prosecution in the 2005 Texas
case. The court characterized the Texas case as “a little suspicious,” and found the record as a
whole created a reasonable inference that defendant’s job was “[r]unning money and drugs
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across the county.” We note that during the sentencing hearing, defense counsel argued
defendant was merely “a mule.” A mule is a slang term for “a person who smuggles or delivers
illicit substances.” Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/mule (last accessed Sept. 3, 2022). Defendant’s lack of a visible means
of support, the large quantity of cocaine at issue in this case, as well as defendant’s previous
deferred judgment for money laundering in a state in which he did not live or work, together
created a reasonable inference defendant had long been involved in this criminal enterprise and
was at least, in the words of defense counsel, a “mule.” Thus, we find the court did not err
making this reasonable inference based on all the evidence. See Chapman, 194 Ill. 2d at 253.
¶ 84 2. Factor Inherent in the Offense
¶ 85 Defendant next argues the trial court erred by considering a factor inherent in the
offense, namely, the general societal harm associated with trafficking controlled substances.
¶ 86 In determining an appropriate sentence, the trial court may consider the
seriousness, nature, and circumstances of the offense, including the nature and extent of the
elements of the offense. People v. Saldivar, 113 Ill. 2d 256, 271-72 (1986). However, “it is well
established that a factor inherent in the offense should not be considered as a factor in
aggravation at sentencing.” Dowding, 388 Ill. App. 3d at 942. The prohibition against
consideration of a factor inherent in the offense “ ‘is based on the assumption that, in designating
the appropriate range of punishment for a criminal offense, the legislature necessarily considered
the factors inherent in the offense.’ ” McGath, 2017 IL App (4th) 150608, ¶ 64 (quoting People
v. Phelps, 211 Ill. 2d 1, 12 (2004)).
¶ 87 The issue here is that, in announcing its sentencing decision, the trial court
referred to factors which may be viewed as inherent in the offense of unlawful possession with
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intent to deliver cocaine, such as the harm the introduction of drugs causes to a community. In
People v. McCain, the appellate court held that “[i]t is not improper per se for a sentencing court
to refer to the significant harm inflicted upon society by drug trafficking.” People v. McCain,
248 Ill. App. 3d 844, 852 (1993). McCain presented a somewhat unusual case, in that the
defendant there pleaded guilty to “possessing substantially less cocaine than was actually
involved in [that] case and agreed to allow the actual amount to be argued as a factor in
aggravation.” McCain, 248 Ill. App. 3d at 853. Normally, one might presume that, where statute
establishes a penalty range corresponding to a range of possession amounts, the legislature has
already considered the societal harm of an offense. The wrinkle in McCain was that the
defendant pleaded guilty to possessing with intent to deliver 15-100 grams of cocaine, but the
parties stipulated that the amount he actually possessed was 931.8 grams. See McCain, 248 Ill.
App. 3d at 845-846.
¶ 88 The situation in McCain is somewhat analogous to this case, where the amount
possessed by defendant was more than twice the highest possession amount addressed by the
statute, 900 grams. The trial court’s comments at issue were centered on the very large amount of
cocaine in defendant’s possession and the potential harm it might cause in the community. We
do not believe it is error for a trial court to mention and consider at sentencing the degree to
which the facts of the case exceed a statutory minimum or maximum. See, e.g., People v. Raney,
2014 IL App (4th) 130551 ¶ 37 (stating that where an element of the offense was that the victim
was aged 60 or older, it was not error for the court to note that the victim was much older than
60); People v. King, 151 Ill. App. 3d 662, 663 (1987) (stating that it was not error for the trial
judge to consider the extreme youth of the victim as an aggravating factor in sentencing for the
offense of cruelty to children).
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¶ 89 We also note that “factors inherent in the offense can sometimes be considered,
along with other factors in aggravation and mitigation, as part of the nature and circumstances of
the case. [Citations.] Thus, a trial court may discuss the impact a drug offense has on the
community without subjecting the defendant to double enhancement.” McGath, 2017 IL App
(4th) 150608, ¶ 73. However, as cautioned in McCain, courts are encouraged to “segregate such
general commentary from the balancing of sentencing factors.” McCain, 248 Ill. App. 3d at 852.
The trial court here failed to do so, which makes our review more difficult. Though the trial court
noted that it was “very well aware not to double enhance,” it is more challenging to credit such a
statement when it is blended with the weighing of the sentencing factors.
¶ 90 While a trial court’s comments at the time of sentencing are likely to give more
immediate insight into what matters were considered, we can also consider the court’s comments
at the motion to reconsider sentence. See, e.g., McCain, 248 Ill. App. 3d at 853. At the hearing
on the motion to reconsider sentence, the trial court here explained, “[T]his is a very serious
matter. I did not consider [the harm to the community] as a statutory aggravating factor, but it is
certainly something that the Court is mindful of and should be mindful of.” The court further
explained the reasoning behind the sentence it imposed and that harm to the community was a
relevant consideration. We find that these comments expanded on and were consistent with the
comments made at the time of sentencing.
¶ 91 We find the court did not err in commenting on the harm to the community
caused by defendant transporting two kilograms of cocaine.
¶ 92 III. CONCLUSION
¶ 93 For the reasons stated, we affirm the trial court’s judgment.
¶ 94 Affirmed.
- 28 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482161/ | 2022 IL App (4th) 200314
FILED
November 7, 2022
NO. 4-20-0314
Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
STEVEN GAVIN, ) No. 17CF352.
Defendant-Appellant. )
) Honorable
) Robert K. Adrian,
) Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court, with
opinion.
Justices Turner and Bridges concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Steven Gavin, was found guilty of first degree
murder and armed robbery and sentenced to 85 years’ imprisonment. Defendant appeals, arguing
the trial court committed reversible error when it (1) allowed the jury to receive testimony about a
witness’s ability to identify defendant’s voice, (2) allowed the jury to receive testimony about
defendant’s refusals to comply with a court order to provide a deoxyribonucleic acid (DNA)
sample, (3) allowed the jury to receive testimony about the absence of forensic testing by the
defense, (4) precluded the jury from receiving testimony from a defense witness, (5) allowed the
jury to view defendant’s “booking photo” during closing argument, and (6) imposed the maximum
sentence. For the reasons that follow, we conclude defendant has not shown the trial court’s
decisions related to the evidence presented at his trial or the sentence imposed against him amount
to reversible error. Therefore, we affirm the trial court’s judgment.
¶2 I. BACKGROUND
¶3 A. Charges and First Trial
¶4 In May 2017, the State charged defendant with four counts of first degree murder
(720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2014)) and one count of armed robbery (id. § 18-2(a)).
The State alleged on November 23, 2015, defendant, while armed with a firearm, took United
States currency from Carlous Wires Sr. (Carlous Sr.) and shot Carlous Sr. in the head, causing his
death. The case proceeded to a jury trial in February 2019. Because the jury was unable to reach a
verdict, a mistrial was declared, and the case was set for retrial.
¶5 B. Motion to Suppress
¶6 In March 2019, defendant filed a motion to suppress voice lineup identifications.
At a hearing that same month, defendant, over no objection, invited the trial court to consider his
motion in light of the testimony presented at his first trial, as well the undisputed factual allegations
from prior hearings related to the identifications.
¶7 As gleaned from the testimony and the undisputed factual allegations, on the
evening of November 23, 2015, Shelby Wires allowed her father, Carlous Sr., to use her cell phone
to make a phone call. She overheard her father ask if “Steve was there” during the call. Her father
then ended the call and returned the cell phone to her. Moments later, Shelby received an incoming
call from a phone number she did not recognize. Shelby answered the call and heard an apparent
male voice ask, “Did somebody call for Steve?” Shelby spoke with her father, who then took her
phone from her and had a conversation with someone on the phone. Shelby overheard her father
tell the person “to come by and see him.” Shortly thereafter, Carlous Sr. was found dead, and
Shelby informed police of the calls. Shelby was asked by the lead detective on the case, Adam
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Gibson, if she recognized the voice she heard on the call. Shelby indicated she did not. Shelby
testified she had not heard the voice from the phone call prior to receiving the call on the evening
her father was killed.
¶8 During preparations for defendant’s first trial, Shelby was asked by the prosecution
if she believed she could identify the voice she heard on the phone call. Shelby believed she could.
The prosecution asked the lead detective to meet with Shelby to conduct a voice lineup. The
detective met with Shelby and played four clips of recordings of jailhouse phone calls. Each clip
was approximately 30 seconds long and contained no names. The detective indicated some of the
clips were played more than once. Shelby estimated the clips were played two or three times. (We
note the recordings are not part of the record on appeal.)
¶9 The first clip played for Shelby contained the voices of defendant and a woman
named Alanna Dawson. It did not contain any reference to a relationship between the speakers.
The detective testified Shelby “almost instant[aneously]” identified the male voice she heard on
the clip as the voice she heard on the phone call years earlier. Shelby also indicated she recognized
the female voice as belonging to Dawson. Shelby explained she knew Dawson, having been in
each other’s homes and having been “friends with her daughters when we were kids.” Upon being
asked by the defense if she was aware Dawson “was friends or maybe even boyfriend/girlfriend”
with defendant, Shelby testified, “I have heard that.” Shelby testified she did not identify the male
voice based upon her ability to recognize the female voice.
¶ 10 After playing the first clip, the detective played the three other clips. Before doing
so, the detective testified he told Shelby “all the voices would be different.” The second and third
clips did not contain defendant’s voice. The detective testified Shelby “immediately said no, it was
not the voice,” upon him playing the second clip. Shelby also indicated the voice on the third clip
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was not the voice she heard on the phone call years earlier. The fourth clip, despite the detective
telling Shelby all the voices on the clips would be different, contained the voice of defendant.
Shelby identified the voice on the fourth clip as the voice she heard on the phone call.
¶ 11 Shelby, when asked if she remembered the voice from the phone call she received
years earlier, testified, “Yes, I do very well.” She explained, “It’s just a reoccurring nightmare for
me. It has been a nightmare. You know, when I close my eyes, I just hear that voice.” Shelby
believed she could recognize the voice if she heard it again. Defendant, in open court during the
first trial, stated, “Is anyone calling for a Steve.” Shelby identified defendant’s voice as the voice
she heard on the phone call years earlier. Shelby testified she had no doubt the voices she heard in
court and in the clips were the same voice she heard on the phone call.
¶ 12 Based upon these facts, defendant argued, in relevant part, the voice lineup
identifications should be suppressed because the lineup procedure used by the police was improper
and the resulting identifications were not reliable. Defendant’s counsel, when arguing the lineup
procedure used by the police was improper, noted he “was surprised” to notice there was not “some
procedure set up by the [s]upreme [c]ourt or somebody” as it related to voice lineups. After hearing
from the State, the trial court denied defendant’s motion. In reaching its decision, the court
specifically found the procedure used by the police was “sufficient” to make the identifications
admissible, and defendant’s concerns with the lineup procedure went to the weight that should be
accorded to the identifications.
¶ 13 C. Second Jury Trial
¶ 14 In January 2020, the trial court conducted a second jury trial. The following is
gleaned from the evidence presented.
¶ 15 In November 2015, Carlous Sr. lived with his wife, Vivian Wires, and adult
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daughter, Shelby, in a two-story house in Quincy, Illinois. Carlous Sr. and Vivian had been married
for about 30 years and had two other adult children, Carlous Wires Jr. (Carlous Jr.) and Raphael
Wires. According to Vivian, Carlous Sr. had his “demons,” including crack cocaine, marijuana,
and alcohol. Vivian suspected Carlous Sr. sold marijuana.
¶ 16 On the evening of Monday, November 23, 2015, Carlous Sr. was at his house with
Vivian. According to Vivian, she and Carlous Sr. were having “one of those spits or spats” typical
of their 30-year marriage. She was upset with him because he made “a pass at someone” the day
before. As a result, Vivian spent most of the evening in an upstairs bedroom. At some point,
Carlous Sr. went upstairs and acknowledged Vivian was upset with him and offered to take her
shopping after Thanksgiving. He then “threw” some money at her, which she picked up and threw
in a trashcan because she was still upset. Vivian followed Carlous Sr. downstairs and noticed he
had a bottle of whisky and a gallon-sized bag of marijuana. Vivian picked up the bottle of whisky
and said to Carlous Sr., “is this what it’s gonna be about tonight?” She also told him to get the
marijuana out of her house. She then returned upstairs and went to sleep.
¶ 17 Later, Vivian woke up and heard the door to the house “forcefully open,” followed
by “heavy footsteps” and “two gunshots.” At that point, Vivian believed Carlous Sr. was outside
shooting a BB gun at the cats that had been messing with their garbage. Vivian got out of bed.
Upon reaching the stairs, Vivian smelled an odor as if “you shot off a cap gun” and saw smoke in
the air. After going down the stairs, she noticed the door to their house was open. She went outside
and called aloud for Carlous Sr. Hearing no response, Vivian returned to the house, at which point
she saw Carlous Sr. laying on the floor with blood coming from his head. At that point, Vivian
suspected Carlous Sr. had committed suicide. She, “in shock,” called 911 and reported her
suspicions. While on the phone with the 911 operator, Vivian noticed the bag of marijuana.
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Because she was scared, she picked up the bag and threw it outside. Vivian reported to police that
her husband had shot himself. When asked for the location of the firearm, Vivian suggested it
might be under Carlous Sr.’s body. After no firearm was discovered near Carlous Sr., an
investigation commenced into Carlous Sr.’s death. Vivian testified she had nothing to do with her
husband’s death.
¶ 18 A forensic pathologist testified Carlous Sr. sustained two gunshot wounds to his
head, which caused his death. The pathologist opined it was not possible for Carlous Sr. to have
shot himself twice, as either wound would have caused instantaneous unconsciousness. Carlous
Sr. had money in his hand at the time of his death. There was no evidence of a forced entry into
the house. Except for a BB gun, no firearm was found inside or outside the house. In the living
room, there were two upright cartridge casings, a cardboard box containing loose cannabis, two
small baggies of a substance containing cocaine, and a bottle of whiskey. In an upstairs bedroom,
money was found inside a trash can. The money in the trash can was not collected or tested. No
gallon-sized bag of marijuana was ever recovered.
¶ 19 Vivian was interviewed by the lead detective, Gibson, and agreed to submit to a
gunshot residue test. A gunshot residue test was also administered to Carlous Sr. The right hand
of Vivian tested positive for gunshot residue, and the right and left hands of Carlous Sr. tested
positive for gunshot residue. These results, according to a forensic scientist, indicate Vivian and
Carlous Sr. either fired a firearm, were in the presence of a gunshot residue environment, or came
in contact with an object that had gunshot residue. Vivian used the bathroom and washed her hands
prior to having the gunshot residue test administered.
¶ 20 The lead detective acknowledged Vivian’s being the only other person in the house
at the time of Carlous Sr.’s death and her having gunshot residue on her hand initially made her a
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strong suspect. The detective explained that his continued investigation into Vivian and the other
suspects, as well as his discussion with the forensic scientist about gunshot residue, ultimately led
the investigation away from Vivian.
¶ 21 Vivian was asked on cross-examination about calling a woman named Amy
Garland Simmons shortly after Carlous Sr.’s death. Vivian believed she “accidentally called her”
when trying to call her son. Vivian was asked if she stated to Simmons: “[O]h, my God, they’re in
my house. They killed my husband.” Vivian testified she did not remember making that statement.
Vivian also was asked on cross-examination about the information she disclosed during prior
interviews. Vivian acknowledged she did not initially disclose certain information, including
information about the bottle of whiskey and bag of marijuana. Vivian did not recall what she
disclosed about the money in the trashcan during the first interview. Evidence was later introduced,
showing Vivian initially stated Carlous Sr. had put the money in the trashcan but then, after a break
during the interview, admitted she threw the money in the trashcan during their spat.
¶ 22 Shelby testified she was present in her parent’s home for part the evening on
November 23, 2015. She cooked dinner for her parents around 8:30 p.m. and then went to a gas
station to purchase whiskey for her father. Later that evening, Carlous Sr. asked Shelby to use her
cell phone and then made a call and asked for “Steve.” Carlous Sr. then gave the phone back to
Shelby. Moments later, Shelby received a call from a phone number she did not recognize. Upon
answering the phone, Shelby heard a male voice ask, “[d]id somebody call lookin’ for Steve?”
Shelby did not recognize the voice. Shelby gave her phone to her father, who had a conversation
with someone on the phone. She heard her father tell the person to come see him. Shelby waited
for her father to be done with the call and then took her phone and left for the evening. Phone
records established an outgoing call to 660-221-*** was placed on Shelby’s phone at 10:24 p.m.
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and an incoming call from 217-257-*** was received on her phone at 10:27 p.m. Around 11:50
p.m., Shelby received a call from her mother telling her that her father “had been murdered” and
to return home. Shelby returned home. When speaking with police, Shelby began thinking about
the phone calls from earlier that evening. She told the police about her father using her cell phone
and receiving a call from someone named “Steve.”
¶ 23 Over defendant’s continued objection, Shelby, as well as the lead detective, was
asked about the voice lineup that occurred shortly before defendant’s first trial. The jury heard
about the circumstances of the voice lineup and Shelby’s ability to identify defendant’s voice as
the voice she heard during the phone call on November 23, 2015. On cross-examination, Shelby
indicated she did not recall recognizing a female voice during the voice lineup as belonging to
Dawson. She was later impeached on the issue. Shelby testified she had no doubt the voices she
heard during the lineup were the same voice she heard years earlier during the phone call.
¶ 24 In addition, Shelby, over defendant’s objection, was asked to listen to defendant
make the following statement in court: “Did someone call for Steve?” Shelby identified the voice
of defendant as the voice from the phone call from years earlier. Shelby testified she had no doubt
the voice she heard in court was the same voice she heard during the phone call. She testified she
could never forget the voice. She explained: “It’s a recurring nightmare, you know. Just to, you
know, have that feeling, that that could have been the last person to talk, see or even be with my
father, you will never forget that. It’s like a nightmare.”
¶ 25 Shelby acknowledged having a 2012 misdemeanor theft conviction and being on
probation for possession of methamphetamine at the time of her testimony. During an interview
shortly after Carlous Sr.’s death, the lead detective noticed a red substance on Shelby’s shoe.
Shelby reported it was smashed tomatoes. Upon inspecting the shoe further, the detective saw what
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appeared to be smashed tomatoes and, therefore, did not conduct further testing of the substance.
¶ 26 Dawson testified in November 2015, she was driving to Springfield, Illinois, when
she received a phone call from someone asking for her friend, Steven, who she identified as
defendant. She then called defendant and gave him the caller’s phone number. Dawson initially
testified she received the call on a Monday but then later testified she received the call on a Friday.
She believed it was raining when she received the call. Weather reports for Quincy and Springfield
showed there was light rain on Friday and no rain on Monday. Dawson testified she had a 660-221
cell phone number in 2015; she could not remember the last four digits of the number.
¶ 27 Cell phone tower records showed, at 11:32 p.m. on November 23, 2015, a call was
made from the 217-257-*** number. The call used a cell tower located within blocks of Carlous
Sr.’s house, indicating the phone would have been located within the cell footprint of that tower.
¶ 28 Michael Gay testified he was walking by Carlous Sr.’s house around 11:30 p.m. on
November 23, 2015, and noticed a red “older model vehicle” parked in front of the house. He then
saw a black male leave the house, retrieve something from the car, and return to the house. Gay
acknowledged having, at that time, a warrant out for his arrest and an addiction to
methamphetamine. About a week later, Gay met with police, after being arrested on an unrelated
warrant. Gay acknowledged he had been “riding around” looking for the vehicle he observed and
communicating with Carlous Jr. prior to the meeting. Gay testified he and Carlous Jr. discussed “a
way that I could give them the information I knew without being arrested on my warrant.”
Evidence was later introduced showing Gay had previously stated he talked with Carlous Jr. to get
his timeline correct. Gay testified he spoke with police because he wanted to be present at an
upcoming event for his children and because he wanted to discredit the suggestion that he was
involved in Carlous Sr.’s death. With respect to the latter, Gay had heard Rafael and three other
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guys planned to “jump” him for his alleged involvement. Gay agreed to provide a DNA sample
and have his cell phone searched. Gay identified the vehicle he observed to police. The vehicle
Gay identified belonged to defendant’s mother. On cross-examination, Gay acknowledged he
described the person he observed outside Carlous Sr.’s house as being between 5’6’’ and 5’10’’
and wearing a stocking cap. While Gay could not recall if he previously estimated the age of the
person, evidence was later introduced showing he described the person as being between 30 and
40 years old. Also on cross-examination, Gay acknowledged telling police during a September
2017 interview about seeing two people outside Carlous Sr.’s house. Gay described the second
person during that interview as being between 5’7’’ and 5’8’’. Defendant, as later acknowledged
by the lead detective, was approximately 6’0”. Gay acknowledged he had 2016 convictions for
theft and possession of methamphetamine and a 2017 conviction for theft.
¶ 29 David Scott testified he was near Carlous Sr.’s house around 11:30 p.m. on
November 23, 2015, and heard “one or two” gunshots. He then saw defendant drive by from 10 to
20 feet away in the vehicle identified by Gay. The vehicle was driving below the speed limit. Scott
acknowledged he had been drinking alcohol earlier that night. He was impeached with statements
as to the amount of alcohol he had consumed. Scott maintained he was not intoxicated at the time
he heard the gunshots and saw the driver. Scott, despite talking with police on the night of Carlous
Sr.’s death, did not share his observations at that time. He spoke with Carlous Jr. before disclosing
to police what he had observed.
¶ 30 Robert McPhail, who at the time of testifying was imprisoned, testified he received
a phone call from his friend, defendant, just after midnight on November 24, 2015. Cell phone
tower records show the 217-257-*** number was in communication with the cell tower closest to
McPhail’s residence around 1 a.m. McPhail testified defendant asked to be picked up at an unusual
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place, where McPhail had never previously picked defendant up. McPhail did so and the two of
them returned to McPhail’s trailer, which he shared with Terron Cartmill. Upon their arrival,
defendant asked McPhail for a change of clothes and shoes, a request which defendant had never
previously made. Defendant placed his old clothes and shoes in a bag and asked McPhail to throw
them away. McPhail complied, and the trash was picked up the next day. McPhail testified
defendant had a “large amount of money,” which was unusual for him. Defendant gave McPhail a
$20 bill for cigarettes and iced tea. While standing in line at a gas station, McPhail noticed fresh
blood on the bill. McPhail returned to the trailer and noticed defendant and Cartmill were talking.
McPhail testified he had previously seen defendant drive the vehicle identified by Gay. Evidence
was later presented, showing McPhail had not previously told police about defendant requesting
shoes and discarding his own. Evidence was also introduced, showing McPhail made statements
indicating defendant was wearing a white t-shirt, light blue jeans, and white tennis shoes. McPhail
acknowledged being addicted to and using heroin on November 23, 2015. He also acknowledged
having 2013 convictions for misleading a public official and theft, a 2016 conviction for theft, and
2018 convictions for residential burglary and aggravated battery.
¶ 31 Cartmill testified McPhail left their trailer to pick up defendant. At the time,
Cartmill had known defendant for about six months. When McPhail returned to the trailer with
defendant, defendant requested a change of clothes and then placed his clothes in a bag and threw
the bag in the trash. Cartmill testified defendant had a “nice-size wad of money,” which he noted
was unusual for him. Cartmill also noticed blood on the money. Cartmill testified defendant gave
McPhail money to go to the gas station to buy cigarettes. When McPhail left, defendant and
Cartmill had a conversation about where defendant got the money. McPhail testified defendant
told him that he went to Carlous Sr.’s house to sell crack cocaine and got in a dispute with Carlous
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Sr. because Carlous Sr. wanted to pay only $80 instead of $100. Carlous Sr. told defendant there
would be more where that came from, before showing defendant the wad of money. Defendant got
upset, left the house, and retrieved a gun. When he returned to the house with the gun, he demanded
the cash, before shooting Carlous Sr. twice in the head and taking the money from his hands.
Cartmill testified defendant left the trailer later that morning while it was still dark outside. Cartmill
acknowledged using heroin and having a warrant out for his arrest on the night in question and
having a 2012 conviction for possession of a controlled substance and a 2016 conviction for
possession with the intent to distribute cocaine. Cartmill acknowledged previously having told
police he had no knowledge about the murder, explaining he did so to avoid repercussions from
“the street.” Cartmill testified he decided to testify “[t]o give the family the closure they deserve.”
Evidence was introduced showing Cartmill previously stated defendant told him that he had
“gotten into it with a white guy down the street over a drug deal.” Cartmill also previously
described defendant as wearing a black hooded sweatshirt, black pants, and black shoes with blood
on them.
¶ 32 Vicky Shumpert testified around 4 a.m. on November 24, 2015, she woke up and
heard talking in the apartment above her apartment, where defendant’s sister lived. Shumpert
eventually went upstairs and saw defendant. She was familiar with defendant and had spoken with
him enough to recognize his voice. She overheard defendant say, “mother f*** saying, I took some
bloody money to the gas station.” Shumpert acknowledged she was friends with Vivian.
¶ 33 Helen Horton testified defendant gave her money to buy drugs not long after
Carlous Sr.’s death. Horton noticed blood on the money. Then, a couple months later, she
overheard defendant, while they were both using drugs, repeatedly saying, “it wasn’t supposed to
happen like that.” When Horton asked what he was talking about, defendant admitted to robbing
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and killing Carlous Sr. The next day, defendant went to Horton’s apartment and threatened to kill
her mother if she said anything. Horton acknowledged being addicted to methamphetamine and
having a 2007 conviction for distribution of a look-alike substance, 2010 convictions for violating
a registration act and escape, a 2013 conviction for retail theft, and 2017 convictions for possession
of a controlled substance. In addition, Horton acknowledged she had recent convictions for
possession of a controlled substance and theft. Horton acknowledged telling police in February
2017 she had no information about Carlous Sr.’s death. She also acknowledged she did not tell a
grand jury in May 2017 about the bloody money. She eventually disclosed to police the
information of which she was aware after inquiring if there were any charges against her and
calling her mother to make sure she would be safe. Horton is related to Shumpert.
¶ 34 Annette Gavin, defendant’s mother, testified defendant was living with her in
November 2015. On November 23, 2015, defendant drove her home and then gave her the keys to
her vehicle. She placed the keys in her purse and then placed her purse in her bedroom before
going to sleep that night. Both when she went to sleep and when woke up the next day, her vehicle
was outside her home, and her keys were in her purse. Annette was asked about a search of
defendant’s bedroom conducted by police. Annette testified the 13 cell phones and sim cards found
in defendant’s bedroom belonged to her and not defendant. Of the phones that could be accessed,
none used the 217-257-*** number.
¶ 35 Carlous Jr. testified he had no contact with Gay between November 23 and
December 2, 2015. Carlous Jr. acknowledged he had been in contact with Scott.
¶ 36 Raphael testified he had spoken with Gay between November 23 and December 2,
2015, about Gay’s observations of a vehicle outside his father’s house.
¶ 37 Altheia Buckner testified that she spoke with Horton, in April or May 2019, while
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they were incarcerated. Buckner testified Horton stated the lead detective assigned to this case sold
drugs and told her what to say in multiple murder trials, including the one involving Carlous Sr.
Buckner disclosed this information to the prosecution and, after doing so, asked, “ ‘What do I get?
I want to get out of jail.’ ” Buckner acknowledged having a 2004 conviction for forgery; 2012
convictions for possession of methamphetamine, misdemeanor theft, and “crack cocaine”; and
2019 convictions for forgery, possession of methamphetamine, and retail theft.
¶ 38 Almost three weeks after defendant’s arrest on charges in this case, the prosecution
obtained a court order requiring defendant to submit a DNA sample for testing. During the trial,
the State indicated it intended to elicit testimony about defendant’s initial refusals to submit a
sample. The defense objected, arguing, in part, such testimony would be “highly prejudicial.” The
court, after balancing the probative value and prejudicial impact, allowed the State to inquire about
the refusals. The State elicited testimony from two different witnesses about defendant’s refusals
to submit a DNA sample for testing after being informed of a court order to do so. Defendant
eventually submitted a DNA sample.
¶ 39 During the cross-examination of a crime scene technician, the defense asked if the
cartridge casings were tested for fingerprints. The technician indicated, at the direction of the State,
they were not tested. On redirect-examination, the State asked if the defense had asked for the
cartridge casings to be tested for fingerprints. The defense objected, arguing the inquiry by the
State suggested it was the defendant’s responsibility to present evidence. The State disagreed,
contending it was a proper inquiry in response to the defense’s cross-examination. The court
agreed with the State and overruled the objection. The technician testified the defense had not
requested the cartridge casings be tested.
¶ 40 The lead detective acknowledged information about the investigation into Carlous
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Sr.’s death had been released to the public through the media. The detective testified the media
was never informed about a drug deal involving cocaine or bloody money. The detective also
acknowledged keeping Carlous Sr.’s family updated on the investigation.
¶ 41 Outside the presence of the jury, the State raised an issue with the defense calling
Simmons. The State indicated it believed the defense intended to use Simmons to impeach Vivian
with the statement she did not remember making during their phone call. The State acknowledged
Simmons had previously made a statement to a police officer about Vivian’s statement. However,
the State asserted, Simmons had recently told the State that she did not remember Vivian’s
statement. Under these circumstances, the State suggested the defense should first call Simmons
outside the presence of the jury to determine if she remembered Vivian’s statement. The State
argued, in the event Simmons testified she did not remember Vivian’s statement, it would be
improper for the defense to impeach Simmons to impeach Vivian. The defense, in response, agreed
it intended to use Simmons to impeach Vivian. Defense counsel stated he thought from the
conversations he had with Simmons that “she remembered at least part of that as far as what
happened” and “has reviewed the police report.” At that point, the State objected, arguing it was
improper for the defense to allow Simmons to review the police report. In response, defense
counsel explained Simmons had indicated she sustained some sort of injury, causing memory
problems, and asked him to share with her what she had previously told the police, which counsel
did. Counsel did not recall whether he specifically showed Simmons the report or read it to her.
The trial court sustained the State’s objection and barred Simmons’ testimony, finding the
testimony was “tainted” by being provided with the information from the police report.
¶ 42 No evidence was introduced linking defendant’s fingerprints or DNA to Carlous
Sr.’s death.
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¶ 43 During closing arguments, the State used a photograph of defendant that was not
entered into evidence or presented as a demonstrative exhibit earlier in the trial. Defendant
objected, arguing the “photo has never been entered into evidence in this case.” The trial court
overruled defendant’s objection.
¶ 44 Based upon the evidence presented, the jury found defendant guilty of first degree
murder and armed robbery.
¶ 45 D. Posttrial Proceedings
¶ 46 In April 2020, defendant filed a motion for a judgment notwithstanding the verdict
or, in the alternative, a new trial, complaining about various decisions of the trial court related to
the evidence presented at his trial. Following a hearing, the court denied defendant’s motion.
¶ 47 In May 2020, the trial court conducted a sentencing hearing. The court received a
presentence investigation report and a victim impact statement. No other evidence was presented.
The State recommended defendant be sentenced to 60 years’ imprisonment, while the defense
recommended defendant be sentenced to 45 years’ imprisonment. Defendant declined to give a
statement in allocution. In the oral pronouncement of its decision, the court indicated it considered
the evidence and recommendations presented, as well as “all the factors in aggravation and
mitigation.” The court explained it considered the factors in aggravation and mitigation “set out in
the law.” The court stated, “There are many aggravating factor which the [c]ourt has found.” The
court noted this appeared to be the first case in which it could not “find a single factor in mitigation
for the defendant.” The court then reviewed, on the record, the factors in mitigation “to make sure
that none of those apply.” The court found “there are no mitigating factors in this case.” The court
sentenced defendant to 85 years’ imprisonment. Defendant filed a motion to reconsider his
sentence, which the court denied after a hearing.
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¶ 48 This appeal followed.
¶ 49 II. ANALYSIS
¶ 50 On appeal, defendant complains about various decisions of the trial court related to
the evidence presented at his trial and the sentence imposed against him. The State, in response,
contends defendant has not shown any of the court’s decisions amount to reversible error. We
address each of the complained-of decisions in turn.
¶ 51 A. Voice Identifications
¶ 52 Defendant argues the trial court committed reversible error when it allowed the jury
to receive the testimony about Shelby’s ability to identify his voice. Specifically, defendant asserts
(1) his motion to suppress the voice lineup identifications should have been granted because those
identifications were the product of an unnecessarily suggestive procedure used by the police and
not independently reliable and (2) his objection to the in-court identification should have been
sustained because that identification was tainted by the improper voice lineup identifications.
Defendant further asserts the court’s error in allowing the jury to receive the testimony about
Shelby’s ability to identify his voice was not harmless.
¶ 53 Identification by voice may be used to establish guilt of an accused. People v.
Johnson, 114 Ill. 2d 170, 190, 499 N.E.2d 1355, 1363-64 (1986). Ordinarily, the weight to be given
to a voice identification, like most factual determinations, is a question for the finder of fact to
resolve. Id. However, relevant here, a voice identification should be excluded under the due
process clause of the fourteenth amendment where it is (1) the product of an unnecessarily
suggestive lineup procedure used by the police and (2) not independently reliable. People v.
Williams, 313 Ill. App. 3d 849, 859, 730 N.E.2d 561, 570 (2000); see also Perry v. New Hampshire,
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565 U.S. 228, 238-39 (2012) (“[D]ue process concerns arise only when law enforcement officers
use an identification procedure that is both suggestive and unnecessary.”).
¶ 54 Where a defendant claims a voice lineup identification should be suppressed on due
process grounds, the defendant bears the initial burden of proving the procedure used by the police
was unnecessarily suggestive. Williams, 313 Ill. App. 3d at 859; see also Perry, 565 U.S. at 241
(“A primary aim of excluding identification evidence obtained under unnecessarily suggestive
circumstances *** is to deter law enforcement use of improper lineups, showups, and photo arrays
in the first place.”). If the defendant meets this initial burden, the State must then show the
identification, made under suggestive circumstances, is reliable. Williams, 313 Ill. App. 3d at 859.
On review from a motion to suppress, this court will generally uphold a trial court’s factual
findings unless they are against the manifest weight of the evidence but review de novo the ultimate
legal conclusion as to whether suppression is warranted. See People v. Gaytan, 2015 IL 116223,
¶ 18, 32 N.E.3d 641.
¶ 55 In this case, we agree with the trial court’s assessment that defendant did not prove
the identifications were the product of an unnecessarily suggestive lineup procedure used by the
police. At the outset, defendant contends the requirement that he show the identifications were the
product of an unnecessarily suggestive procedure used by the police does not, as a matter of law,
require a showing of police misconduct. The United States Supreme Court, however, has rejected
defendant’s contention in the context of eyewitness identifications: “The due process check for
reliability *** comes into play only after the defendant establishes improper police conduct.”
Perry, 565 U.S.at 241. The Supreme Court concluded: “The fallibility of eyewitness evidence does
not, without the taint of improper state conduct, warrant a due process rule requiring a trial court
to screen such evidence for reliability before allowing the jury to assess its creditworthiness.” Id.
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at 245; see also In re T.B., 2020 IL App (1st) 191041, ¶ 38, 148 N.E.3d 251 (“the remedy of
suppression drops out of the picture, because the defendant is not alleging police misconduct”).
Accordingly, we reject defendant’s contention.
¶ 56 As to the circumstances of the lineup, defendant, in support of his argument that
the identifications were the product of an unnecessarily suggestive procedure used by the police,
relies heavily on the fact Shelby identified the voice of a woman with whom she was familiar and
knew to possibly be defendant’s girlfriend in the first clip. As the State asserts, Shelby’s knowledge
does not, by itself, support defendant’s argument. Instead, we must also know whether the
detective who arranged the lineup knew, or should have known, of Shelby’s knowledge prior to
conducting the lineup. Defendant has never suggested the detective had, or should have had, such
knowledge.
¶ 57 Defendant also relies on the fact the lineup did not occur until almost three years
after Shelby first heard the voice. There is, however, no evidence to suggest the delay in conducting
the lineup was a decision by the police; in fact, the evidence showed it was Shelby who did not
disclose her belief that she could identify the voice until shortly before defendant’s first trial. In
addition, defendant relies on the fact that the lineup used a second clip of his voice. Defendant
does not, however, cite any authority suggesting that doing so renders the procedure used by the
police unnecessarily suggestive. Moreover, the detective’s instruction that “all the voices would
be different” after Shelby identified defendant’s voice in the first clip mitigated any suggestiveness
caused by including defendant’s voice twice. Last, defendant relies upon the detective’s failure to
follow statutory procedures applicable to eyewitness lineups. The failure to follow an inapplicable
statute does not, however, render the procedure used by the police unnecessarily suggestive.
- 19 -
¶ 58 Ultimately, defendant’s concerns with the lineup procedure used by the police went,
as the trial court found, to the weight to be accorded to the identifications. Indeed, defendant,
through cross-examination, highlighted the circumstances of the lineup and then, during closing
argument, asserted the jury should discount the voice identifications. Finally, because defendant
did not prove the lineup identifications were the product of an unnecessarily suggestive procedure
used by the police, his assertion before this court that his objection to the in-court identification
should have been sustained because it was tainted by the improper voice lineup identifications also
must fail.
¶ 59 Our legislature has set forth detailed statutory procedures applicable to eyewitness
lineups. See 725 ILCS 5/107A-2 (West 2018). It has not done the same for voice lineups. While
voice lineups may not be used as often as eyewitness lineups, an argument, as evidenced by this
case, still exists in favor of legislation setting forth procedures applicable to voice lineups.
¶ 60 B. Refusals to Provide a DNA Sample
¶ 61 Defendant argues the trial court committed reversible error when it allowed the jury
to receive the testimony about his refusals to comply with a court order to provide a DNA sample.
Specifically, defendant asserts his objection to the testimony about his refusals should have been
sustained because the probative value of the testimony was substantially outweighed by the danger
of unfair prejudice. Defendant further asserts the court’s error in allowing the jury to receive the
testimony about his refusals was not harmless.
¶ 62 Evidence is generally admissible if it is relevant. Ill. R. Evid. 402 (eff. Jan. 1, 2011).
Evidence will be deemed relevant if it has “any tendency to make the existence of any fact that is
of consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Relevant evidence “may be excluded if
- 20 -
its probative value is substantially outweighed by the danger of unfair prejudice.” Ill. R. Evid. 403
(eff. Jan. 1, 2011). “A trial court’s balancing of probative value and prejudicial impact is reviewed
for an abuse of discretion.” People v. Martinez, 2019 IL App (2d) 170793, ¶ 79, 128 N.E.3d 1178.
¶ 63 In this case, defendant, in his opening brief, acknowledges that the testimony about
his refusals to comply with a court order to provide a DNA sample has some tendency to indicate
a consciousness of guilt; therefore, it is relevant and generally admissible. See People v. Edwards,
241 Ill. App. 3d 839, 843, 609 N.E.2d 962, 966 (1993); People v. Roberts, 115 Ill. App. 3d 384,
387, 450 N.E.2d 451, 453 (1983). Defendant contends the trial court’s decision to allow such
testimony amounts to an abuse of discretion because its probative value was substantially
outweighed by its prejudicial effect, given the State’s overemphasis of the testimony at trial and
the absence of DNA evidence establishing his guilt. Defendant’s contention is unconvincing. First,
we reject defendant’s suggestion that the State overemphasized defendant’s refusals by simply
eliciting testimony about those refusals and other witnesses’ voluntary submission to testing and
then addressing defendant’s refusals in closing argument. We also reject defendant’s suggestion
that the absence of DNA evidence establishing his guilt made his refusals unfairly prejudicial.
People v. Ealy, 2015 IL App (2d) 131106, ¶ 51, 53 N.E.3d 109, a case upon which defendant relies,
is factually distinguishable in that the defendant in that case refused to submit a DNA sample as
an exercise of his constitutional right to be free from unreasonable searches and seizures; the
defendant did not refuse to submit a DNA sample when faced with an undisputed valid court order.
¶ 64 Defendant also, for the first time in his reply brief, highlights the circumstances of
his refusals and argues, given those circumstances, the testimony about his refusals should have
been excluded due to its dubious probative value. Because defendant did not raise this argument
in his opening brief, it is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not
- 21 -
argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing.”). Forfeiture aside, defendant’s argument is unconvincing. The record shows defendant
was first ordered to submit a DNA sample more than three weeks after he was arrested and while
he was represented by counsel. People v. Townes, 130 Ill. App. 3d 844, 858-59, 474 N.E.2d 1334,
1344 (1985), a case upon which defendant relies, is factually distinguishable in that the defendant
in that case refused to submit samples required by a search warrant on the day the defendant was
arrested and served with the warrant and then submitted samples two days later, after being
appointed counsel.
¶ 65 C. Absence of Testing by the Defense
¶ 66 Defendant argues the trial court committed reversible error when it allowed the jury
to receive the testimony about the absence of any fingerprint testing to the cartridge casings by the
defense. Specifically, defendant asserts his objection to the State’s inquiry concerning whether the
defense had asked for the cartridge casings to be tested for fingerprints should have been sustained
because it improperly shifted the burden of proof. Defendant further asserts the court’s error in
allowing the jury to receive the testimony about the absence of testing was not harmless.
¶ 67 “[A] criminal defendant has no duty to produce evidence at trial, and the State may
never shift its burden of proof to a defendant.” People v. Mudd, 2022 IL 126830, ¶ 34. “While the
prosecution is generally not permitted to comment on a defendant’s failure to produce evidence,
such comments are not improper after a defendant with equal access to that evidence assails the
prosecution’s failure to produce it.” People v. Jackson, 399 Ill. App. 3d 314, 319, 926 N.E.2d 786,
791 (2010). A trial court’s determination that a particular inquiry is a proper subject of examination
is generally reviewed for an abuse of discretion. People v. Terrell, 185 Ill. 2d 467, 498, 708 N.E.2d
309, 325 (1998).
- 22 -
¶ 68 In this case, defendant contends the trial court, by overruling his objection, was
“effectively sanctioning an erroneous burden of proof before the eyes of the jury.” Defendant’s
contention is unconvincing. The State inquired about whether the defense requested fingerprint
testing on the cartridge casings only after the defense highlighted the absence of any fingerprint
testing by the State. Such an inquiry was appropriate to show both parties possessed an equal
ability to request testing and did not shift the burden of proof. People v. Beasley, 384 Ill. App. 3d
1039, 1048, 893 N.E.2d 1032, 1040 (2008), a case upon which defendant relies, is factually
distinguishable in that the State in that case argued to the jury it was “ ‘unconscionable’ ” for the
defense not to test certain items.
¶ 69 D. Witness Exclusion
¶ 70 Defendant argues the trial court committed reversible error when it precluded the
jury from receiving testimony from Simmons. Specifically, defendant asserts the State’s objection
to the introduction of Simmons’s testimony should have been overruled because it was not
improper for the defense to review a police report with Simmons. Defendant further asserts the
court’s error in precluding the jury from receiving Simmons’s testimony was not harmless.
¶ 71 To support a claim of error, an appellant “has the burden to present a sufficiently
complete record such that the court of review may determine whether there was the error claimed
by the appellant.” People v. Carter, 2015 IL 117709, ¶ 19, 43 N.E.3d 972. Any doubt arising from
the incompleteness of the record will be construed against the appellant. People v. Resendiz, 2020
IL App (1st) 180821, ¶ 35, 188 N.E.3d 763.
¶ 72 In this case, defendant, as part of his argument before this court, suggests the trial
court should not have barred Simmons’s testimony “without hearing a formal offer of proof.”
Defendant did not, however, request to make an offer of proof. Absent an offer of proof, this court,
- 23 -
even if it found the trial court’s decision was in error, could not find reversible error. See People
v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 988-89 (1998) (noting a primary function of an
offer of proof is “to provide the reviewing court with a record to determine whether exclusion of
the evidence was erroneous and harmful”). Accordingly, we conclude defendant has forfeited the
issue. See People v. Boston, 2016 IL App (1st) 133497, ¶ 64, 54 N.E.3d 217 (“If a criminal
defendant claims on appeal that he was not able to prove his case because the trial court improperly
barred him from presenting evidence but he failed to make an adequate offer of proof, he forfeits
review of the issue on appeal.”).
¶ 73 E. Photograph
¶ 74 Defendant argues the trial court committed reversible error when it allowed the jury
to view his “booking photo” during the State’s closing argument. Specifically, defendant asserts
his objection to the State’s use of the photo should have been sustained because the photograph
had not been previously presented at trial. Defendant further asserts the court’s error in allowing
the jury to receive the photo was not harmless.
¶ 75 This court “may only grant relief if the [trial] court’s error prejudiced defendant,
as harmless errors do not require reversal.” People v. Ramos, 2018 IL App (1st) 151888, ¶ 24, 103
N.E.3d 427. An evidentiary error is harmless where there is no reasonable probability the jury
would have acquitted the defendant absent the error. People v. Stull, 2014 IL App (4th) 120704,
¶ 104, 5 N.E.3d 328.
¶ 76 Even assuming, arguendo, defendant sufficiently raised an objection to the State’s
introduction of the photograph as a demonstrative exhibit and the trial court should have sustained
that objection, the introduction of the photograph was harmless. Defendant does not dispute the
photograph was of him. The photograph, although characterized by defendant as a “booking
- 24 -
photo,” depicts defendant’s face with no other identifying information. Defendant “believes” the
State used the photo because he appeared younger in it, and a witness had described the suspect as
a man appearing to be between 30 and 40 years old. Not only is defendant’s belief improper
speculation, but it is also not supported by this court’s review of the State’s closing argument. We
find there is no reasonable probability the jury would have acquitted defendant absent the
introduction of the photograph.
¶ 77 F. Sentence Imposed
¶ 78 Last, defendant argues the trial court committed reversible error when it imposed
the maximum sentence against him. Specifically, defendant asserts the court failed to “find[ ] a
single factor in aggravation or mitigation” before rendering the sentence.
¶ 79 A trial court must consider the factors in aggravation and mitigation set forth in
sections 5-5-3.1 and 5-5-3.2 of the Unified Code of Corrections (730 ILCS 5/5-5-3.1, 5-5-3.2
(West 2018)) before rendering a sentence. The court is not, however, “required to expressly outline
every factor it considers for sentencing[,] and we presume the court considered all [aggravating
and] mitigating factors on the record in the absence of explicit evidence to the contrary.” People
v. Harris, 2015 IL App (4th) 140696, ¶ 57, 32 N.E.3d 211. Ultimately, the court has broad
discretionary powers in imposing a sentence, and its sentencing decision will not be altered on
review absent an abuse of discretion. People v. Stacey, 193 Ill. 2d 203, 209-10, 737 N.E.2d 626,
629 (2000).
¶ 80 In this case, the trial court expressly stated it “considered all the factors in
aggravation and mitigation” when rendering its sentence. The court found there were many
applicable aggravating factors and no applicable mitigating factors. The court separately discussed
each mitigating factor. Defendant does not point to any particular aggravating factor and argue it
- 25 -
should not have applied, nor does he point to any particular mitigating factor and argue it should
have applied. Based on the record and arguments presented, we find no error in the sentence
imposed against defendant.
¶ 81 III. CONCLUSION
¶ 82 In summary, defendant has not shown the trial court’s decisions related to the
evidence presented at his trial or the sentence imposed against him amount to reversible error.
Therefore, we affirm the trial court’s judgment.
¶ 83 Affirmed.
- 26 -
People v. Gavin, 2022 IL App (4th) 200314
Decision Under Review: Appeal from the Circuit Court of Adams County, No. 17-CF-
352; the Hon. Robert K. Adrian, Judge, presiding.
Attorneys Curt Lovelace, of Lovelace Center for Criminal Law, of
for Chicago, for appellant.
Appellant:
Attorneys Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino,
for David J. Robinson, and James Ryan Williams, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
- 27 - | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482159/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RITA NORMANTIENE,
Plaintiff,
v.
Civil Action No. 19-cv-1370 (TSC)
FRANCIS CISSNA, Director, United States
Citizenship and Immigration Services,
Defendant.
MEMORANDUM OPINION
Plaintiff Rita Normantiene filed an Application to Adjust Status on May 13, 2015. The
United States Citizenship and Immigration Services (“USCIS”) subsequently denied that
application on the grounds that Normantiene had falsely claimed United States citizenship on an
Illinois Voter Registration Application. Normantiene sued, alleging that the denial of her
application was arbitrary and capricious in violation of the Administrative Procedure Act
(“APA”). ECF No. 1, Compl. Defendant has moved to transfer venue to the United States
District Court for the District of South Carolina. Motion to Transfer, ECF No. 15 (“Def.’s Mot.
to Transfer). Plaintiff opposes the motion. Opposition, ECF No. 16 (“Pl.’s Opp.”). For the
reasons below, the court will GRANT Defendant’s Motion to Transfer.
I. LEGAL STANDARD
“For the convenience of parties and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or division where it might have been brought
. . . .” 28 U.S.C. § 1404(a). “Even if a plaintiff has brought a case in a proper venue, a district
court may transfer it to another district.” Def. Servs., Inc. v. Mayorkas, No. CV 21-1314, 2022
Page 1 of 8
WL 910335, at *2 (D.D.C. Mar. 29, 2022). Courts use a two-step test to determine if a case
should be transferred: whether (1) the action “might have been brought” in the movant’s choice
of forum, and (2) the private and public “interest factors” that weigh in favor of or against
transfer. Ctr. for Env’t Sci., Accuracy & Reliability v. Nat’l Park Serv., 75 F. Supp. 3d 353
(D.D.C. 2014). The movant bears the burden of demonstrating that transfer is proper. Def.
Servs., Inc, 2022 WL 910335, at *2.
II. ANALYSIS
A. Where the Action Might Have Been Brought
Under the first step, an action “might have been brought” against a federal government
defendant where (1) “a defendant in the action resides;” (2) “a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of property that is subject of the
action is situated;” or (3) a “plaintiff resides if no real property is involved in the action.” 28
U.S.C. § 1391(e)(1); Nat’l Park Serv., 75 F. Supp. at 356. Normantiene does not dispute that she
lives in South Carolina. Compl. ¶ 1. Nor does she assert that real property is involved in the
action. See Compl. Therefore, the action might have been brought in the District of South
Carolina. 1
1
Normantiene appears to argue that she could not successfully bring her claim in the District of
South Carolina because Fourth Circuit precedent regarding certain denials of applications for
adjustment of status would require the dismissal of her claim. See Pl.’s Opp. at 2 (citing Lee v.
U.S. Citizenship & Immigration Servs., 592 F.3d 612, 621 (4th Cir. 2010)). But that argument,
even if accepted as true, does not change 28 U.S.C. § 1391(e)(1) and § 1404(a), which together
provide that for purposes of transferring venue in a case not involving real property, the action
“might have been brought” in the district where plaintiff resides. Whether Normantiene might
be more likely to face dismissal for other reasons in the transferee district has no bearing on the
decision to transfer.
Page 2 of 8
B. Private and Public Interest Factors
If venue is proper in the transferee district, transfer then rests on whether the
“considerations of convenience and the interests of justice weigh in favor of a transfer.” Defs.
Servs., Inc., 2022 WL 910335 at *3 (internal citation omitted). Courts have broad discretion to
weigh case-specific factors arising from the “private interests of the parties and witnesses” and
the “public interest of justice.” Id. Here, those factors weigh in favor of transfer to the District
of South Carolina.
1. Private Interest Factors
Six private interest factors inform the decision to transfer a case: “(1) the plaintiff’s
choice of forum; (2) the defendant’s choice of forum; (3) whether the claim arose elsewhere; (4)
the convenience of the parties; (5) the convenience of the witnesses . . . ; and (6) the ease of
access to sources of proof.” City of W. Palm Beach v. U.S. Army Corps of Eng’rs, 317 F. Supp.
3d 150, 154 (D.D.C. 2018). Here, the first private interest factor may slightly weigh against
transfer, but the remaining factors either weigh in favor of transfer or are neutral.
The first private interest factor—Normantiene’s choice of the District of Columbia as
forum—scarcely weighs against transfer in this case. Courts typically defer to the plaintiff’s
choice of forum, but “[t]his deference is lessened when,” as here, “the plaintiff does not choose
its home forum.” Id. (internal citations omitted). The plaintiff must demonstrate a “substantial
factual nexus” between its complaint and the choice of forum. City of W. Palm Beach, 317 F.
Supp. at 154; see also Niagara Pres., Coal., Inc. v. Fed. Energy Regulatory Com’n, 956 F. Supp.
2d 99, 105 (D.D.C. 2013) (“A plaintiff seeking to sue federal defendants in this District must
instead demonstrate substantial personalized involvement by a member of the Washington, D.C.
Page 3 of 8
agency in order for the court to conclude that there exist meaningful ties to the District.”)
(internal citation and quotation marks omitted).
Normantiene’s home forum is the District of South Carolina, and the only factual nexus
that she identifies with the District of Columbia is that the Acting Director of USCIS resides
here. Pl.’s Opp. at 2-3. But the Acting Director’s residence has nothing to do with the
challenged decision itself. Instead, the events giving rise to Normantiene’s complaint largely
occurred in South Carolina—the Charleston Field Office in South Carolina made the decision to
deny Normantiene’s application. Def.’s Mot. to Transfer at 2. Because South Carolina is
Normantiene’s home forum and a substantial part of the events occurred there, Normantiene’s
choice of the District of Columbia weighs only slightly, if at all, against transfer.
The second private interest factor—the defendant’s choice of forum—unambiguously
favors transfer. USCIS prefers to litigate this case in the District of South Carolina and provides
reasoned support for that choice. Normantiene argues that USCIS’s choice of forum should be
awarded little weight since USCIS maintains a presence and “highly trained counsel” in both
districts. Pl.’s Opp. at 3. But that fact cuts both ways: Because USCIS can competently litigate
this case in either forum, it is entitled to express a preference for either. In any event, it “cannot
be said that [Normantiene] could reasonably claim to be inconvenienced by litigating in [her]
home forum.” Defs. Servs., Inc., 2022 WL 910335 at *4 (internal citation and quotation marks
omitted).
The third private interest factor—where the claim arose—also favors transfer. “When the
material events that form the factual predicate of a plaintiff's claim did not occur in [her] chosen
forum, transfer is favored.” Ngonga v. Sessions, 318 F. Supp. 3d 270, 275 (D.D.C. 2018). In
cases challenging agency decisions under the APA, claims arise where the agency’s
Page 4 of 8
“decisionmaking process occurred.” McAfee, LLC v. U.S. Citizenship & Immigr. Servs., No. 19-
CV-2981, 2019 WL 6051559, at *1 (D.D.C. Nov. 15, 2019). As noted above, the relevant
decisionmaking took place in the Charleston Field Office in South Carolina. Normantiene
disputes that conclusion, arguing that the denial was based on a “national policy on the
interpretation of § 1182(a)(6)(C)(ii).” Pl.’s Opp. at 3. But Normantiene’s complaint does not
allege a national policy, or anything else to plausibly suggest that the denial of her application
was anything but an individualized decision. See Compl.; Onyeneho v. Allstate Ins. Co., 466 F.
Supp. 2d 1, 4 (D.D.C. 2006) (holding that the court “must assess the transfer motion based on the
case as presented in the complaint”). As a result, the claim’s origins in this case also counsel
transfer.
The final three factors—convenience of the parties, convenience of the witnesses, and
ease of access to sources of proof—do not weigh in favor of either venue. The parties’
convenience appears to be in equipoise, as USCIS is based in the District of Columbia, while
Normantiene is based in South Carolina. USCIS asserts that South Carolina will be more
convenient for witnesses, Def.’s Mot. to Transfer at 6, but it is unclear whether this case will
even require witnesses, see Pl.’s Opp. at 4, much less “what [any] witness will testify to, the
importance of the testimony to the issues in the case, and whether that witness is willing to travel
to a foreign jurisdiction.” Sheffer v. Novartis Pharms. Corp., 873 F. Supp. 2d 371, 378 (D.D.C.
2012) (internal citation and quotation marks omitted). Indeed, both parties agree that the
evidence in this case will likely be mostly administrative records, which could be easily accessed
in either district. Because these factors do not weigh in favor of either venue, they are neutral as
to transfer.
Page 5 of 8
On balance, the private interest factors favor transfer. Normantiene’s choice of a non-
home forum is outweighed by USCIS’s opposite choice and the fact that the relevant events and
decisions occurred in South Carolina. And contrary to Normantiene’s assertion, Pl.’s Opp. at 3-
4, the fact that the remaining factors are neutral does not counsel against transfer. Ngonga, 318
F. Supp. 3d at 276 (holding that neutral factors weighed neither in favor of, nor against, transfer).
Accordingly, the private interests at stake here weigh towards transfer.
2. Public Interest Factors
Three public interest factors also guide the court’s discretion to transfer: “(1) the
transferee forum’s familiarity with the governing laws . . . ; (2) the relative congestion of the
calendars of the potential transferee and transferor courts; and (3) the local interest in deciding
local controversies at home.” City of W. Palm Beach, 317 F. Supp. 3d at 156. Here, those
factors are either neutral or support transfer.
The first and second factors do not significantly weigh for or against transfer. Although
Normantiene asserts that, unlike the District of Columbia, the District of South Carolina has “no
recognized expertise with administrative law cases,” federal courts are “presumptively
competent to decide” questions of federal law like Normantiene’s APA claim. Id. As for the
relative congestion of the two districts, neither is clearly the better choice. Courts commonly
measure congestion using the “districts’ median times from filing to disposition or trial.”
Sheffer, 873 F. Supp. 2d at 380 (D.D.C. 2012). The median time from filing to disposition is
longer in the District of South Carolina, 2 but the median time from filing to trial is longer in the
District of Columbia, Def.’s Mot. to Transfer at 7. The conflicting congestion statistics
2
UNITED STATES DISTRICT COURTS, NATIONAL JUDICIAL CASELOAD PROFILE (2020), available at
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2020.pdf.
Page 6 of 8
“essentially cancel one another out.” Sheffer, 873 F. Supp. 2d at 380; see also Bartolucci v. 1-
800 Contacts, Inc., 245 F. Supp. 3d 38, 49 (D.D.C. 2017).
The third public interest factor—the local interest in deciding local interests at home—
weighs in favor of transfer. “Each state has an interest in redressing the harms of its citizens.”
Sheffer, 873 F. Supp. 2d at 381. Courts have found that states’ interests in deciding local matters
at home may outweigh the national interest, even when a case invokes federal law. See, e.g.,
City of W. Palm Beach, 317 F. Supp. 3d at 156; Nat’l Wildlife Fed’n v. Harvey, 437 F. Supp. 2d
42, 49 (D.D.C. 2006). Here, Normantiene asserts that there are no local interests at stake
because the case does not implicate “South Carolina law” and because the denial of her
application was “not fact-specific to South Carolina.” Pl.’s Opp. at 4. But Normantiene’s
immigration application was denied by the Charleston Field Office, and Normantiene’s action
challenges only the denial of her application, not a national policy. Because the decision
underlying Normantiene’s claim was made in South Carolina, this factor weighs in favor of
transfer.
While no single private or public interest strongly compels transfer here, and many of the
factors are entirely neutral, the balance of the relevant considerations favors transfer. The
District of South Carolina is where Normantiene lives, where she applied for adjustment of
status, and where USCIS decided to deny that application. That district is accordingly a more
appropriate forum for adjudicating her challenge to that decision than the District of Columbia.
Page 7 of 8
III. CONCLUSION
The court will therefore GRANT Defendant’s Motion to Transfer Venue, ECF No. 15.
Date: November 7, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 8 of 8 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482158/ | USCA11 Case: 22-10964 Date Filed: 11/07/2022 Page: 1 of 2
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10964
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL JOSEPH WIHLBORG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20212-JEM-1
____________________
USCA11 Case: 22-10964 Date Filed: 11/07/2022 Page: 2 of 2
2 Opinion of the Court 22-10964
Before LUCK, LAGOA, and BLACK, Circuit Judges.
PER CURIAM:
The Government’s motion to dismiss this appeal pursuant
to the appeal waiver in Appellant’s plea agreement is GRANTED.
See United States v. Bascomb, 451 F.3d 1292, 1297 (11th Cir. 2006)
(“[A]s long as an appeal waiver is voluntarily and knowingly en-
tered into as part of a valid plea agreement, and that agreement is
accepted by the court, the waiver is enforceable. It cannot be viti-
ated or altered by comments the court makes during sentencing.”);
United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993) (ex-
plaining a sentence appeal waiver will be enforced if it was made
knowingly and voluntarily). | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482157/ | USCA11 Case: 21-11636 Date Filed: 11/07/2022 Page: 1 of 2
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11636
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO FLORINTINO GARCIA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:19-cr-00481-LCB-HNJ-1
____________________
USCA11 Case: 21-11636 Date Filed: 11/07/2022 Page: 2 of 2
2 Opinion of the Court 21-11636
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
The Government’s motion to dismiss this appeal pursuant
to the appeal waiver in Appellant’s plea agreement is GRANTED.
See United States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993)
(sentence appeal waiver will be enforced if it was made knowingly
and voluntarily); United States v. Bascomb, 451 F.3d 1292, 1297
(11th Cir. 2006) (appeal waiver “cannot be vitiated or altered by
comments the court makes during sentencing”); United States v.
Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (waiver of the
right to appeal includes waiver of the right to appeal difficult or
debatable legal issues or even blatant error). | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482166/ | COURT OF APPEAL, FIRST CIRCUIT
STATE OF LOUISIANA
RE: Docket Number 2022 -KA -0441
State Of Louisiana
Versus - -
20th Judicial District Court
Dulce Maria Funez Caballero Case #: 14276
East Feliciana Parish
On Application for Rehearing filed on 11/ 07/ 2022 by Dulce Maria Funez Caballero
Rehearing
A
IF | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482167/ | 11/07/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0413
No. DA 21-0413
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROBERT MURRAY GIBBONS,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 14, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 7 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482169/ | 11/07/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0500
No. DA 21-0500
CITY OF WHITEFISH,
Plaintiff and Appellee,
v.
JOSHUA ZUMWALT,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time, and
good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 14, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 7 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482173/ | NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210586-U
Order filed November 7, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the Tenth Judicial Circuit,
) Peoria County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-21-0586
v. ) Circuit No. 00-CF-1051
)
RANDALL BAKER, ) Honorable
) Katherine Gorman,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Presiding Justice O’Brien and Justice Hauptman concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The trial court properly denied defendant’s postconviction petition based on lack
of standing.
¶2 Defendant, Randall Baker, appeals from the Peoria County trial court’s denial of his
postconviction petition. He avers the trial court erred when it found he lacked standing to seek
postconviction relief, that his postconviction petition was timely filed, his trial counsel was
ineffective for misrepresenting the duration of his sex offender registration, and that lifetime sex
offender registration requirements are unconstitutional as applied. We affirm.
¶3 I. BACKGROUND
¶4 A. Guilty Plea
¶5 Defendant was charged by indictment with one count of aggravated criminal sexual abuse
(720 ILCS 5/12-16(d) (West 2000)). On May 23, 2001, defendant, with his attorney, entered into
a negotiated Alford plea to aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2000))
in exchange for the State’s recommendation of a two-year probation sentence. The trial court
advised defendant of the nature of the charge, the minimum and maximum penalties for a Class 2
felony, and the rights waived by pleading guilty.
¶6 The trial court found defendant was pleading guilty freely and voluntarily and accepted the
plea. The trial court imposed a two-year probation sentence and admonished defendant of his right
to a direct appeal. The sentencing order indicated that defendant must register as a sex offender.
During the plea, neither the trial court nor attorneys mentioned how long defendant would be
required to register as a sex offender under the Sex Offender Registration Act (SORA) (730 ILCS
150/1 et seq. (West 2000)). On June 22, 2005, defendant completed his probation sentence.
Defendant did not file a direct appeal.
¶7 B. Postconviction Proceedings
¶8 On May 23, 2019, defendant filed a postconviction petition asserting that his trial counsel
was ineffective for advising him that his sex offender registration was for a period of 10 years
rather than for natural life. Defendant later filed an amended petition for postconviction relief
alleging that: (1) his trial counsel was ineffective when he advised his sex offender registration
period was for 10 years, and (2) the statutory scheme of SORA and the Sex Offender Community
Notification Law (SOCNL) are unduly harsh, disproportionate, and unconstitutional as applied to
him.
2
¶9 On May 12, 2020, the State filed a motion to dismiss defendant’s amended petition for lack
of standing and untimeliness. The trial court reserved ruling on the standing issue, and the petition
advanced to a third stage evidentiary hearing to develop defendant’s claim that SORA was
unconstitutional as applied to him.
¶ 10 Following a third-stage evidentiary hearing, the trial court denied defendant’s
postconviction petition and found that defendant did not have standing to seek postconviction relief
based on People v. Johnson, 2021 IL 125738 and People v. Stavenger, 2015 IL App (2d) 140885.
Defendant appeals. We note that because the trial court denied the defendant’s petition based on
lack of standing, it did not rule on the other issues raised by the defendant and we need not address
those issues.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant contends: (1) the trial court erred when it denied his postconviction
petition for lack of standing, (2) his postconviction petition was timely filed, (3) his trial counsel
was ineffective for misrepresenting that he was required to register as a sex offender for 10 years,
and (4) lifetime sex offender registration requirements are unduly harsh, disproportionate, and
unconstitutional as applied to him. Given that defendant completed his sentence, we find the trial
court did not err when it determined that defendant lacks standing to seek postconviction relief.
Consequently, we need not address the remainder of defendant’s arguments on appeal.
¶ 13 The Postconviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides a
three-stage procedure “by which persons under criminal sentence in this state can assert that their
convictions were the result of a substantial denial of their rights under the United States
Constitution or the Illinois Constitution or both.” People v. Hodges, 234 Ill. 2d 1, 9 (2009). If a
petition is not summarily dismissed at the first stage, it advances to the second stage. 725 ILCS
3
5/122–2.1(a)(2) (West 2018). At the second stage, an indigent petitioner can obtain appointed
counsel (725 ILCS 5/122–4 (West 2018)) and the State can move to dismiss or answer the petition
(725 ILCS 5/122–5 (West 2018)). If defendant makes a substantial showing of a constitutional
violation, the petition advances to a third-stage hearing. (725 ILCS 5/122–6 (West 2018)). At the
third-stage hearing, a defendant has the burden of proving a substantial constitutional violation.
People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
¶ 14 The trial court’s decision will not be reversed unless it is manifestly erroneous after a third-
stage evidentiary hearing where fact-finding and credibility determinations are involved. People
v. English, 2013 IL 112890, ¶ 23.
“[I]f no such determinations are necessary at the third stage, i.e., no new evidence
is presented and the issues presented are pure questions of law, we will apply a
de novo standard of review, unless the judge presiding over postconviction
proceedings has some special expertise or familiarity with defendant’s trial or
sentencing and that familiarity has some bearing upon disposition of the
postconviction petition.” Id.
We review defendant’s claim de novo.
¶ 15 A defendant’s standing under the Act “depends on whether he fulfilled the statutory
condition of being ‘imprisoned in the penitentiary’ when he instituted the postconviction
proceedings.” People v. Johnson, 2021 IL 125738, ¶ 32. “Thus, a petitioner loses standing to seek
relief under the Act if he is no longer ‘imprisoned in the penitentiary’ because he has fully
discharged his sentence for the challenged conviction.” Id. ¶ 37. “[T]he Act does not require actual
incarceration as a strict prerequisite to instituting a proceeding under the Act.” People v. Carrera,
239 Ill. 2d 241, 246 (2010). “Imprisoned *** has been held to include petitioners whose liberty,
4
in some way or another, was curtailed to a degree by the state.” Id. (citing People v. Pack, 224 Ill.
2d 144, 152 (2007).
¶ 16 Our supreme court recently held in People v. Johnson, 2021 IL 125738, ¶¶ 67, 69, that
defendant’s obligation to register for life under the Murderer and Violent Offender Against Youth
Registration Act (730 ILCS 154/1 et seq. (West 2006)) “did not confer standing because it was a
collateral consequence of his unlawful restraint conviction” and “[o]nly the direct consequences
of a conviction confer standing under the Act.” Moreover, the supreme court noted that the
“appellate court has been equally clear that registration obligations arising under the Sex Offender
Registration Act are collateral consequences that do not confer standing to challenge the
underlying conviction under the Act.” Id. ¶ 69.
¶ 17 Here, defendant entered into a negotiated plea to aggravated criminal sexual abuse and
received a two-year probation sentence. Defendant’s conviction for aggravated criminal sexual
abuse required that he register as a sexual predator under SORA for life. 730 ILCS 150/7 (West
2000). Defendant completed his probation sentence on June 22, 2005, and is no longer “imprisoned
in the penitentiary.” 725 ILCS 5/122-1(a)(1) (West 2020); People v. West, 145 Ill. 2d 517, 519
(1991). “Imprisoned in the penitentiary” includes defendants “who have been *** sentenced to
probation.”. Id. Defendant filed his petition challenging his registration requirement 14 years after
he had fully discharged his sentence for aggravated criminal sexual abuse. We note that in Johnson
the defendant’s registration requirement was not contained in his judgment order, whereas in this
case, defendant’s sentencing order stated he was required to register as a sex offender. However,
Johnson supports the denial of defendant’s postconviction petition as the Supreme Court has stated
that registration requirements under SORA constitute a collateral consequence. Therefore,
defendant lacked standing to file a petition seeking postconviction relief under the Act. Johnson,
5
2021 IL 125738, ¶¶ 65, 69. As defendant lacked standing, we need not consider the remainder of
his arguments.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.
¶ 20 Affirmed.
6 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482174/ | 11/07/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
October 11, 2022 Session
STATE OF TENNESSEE v. ESPIRIDION EVANGELISTA KOLIMLIM, III
Appeal from the Criminal Court for Wilson County
No. 95CC2-2019-CR-1497 Michael Wayne Collins, Judge
___________________________________
No. M2020-01363-CCA-R3-CD
___________________________________
Defendant, Espiridion Evangelista Kolimlim, III, appeals the criminal court’s dismissal of
his general sessions appeal from payment of a traffic citation after he filed a motion to
withdraw payment of the citation. Following our review of the entire record, oral
arguments, and the parties’ briefs, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ. joined.
Stanley F. LaDuke, Knoxville, Tennessee, for the appellant, Espiridion Evangelista
Kolimlim, III.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; Jason L. Lawson, District Attorney General; and Brian Fuller, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Defendant, a truck driver with a California commercial driver’s license, was issued
a traffic citation on May 8, 2019, by a Tennessee State Trooper for failing to exercise due
care in a traffic accident in violation of Tennessee Code Annotated section 55-8-136.
Defendant’s court date in the Wilson County General Sessions Court was set for July 11,
2019. The citation was signed by Defendant in the lower-left-hand shaded box
acknowledging receipt of the citation and that his signature was not an admission of guilt.
Defendant did not sign the waiver on the lower-right-hand side of the citation. The issuing
trooper’s signature appears on Defendant’s waiver signature line on the lower-right-hand
side of the citation as well as on the trooper’s signature line on the lower-left-hand side.
There was a box checked on the lower-right-hand side of the citation that contained the
following language: “YOU MAY PAY BY MAIL. IF YOU WISH TO PLEAD GUILTY
TO THE OFFENSE CHARGED AGAINST YOU, YOU MUST SIGN THE WAIVER
PRINTED BELOW AND MAIL THIS COPY OF THE CITATION AND THE
PRESCRIBED AMOUNT SET BY THE COURT.” The citation further read:
In consideration of my not appearing in Court, I, the undersigned, do
hereby enter my appearance on the Affidavit for the offense charged
on this notice and WAIVE the reading of the Affidavit in the above
named cause and the right to be present at the trial of said action. I
hereby enter a plea of Guilty and waive the right to prosecute, appeal,
or error proceedings. I understand the nature of the charge(s) against
me; I understand my right to have counsel and I waive this right and
the right to a continuance. I waive my right to trial before a judge or
jury. I plead GUILTY to the charge(s), being fully aware my
signature to the plea will have the same effect as a judgment of this
court and that a record of it will be sent to the Tennessee Department
of Safety Records Section.
Defendant did not seek a continuance, as was his right set forth in the citation, and it is
undisputed that on July 24, 2019, he paid the citation online in lieu of appearing in general
sessions court. A copy of the online payment receipt was not included in the record on
appeal. The back side of the citation, containing the disposition/judgment information, is
included in the record on appeal and indicates that the citation was disposed of by the
Wilson County General Sessions Court. The disposition/judgment information does not
reflect the date the case was settled, is not signed by the general session judge, and none of
the boxes for “guilty,” “not guilty,” “dismissed,” or “other,” are checked. There is only a
numerical code in a small box marked “Disposition.”
On August 26, 2019, Defendant filed a “Motion To Hear or Rehear Traffic Case,
Set Aside Payment of Traffic Citation For Mistake And/Or To Set Aside The Retired Status
and Judgment of Traffic Citation.” In his motion, Defendant asked the general sessions
court to “set aside his payment of his traffic citation for mistake and/or to set aside the
‘retired’ status and judgment resulting from the payment of his traffic citation pursuant to
Tenn. Code Ann. § 55-10-207(e)[.]” Defendant, relying on Williams v. Brown, 860 S.W.2d
854, 856 (Tenn. 1993), argued that payment of the citation “was not a guilty plea, nor an
acknowledgement of guilt” and has had a “negative effect on his commercial driving
privileges.” He further argued that when he paid the citation, he did not know that this
conviction for “Drivers to Exercise Due Care” would seriously affect his commercial
driving privileges and his ability to work and that paying the citation was a “mistake of
fact.” A handwritten note on Defendant’s motion indicates that the case was set to be heard
on November 14, 2019. On November 6, 2019, Defendant filed an “Argument in Support
-2-
of Motion To Hear or Rehear Traffic Case, Set Aside Payment of Traffic Citation For
Mistake And/Or To Set Aside The Retired Status and Judgment of Traffic Citation.” In
another handwritten note on Defendant’s argument in support of his motion, the general
sessions court denied the motion on November 14, 2019. On November 20, 2019,
Defendant appealed the general sessions court’s denial of his motion to the trial court, and
the State filed a response.
On June 4, 2020, the trial court held a hearing on the matter. There is no transcript
of the hearing; however, a statement of the evidence filed by Defendant and approved by
the trial court, reflects that the court granted Defendant’s motion to set aside the judgment
of the general sessions court and set the case for trial on September 3, 2020. The record
contains a docket sheet for June 4, 2020, which states, “9/3/20 @ 9 for trial.” At the hearing
on September 3, 2020, the State argued:
And, Judge, it’s been here a couple of times, but the State’s position
of this is, it’s an appeal from General Sessions on a citation for due
care, I believe. Judge, he’s [sic], the State’s position is, this isn’t a
proper appeal. The ticket was paid, went in as a guilty plea in July.
He came back, I want to say two months later, maybe three months
later, with [trial counsel], made a motion to set aside his payment of
that ticket. They subpoenaed the officer, put it on a District
Attorney’s day in General Sessions[.]
* * *
Judge Berry denied that motion, to my understanding, and told him
he could appeal. But what, my understanding from the clerk, what
he could appeal was, there was a pay plan that was set up because
there was additional subpoenas that have to be set for that hearing,
and so they put him on a pay plan. And that was what was appealed,
or what they thought was appealed. Not the original ticket, because
that was two, three months before; had already been sent into the
State; was already his history.
So, the State’s position is, this is not a proper appeal within the ten
days from, from the finding of guilty or payment of ticket; however,
you want to say it. And this should be dismissed and sent back to
General Sessions.
The State also argued that Defendant’s assertion that payment of the fine and costs
did not amount to a plea, and would result in a “never ending time frame for someone to
come back in an appeal.” Defense counsel argued that Defendant was appealing the denial
of his motion to set aside payment. He again argued that pursuant to Williams v. Brown,
-3-
“payment of the citation is not [. . .] a finding of guilt or a conviction.” Therefore, the trial
court had jurisdiction to set aside Defendant’s payment of the citation in this case.
The trial court referenced the court docket sheet during the hearing noting that the
docket entry for June 4, 2020, only stated “for trial.” The trial court further pointed out
that there was no order filed from the June 4 hearing; therefore, it was unable to determine
if the notation “for trial,” meant a trial on the motion or to hear the case de novo. The trial
court ultimately denied Defendant’s “Motion To Hear or Rehear Traffic Case, Set Aside
Payment of Traffic Citation For Mistake And/Or To Set Aside The Retired Status and
Judgment of Traffic Citation.”
Defendant filed a notice of appeal. The State filed a motion to dismiss the appeal
based on lack of jurisdiction, and Defendant filed a response. This court denied the motion,
holding that the case should be fully briefed to ensure adequate review.
Analysis
On appeal, Defendant argues that the trial court abused its discretion “in granting
the State’s verbal motion to deny Defendant’s written motion to set aside his ‘payment in
lieu of appearance’ after the motion had been previously granted and the case set for trial
on the merits based upon application of the facts and law.” He further contends that the
record “contained clear evidence that a disposition of guilt or conviction was never entered
in this case” because the disposition page of the original traffic citation “did not have a
judge’s signature and did not show a conviction or guilt.” The State responds that the
appeal should be dismissed because Defendant’s motion to withdraw his guilty plea in the
general sessions court was not timely filed. The State further contends that to the extent
this court “finds some deficiency with the general sessions judgment, such would also
support dismissal of this appeal.”
Initially, we will address alleged deficiencies in the general sessions judgment form
located on the back of the citation. Defendant was issued a citation for violating Tennessee
Code Annotated § 55-8-136, a Class C misdemeanor. The disposition/judgment
information contained on the back of the citation does not reflect the date that it was settled,
the general session judge’s signature or show that any of the boxes for “guilty,” “not
guilty,” “dismissed,” or “other,” were checked. There is only a numerical code in a small
box marked “Disposition.” This court has said:
The General Sessions Court is not a court of record in Tennessee.
There are no signed minutes or other means of verifying a judgment
that is not complete on its face. An unsigned judgment is void and
-4-
cannot be used as proof of a prior conviction for the purpose of
enhancing the sentence for a subsequent conviction.
State v. McJunkin, 815 S.W.2d 542, 543 (Tenn. Crim. App. 1991). Although the parties
agreed that Defendant paid his traffic citation online, there is nothing in the record
concerning the procedures for verification of online payments and entry of conviction. The
record on appeal also lacks any information explaining the numerical code listed in the
disposition section of the judgment form. Therefore, from the record, we cannot discern
how the online payment process relates to the general sessions judge’s signature, and we
are unable to determine whether the judgment is void in this case because it was not signed.
When a party seeks appellate review, there is a duty to prepare a record which conveys a
fair, accurate and complete account of what transpired with respect to the issues forming
the basis of the appeal. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993) (citing State
v. Bunch, 646 S.W.2d 158, 160 (Tenn. 1983)). As a result, we are unable to determine
whether the judgment is valid, and we are without jurisdiction to review the merits of
Defendant’s claim, and accordingly dismiss his appeal.
Even if the judgment in this case were determined to be valid, Defendant is not
entitled to relief. Tennessee Code Annotated § 55-10-207(f) provides that “[p]rior to the
time set for the person to appear in court to answer the charge, the person cited may elect
not to contest the charge and may, in lieu of appearance in court, submit the fine and costs
to the clerk of the court.” Defendant’s assertion that payment of a fine in lieu of appearing
in general sessions court is not a guilty plea or a conviction is misplaced. In State v. Julie
A. Morgan (Moran), No. E2017-00532-CCA-R3-CD, 2018 WL 1391629, at *2 (Tenn.
Crim. App. Mar. 20, 2018), no perm app filed, this court said:
“[T]he payment of a traffic fine [pursuant to section 55-10-207(f)] is
very closely analogous to a plea of nolo contendere.” Williams v.
Brown, 860 S.W.2d 854, 856 (Tenn. 1993). A defendant who pleads
nolo contendere “does not expressly admit [her] guilt, [but] such a
defendant effectively consents to being punished as if [she] were
guilty.” State v. Crowe, 168 S.W.3d 731, 747 (Tenn. 2005). “By
entering a nolo contendere plea, a defendant waives several
constitutional rights and consents to the judgment of the court.” Id.
at 748. Contrary to the Appellant’s argument, her payment of the
fine and costs resulted in the entry of a judgment of conviction
against her for violation of Tennessee Code Annotated section 55-8-
152.
Id.; see also State v. Daljit Singh, No. E2021-01040-CCA-R3-CD, 2022 WL 2373437, at
*2 (Tenn. Crim. App. June 30, 2022), no perm. app. filed. Defendant’s payment of the fine
in this case resulted in the entry of a judgment of conviction against him for a violation of
Tennessee Code Annotated section 55-8-136.
-5-
Tennessee Rule of Criminal Procedure 32(f) provides that a trial court may grant a
motion to withdraw a guilty plea for any fair and just reason before the sentence has been
imposed. Tenn. R. Crim. P. 32(f)(1). After the sentence has been imposed but before a
judgment becomes final, “the court may set aside the judgment of conviction and permit
the defendant to withdraw the plea to correct manifest injustice.” Tenn. R. Crim. P.
32(f)(2). “In general sessions court, a judgment becomes final after ten days.” Tenn. Code
Ann. § 27-5-108(a); Julie A. Morgan (Moran), 2018 WL 1391629, at *2; Daljit Singh,
2022 WL 2373437, at *3. In this case, Defendant paid his traffic citation on July 24, 2019.
He did not file his motion to withdraw his guilty plea until August 26, 2019, well after any
judgment of conviction had become final. Therefore, any challenge to Defendant’s
conviction for failing to exercise due care in a traffic accident was “necessarily limited to
post-conviction remedies.” Morgan at *2. In this case, Defendant’s motion failed to “state
a cognizable claim for any form of post-conviction relief.” Id. Accordingly, the trial court
properly dismissed Defendant’s appeal from the general sessions court, and he is not
entitled to relief.
CONCLUSION
Based on foregoing analysis, we dismiss the appeal.
________________________________
JILL BARTEE AYERS, JUDGE
-6- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482170/ | USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13977
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTIN REED,
a.k.a. Justin Scott Reed,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:21-cr-00001-CDL-MSH-1
____________________
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 2 of 12
2 Opinion of the Court 21-13977
Before ROSENBAUM, JILL PRYOR, and LAGOA, Circuit Judges.
PER CURIAM:
Justin Reed appeals his sentence of 360 months’ imprison-
ment for one count of sexual abuse and argues that the district
court sentenced him to a substantively unreasonable term of im-
prisonment because it was nearly three times the applicable guide-
line range. For the foregoing reasons, we affirm.
I.
In 2021, a federal grand jury charged Reed with one count
of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(c).
Reed later agreed to plead guilty to sexual abuse, in violation of 18
U.S.C. § 2242(1), pursuant to a written plea agreement. The agree-
ment provided, among other things, that Reed faced a maximum
statutory sentence of life imprisonment and that “the Court has the
authority under certain circumstances to impose a sentence that is
more severe or less severe than the sentence called for by the guide-
lines.” Following a hearing, at which the district court went over
the plea agreement, the district court accepted Reed’s plea and
found him guilty.
Reed filed a sentencing memorandum requesting a reasona-
ble sentence and providing information on his personal back-
ground. This memorandum detailed Reed’s strained relationship
with his father, his previous military service, and his relationship
history. It stated that Reed did not identify as a victim of sexual
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 3 of 12
21-13977 Opinion of the Court 3
abuse but detailed his sexual experiences with a slightly older
neighbor from his childhood. It also detailed his pornography ad-
diction, which he claimed started at the age of nine, and his past
participation in Sex Addicts Anonymous. The memorandum re-
quested a 235-month sentence, which, it argued, would reflect the
seriousness of the offense, promote respect for the law, and provide
just punishment for the offense.
Reed’s presentence investigation report (“PSI”) described
the offense conduct as follows. On April 5, 2020, Reed’s wife dis-
covered sexually explicit online messages between her daughter,
Jane Doe, and friends. The wife questioned her daughter about the
messages, and Doe told her mother that she had been assaulted by
Reed multiple times. Doe stated that Reed had touched her sex-
ually while her mother was out of the home. She also reported
that Reed put his mouth and fingers on her, pointing to her chest
and vagina, and penetrated her, putting his “thing” in her “thing.”
When the wife asked if she meant Reed’s penis, Doe confirmed that
she did. Doe later stated that this last occurred less than a month
prior, on March 16, 2020.
The wife confronted her husband, who replied, “[i]t has
been happening in this house.” Following this admission, the wife
told him to leave and contacted police. Reed later contacted his
wife, apologized, and stated that he messed up and needed coun-
seling. He also asked if he should go meet with police. Reed called
himself a disgusting person who needed to be locked up and stated,
“[i]t should have never happened again after the first time.” Reed
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 4 of 12
4 Opinion of the Court 21-13977
also texted his mother, effectively stating that he would turn him-
self in, that he was going to jail for a long time, that life would never
be the same, that he would be kicked out of the military, and that
he would lose his wife and kids.
The next day, Doe was forensically interviewed at the Chil-
dren’s Tree House Child Advocacy Center in Columbus. Doe
stated that she was nine years old when Reed first touched her in-
appropriately, while the family lived in Hawaii. She explained that
Reed had touched her vagina twice during that time, once over her
clothing and once under. She stated that her mother caught him
leaving her bedroom after the second occasion and that the two
had argued about it. She explained that once her family moved to
Alabama and her mother obtained night-time employment, Reed
began touching her each time her mother went to work. She also
stated that Reed began placing his penis on her vagina, above her
clothing.
Doe also explained that after the family moved into base
housing at Fort Benning, Reed continued touching her when her
mother was at work, and that he began removing his clothing and
touching her vagina with his hand, mouth, and penis. She stated
that Reed would lie on top of her with vaginal penetration, force
her to kiss him on the mouth, and that each incident occurred in
her bedroom. She did not recall him wearing anything on his pe-
nis, anything coming from his penis, or him using a towel or rag
during the incidents. She stated that Reed would stop if one of her
younger siblings entered the room, denied that he showed her any
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 5 of 12
21-13977 Opinion of the Court 5
pornographic material, and denied him recording the incidents.
She reiterated that the last assault occurred on March 16, 2020.
Doe also explained that she told her sister and three friends about
the abuse—all four girls later confirmed that they were aware of
Reed’s actions. Doe also stated that, during a camping trip in Ala-
bama, she awoke to Reed digitally penetrating her vagina.1
During subsequent interviews, the wife explained that she
did not believe that Reed had touched any of her other children in
an inappropriate manner, which was supported by Tree House per-
sonnel interviews with her other children. She stated that, in Feb-
ruary 2020, she had a “good touch, bad touch” conversation with
Doe and her older sister and asked if there was anything they
wanted to tell her. The wife recalled that Doe appeared as if she
wanted to speak, but both girls said nothing. The wife also stated
that her husband had a serious pornography addiction, for which
he had received treatment, and that she had caught him in sexual
conversations with women on chat sites. She described awakening
to a non-consensual vaginal penetration like that described by her
daughter. She explained that she was dependent on Reed for rides
to and from work and questioned, in hindsight, whether he used
this to control her movements and ensure opportunities to abuse
her daughter.
1 Reed is charged by the State of Alabama for inappropriately touching another
minor (a non-family member) during that same trip.
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6 Opinion of the Court 21-13977
During a later physical exam, medical staff discovered that
Doe had a complete hymenal transection, which is evidence of
prior blunt force penetration consistent with her disclosures. Doe
denied engaging in other sexual conduct.
The PSI initially calculated a base offense level of 30 based
on the conviction under 18 U.S.C. 2242(1), according to U.S.S.G. §
2A3.1(a)(2). It added 4 points under U.S.S.G. § 2A3.1(b)(2)(A) be-
cause Doe had not yet attained the age of 12. It added 2 points
under U.S.S.G. § 2A3.1(b)(3)(A) because Doe was in the custody,
care, or supervisory control of Reed. Pursuant to U.S.S.G. §§
3El.l(a) and (b), it subtracted 2 points for acceptance of responsibil-
ity and 1 point for entering his guilty plea in a timely manner. Al-
together, this yielded a total offense level of 33.
The PSI noted that Reed had no prior criminal convictions,
which resulted in a criminal history category of I. The report noted
that his statutory maximum term was life in prison. With a total
offense level of 33, and a criminal history category of I, the report
found that his guideline imprisonment range was 135 to 168
months. Neither party objected to the PSI.
At sentencing, Reed and his counsel spoke in court, high-
lighting that he had recently begun treatment for mental health is-
sues, found a relationship with God, and taken responsibility for his
actions. Counsel emphasized the facts contained in the sentencing
memorandum, particularly highlighting Reed’s military career and
lack of criminal record. The wife argued for the maximum sen-
tence and spoke of the affect Reed’s actions had on her family. She
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21-13977 Opinion of the Court 7
stated that, due to Reed’s abuse, Doe attempted suicide, had mul-
tiple outbursts, attended several short and long-term care facilities,
began therapy, and started taking daily medication. She spoke of
the toll Reed’s abuse had on her other children and stated that four
out of six of them were now in therapy and on medication. She
shared that her own stepfather had abused her and questioned how
she did not see the signs sooner.
The district court asked for clarification from the govern-
ment on its decision to proceed with the charge of sexual abuse,
rather than the original indictment for aggravated sexual abuse.
The district court asked whether Reed had admitted to all the ele-
ments of aggravated sexual abuse—which would have had a statu-
tory minimum sentence of 360 months—and questioned whether
the government allowed him to plead to the lesser offense to avoid
trial. The government answered in the affirmative and stated that
it wanted to avoid putting Doe on the witness stand. The district
court then asked about the statutory sentencing range for the lesser
offense of sexual abuse.
The district court stated that there are few cases more seri-
ous and damaging than those like Reed’s. It acknowledged that
Reed likely had mental health issues but emphasized that he was
still responsible for harming Doe and her family and that no miti-
gating factor took away from that fact. The district court empha-
sized that Reed’s actions permanently affected Doe, that he abused
the trust of a young child who depended on him, and there was no
excuse for Reed’s behavior. The court then stated that it had
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 8 of 12
8 Opinion of the Court 21-13977
considered the advisory sentencing range, the 18 U.S.C. § 3553(a)
factors, the nature, and circumstances of the offense—including
the age of the victim and the repeated instances of abuse. The
court also emphasized the need for the sentence to reflect the seri-
ousness of the offense, to promote respect for the law, to provide
just punishment, to adequately deter future criminal conduct, and
to protect the public from Reed’s further crimes. The district court
further stated that it had considered the government’s sentencing
recommendation but found it to be inadequate and not a sufficient
upward variance.
The district court then varied upward and sentenced Reed
to 360 months’ imprisonment, followed by 20 years of supervised
release. Reed objected to the substantive unreasonableness of the
sentence but acknowledged that he was on notice, via the written
plea agreement, that there could be an upward variance in his case.
Following entry of a final judgment, Reed appealed.
II.
We review the reasonableness of a sentence under a defer-
ential abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 41 (2007). The party challenging the sentence bears the burden
of showing that the sentence is unreasonable considering the rec-
ord, the factors listed in 18 U.S.C. § 3553(a), and the substantial def-
erence afforded sentencing courts. United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015).
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 9 of 12
21-13977 Opinion of the Court 9
We examine whether a sentence is substantively reasonable
considering the totality of the circumstances. Gall, 552 U.S. at 51.
The district court must impose a sentence “sufficient, but not
greater than necessary, to comply with the purposes” listed in
§ 3553(a)(2), including the need to reflect the seriousness of the of-
fense, promote respect for the law, provide just punishment for the
offense, deter criminal conduct, and protect the public from the de-
fendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2). Fur-
ther, the district court should try to avoid unwarranted sentence
disparities among defendants with similar records who have been
found guilty of similar conduct. Id. § 3553(a)(6).
The weight given to any specific § 3553(a) factor is commit-
ted to the sound discretion of the district court. United States v.
Clay, 483 F.3d 739, 743 (11th Cir. 2007). The district court may
consider any information relevant to a defendant’s background,
character, and conduct in imposing an upward variance. United
States v. Tome, 611 F.3d 1371, 1379 (11th Cir. 2007). We give due
deference to the district court’s decision that the § 3553(a) factors,
as a whole, justify the extent of the variance. Gall, 552 U.S. at 59–
60.
A court can abuse its discretion when it (1) fails to consider
relevant factors that were due significant weight, (2) gives an im-
proper or irrelevant factor significant weight, or (3) commits a clear
error of judgment by balancing the proper factors unreasonably.
United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
When a district court imposes an upward variance based on the
USCA11 Case: 21-13977 Date Filed: 11/07/2022 Page: 10 of 12
10 Opinion of the Court 21-13977
§ 3553(a) factors, it must have a justification compelling enough to
support the degree of the variance. United States v. Early, 686 F.3d
1219, 1221 (11th Cir. 2012). But a “rigid mathematical formula that
uses the percentage of a departure as the standard for determining
the strength of the justifications required for a specific sentence” is
not appropriate. Gall, 552 U.S. at 47. While an appellate court may
take the degree of variance into account, no rule requires “extraor-
dinary” circumstances to justify a sentence outside the guidelines
range. Id.
A sentence could be unreasonable if the district court unjus-
tifiably relied on a single factor. United States v. Kuhlman, 711 F.3d
1321, 1327 (11th Cir. 2013). But significant reliance on a single fac-
tor does not necessarily render a sentence unreasonable. Id. Addi-
tionally, a sentence outside the guidelines carries no presumption
of unreasonableness. Irizarry v. United States, 553 U.S. 708, 714
(2008). Finally, a sentence imposed well below the statutory max-
imum penalty is another indicator of reasonableness. See United
States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding
that the sentence was reasonable in part because it was well below
the statutory maximum).
We vacate on substantive reasonableness grounds only if we
are left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) fac-
tors by arriving at a sentence that lies outside the range of reason-
able sentences dictated by the facts of the case. Irey, 612 F.3d at
1190.
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21-13977 Opinion of the Court 11
Here, we conclude that the district court did not abuse its
discretion in finding that the § 3553(a) factors, as a whole, justify
the upward variance. Gall, 552 U.S. at 59-60. The district court
explicitly stated that it considered all the § 3553(a) factors in sen-
tencing Reed. In particular, the district court found that the egre-
giousness of his offense conduct outweighed any mitigating evi-
dence presented. The district court emphasized the need for the
sentence to reflect the seriousness of the offense—highlighting the
victim’s age and the repeated abuse—to promote respect for the
law, to provide just punishment, to adequately deter future crimi-
nal conduct, and to protect the public from Reed’s further crimes.
The district court was within its discretion to find that the § 3553(a)
factors, as a whole, warranted the upward variance. Gall, 552 U.S.
at 59-60.
Moreover, Reed’s plea agreement informed him that the dis-
trict court was not required to impose a sentence within the advi-
sory guidelines, and that the statutory maximum for the sentence
was life imprisonment. Thus, Reed was aware of the possibility
that the court might vary outside the guidelines. Further, the dis-
trict court’s sentence was still below the statutory maximum of life
imprisonment, which is another indicator of reasonableness. See
Gonzalez, 550 F.3d at 1324.
Because Reed failed to show that his 360-month sentence is
substantively unreasonable, considering the record and the
§ 3553(a) factors, Tome, 611 F.3d at 1378, we conclude that Reed’s
sentence is substantively reasonable and affirm his sentence.
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12 Opinion of the Court 21-13977
AFFIRMED. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482172/ | 2022 IL App (2d) 210641-U
No. 2-21-0641
Order filed November 7, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except
in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of DeKalb County.
)
Respondent-Appellee, )
)
v. ) No. 09 CF 467
)
MICHAEL R. GREENWELL, ) Honorable
) Joseph C. Pederson,
Petitioner-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Presiding Justice Brennan and Justice Birkett concurred in the judgment.
ORDER
¶1 Held: Where postconviction counsel failed to comply with Illinois Supreme Court Rule
651(c) (eff. Feb. 6, 2013), order dismissing claims after second-stage proceedings
would be vacated and cause remanded for compliance with Rule 651(c) regarding
these claims; petitioner failed to establish that the trial court erred in denying claims
that survived to the third stage of proceedings.
¶2 I. INTRODUCTION
¶3 Petitioner, Michael R. Greenwell, appeals a series of orders of the circuit court of DeKalb
County denying his postconviction petition (725 ILCS 5/122-1 et seq. (West 2018)) after second-
2022 IL App (2d) 210641-U
and third-stage proceedings. For the reasons that follow, we vacate in part, affirm in part, and
remand with instructions.
¶4 II. BACKGROUND
¶5 Petitioner was arrested on September 6, 2009, and charged with 3 counts of first-degree
murder two days later. A count of concealing a homicidal death was added on December 10, 2009.
The charges arose out of the death of Brent Petrakovitz. Petitioner asserted that he had acted in
self-defense. Following a jury trial in January 2012, petitioner was convicted of first-degree
murder and concealing a homicidal death. He was sentenced to 38 years’ imprisonment and 5
years’ imprisonment, respectively, with sentences running consecutively. We will summarize the
evidence adduced at trial.
¶6 The State first presented two DeKalb-area residents who testified that they found a burned
pickup truck on the morning of September 6, 2009, and notified the police. The truck was found
in a wooded area known as “the B.” They also noted a dead body next to the truck. Detective
Angel Reyes testified that he arrived at the scene, took photographs, and collected evidence. Other
officers were already present. They recovered a gas can, a bottle of herbicide, a crowbar, and
burned clothes. The State also introduced a recording of a call petitioner made to the police that
day in which he reported that the victim had borrowed his truck the night before and had never
returned.
¶7 Detective Steve Lekkas testified that as a result of petitioner’s call, he and Detective Redel
went to the home of Walter and Yvette Zick. They encountered petitioner in the front of the house.
Redel told petitioner that his truck had been located and it had been burned. They asked petitioner
to come to the police station, and he agreed. After they arrived (petitioner was driven to the station
by the victim’s girlfriend, Amy Kennedy), the police interviewed petitioner. Petitioner told them
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that he and the victim had been at a bonfire at the Zicks’ house. Between midnight and 1 a.m.,
Kennedy and Yvette Zick left to get cigarettes. After they left, petitioner related, the victim took
petitioner’s truck to go and meet a woman at a bar. He never returned. Petitioner later stated that
the victim had actually left to purchase cocaine; however, he subsequently related that the victim
had intended to rob a drug dealer. Petitioner then speculated that something must have gone wrong
with the robbery and that the truck had been burned to destroy evidence.
¶8 Redel informed petitioner that a body had been found near the truck. Petitioner said,
“Brent’s dead?” During the interview, Lekkas noted that hair on the right side of petitioner’s
forehead and hair on his arm was singed. Lekkas asked petitioner if he killed the victim; petitioner
denied doing so. Petitioner never told Lekkas that he had killed the victim in self-defense.
¶9 Walter Zick testified that he and the victim were good friends. He knew petitioner through
the victim. Amy Kennedy was the victim’s girlfriend. Petitioner, the victim, and Kennedy spent
Saturday, September 5, 2009, at Zicks’ house “partying.” Walter’s wife, Yvette, was also present.
When darkness fell, they started a fire in a firepit. Kennedy and Yvette left to buy cigarettes at
about 11 p.m. Walter testified that he went inside to use the bathroom. He heard a “thud.” When
Walter came back outside, he saw the victim lying on the ground. Petitioner was standing over
him holding an ax handle. Walter saw petitioner hit petitioner “once or twice more.” He also
observed petitioner kick the victim. The victim was unconscious, and Walter could see blood near
his head.
¶ 10 Petitioner asked Walter to help him load the victim into petitioner’s truck. Walter refused.
Petitioner got a piece of carpet out of Walter’s garage and used it to drag the victim to the truck.
Petitioner loaded the victim into the truck and left just before Kennedy and Yvette returned.
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2022 IL App (2d) 210641-U
¶ 11 Petitioner returned about an hour later. He was on foot. Walther described him as “sweaty”
and shirtless. Petitioner went into the garage. Walter noted his hands were covered in blood.
Petitioner asked to clean himself up. Walter gave him a bar of soap and directed him to a garden
hose. Walter also gave petitioner some clothes, and petitioner burned the pants he was wearing in
the fire pit. Petitioner told Walter that he had hit the victim with a crowbar and that he “did his
first murder.” Walter acknowledged that he had been charged with concealing a homicidal death
and that he was testifying pursuant to a plea deal with the State.
¶ 12 Yvette Zick testified that at about 11:15 p.m. on the night of the victim’s death, she and
Amy Kennedy went to purchase cigarettes at a gas station. As they returned to her house, petitioner
drove past them in a white pickup truck. When they got to the house, Walter was the only person
there. He did not tell them what had just transpired. Petitioner returned, on foot, at 12:15 a.m. or
12:30 a.m. He was out of breath, and there was blood on his hand. Petitioner stated that he left
the victim and his truck at a downtown bar. He also stated that the blood on his hand was from
him hitting a wall. Petitioner cleaned himself up. Yvette and Walter went to bed. In the morning,
petitioner and Kennedy were still at their house.
¶ 13 The police came to the house the next day at 10 p.m. Yvette told them nothing unusual
had happened the night before, explaining that she was scared. A few hours later, the police asked
her to come to the station, and Yvette agreed. At that time, she told them everything that had
happened. By the time the police came, Walter had told her that the victim was dead.
¶ 14 The State’s next witness was David Darby, who was a friend of the victim and a neighbor
of the Zicks. He also knew petitioner, who sometimes stayed at Darby’s house. At about 2:30
a.m. on September 6, 2009, Darby was sleeping. Petitioner called and asked to borrow some
money for beer and cigarettes. Petitioner came over, and Darby loaned him $50. Petitioner was
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2022 IL App (2d) 210641-U
not acting unusual at this time. Darby went back to sleep. Petitioner left and returned about 5:30
a.m. Darby awoke but went back to sleep.
¶ 15 Darby testified that he got up about at 9 a.m. the next morning. Petitioner was sleeping on
the couch. Darby went to work for three or four hours and returned around 3 p.m. or 3:30 p.m.
Petitioner was still there. Petitioner told Darby that the victim had borrowed his truck and not
returned it. Petitioner stated that he was going to report this to the police. Petitioner never stated
that he had killed the victim or that the victim had attacked him.
¶ 16 The next day, the police came to Darby’s house. Darby gave them permission to search
his house. Darby accompanied them to the garage, where he noted that a half-full jug of Honcho-
brand weed killer was missing.
¶ 17 Detective Angel Reyes testified that he responded to the area where the burned truck and
the victim’s body had been located on September 6, 2009. He identified, inter alia, a plastic
herbicide container and a crowbar recovered at the scene. Reyes also participated in a search of
the Zicks’ house. In the backyard near the firepit, Reyes recovered “a burnt portion of jeans.”
Other material from the jeans was recovered from the firepit. He also found blood on the ground
near the firepit. A DNA sample of the blood matched the victim.
¶ 18 Officer Michael Stewart testified that he and Detective Nachman interrogated petitioner on
March 30, 2010. The jury viewed a video recording of a redacted version of the interrogation. We
summarize this statement here. Petitioner stated that Kennedy and Yvette left the Zicks’ residence
to buy cigarettes. The victim acted like he was leaving. Petitioner was standing near the fire,
watching it. He heard a noise behind him and turned around. The victim was standing behind him
holding an ax handle. Petitioner, attempting to defend himself, grabbed the ax handle. They
struggled over it. Petitioner wrested the ax handle from the victim and struck him in the head with
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2022 IL App (2d) 210641-U
it. Petitioner struck the victim one or two additional times and yelled, “Stay down.” Walter came
out of the house at this point. Petitioner stated that the victim was dead. Walter told petitioner to
get the victim out of his yard before Yvette and Kennedy returned. Petitioner dragged the victim
to his truck using a piece of carpet. Walter helped petitioner load the victim into the truck.
¶ 19 Petitioner drove the truck to “the B” and pulled the victim out. He attempted to leave in
his truck, but was stuck in the mud, so he ran back to the Zicks’ house. When he got there, he
cleaned up and changed into some clothes the Zicks gave him. He told Yvette and Kennedy that
he had left the victim at a bar.
¶ 20 After the Zicks went to bed, he and Kennedy went to look for the victim in her car. They
stopped at Darby’s house, and petitioner took a can of gasoline and a bottle of weed killer from
Darby’s garage. He and Kennedy drove to “the B.” They went to where petitioner’s truck was
located. Kennedy remained in the car. Petitioner poured weed killer and gasoline on the victim
and the truck and ignited them. They drove back to the Zicks’ house and slept in a tent in the
backyard.
¶ 21 Dr. Hilary McElligott, a pathologist with a subspecialty in forensics, testified that she
reviewed the autopsy report of the victim, which had been performed by Dr. Bryan Mitchell. The
toxicology report showed cocaine and alcohol usage. McElligott opined that the victim suffered
“approximately eight separate blows.” She further opined that the physical blows suffered by the
victim occurred prior to death and that the burns were postmortem.
¶ 22 When called on petitioner’s behalf, Walter Zick testified that Kennedy was the victim’s
girlfriend. On the Thursday before the victim’s death, petitioner came over to assist Walter work
on his car. Kennedy was with petitioner. Kennedy and petitioner “disappear[ed] together.” The
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2022 IL App (2d) 210641-U
victim was looking for them. The victim told Walter that he believed Kennedy and petitioner were
having sex.
¶ 23 Darby was recalled to testify for petitioner. He stated that he spoke with Walter on the
Monday following the victim’s death. Walter told Darby that he helped petitioner “load up the
truck.”
¶ 24 Yvette Zick was next called by petitioner. She and the victim had a conversation when
they were alone by the firepit. The victim was upset because he thought Kennedy and petitioner
“were intimate.” The victim was crying at the time. The victim said that he would “fuck him up.”
¶ 25 Petitioner then called Amy Kennedy. She had a relationship with the victim during the
nine months leading up to his death, which she described as “[f]or the most part continuous but a
couple of times off.” She stated that they had mutually agreed to separate about three days before
his death. She had known petitioner for 10 or 11 months at this time. She and the victim drank
on a daily basis and also used cocaine and prescription drugs. This could make him happy or put
him in a bad mood. About a week before his death, the victim grabbed Kennedy and left bruises
on her arms. “A couple weeks” before that, the victim got intoxicated and threatened Kennedy
with a crossbow. Petitioner was present. Prior to the victim’s death, she had been intimate with
petitioner two or three times. Since the victim’s death, Kennedy has had no contact with petitioner.
¶ 26 Petitioner next called Sarah Moses, his ex-girlfriend. She testified that they had dated for
two years. At the time of the victim’s death, Moses described her relationship with petitioner as
“strained,” “due to the excessive drugs, alcohol and infidelity.” On Friday, September 4, 2009, the
victim came to her house. They spoke in the front yard; only the two of them were present. The
victim told Moses that he was still in a “motorcycle gang and that [petitioner] was going to be in
big trouble.” The victim left but returned later that evening. He was intoxicated and angry. The
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2022 IL App (2d) 210641-U
victim again said he was in a motorcycle gang and that petitioner would be in trouble if he was
with Kennedy. He also stated “that if [petitioner] was fucking Amy he was going to fucking kill
[him].”
¶ 27 Two or three days after the victim’s death, Moses, accompanied by petitioner’s mother,
went to speak with Walter Zick. Walter told her that he had assisted petitioner in putting the
victim’s body in petitioner’s truck. Moses testified that she did not have an ongoing relationship
with petitioner.
¶ 28 Jennifer Hetchler was petitioner’s final witness. She testified that she had known petitioner
for his entire life and that petitioner was like a son to her and the victim. She had dated the victim
for 12 or 13 years. She observed the victim under the influence of alcohol and drugs on numerous
occasions. Sometimes he would be “joyful,” sometimes “angry.”
¶ 29 Hetchler answered affirmatively when asked if the victim had ever been physically abusive
to her. These incidents occurred when he was either intoxicated or hung over. On April 14, 2000,
the victim broke her nose. She also had two black eyes. Hetchler went to stay with her cousin.
On April 21, 2000, the victim came to Hetchler’s cousin’s home. The victim came by, and he and
Hetchler spoke through the door, which had been opened. The victim punched her in the face.
Hetchler’s cousin called the police. On September 18, 2005, after a night of drinking, the victim
returned home and again punched Hetchler in the face. She called the police. After this, things
improved in terms of physical violence between them. At the time of the victim’s death, they were
not living together, but they still talked everyday about working things out.
¶ 30 On the night before his death, the victim visited Hetchler. He told her that he thought
petitioner and Kennedy were sleeping together. The victim wanted to go to the Zicks’ house.
Hetchler advised him not to.
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2022 IL App (2d) 210641-U
¶ 31 Following Hetchler’s testimony, the defense presented a certified copy of a conviction of
the victim for domestic battery (a misdemeanor) on December 14, 2005.
¶ 32 The jury was given instructions on second-degree murder and self-defense. Petitioner was
convicted of first-degree murder and concealment of a homicidal death. He was sentenced to 38-
years’ imprisonment and 5-years’ imprisonment respectively, with the terms to be served
consecutively.
¶ 33 On direct appeal, the sole issue raised was whether the concealment charge was timely
filed, as it was brought 459 days after the initial complaint. This court found that it and the murder
charges did not arise from a series of related acts, so compulsory-joinder principles did not apply.
People v. Greenwell, 2013 IL App (2d) 120824-U.
¶ 34 Petitioner filed his pro se postconviction petition on February 9, 2015. In it, he raised three
main claims, the first of which had six subparts. In the first subpart, petitioner alleged ineffective
assistance of trial counsel for failing to object to the introduction of a redacted version of his
interrogation and an allegedly inaccurate transcript of that interrogation. Second, petitioner
asserted trial counsel’s ineffectiveness for not reviewing medical evidence or obtaining an expert
to review the victim’s autopsy because there allegedly were other explanations for the victim’s
injuries. He also argued that counsels should have argued that he did not set the victim’s body on
fire and that it burned simply because it was next to the truck. Third, petitioner argued that trial
counsel was ineffective for not seeking DNA testing of the crowbar. Fourth, petitioner asserted
that trial counsel was ineffective for not objecting to prosecutorial misconduct during closing
argument (particularly, throwing the crowbar to the ground in front of the jury and at petitioner’s
feet). Fifth, he alleged ineffective assistance of trial counsel for improperly advising him of the
consequences of declining the State’s plea offer by telling him he would receive only 20 years.
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2022 IL App (2d) 210641-U
Sixth, he alleged that appellate counsel was ineffective for failing to properly preserve the previous
five issues.
¶ 35 Petitioner’s second claim asserted prosecutorial misconduct for throwing the crowbar to
the floor and misstating the evidence during closing argument. The third claim was that
petitioner’s convictions were void because the record did not show that the grand jury that issued
the indictment was sworn.
¶ 36 The petition was advanced to the second stage of postconviction proceedings, and counsel
was appointed. Counsel did not amend any of claimant’s pro se claims but added nine new claims.
While postconviction counsel is free to amend a petitioner’s petition and add new claims, counsel
is under no obligation to do so. People v. Pendleton, 223 Ill. 2d 458, 475-76 (2006). Counsel’s
obligation is limited to “adequately present[ing] and support[ing] those constitutional claims raised
by the petitioner.” People v. Davis, 156 Ill. 2d 149, 164 (1993). As such, counsel’s performance
with respect to these additional claims would provide no basis for granting petitioner relief in this
appeal, assuming, arguendo, that it was deficient in some way. Hence, we need not discuss them
further.
¶ 37 The State moved to dismiss. Postconviction counsel filed a certificate in accordance with
Illinois Supreme Court Rule 651(c) (eff. Feb. 6, 2013). The trial court granted the State’s motion
in part. On December 5, 2017, the trial court issued an oral ruling. It denied the State’s motion as
to the sixth subpart of the first claim in petitioner’s pro se postconviction petition pertaining to
appellate counsel failing to preserve the other issues raised in the first claim. It also denied the
State’s motion regarding petitioner’s pro se second claim alleging prosecutorial misconduct. It
granted the motion to dismiss regarding all subparts of petitioner’s first pro se claim other than the
one involving ineffective assistance of appellate counsel. It also dismissed petitioner’s third pro
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2022 IL App (2d) 210641-U
se claim concerning the grand jury not being sworn. The trial court did not articulate the bases for
its rulings at this point.
¶ 38 On January 30, 2018, the court entered a second order concerning the State’s motion.
Regarding the five sub-parts of the first claim which were dismissed earlier, the trial court
explained, “What is lacking from the petition is an argument or theory as to how these failures
individually would probably have changed the outcome of the trial.” It also found that they could
have been raised on direct appeal and were therefore forfeited. It noted that claims involving the
ineffective assistance of appellate counsel lie outside the forfeiture doctrine. Accordingly, it again
advanced the sixth subpart of petitioner’s first claim. At this juncture, the trial court also dismissed
the second claim advanced by petitioner in his pro se petition based on prosecutorial misconduct,
specifically finding that “[t]he alleged actions of the prosecutor during his closing arguments are
not reflected in the record.” It further found that petitioner’s third claim—that the grand jury that
indicted him was not sworn—was directly contradicted by the record.
¶ 39 The State moved for reconsideration; it also filed an answer to petitioner’s remaining claim
(stating that it was not waiving its motion for reconsideration). Subsequently, the trial court denied
the State’s motion to reconsider, and the case then proceeded to an evidentiary hearing on the
remaining claim.
¶ 40 The sole witness to testify at the evidentiary hearing was Jamie Montgomery of the Office
of the State Appellate Defender. Montgomery stated that generally begins working on an appeal
by reading the entire record. After she received the petitioner’s file, she communicated with him
by letter and through at least one telephone call. She did not visit petitioner in prison. The direct
appeal that she filed raised a single issue—whether petitioner’s speedy-trial rights were violated
in light of compulsory-joinder principles. She discussed other issues with petitioner prior to filing
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the direct appeal. These included the length of petitioner’s sentence, reasonable doubt, and issues
concerning the transcript and video recording of petitioner’s statement. They also discussed
prosecutorial misconduct during closing argument (the State yelling and throwing a crowbar). She
did not specifically recall discussing with petitioner whether trial counsel advised petitioner
properly regarding a plea agreement.
¶ 41 Montgomery recalled that as she reviewed the record of the proceedings in the trial court,
she noted that one of petitioner’s trial attorneys filed a posttrial motion alleging her own
ineffectiveness. She did not recall whether she discussed this with petitioner, but she did call the
attorney.
¶ 42 Petitioner sent letters to Montgomery suggesting other issues, but she felt none of them had
merit. One such issue was that trial counsel purportedly did not review a redacted video of
petitioner’s statement prior to trial. Montgomery noted that issue was not properly preserved. She
agreed that the trial judge expressed concern about a transcript of the statement not being accurate
(some portions the transcriber stated were inaudible were, in fact, audible). Montgomery stated
she was “not aware of the transcript being shown to the jury.” The trial judge offered the jurors
an opportunity to watch the video a second time, but they declined.
¶ 43 Montgomery further explained that the redacted video contained other-crimes evidence.
Montgomery stated that she had to request the transcript from the public defender’s office, so it
was not a part of the record. At this point, the trial judge questioned how she could assess the
impact of the transcript on the jury if it was not in the record. Montgomery testified that had there
been an issue of merit that could have been raised regarding the transcript, she would have moved
to supplement the record with it. She noted that the jury had been instructed that the video was
the actual evidence in this case.
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¶ 44 Montgomery stated that she recalled discussing DNA testing with petitioner. Petitioner
was concerned that the crowbar had not been tested, but this issue was not raised in petitioner’s
posttrial motion. Further, the crowbar had been presented during closing argument. Petitioner’s
trial counsel did not object when the prosecutor threw the crowbar during his closing. In the
posttrial motion, trial counsel raised her own ineffectiveness for failing to object when the
prosecutor threw the crowbar at petitioner’s feet and at the edge of the jury box.
¶ 45 Montgomery did not recall discussing with petitioner the advice he received from his trial
attorney regarding a plea agreement. She noted that such conversations are usually not of record,
so they cannot typically be raised during the direct appeal.
¶ 46 On cross-examination, Montgomery agreed that petitioner had asked her to raise some
issues that she did not raise. Her opinion was that they would not have been meritorious. Petitioner
suggested a speedy-trial claim relative to the murder charge (this was distinct from the claim raised
on direct appeal concerning the concealment charge), but “the majority of the continuances were
either agreed or were on defense motion.”
¶ 47 Montgomery explained that she did not raise any issue regarding the transcript because she
could not show petitioner suffered any prejudice, as the jury did not receive the transcript during
deliberations and had been instructed that it was not evidence and that the video was evidence.
Regarding other-crimes evidence on the video, Montgomery acknowledged its presence; however,
she noted that petitioner needed it to be admitted to substantiate his self-defense claim. As such,
she regarded this as part of trial counsel’s strategy.
¶ 48 She did not believe petitioner could successfully challenge the length of his sentence,
noting that this is typically a matter for the trial court’s discretion. Moreover, she opined that the
sentence petitioner receive was “fairly light,” particularly in light of the fact that the trial court
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found that the offense was accompanied by “exceptionally brutal and heinous” conduct. She also
opined that a reasonable-doubt argument would not have been viable given the state of the record.
¶ 49 Regarding DNA testing of the crowbar, Montgomery agreed that the fact that it was
recovered from the burnt area next to the truck would have degraded any DNA samples. Moreover,
neither petitioner nor any of his attorneys identified anyone who held a contrary opinion. The
same was true of the opinions of McElligott.
¶ 50 As for the crowbar incident during closing argument, Montgomery again opined that she
could not prove prejudice. She explained that she would have to have shown that it “was basically
the deciding factor for why the jury convicted” petitioner. Thus, “while erroneous[,] it was
harmless.”
¶ 51 The trial court dismissed the remaining claims in petitioner’s postconviction petition that
had survived until the third stage of postconviction proceedings on June 12, 2019, announcing its
reasoning in open court. After reviewing petitioner’s claims, the trial court largely credited
Montgomery’s testimony and opinions. Of particular relevance here are the following findings.
First, the trial court noted that while the “ineffectiveness issues raised in the post-trial motions do
support a claim of error, [in Montgomery’s opinion,] it would have been found harmless as were
[sic] the actions of the prosecutor during his closing argument.” The trial court also stated:
“Additionally although it was suggested that there were errors and omissions in the
transcript used at trial, it was not and is not part of the record which prevents this Court
from knowing the level of egregiousness of those defects.”
It concluded by acknowledging that “the trial like all trials had flaws but not to the extent that
would support the granting of a new trial.” It therefore denied petitioner’s petition. This appeal
followed.
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¶ 52 III. ANALYSIS
¶ 53 Petitioner asserts that postconviction counsel failed to comply with Illinois Supreme Court
Rule 651(c) (eff. Feb. 6, 2013), which imposes inter alia, a duty to make “any amendments to the
filed pro se petitions necessary to adequately present the petitioner’s contentions.” People v.
Profit, 2012 IL App (1st) 101307, ¶ 18. Petitioner contends that his attorney failed to amend his
postconviction petition to adequately present his claims.
¶ 54 The trial court resolved petitioner’s claims following second- and third-stage
postconviction proceedings. Under the Act, a petitioner may challenge his or her conviction by
alleging a constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 32. The Act sets forth
a three-stage process of review. This cause proceeded beyond the first stage. In both the second
stage and the third stage, the petitioner bears the burden of “making a substantial showing of a
constitutional violation.” People v. Pendleton, 223 Ill. 2d 458, 473 (2006) (citing People v.
Coleman, 206 Ill. 2d 261, 277 (2002)). If the petition survives to the second stage, an attorney
may be appointed to assist the petitioner. Id. at 472. “At the second stage of proceedings, all well-
pleaded facts that are not positively rebutted by the trial record are to be taken as true, and, in the
event the circuit court dismisses the petition at that stage, we generally review the circuit court’s
decision using a de novo standard.” Id. at 473. If any claims survive to the third stage, an
evidentiary hearing is held. Id. If the trial court’s decision involves fact-finding or credibility
determinations, we will not disturb it unless it is manifestly erroneous. Id. If no such
determinations are involved, the de novo standard applies “unless the judge presiding over
postconviction proceedings has some ‘special expertise or familiarity’ with the trial or sentencing
of the [petitioner] and that ‘familiarity’ has some bearing upon disposition of
the postconviction petition.” Id.
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¶ 55 Generally, a petitioner is entitled to a “reasonable level of assistance” during
postconviction proceedings. People v. Turner, 187 Ill. 2d 406, 410 (1999). To this end, Illinois
Supreme Court Rule 651(c) sets forth the specific duties counsel must perform during second-
stage proceedings. Id. This rule does not apply to third-stage proceedings; rather, at that stage,
the standard is one of general reasonableness. People v. Pabello, 2019 IL App (2d) 170867, ¶ 29.
Rule 651(c) requires that counsel consult with the petitioner, examine the record, and amend the
petitioner’s pro se petition to adequately present the petitioner’s claims. People v. Marshall, 375
Ill. App. 3d 670, 680 (2007); Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). This rule also requires counsel
to file an affidavit certifying that he or she has fulfilled those duties. Schlosser, 2012 IL App (1st)
092523, ¶ 18. The filing of such an affidavit creates a rebuttable presumption that postconviction
counsel provided reasonable assistance. Profit, 2012 IL App (1st) 101307, ¶ 19. The burden is on
a petitioner to overcome this presumption. Id. Failing to do so forecloses further review of the
reasonableness of postconviction counsel’s conduct. People v. Mendoza, 402 Ill. App. 3d 808,
813 (2010) (citing People v. Rossi, 387 Ill. App. 3d 1054, 1060 (2009)).
¶ 56 Furthermore, counsel’s failure to comply with Rule 651(c) may not be excused on the basis
that it is harmless. People v. Suarez, 224 Ill. 2d 37, 51-52 (2007). Our supreme court has held
that “it is error to dismiss a postconviction petition on the pleadings where there has been
inadequate representation by counsel.” Id at 47. It further noted, “This court has consistently held
that remand is required where postconviction counsel failed to fulfill the duties of consultation,
examining the record, and amendment of the pro se petition, regardless of whether the claims
raised in the petition had merit.” Id. It further explained, “Our Rule 651(c) analysis has been
driven, not by whether a particular defendant’s claim is potentially meritorious, but by the
conviction that where postconviction counsel does not adequately complete the duties mandated
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by the rule, the limited right to counsel conferred by the Act cannot be fully realized.” Id. at 51.
Whether the underlying issue is meritorious is immaterial. Id. Accordingly, a reviewing court
should “not speculate whether the trial court would have dismissed the petition without an
evidentiary hearing if counsel had adequately performed his duties under Rule 651(c).” People
v. Turner, 187 Ill. 2d 406, 416 (1999). Nevertheless, the rule does not require counsel “to advance
frivolous or spurious claims.” People v. Greer, 212 Ill. 2d 192, 205 (2004). In any event, if
counsel fails to comply with Rule 651(c), a petitioner need not show that the omission was
prejudicial. People v. Nitz, 2011 IL App (2d) 100031, ¶ 18 (citing People v. Perkins, 367 Ill. App.
3d 895, 905 (2006)).
¶ 57 We emphasize, however, that the case law set forth in the preceding paragraph stating that
the failure to comply with Rule 651(c) need not be prejudicial for a petitioner to obtain relief does
not mean that counsel’s failure to make any amendment, no matter how insignificant, is enough to
establish a violation of the rule. Initially, we note that Rule 651(c) contains a limitation on
postconviction counsel’s obligations to amend or supplement a petition—counsel must only make
“any amendments to the petitions filed pro se that are necessary for an adequate presentation of
petitioner’s contentions.” (Emphasis added.) Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013). Moreover,
the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) guarantees a petitioner a
right to the “reasonable” assistance of counsel. People v. Hardin, 217 Ill. 2d 289, 299 (2005).
Thus, though a petitioner need not show that, but for an omission by counsel, a different result
would have likely followed, he or she must nevertheless show that a reasonable attorney would
have made whatever amendment postconviction counsel failed to make. See Turner, 187 Ill. 2d
at 414 (“Given the totality of circumstances in this case, we hold that post-conviction counsel’s
performance was unreasonable and fell below the level of assistance required by Rule 651(c).”);
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People v. Kluppelberg, 327 Ill. App. 3d 939, 947 (2002) (“Therefore, our analysis leads us to find
that post-conviction counsel’s failure to assert appellate counsel’s ineffectiveness, especially
where it was properly alleged in the pro se petition, was patently unreasonable.”). Hence, the
reasonableness standard remains part of the inquiry during second-stage proceedings.
¶ 58 Before turning to petitioner’s particular claims, we acknowledge the State’s argument that
because some claims were resolved during third-stage proceedings, Rule 651(c) does not apply. It
is true, as the State points out, that Rule 651(c) does not govern counsel’s conduct during third-
stage proceedings. Pabello, 2019 IL App (2d) 170867, ¶ 29. However, several of petitioner’s
claims were dismissed during the second stage, so the rule applies to them. People v. Zareski,
2017 IL App (1st) 150836, ¶ 59.
¶ 59 In a somewhat related contention, the State asserts that the trial court, despite dismissing
petitioner’s five claims alleging ineffective assistance of trial counsel, actually advanced them, de
facto, when it advanced petitioner’s claim that appellate counsel was ineffective for failing to
preserve them. The State contends that the “practical effect” of this order was that the underlying
ineffectiveness claims rode along with the claim directed to appellate counsel’s ineffectiveness.
We find this claim unpersuasive. As appellate counsel testified during third-stage proceedings,
she could not have raised a number of these claims on appeal because they relied on matters outside
the record. Any question of appellate counsel’s effectiveness was foreclosed by the fact that the
evidence necessary to raise these claims was not available to her. Conversely, during a collateral,
postconviction proceeding, postconviction counsel could have supplemented the record and raised
these issues. That is, claims pertaining to appellate counsel’s performance were limited to the
record as it existed during petitioner’s direct appeal; the same is not true of claims raised in this
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proceeding, because counsel had the opportunity to supplement the record and could have mounted
a direct challenge to the underlying issues. These two types of claims are distinct from each other.
¶ 60 Petitioner raises three main complaints regarding postconviction counsel’s performance.
First, he asserts that postconviction counsel should have amended and supported his claim
regarding prosecutorial misconduct during closing argument. Second, he points to counsel’s
failure to amend or support his pro se claim that trial court was ineffective for failing to object to
the introduction of the redacted video of his statement to the police. Third, he argues that counsel
should have supplemented his claim that his trial attorney was ineffective in providing advice
concerning a plea offer from the State. We will address these contentions in turn.
¶ 61 Petitioner first contends that postconviction counsel should have supported his pro se claim
that the prosecutor engaged in misconduct by throwing a crowbar to the ground before the jury
and at his feet during closing argument. Relatedly, petitioner asserts that his trial attorney was
ineffective for failing to object to this conduct. Petitioner notes that trial counsel alleged her own
ineffectiveness based on her failure to object to this conduct, lending credence to the assertion that
it occurred, despite it not being mentioned in the transcript of closing arguments. We note that
petitioner supported his pro se petition with an affidavit, in which he averred:
“On January 31st 2012, I asked my attorney (Regina Harris) why she didn’t object or put
something on record when State’s Attorney Mr. Montgomery was yelling and screaming
and acting-out all the ‘chopping’ motions with the crowbar and then he ‘threw’ the crowbar
across the courtroom at the jury box ‘startling’ them, and then he picked the crowbar up
and threw it back across the courtroom to land at my feet and [the] escort officers [sic]
feet—Ms. Harris told me she didn’t object because she was in ‘shock’ that [the prosecutor]
was doing this and Judge Stuckert was allowing it.”
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¶ 62 Regarding these claims (the prosecutor’s alleged misconduct and trial counsel’s failure to
object to it), petitioner now argues that the record “gives no hint of the prosecutor’s cheap
theatrics—throwing the crowbar toward the jury box or at [petitioner’s] feet, or looming over
[petitioner] and shouting questions at him.” This is not literally true, as petitioner’s affidavit covers
some of these events. However, it is counsel’s obligation to shape a petitioner’s pro se claims into
proper legal form. People v. Richardson, 382 Ill. App. 3d 248, 253 (2008). A petitioner must
meet a high standard to succeed on an allegation of prosecutorial misconduct during closing
argument. See People v Kitchen, 159 Ill. 2d 1, 38 (1994) (holding that only improper remarks that
result in substantial prejudice to a defendant warrant disturbing a conviction). Thus, a reasonable
attorney would have fleshed out petitioner’s affidavit to include details like the prosecutor
“looming over [petitioner] and shouting questions at him.” Further, a reasonable attorney would
have attempted to procure an affidavit from defense counsel to substantiate these claims. See
People v. Mendoza, 402 Ill. App. 3d 808, 816 (2010). Indeed, we note that the very reason that
the trial court dismissed petitioner’s claim alleging prosecutorial misconduct was lack of factual
support:
“On the [petitioner’s] claims two and three the record does not support moving either of
these claims to stage three. The alleged actions of the prosecutor during his closing
arguments are not reflected in the record and, thus, there is no factual basis to adjudicate
the purported violations of constitutional rights.”
¶ 63 Petitioner also complains of postconviction counsel’s failure to amend and support his pro
se claim that counsel was ineffective for not objecting to the admission of the redacted video
recording of his statement (petitioner clarifies that his argument does not implicate the purportedly
inaccurate transcript of his statement, as it was not provided to the jury during deliberations).
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Petitioner first points out that there is no indication in the redacted video that he waived his right
to be silent or to counsel. However, it is axiomatic that postconviction counsel need not “actively
search for sources outside the record that might support general claims raised in a post-conviction
petition.” People v. Johnson, 154 Ill. 2d 227, 247 (1993). Thus, to prevail on this point, it was
petitioner’s obligation to identify something specific that postconviction counsel should have
raised indicating that he did not waive these rights.
¶ 64 Petitioner also asserts that postconviction counsel should have supplemented his pro se
petition regarding any potential strategy trial counsel had for choosing not to object to the
admission of the redacted video. Petitioner notes that before the trial court, the possibility was
discussed that counsel did not object to the video to allow the admission of evidence that supported
a self-defense theory, particularly in light of the fact that petitioner did not testify. The video also
contained an admission by petitioner to the offense of concealment of a homicidal death. Petitioner
now points out that trial counsel’s “decision-making process and strategy—if any—do not appear
in the record.” However, trial counsel’s performance is assessed using an objective standard. See
People v. Talbert, 2018 IL App (1st) 160157, ¶ 49 (“To establish that counsel’s performance was
deficient, a defendant must demonstrate that his performance was objectively unreasonable under
prevailing professional standards.”). Thus, trial counsel’s subjective intentions are immaterial.
¶ 65 Petitioner calls our attention to his unrebutted pro se allegation that he did not testify due
to a “ ‘threat’ of harm to his mother by the victims [sic] family.” This would arguably relate to
trial counsel’s purported decision to present evidence of self-defense through the video. Moreover,
it appears in the record, is mentioned in petitioner pro se petition, and is thus the sort of issue
reasonable counsel would at least investigate. See Johnson, 154 Ill. 2d at 242-43.
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¶ 66 Finally, petitioner complains that his trial attorney provided him with erroneous advice
regarding the sentence he was facing. In his pro se petition, petitioner asserted that the State
offered him a 15-year sentence if he agreed to testify against Walter Zick. Petitioner stated that
he asked trial counsel what he would receive if he refused to testify and counsel told him 20 years’
imprisonment. He further stated that he did not believe the 5-year difference was significant
enough to testify against Walter, but, had he known the true range was actually triple the State’s
offer, he would have accepted it. These claims were supported by a pro se affidavit submitted
along with the petition.
¶ 67 Petitioner now argues that postconviction counsel should have shaped this into a viable
claim. He notes that there are elements to such claims beyond what he alleged, and he asserts that
his attorney should have supplemented this claim to satisfy those elements. The failure to properly
advise a client regarding the sentence he or she is facing does indeed fall below a reasonable level
of competence. People v. Richardson, 2011 IL App (3d) 180010, ¶ 17. To show prejudice, a
petitioner must show the following:
“(1) but for his counsel’s deficient advice, he would have accepted the plea offer, (2) the
plea would have been entered without the prosecution cancelling it, (3) the trial court would
have accepted the bargain, assuming that it had discretion under state law to accept or reject
it, and (4) ‘ “the end result of the criminal process would have been more favorable by
reason of a plea.” ’ ” Richardson, 2011 IL App (3d) 180010, ¶ 19 (quoting People v. Hale,
2013 IL 113140, ¶ 19 (quoting Missouri v. Frye, 566 U.S. 134, 147 (2012))).
Petitioner’s allegations and averments do not address the latter three elements. Postconviction
counsel should have done so. See Nicholson, 2021 IL App (3d) 180010, ¶ 22. As the State
concedes in its answer brief, this point of error was “not completely rebutted by the record or by
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the testimony of appellate counsel” because “the allegations [petitioner] raised in his pro se post-
conviction petition related to maters [sic] outside the record.”
¶ 68 We also note that, as the State points out, to show that he would not have accepted a plea
offer and was thus prejudiced by counsel’s erroneous advice, petitioner needed to present more
than his “own ‘ “subjective, self-serving” ’ testimony.” People v. Walker, 2018 IL App (1st)
160509, ¶ 36 (quoting Hale, 2013 IL 113140, ¶ 18). By not amending and supporting this claim,
postconviction counsel let it rest on nothing but petitioner’s own, purportedly self-serving,
testimony.
¶ 69 Further, we note that petitioner raises some questions about the conduct of third-stage
proceedings. He asserts that postconviction counsel’s failure to comply with Rule 651(c) during
second-stage proceedings “guaranteed *** [the] denial of relief at the third stage.” Petitioner’s
point is not well taken. Initially, we emphasize that Rule 651(c) does not apply during third-stage
proceedings. Pabello, 2019 IL App (2d) 170867, ¶ 29. Hence, once a claim survives a motion to
dismiss in the second stage and advances to the third stage, Rule 651(c) is no longer relevant.
Postconviction counsel was free to put on whatever relevant evidence he could muster regardless
of what transpired in the second stage. We note that petitioner neither argues that the trial court’s
decision regarding the claims that made it to the third stage was manifestly erroneous (see People
v. Tyler, 2015 IL App (1st) 123470, ¶ 152) nor does he attempt to argue that postconviction
counsel’s representation was less than reasonable in the third stage (see Pabello, 2019 IL App (2d)
170867, ¶ 35). He simply argues that counsel’s performance during the second stage affected the
proceedings at the third stage; however, it is unclear to us how this could be the case, as counsel
was free to put on evidence regarding the claims that did survive.
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¶ 70 Regarding the claims that did advance to the third stage (ineffective assistance of appellate
counsel), petitioner acknowledges that postconviction counsel did introduce the testimony of his
appellate attorney. However, he now asserts that postconviction counsel should have also called
his trial attorney to testify. He states that had counsel done so, issues dismissed during the second
stage due to their reliance on matters outside the record “could have been explored.” Perhaps so,
however, these matters remain outside the record. Accordingly, petitioner’s attempt to argue that
it was error to not explore them is mere speculation. We will not disturb a judgment upon pure
speculation. People v. Runge, 234 Ill. 2d 68, 138 (2009).
¶ 71 The State attempts to undermine the proposition announced by our supreme court in
Suarez, 224 Ill. 2d at 51-52, that a petitioner need not prove that an underlying claim was
meritorious where postconviction counsel has failed to comply with Rule 651(c). The State relies
on People v. Zareski, 2017 IL App (1st) 150836, ¶¶ 52-55; that case is distinguishable. It is true
that the Zareski court limited the scope of Rule 651(c); however, the manner in which it did so
renders Zareski of no relevance to the instant case. It held:
“But Suarez does not say that this automatic-remand rule must apply to retained counsel,
who are not guided by Rule 651 if retained at the first stage of proceedings. And, given
the logic, we believe that the Suarez rule applies only to counsel who have been appointed
or retained at the second stage to assist a pro se petitioner, not to retained counsel who file
the first stage petition. If a prisoner retains counsel at the first stage, he or she is entitled
to reasonable assistance, but not to the additional protections of Rule 651 and Suarez’s
holding.” Id. ¶ 55.
Thus, the rule set forth in Zareski applies when counsel is retained during first-stage proceedings.
The Zareski court expressly stated that it did not apply to second-stage proceedings, where Suarez
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controls. The State’s reliance on Zareski is misplaced, as is its attempt to interject Strickland v.
Washington, 466 U.S. 668 (1984), into the analysis.
¶ 72 Accordingly, as explain above, we hold that postconviction counsel failed to comply with
Rule 651(c) on three claims. The remedy for such an omission is to remand the case so that
petitioner can replead his postconviction petition with the assistance of new counsel.
¶ 73 IV. CONCLUSION
¶ 74 In light of the foregoing, we vacate the trial court’s order dismissing petitioner’s pro se
claims during second-stage proceedings. We remand so that petitioner can replead his
postconviction petition. On remand, the trial court shall appoint new counsel to assist petitioner.
The trial court’s order rejecting petitioner’s claims that survived to the third stage of proceedings
is affirmed.
¶ 75 Vacated in part and affirmed in part; cause remanded with directions.
-25- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482176/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
US DOMINION, INC., et al.,
Plaintiffs,
v. Civil Action No. 1:21-cv-02130 (CJN)
HERRING NETWORKS, INC., et al.,
Defendants.
MEMORANDUM OPINION
US Dominion, Inc. and other related corporate entities claim that One America News
Network (“OAN”), as well as four other Defendants associated with OAN, defamed Dominion in
connection with the 2020 presidential election. Defendants have moved to dismiss or stay this
action under the Colorado River doctrine. Alternatively, Defendants move to transfer this case to
the United States District Court for the District of Colorado. And should the Court deny both
motions, three Defendants—OAN, Robert Herring, and Charles Herring—argue that the claims
against them must be dismissed for lack of personal jurisdiction. For the reasons that follow, the
Court denies Defendants’ motions.
I. Factual Background
A. The Parties
US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems
Corporation (together, “Dominion”) are organized as US Dominion, Inc., a Delaware corporation
with its principal place of business in Denver, Colorado. See Compl. ¶¶ 14, 54, ECF No. 1.
Dominion contracts with state and local governments across the country to supply its voting
1
systems and services in elections. Id. ¶ 55. Local election officials use Dominion’s voting
machines to tabulate votes and count paper ballots. Id. ¶ 56.
OAN is a cable news company wholly owned by Herring Networks, Inc. Id. ¶ 17.
Although headquartered in California, OAN also has an operational presence in the District of
Columbia. Id. For example, OAN maintains a news bureau and a studio in the District, and some
of its content is produced here. Id. Aside from its cable news channel, OAN runs social media
accounts and releases content on its website, OANN.com, as well as on digital platforms like
YouTube and Rumble. Id.
Robert Herring is the CEO of OAN, and his son, Charles Herring, is the President of the
network. Id. ¶ 18. Dominion alleges that the Herrings exercise tight control over the network’s
news coverage, especially when it comes to stories of high import. Id. Some of those stories are
referred to internally as “H stories,” which are stories that OAN must run upon request from the
Herrings. Id. ¶ 19. For these stories, Dominion alleges, the Herrings assume full editorial control
over the content—the usual editorial team in California plays little to no role. Id.
Chanel Rion is the Chief White House Correspondent for OAN. Id. ¶ 21. She resides in
the District of Columbia and works out of OAN’s D.C. bureau. Id. Christina Bobb is the former
host of “Weekly Briefing” on OAN, which is recorded in and broadcast from the District of
Columbia. Id. ¶ 22. Like Rion, Bobb is a District resident and worked out of OAN’s D.C. bureau.
Id.
Dominion claims that OAN and the other Defendants defamed it by spreading false
statements about its role in the 2020 election. Most of these statements were broadcast by OAN
on its cable channel.
2
B. Examples of Allegedly Defamatory Statements
Dominion’s complaint organizes the allegedly defamatory statements under 25 headings.
See id. ¶ 305(a)–(y). The statements included under each heading vary in length and content, as
well as in the identity of the speaker, but they all feature a common allegation: The 2020
presidential election was either compromised or rigged, and Dominion’s voting machines were
responsible.
Shortly after the election, for example, OAN broadcast a segment on its cable channel
titled, “REPORT: DOMINION DELETED 2.7M TRUMP VOTES NATIONWIDE.” Id. ¶ 305(a).
Similar claims were made in the following days and months. For instance, Rion claimed on air
that Dominion’s voting system was “proven to have actually glitched in favor of Biden in at least
three states.” Id. ¶ 305(b). She also stated that “the bottom line is votes were switched from
President Trump to President—to now Joe Biden, and it happened in dozens of states, and it’s a
Dominion System software glitch that we are going to dig into.” Id. ¶ 305(c).
Other statements asserted that Dominion intentionally manipulated the vote. Soon after
the election, an individual named Joe Oltmann appeared on an OAN program and claimed that a
former Dominion executive named Eric Coomer had bragged on a conference call that “Trump is
not going to win, I made F’ing sure of that.” Id. ¶ 305(d). A few days later, in an OAN special
called “Dominion-izing the Vote,” Oltmann repeated his allegation against Coomer. Id. ¶ 305(f).
OAN re-aired “Dominion-izing the Vote” twice in December 2020. Id. ¶ 305(i)–(j).
Around the same time, former New York City mayor Rudy Giuliani appeared on a live
OAN broadcast and stated that Dominion may be “getting paid millions to help Biden win.” Id.
¶ 305(h). In another OAN broadcast, Giuliani claimed that Dominion’s voting machines were
“programmed to give somewhere between a two and five percent advantage [to Biden].” Id.
3
¶ 305(k). And in still another broadcast, Giuliani stated that “the Dominion machines . . . were
basically built to cheat.” Id. ¶ 305(n).
Mike Lindell, founder and CEO of My Pillow, Inc., also made frequent appearances on
OAN. Over several months, OAN aired—and re-aired—multiple documentaries made by and
starring Lindell, including “Absolute Proof with Mike Lindell,” “Scientific Proof with Mike
Lindell,” “Absolute Interference with Mike Lindell,” and “Absolutely 9-0 with Mike Lindell.” Id.
¶ 305(p)–(x). These programs included numerous statements about Dominion’s role in the 2020
election. For example, Lindell announced: “I have proof, a hundred percent proof that our country
was attacked by China, by Communism coming in, this foreign interference to our elections
through the machines, Dominion, Smartmatic, ES & S, all of them.” Id. ¶ 305(s). In multiple
OAN segments, Lindell repeated his claim that China influenced the 2020 election by hacking
Dominion’s voting machines. Id. ¶ 305(t)–(u).
In a May 2021 broadcast, Bobb discussed fraud in the 2020 election. She stressed that
“[t]he only people who had absolute control over the election equipment was Dominion.” Id.
¶ 305(v). She lamented that local election officials “didn’t bother to insure that there was no
manipulation,” but instead “just took Dominion’s word for it, despite the fact that there were weird
mathematical patterns, and many experts stated the numbers indicated fraud.” Id.
The above quotes are just a sample of the allegedly defamatory statements that Dominion
claims Defendants made (or disseminated). Because Defendants do not move to dismiss for failure
to state a claim, the Court need not decide whether Dominion has adequately alleged that these
and other statements are defamatory. Instead, the Court includes the statements to provide the
factual context needed to decide the pending motions.
4
II. Procedural Background
In August 2021, Dominion filed this suit. All Defendants later moved to dismiss or stay
the action under the doctrine established in Colorado River Water Conservation District v. United
States, 424 U.S. 800 (1976). See Defs.’ Mot. to Dismiss, Stay, or Transfer (“Defs.’ Mot.”), ECF
No. 41. According to Defendants, federal deferral is appropriate because there is a parallel action
pending in Colorado state court. See Coomer v. Donald J. Trump for President, Inc., Case No.
2020CV034319. That action—which predates this one by nearly eight months and names OAN
and Rion as defendants—was filed by Eric Coomer, the former Dominion executive who allegedly
bragged about rigging the 2020 election. Coomer no longer works for Dominion, and Dominion
is not a party to the Colorado suit. See Defs.’ Mot. at 9, 14 n.8.
Defendants also filed two alternative motions. First, all Defendants move to transfer this
case to the United States District Court for the District of Colorado under 28 U.S.C. § 1404(a). Id.
at 16. Second, OAN and the Herrings move to dismiss the claims against them for lack of personal
jurisdiction. Id. at 27.
III. Legal Standards
“The doctrine of abstention, under which a District Court may decline to exercise or
postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a
District Court to adjudicate a controversy properly before it.” Colo. River, 424 U.S. at 813
(quotations omitted). The Supreme Court has recognized several different types of abstention.
See, e.g., R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941); Younger v. Harris, 401 U.S.
37 (1971). The Colorado River doctrine, 1 in particular, “permits a federal court to stay or dismiss
1
Although courts often use the phrase “Colorado River abstention,” the Court of Appeals has
suggested that this is a misnomer, because the doctrine does not rest “‘on considerations of state-
5
a federal action in favor of a concurrent action in state court under ‘exceptional circumstances.’”
Edge Inv., LLC v. District of Columbia, 927 F.3d 549, 550 (D.C. Cir. 2019) (quoting Colo. River,
424 U.S. at 813)). Such deferral “rest[s] on considerations of wise judicial administration, giving
regard to conservation of judicial resources and comprehensive disposition of litigation.” Colo.
River, 424 U.S. at 817 (cleaned up). When a court invokes Colorado River, “it presumably
concludes that the parallel state-court litigation will be an adequate vehicle for the complete and
prompt resolution of the issues between the parties.” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 28 (1983).
“For the convenience of parties and witnesses” and “in the interest of justice,” a court may
transfer a case “to any other district . . . where it might have been brought.” 28 U.S.C. § 1404(a).
The decision to transfer a case is within the district court’s discretion and calls for “an
individualized, case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988) (quotations omitted). “The moving party bears the initial
burden of establishing that transfer is proper.” Mandan, Hidatsa & Arikara Nation v. U.S. Dep’t
of Interior, 358 F. Supp. 3d 1, 6 (D.D.C. 2019).
To survive a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff
must establish “a factual basis for the exercise of personal jurisdiction over the defendant.” Fawzi
v. Al Jazeera Media Network, 273 F. Supp. 3d 182, 185 (D.D.C. 2017) (quotations omitted). “In
the absence of an evidentiary hearing,” the plaintiff “can satisfy that burden with a prima facie
showing” of pertinent jurisdictional facts. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005)
(quotations omitted). This showing may rest on the pleadings, see id., and “factual discrepancies
federal comity or on avoidance of constitutional decisions.’” Edge, 927 F.3d at 554 n.5 (quoting
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14–15 (1983)).
6
appearing in the record must be resolved in favor of the plaintiff,” Crane v. New York Zoological
Soc., 894 F.2d 454, 456 (D.C. Cir. 1990).
IV. Analysis
A. Colorado River
The Colorado River doctrine seeks to avoid duplicative litigation when there are parallel
proceedings pending in state and federal court. Both the Supreme Court and the Court of Appeals
have repeatedly held, however, that “the pendency of an action in the state court is [generally] no
bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Colo.
River, 424 U.S. at 817 (quotations omitted); Edge, 927 F.3d at 552 (quotations omitted). That is
because federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given
them.” Colo. River, 424 U.S. at 817.
For this reason, only “exceptional circumstances” and “the clearest of justifications will
warrant” deferral based on concurrent state and federal proceedings. Edge, 927 F.3d at 552–53
(quotations omitted). When a federal court invokes Colorado River, it “necessarily contemplates
that,” upon resolution of the state proceeding, it “will have nothing further to do in resolving any
substantive part of the case.” Moses H. Cone, 460 U.S. at 28. If the federal court “has any
substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal
at all.” Id.
Defendants argue that this case should be dismissed in its entirety—or at the very least
stayed—under Colorado River. Defs.’ Mot. at 10. They contend that deferral is warranted
because, in their view, this action and the Coomer action involve the same parties and the same
allegedly defamatory statements. Id. at 12–13. According to Defendants, deferral is therefore
necessary to avoid potentially conflicting findings and judgments. Id. at 13.
7
Dominion counters by arguing that the federal abstention doctrines—including the
Colorado River doctrine—allow for dismissal only of suits seeking equitable relief, not suits that
(like Dominion’s) seek damages. See Dominion’s Opp’n to Defs.’ Mot. (“Dominion’s Opp’n”) at
4–5, ECF No. 45 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 719 (1996)). What is
more, Dominion contends that this action and the Coomer action are not “parallel”—and thus
Colorado River is wholly inapposite—because the cases involve different parties and different
issues. Id. at 7–9. And even putting all that aside, Dominion maintains that this case does not
present the type of “exceptional circumstances” warranting deferral. Id. at 11.
Dominion is correct that Quackenbush forecloses Defendants’ request for dismissal.
There, the Supreme Court explained that “federal courts have the power to dismiss or remand cases
based on abstention principles only where the relief being sought is equitable or otherwise
discretionary.” Quackenbush, 517 U.S. at 731. As for suits seeking damages, the Supreme Court
observed that it has “applied abstention principles . . . only to permit a federal court to enter a stay
order that postpones adjudication of the dispute, not to dismiss the federal suit altogether.” Id. at
719.
Defendants argue that it is far from settled that Quackenbush, which involved Burford
abstention, applies to cases involving the Colorado River doctrine. See Defs.’ Reply in Support
of the Mot. to Dismiss, Stay, or Transfer (“Defs.’ Reply”) at 9, ECF No. 47. But Defendants “do[]
not explain why that distinction matters, especially in light of Quackenbush’s references to the
Court’s general abstention principles.” Jefferson-11th St., LLC v. District of Columbia, Civ. A.
No. 19-1416 (CJN), 2020 WL 3035038, at *4 (D.D.C. June 5, 2020) (quotations omitted). Simply
put, a fair reading of Quackenbush does not permit the dismissal of this case under Colorado River.
8
But the Court still may enter a stay if Colorado River’s “exceptional-circumstances test”
is met. Edge, 927 F.3d at 553 (quoting Moses H. Cone, 460 U.S. at 19). As to the possibility of
this litigation being stayed, Dominion contends that Colorado River is inapplicable as a threshold
matter because this case and the litigation in Colorado are not “parallel actions” but instead involve
different parties and different issues. And, Dominion argues, exceptional circumstances do not
justify deferral.
Dominion’s threshold argument has merit. After all, if the state and federal proceedings
are not parallel—that is, if the proceedings involve different parties litigating different issues—
then it is hard to see how the state-court litigation could be an “adequate vehicle for the complete
and prompt resolution of the issues between the parties” in federal court. Moses H. Cone, 460
U.S. at 28; see also id. (“[T]he decision to invoke Colorado River necessarily contemplates that
the federal court will have nothing further to do in resolving any substantive part of the case,
whether it stays or dismisses.”).
Other courts have accordingly adopted some version of Dominion’s proposed threshold
test. See, e.g., vosRosenberg v. Lawrence, 849 F.3d 163, 168 (4th Cir. 2017) (“In deciding whether
[to defer under Colorado River], a court must first determine whether the federal and state actions
are parallel,” which requires “substantially the same parties litigat[ing] substantially the same
issues.” (quotations omitted)); AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir.
2001) (“In evaluating the propriety of the district court’s decision to abstain under Colorado River,
we must first determine whether the federal and foreign proceedings are parallel.”); Ambrosia Coal
& Constr. Co. v. Pages Morales, 368 F.3d 1320, 1330 (11th Cir. 2004) (“[W]e hold that Colorado
River analysis is applicable as a threshold matter when federal and state proceedings involve
substantially the same parties and substantially the same issues.”). Courts in this District have
9
applied the same principle. See, e.g., Saddler v. AMEC Foster Wheeler Env’t & Infrastructure,
Inc., 253 F. Supp. 3d 210, 219–20 (D.D.C. 2017) (concluding that the absence of the sole federal
defendant from the state-court action “alone[] provide[d] sufficient basis to deny” the defendant’s
deferral request, because the state action could not “possibly resolve the dispute between the
parties in [the federal] action”).
Applying this threshold test here, the Court concludes that deferral is improper because
this action and the Coomer action are not parallel proceedings under Colorado River. To begin,
there is minimal overlap between the parties in the cases. The sole plaintiff in the Colorado case—
Eric Coomer, a former Dominion employee who has no current affiliation with the company—is
not a party here, and of the 14 defendants named in the Colorado action, only two—OAN and
Rion—are also named in this federal action. See id. at 220 (concluding that deferral was improper
because the sole defendant in the federal action was not a party in the state action).
Defendants argue that Coomer “effectively is Dominion and every statement OAN has
made about Dominion is also a statement about Dr. Coomer (and vice versa).” Defs.’ Reply at 1.
To support this contention, Defendants cite a statement from Coomer in which he asserts that he
is “the face of the Dominion conspiracy theory” and that there is “no discernable distinction
between references to Dr. Coomer and Dominion.” Id. And at oral argument, Defendants even
claimed that issues decided against Coomer in the state action will have preclusive effect against
Dominion in this federal action. See 4/20/2022 Oral Argument Tr. 8:4–8.
Not so. When asked to provide their best evidence for the proposition that Dominion and
Coomer are the same party, counsel for Defendants responded, “My best argument for that is that
Dr. Coomer says he is Dominion.” Id. at 68:17–21. Coomer may have said that, but his saying it
does not make it so. After all, Coomer is no longer an employee of Dominion. Nor did he file his
10
suit on Dominion’s behalf. To the contrary, Coomer’s complaint alleges that OAN (and others)
“invaded his privacy, threatened his security, and fundamentally defamed his reputation across
this country.” Coomer Compl. ¶ 1, ECF No. 41-11 (emphasis added). And he requests relief
ordering OAN (and others) “to remove any and all defamatory publications made about Dr.
Coomer,” not publications made about Dominion. Id. at 63–64 (emphasis added). 2
Defendants’ second argument is more modest. They argue that two cases are parallel for
purposes of Colorado River so long as the parties are “substantially similar.” Defs.’ Reply at 3.
The Court of Appeals has not had occasion to define substantial similarity, but another circuit has
explained that parties are “substantially the same under the Colorado River doctrine [if] they have
nearly identical interests.” Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1019 (7th Cir.
2014) (quotations omitted).
But even if Coomer and Dominion have identical interests, a fundamental problem
remains—there is virtually no overlap between the issues in the two cases. In its recent order
denying the defendants’ anti-SLAPP motions, the Colorado court confirmed that the Coomer
action centers on the allegation that Coomer bragged on a conference call about subverting the
2020 election. See Coomer v. Donald J. Trump for President, Inc., Case No. 2020CV034319,
2022 WL 12611311, at *1, 36–51 (Colo. Dist. Ct. May 13, 2022). Regardless of how the Colorado
court resolves that issue, it will not address all the other statements at issue here. See Compl. at
¶ 305(a)–(y).
The Court is therefore not persuaded that the Coomer action “will be an adequate vehicle
for the complete and prompt resolution of the issues between the parties.” Moses H. Cone, 460
2
Defendants insist that they intend to join Dominion as a party in the Coomer action. See Defs.’
Reply at 22. But “[t]he issue is whether [the Coomer action], as it currently exists, is a parallel,
state-court proceeding.” Crawley v. Hamilton Cty. Comm’rs, 744 F.2d 28, 31 (6th Cir. 1984).
11
U.S. at 28. Instead, deferral would only delay the adjudication of Dominion’s claims. That said,
the Court of Appeals has never applied a threshold test in one of its Colorado River cases to
determine whether the state and federal proceedings are parallel. Instead, the Court of Appeals
considers various factors to assess whether Colorado River’s exceptional-circumstances test is
satisfied. See, e.g., Edge, 927 F.3d at 554–61. Those factors include the inconvenience of the
federal forum, the desirability of avoiding piecemeal litigation, the order in which jurisdiction was
obtained by the concurrent forums, whether federal or state law controls, and whether the state
forum will adequately protect the interests of the parties. See id. at 554, 554 n.6. “[I]t is not
enough that the factors favoring deferral outnumber those opposed (or neutral). Rather, the factors
favoring deferral must themselves be exceptional.” Id. at 554. The Court will therefore consider
whether those factors favor deferral.
The first factor—the inconvenience of the federal forum for the parties involved—does not
favor deferral. Two of the Defendants reside in the District of Columbia, and OAN maintains a
news bureau and a studio here. As for the Herrings, Dominion alleges that the two regularly
conduct business in the District. See Compl. ¶ 20. At the very least, Defendants identify no
exceptional circumstances that would warrant deferral based on this factor.
The second factor is the desirability of avoiding piecemeal litigation. In condemning
“piecemeal litigation,” the Supreme Court in Colorado River was not condemning “the mere risk
of duplicating efforts and different results.” Edge, 927 F.3d at 555. As the Court explained, “the
mere potential for conflict in the results of adjudications, does not, without more, warrant staying
exercise of federal jurisdiction.” Colo. River, 424 U.S. at 816. Instead, deferral is justified under
this factor only if “the circumstances enveloping th[e] cases will likely lead to piecemeal litigation
12
that is abnormally excessive or deleterious.” Edge, 927 F.3d at 556 (quotations omitted) (emphasis
added).
Yet here, as in Edge, “mere duplication and potential inconsistency—in their simplest
forms—are all we have.” Id. Indeed, the case for deferral is arguably weaker here than it was in
Edge, because in that litigation, “the vast majority of claims [asserted] in federal court were also
asserted in the Superior Court,” “both cases [arose] from the same core set of facts,” and “the
issues [would] be resolved largely by reference to the same evidence.” Id. (cleaned up). Moreover,
because OAN and Rion are parties to both actions, the doctrines of res judicata and collateral
estoppel may apply to them, which mitigates some of the risk of inconsistent results. See id.
In short, Defendants do not identify any exceptional circumstances that would likely lead
to “abnormally excessive or deleterious” inconsistencies between the state and federal actions at
issue. Id. (“[H]ypothetical conflicts over discrete issues do not amount to an exceptional
circumstance.”). This case instead presents “a garden-variety example of two lawsuits proceeding
concurrently in two courts.” Id.
The next factor is the order of jurisdiction. It is certainly the case, as Defendants note, that
the Coomer action was filed nearly eight months before the federal action. Defs.’ Mot. at 13. Even
so, “there is nothing exceptional about the relative progress of the two cases.” Edge, 927 F.3d at
557; see also id. (holding that a fifteen-month gap between case filings did not present an
exceptional circumstance justifying deferral, in contrast to a case with a four-year gap). Indeed,
not much has happened in the Coomer action—the court relatively recently denied the defendants’
special motions to dismiss under Colorado’s anti-SLAPP statute, which provides a procedural
mechanism for dismissing frivolous claims in the early stages of a case. Because the relative
progress of the two cases is not exceptional, this factor does not favor deferral.
13
Next up is whether federal or state law controls. Defendants contend that Colorado law
governs this case, and they stress that Colorado law on defamation affords greater protection to
speech than the First Amendment. Defs.’ Mot. at 13–14. Even if Defendants were right that
Colorado law controls—and it is not clear that they are—this factor would not support deferral.
That is because “[t]he mere absence of federal law . . . does not counsel in favor of abstention,
particularly where, as here, there are no complex or novel state law issues.” 1443 Chapin St., LP
v. PNC Bank, Nat. Ass’n, 718 F. Supp. 2d 78, 85 (D.D.C. 2010). Defendants have not identified
a complex or novel state law question in this case; they simply contend that Colorado applies the
familiar “actual malice” standard to a broader range of speech. And even if the legal issues were
complex, “[t]he presence of novel or difficult state-law questions in federal court litigation is not
exceptional. Federal courts exercising diversity jurisdiction frequently decide just such questions.”
Edge, 927 F.3d at 559.
The final factor is whether the state court could adequately protect the interests of the
parties. To be sure, there is no reason to doubt the Colorado court in this regard. But this fact,
essentially standing alone, cannot justify the surrender of the Court’s jurisdiction. Again, in
applying Colorado River, the lodestar is whether exceptional circumstances warrant deferral. See
Moses H. Cone, 460 U.S. at 25–26. That high bar is not met by a mere showing that a state court
could adequately hear the case. See 1443 Chapin St., 718 F. Supp. 2d at 85.
In sum, Defendants have not identified any “exceptional circumstances” that can overcome
the Court’s “virtually unflagging obligation to exercise its jurisdiction.” Edge, 927 F.3d at 561
(quotations omitted). Considering all the relevant factors, “with the balance heavily weighted in
favor of the exercise of jurisdiction,” Moses H. Cone, 460 U.S. at 16, the Court holds that federal
deferral is unwarranted under Colorado River.
14
B. Transfer
In the alternative, Defendants move to transfer this case to the United States District Court
for the District of Colorado. The Court conducts a two-step inquiry to determine whether to grant
that motion. First, the Court must consider “whether the transferee forum is one where the action
‘might have been brought’ originally.” Forest Cty. Potawatomi Cmty. v. United States, 169 F.
Supp. 3d 114, 117 (D.D.C. 2016) (quoting 28 U.S.C. § 1404(a)). Second, the Court must consider
“whether private and public interest factors weigh in favor of transfer.” Id. Private interest factors
include: “(1) the plaintiff’s choice of forum; (2) the defendant’s choice of forum; (3) whether the
claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses;
and (6) the ease of access to sources of proof.” Brannen v. Nat’l R.R. Passenger Corp., 403 F.
Supp. 2d 89, 92 (D.D.C. 2005). Public interest factors include: “(1) the transferee’s familiarity
with the governing laws; (2) the relative congestion of the calendars of the potential transferee and
transferor courts; and (3) the local interest in deciding local controversies at home.” Id. at 95.
Defendants’ motion to transfer fails at step one. As the movants, Defendants “bear[] the
initial burden of establishing that transfer is proper.” Mandan, Hidatsa & Arikara Nation, 358 F.
Supp. 3d at 6. Yet Defendants did not even try to show that Dominion could have properly filed
this suit in Colorado. For starters, Defendants’ opening brief offers zero analysis on whether a
Colorado court could exercise personal jurisdiction over them. Defendants simply assert that they
would “stipulate to personal jurisdiction in Colorado for the purposes of this case.” Defs.’ Mot. at
16. But “the § 1404(a) phrase ‘where it might have been brought’ can[not] be interpreted to mean
. . . ‘where it may now be rebrought, with defendants’ consent.’” Hoffman v. Blaski, 363 U.S. 335,
342–43 (1960). The alternative, said the Supreme Court, “would empower a District Court, upon
a finding of convenience, to transfer an action to any district desired by the defendants and in
15
which they were willing to waive their statutory defenses as to venue and jurisdiction over their
persons, regardless of the fact that such transferee district was not one in which the action ‘might
have been brought’ by the plaintiff.” Id. at 344.
Defendants also do not devote a single sentence—in either their opening brief or their
reply—to the question of venue. Venue is proper in the district where (1) any defendant resides,
if all defendants reside in the same state; (2) “a substantial part” of the events giving rise to the
suit occurred; or (3) if venue would not be proper in any district for those reasons, wherever the
defendants are subject to personal jurisdiction. 28 U.S.C. § 1391(b). Yet no Defendant resides in
Colorado. Nor could Defendants plausibly argue that conduct in Colorado comprises “a
substantial part” of the events giving rise to Dominion’s claims, which focus on statements made
by Defendants. Defendants have thus failed to establish that Dominion could have properly filed
this suit in the District of Colorado, and their motion to transfer can be denied on that basis alone.
In addition, neither the private nor the public interest factors weigh in favor of transfer.
Start with the private interest factors. “[A]lthough the plaintiff’s choice of forum is usually granted
substantial weight, it is given less deference when the plaintiff chooses a foreign forum.” US
Dominion, Inc. v. Powell, 554 F. Supp. 3d 42, 69 (D.D.C. 2021) (“Dominion I”). Still, “a plaintiff’s
choice of a foreign forum is entitled to some weight when there is a nexus between that forum and
the events giving rise to the plaintiff’s claims.” Id. Such a nexus exists here: Dominion alleges
that “OAN’s Dominion-related content was produced and broadcast through OAN’s Washington,
D.C. office.” Compl. ¶ 17.
Defendants argue that their choice of forum—Colorado—is entitled to deference because
Dominion is headquartered in Colorado and because Coomer has already sued OAN and Rion
there. Although “a defendant’s choice of forum is a consideration when deciding a § 1404(a)
16
motion, it is not ordinarily entitled to deference.” Douglas v. Chariots for Hire, 918 F. Supp. 2d
24, 32 (D.D.C. 2013). And when, as here, “Defendants move to transfer over Plaintiff’s
opposition, they must establish that the added convenience and justice of litigating in their chosen
forum overcomes the deference ordinarily given to Plaintiff’s choice.” Id. Defendants have not
made that showing. After all, Rion is a District of Columbia resident, and as explained below,
OAN conducts extensive business here.
The next factor—where the claims arose—also weighs against transfer. “Courts in this
district have held that claims ‘arise’ under 28 U.S.C. § 1404(a) in the location where the corporate
decisions underlying those claims were made, or where most of the significant events giving rise
to the claims occurred.” Id. (cleaned up). Based on Dominion’s Complaint, that location is the
District of Columbia, because that is where allegedly defamatory segments were made, filmed,
and/or produced. See Compl. ¶¶ 17, 21–22. By contrast, Defendants do not identify any conduct
in Colorado that gives rise to Dominion’s claims.
The remaining private interest factors—the convenience of the parties and witnesses, and
the ease of access to sources of proof—likewise do not favor transfer. Rion and Bobb reside in
the District of Columbia, and OAN conducts substantial business here. As for the Herrings,
Dominion alleges that they have engaged in business negotiations in the District and regularly
travel to OAN’s D.C. bureau for purposes of oversight. See id. ¶ 20; see also Dominion’s Opp’n,
Ex. 3 ¶ 9 (Declaration of Charles Herring). At the very least, the Court finds that the Herrings
would suffer only a minor inconvenience by being forced to travel to the District; that
inconvenience does not tip the scales in favor of transfer.
As to the convenience of potential witnesses—who, according to the parties’ briefing, are
spread out across the country—the Court finds that this factor does not weigh heavily in favor of
17
either forum. Although Colorado may be more convenient for some witnesses, the District of
Columbia will likely be more convenient for others. Finally, much of the relevant evidence will
be based in the District, because that is where the allegedly defamatory statements were filmed
and produced. See Compl. ¶¶ 17, 21–22. To be sure, evidence related to the integrity of
Dominion’s voting machines will likely be based in Colorado, because that is where Dominion is
headquartered. But “technological advances have significantly reduced the weight of the ease-of-
access-to-proof factor.” Douglas, 918 F. Supp. 2d at 33 (quotations omitted).
Turning to the public interest factors, Defendants argue that Colorado law applies and thus
the District of Colorado is more familiar with the governing law. Because this action was filed in
the District of Columbia, D.C. choice-of-law rules apply. Wu v. Stomber, 750 F.3d 944, 949 (D.C.
Cir. 2014). And under D.C. choice-of-law principles, the Court must “apply the tort law of the
jurisdiction that has the most significant relationship to the dispute.” Id. (quotations omitted). This
inquiry turns on “[1] where the injury occurred, [2] where the conduct causing the injury occurred,
[3] the domicile, residence, nationality, place of incorporation and place of business of the parties,
and [4] the place where the relationship is centered.” Id. (quotations omitted).
Dominion claims that it suffered reputational injury nationwide; its injuries, it asserts, are
not centered in either Colorado or the District of Columbia. See Compl. ¶¶ 301–02 (noting that
Defendants’ allegedly defamatory statements have placed “Dominion’s contracts in more than two
dozen states and hundreds of counties and municipalities at risk”). Allegedly defamatory
broadcasts that caused Dominion’s injury, by contrast, were filmed and produced at OAN’s D.C.
bureau. Indeed, none of Defendants’ allegedly defamatory conduct occurred in Colorado. What is
more, although Dominion is headquartered in Colorado, no Defendant is based there—again, Rion
and Bobb are D.C. residents, and OAN and the Herrings conduct substantial business in the
18
District. Finally, both sides agree that the fourth factor—where the parties’ relationship is
centered—is neutral because the parties do not have a relationship centered in either forum.
Accordingly, it is not obvious that Colorado law will apply; at a minimum, “it is as likely at this
stage that District of Columbia substantive law will apply given [Dominion’s] theory of tortious
conduct,” and Defendants have “not shown that it is more likely than not that the transferee forum
would have more familiarity with the applicable law.” Robinson v. Eli Lilly and Co., 535 F. Supp.
2d 49, 54 (D.D.C. 2008).
As for the remaining public interest factors, the relative congestion of the court calendars
offers little guidance—the median time from filing to trial is shorter in the District of Colorado,
while the median time from filing to disposition is shorter here. 3 Finally, Defendants have not
identified a “local interest” in Colorado that can outweigh the District of Columbia’s interest in
deciding Dominion’s claims, given that some of the conduct underlying those claims occurred
here. See Dominion I, 554 F. Supp. 3d at 71 (“Minnesota’s interest in deciding controversies
regarding the Lindell Defendants is outweighed by this district’s interest in controversies arising
from events that occurred here.”).
In sum, Defendants have failed to show that transfer is warranted for two independent
reasons. First, Defendants made no effort to show that the District of Colorado “is one where the
action ‘might have been brought’ originally.” Forest Cty. Potawatomi Cmty., 169 F. Supp. 3d at
117 (quoting 28 U.S.C. § 1404(a)). Second, neither the private nor the public interest factors weigh
in favor of transfer.
3
United States District Courts – National Judicial Caseload Profile, US Courts,
https://www.uscourts.gov/sites/default/files/fcms_na_distprofile0630.2022_0.pdf (last visited
Oct. 31, 2022).
19
C. Personal Jurisdiction
OAN and the Herrings also move to dismiss the claims against them for lack of personal
jurisdiction. A federal court has personal jurisdiction over a defendant “who is subject to the
jurisdiction of a court of general jurisdiction in the state where the district court is located.” Fed.
R. Civ. P. 4(k)(1)(A). “If a District of Columbia court could exercise jurisdiction over the
Defendants, then so can this Court.” Dominion I, 554 F. Supp. 3d at 65.
“A court may assert general, or all purpose, jurisdiction over a defendant in its home state,”
or it “may exercise specific, or case-based, jurisdiction over a defendant if the plaintiff’s claims
arise out of or relate to the defendant’s forum state contacts.” Smartmatic USA Corp. v. Herring
Networks, Inc., Civ. A. No. 21-2900 (CJN), --- F. Supp. 3d ---, 2022 WL 2208913, at *3 (D.D.C.
June 21, 2022) (cleaned up). Here, Dominion asserts only specific jurisdiction. See Dominion’s
Opp’n at 37–38; Defs.’ Reply at 22 n.18 (noting that Dominion does not argue that the Court has
general jurisdiction over OAN or the Herrings).
To assess whether personal jurisdiction exists, the Court “must first examine whether
jurisdiction is applicable under [D.C.’s] long-arm statute and then determine whether a finding of
jurisdiction satisfies the constitutional requirements of due process.” GTE New Media Servs. Inc.
v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000). The District of Columbia’s long-arm
statute authorizes personal jurisdiction “over a person, who acts directly or by an agent, as to a
claim for relief arising from the” person:
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the District
of Columbia; [or]
20
(4) causing tortious injury in the District of Columbia by an act or omission outside the
District of Columbia if he regularly does or solicits business, engages in any other
persistent course of conduct, or derives substantial revenue from goods used or
consumed, or services rendered, in the District of Columbia.
D.C. Code § 13-423(a). “The District’s first prong has been given an expansive interpretation that
coextends with the Fourteenth Amendment’s Due Process Clause,” which requires that a defendant
have “minimum contacts with the state in which the plaintiff filed the lawsuit.” Smartmatic USA,
--- F. Supp. 3d ---, 2022 WL 2208913, at *3 (quotations omitted). The burden is on Dominion to
establish personal jurisdiction over each Defendant, but “factual discrepancies appearing in the
record must be resolved” in Dominion’s favor. See Crane, 894 F.2d at 456.
1. OAN
In Smartmatic USA, the Court held that it had specific personal jurisdiction over
Smartmatic’s defamation claims against OAN. See --- F. Supp. 3d ---, 2022 WL 2208913, at *3–
5. In doing so, the Court observed that “OAN launched its network through a partnership with The
Washington Times; leases office and studio space in the District; built a broadcast studio in the
District; broadcasts television programs from the District; issues press releases from the District;
advertises in the District to promote its network; and produces and disseminates content (including
allegedly false and defamatory statements about Smartmatic) from the District.” Id. at *3. The
Court also noted that “but for OAN leasing television production studio and office space,
advertising its programming, and promoting its network with guests, OAN’s allegedly false and
defamatory statements would not have made it on the airwaves.” Id.
So too here. Like Smartmatic, Dominion claims that OAN’s allegedly defamatory
statements arise out of OAN’s business transactions in the District. Specifically, Dominion alleges
that OAN maintains and operates a news bureau in the District; films, produces, reviews, edits,
and broadcasts programming from the District, including the allegedly defamatory programming
21
at issue here; and employs (or employed) the D.C.-resident individuals who made some of the
statements while on air in the District. See Compl. ¶¶ 17, 21–22, 43. These facts suffice to
establish personal jurisdiction under § 13-423(a)(1) of the District’s long-arm statute, which
covers, among other things, “‘business transactions’ in the everyday sense of commercial deal-
making activities like advertising, operating office space, and performing contracts.” Smartmatic
USA, --- F. Supp. 3d ---, 2022 WL 2208913, at *3. They also suffice to establish personal
jurisdiction under the Due Process Clause. See GTE New Media Servs. Inc., 199 F.3d at 1347
(“Section (a)(1)’s ‘transacting any business’ clause generally has been interpreted to be
coextensive with the Constitution’s due process requirements and thus to merge into a single
inquiry.”); see also Smartmatic USA, --- F. Supp. 3d ---, 2022 WL 2208913, at *5 (“[I]f § 13-
423(a)(1) has been satisfied then any added requirement emanating from the Due Process Clause
has been satisfied, too.”).
Personal jurisdiction also exists under the District’s long-arm statute because OAN
allegedly “caus[ed] tortious injury in the District of Columbia by an act or omission in the District
of Columbia.” D.C. Code § 13-423(a)(3). Again, Dominion alleges that OAN made numerous
defamatory statements in the District. See Compl. ¶ 43. And although those statements may have
caused injury nationwide, Dominion plausibly alleges that it suffered injury in the District as
well—the District, after all, is home to many influential policymakers with whom Dominion has
an interest in maintaining its reputation. See Dominion I, 554 F. Supp. 3d at 67.
OAN contends that specific jurisdiction is lacking here because Dominion’s claims do not
arise from OAN’s business transactions in the District. See Defs.’ Mot. at 29–30; see also Defs.’
Reply at 23. According to OAN, Dominion’s claims instead arise from news segments that were
broadcast nationwide from California. Defs.’ Mot. at 18 n.9. But Dominion also alleges that OAN
22
filmed, produced, reviewed, and edited the defamatory programming at its D.C. bureau. See
Compl. ¶ 43. Put another way, if Dominion’s allegations are true—and OAN offers no basis for
concluding otherwise—then OAN’s D.C. bureau was the editorial epicenter for the programming
at issue.
At oral argument, OAN advanced a new theory by arguing that the so-called
“newsgathering exception” bars the exercise of personal jurisdiction. Putting aside whether OAN
may have forfeited this argument by not presenting it in its briefs, the newsgathering exception
does not apply here. Under the exception, news outlets “whose presence in Washington consists
of mere collection of news material for use in subsequent publication elsewhere” are not subject
to personal jurisdiction under D.C.’s long-arm statute. 4 Shirlington Limousine and Transp., Inc.
v. San Diego Union-Trib., 566 F. Supp. 2d 1, 4 (D.D.C. 2008). But OAN did not merely gather
news in the District; instead, as alleged by Dominion, OAN also filmed and produced defamatory
programming here. Cf. id. at 2 (noting that “the research, writing, and publication [of the
defamatory articles] took place entirely within San Diego” and that the D.C. bureau provided “no
assistance . . . in preparing the[] articles”). And far from covering news “for a local audience
outside the District,” Lewy v. S. Poverty L. Ctr., Inc., 723 F. Supp. 2d 116, 127 (D.D.C. 2010),
OAN “aimed its allegedly defamatory and false statements to at least some residents of the
District,” Smartmatic USA, --- F. Supp. 3d ---, 2022 WL 2208913, at *4; see also Lewy, 723 F.
Supp. 2d at 127 (“SPLC’s newsgathering efforts . . . are aimed at a national audience that includes
D.C. residents.”).
4
The Court assumes without deciding that the newsgathering exception applies to D.C. Code
§§ 13-423(a)(1) and (3).
23
2. The Herrings
For substantially the same reasons discussed above, the Herrings are also subject to
personal jurisdiction in the District. According to the Complaint, the Herrings exercised complete
control over the Dominion-related content produced at OAN’s D.C. bureau. Specifically,
Dominion alleges that “[t]he false Dominion stories were examples of what were referred to
internally at OAN as ‘H stories’—that is, stories that the Herrings personally approved and
required OAN to run, with the Herrings exercising control over their content, and without the
California editorial team (or anyone else) fact checking the stories or vetting sources.” Compl.
¶ 19; see also id. ¶ 20 (“The Herrings both regularly send information to and receive information
from the Washington, D.C. bureau as part of their close oversight and editorial supervision of the
work done by the reporters there.”). Charles Herring, for example, allegedly “reviewed drafts, and
approved final drafts for broadcasting, of at least some of the false Dominion stories,” id. ¶ 19, and
“he regularly travels to OAN’s Washington, D.C. bureau as part of his oversight and control of its
operations,” id. ¶ 20. Robert Herring, for his part, is described as the “de facto news director” for
the network, and he exercises “a ton of influence over every aspect of the newscast.” Id. ¶ 18
(quotations omitted).
In short, Dominion has alleged that the Herrings transacted business in the District by
personally overseeing and directing publication of the Dominion-related content at OAN’s D.C.
bureau. That allegation is enough to support personal jurisdiction under both the District’s long-
arm statute, see §§ 13-423(a)(1), (a)(3), and the Due Process Clause. 5
5
Even if the Herrings did not themselves make the allegedly defamatory statements, Dominion’s
claims, as alleged, still arise from or relate to the Herrings’ transactions in the District because
“one is liable for the publication of defamation by a third person whom as his servant, agent or
otherwise he directs or procures to publish defamatory matter.” Restatement (Second) of Torts
§ 577, cmt. f.
24
V. Conclusion
For the above reasons, the Court denies Defendants’ motions in full. An Order will be
entered contemporaneously with this Memorandum Opinion.
DATE: November 7, 2022
CARL J. NICHOLS
United States District Judge
Moreover, the Herrings cannot find shelter in the so-called “corporate shield” doctrine—a doctrine
that the Court of Appeals recently repudiated. See Urquhart-Bradley v. Mobley, 964 F.3d 36, 46
(D.C. Cir. 2020) (“[C]ourts cannot ignore contacts made by the individual just because they were
made in his or her capacity as an employee or corporate officer. Contacts are contacts and must
be counted.”).
25 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482181/ | FILED
11/07/2022
Bowen Greenwood
CLERK OF THE SUPREME COURT
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA
Case Number: DA 21-0480
No. DA 21-0480
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID JOEL EATON,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s motion for extension of time,
and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 14, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 7 2022 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482178/ | Filed 11/7/22 P. v. Williams CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE, C095678
Plaintiff and Respondent, (Super. Ct. No. CR3239)
v.
KENFORT ROBIN WILLIAMS,
Defendant and Appellant.
Defendant Kenfort Robin Williams appeals from the trial court’s order extending
his commitment to a state hospital under Penal Code1 section 1026.5. Defendant
contends there is insufficient evidence: (1) he posed a “substantial danger of physical
harm to others,” and (2) he had “serious difficulty in controlling dangerous behavior.”
Defendant further contends that the order for extended commitment violated the due
process clause of the Fourteenth Amendment. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1993, defendant was arrested for possession of methamphetamine, drug
paraphernalia, and a loaded firearm. While on bail later that year, defendant fired a
1 Undesignated section references are to the Penal Code.
1
machine gun at two police officers and one police dog, wounding all three. He was found
not guilty by reason of insanity of two counts of attempted murder, two counts of assault
on a peace officer, one count of possession of a machine gun, and one count of shooting a
police dog.
Defendant was committed to a state hospital pursuant to section 1026. His latest
commitment to Atascadero State Hospital (Atascadero) was set to end in January 2022.
On the advice of senior psychiatrist Dr. Joshua C. Deane and the state hospital medical
director, the District Attorney of Calaveras County petitioned the trial court to extend
defendant’s commitment.
A jury trial on the petition began December 15, 2021. Deane was the sole witness
to testify on behalf of the prosecution. No one testified on behalf of defendant.
I
Dr. Deane’s Testimony
Dr. Deane is a psychiatrist at Atascadero.2 Defendant arrived at Atascadero in
2009 after he attempted to escape from a lower security hospital. Dr. Deane had been
familiar with defendant’s condition and treatment since 2011.
At the time of his commitment, defendant had a 30-year history of alcohol use.
He also developed a methamphetamine addiction at the age of 51. Defendant was
diagnosed with alcohol and amphetamine dependence and an unspecified personality
disorder. Although defendant met most of the criteria for antisocial personality disorder,
he could not be formally diagnosed because he lacked a juvenile criminal record.
Instead, defendant’s official diagnosis was “other unspecified personality disorder” with
antisocial and paranoid features.
The antisocial feature of defendant’s personality disorder derived from his
“extensive criminal records,” pattern of disregard for the safety of others, and disdain for
2 The parties stipulated that Deane was qualified to testify as an expert in this case.
2
legal authority. Defendant’s other antisocial features included lack of remorse,
impulsivity, and deceitful behavior. The paranoid feature referred to defendant’s
tendency to be suspicious of others and read harmful intent or content into otherwise
benign statements. Dr. Deane testified defendant tended to assume the worst of others
and felt the system was against him and that other people were out to get him personally.
Defendant had difficulty getting along with unfamiliar hospital staff and with those who
he perceived as being “against” him.
While at Atascadero, defendant was always “absolutely adamant” that the only
goal of the hospital staff was to keep him in the hospital, no matter how well he
progressed. After Dr. Deane testified at another of defendant’s extension hearings in
2014, defendant was so suspicious of Dr. Deane that he refused to speak to Dr. Deane for
many years. Whenever Dr. Deane approached him, defendant would either yell at him or
give him the “silent treatment.” In June of 2021, when Dr. Deane approached defendant
to discuss his upcoming extension, defendant was verbally abusive and told him to “get
the [j]udge F’d.”
Two weeks before trial, defendant began speaking to Dr. Deane again, to the
doctor’s “surprise and delight.” For the first time during his nearly three decade-long
commitment, defendant admitted to having a mental disorder. He also acknowledged the
damage substance abuse had caused in his life and said he “would never use [substances]
again, and he has lost family, friends, and . . . forty acres of land in Hawaii.” But the
following week, defendant said his personality disorder was nothing more than a
“personality trait,” and he was just a “grumpy man.” He did not see his “grumpiness” as
a problem and said others should accept him as he is. He again accused the hospital of
unfairly keeping him committed while releasing other patients he perceived as similarly
situated.
Personality disorders -- unspecified or otherwise -- do not have a specific
treatment. Treatment is aimed at increasing self-awareness and learning to modulate
3
behaviors, which involves a combination of approaches to address individual
manifestations of the disorder. Antisocial personality disorder is “very difficult to get rid
of.” There are no “magic pills,” and addressing symptoms takes a “very concerted
effort.” Some patients with personality disorders may be recommended for release if
they can demonstrate an ability to manage symptoms to a sufficient degree, but Dr.
Deane did not see defendant as “ready to address any of those issues.”
Dr. Deane testified that, in his opinion, defendant’s personality disorder remained
intact, and his propensity for substance abuse relapse had not diminished. Although
defendant recently acknowledged his personality disorder, he still did not see it as an
issue, which Dr. Deane believed made it unlikely defendant would take steps to manage
it. Although defendant received some substance abuse treatment intermittently while in
the hospital, he was not actively in treatment, “[a]nd he does not want to receive any
treatment.” While defendant had consistently achieved high marks in his job at the
hospital library -- a widely coveted position -- Dr. Deane saw this mainly as evidence of
his ability be “strategically nice and pleasant” under some circumstances. Dr. Deane
believed defendant was nevertheless “still a very oppositional and petulant . . . person
with disdain for legal authority, with poor impulse control.”
Dr. Deane attributed defendant’s abstinence from alcohol and drugs to his
confinement in the hospital environment and said defendant still lacked insight into his
ability to control his substance use. Other than his recent statement that he would never
use substances again, defendant had been dismissive of the issue. He had not
demonstrated a good attitude or commitment to remaining sober and never discussed
plans to seek substance abuse therapy outside the hospital. “[H]is position is that he will
never use again, hence there is no need for anything.” Dr. Deane believed this to be
“woefully insufficient” as a relapse prevention plan, in part because there was no
evidence defendant had an adequate support structure outside the hospital.
4
Defendant was in contact with his son and said, if he were released from the
hospital, his son would be able to help him get back on his feet. Dr. Deane attempted to
reach defendant’s son in the weeks before the hearing, but those phone calls and voice
mails went unanswered. Defendant also expressed he did not want to live with his son
and would prefer to live independently. He did “not want to have anything to do with . . .
other people’s help.” Dr. Deane believed a lack of sufficient support to aid defendant in
his transition out of the hospital would increase defendant’s chance of relapsing. He also
believed defendant was highly likely to become violent if faced with logistical difficulties
transitioning into society.
Although he acknowledged defendant had not been physically violent since 1993,
Dr. Deane still considered defendant at risk for violent behavior. While defendant was
not physically violent during his nine-month conditional release, he ultimately had to
return to the hospital due to his “constant arguing” with staff, difficulties with fellow
residents, and refusal to attend support group meetings. Dr. Deane and other doctors at
Atascadero took special care not to provoke defendant, but the moment someone raised a
subject “not to his liking,” defendant would “go ballistic.” Staff knew not to risk
aggravating him, and if he cursed at them, they would simply walk away. But were
defendant to be released and a similar situation happened outside the hospital setting, the
consequences could be very different. In Dr. Deane’s view, “what he has accomplished
[in an institutional setting] is no match for the reality. It could be a cold, mean street out
there if you are on your own . . . .”
Dr. Deane had not observed any fundamental change in defendant’s condition
since he first began seeing him in 2011. At the time of his original commitment,
defendant believed he was “living in a police state” and that “we need . . . anarchy” or
“some revolution for the next two or three years . . . before we get back to normal.”
Decades later, defendant was still “against the system,” which was why he refused to talk
to Dr. Deane for many years. In Deane’s opinion, these views stemmed primarily from
5
the psychotic feature of defendant’s personality disorder, although at times, defendant’s
drug and alcohol use likely further impaired his impulse control and made his existing
problems worse.
Dr. Deane further expressed the opinion that defendant’s personality disorder was
“very much” a contributing factor to his original offense, which targeted a government
system defendant felt was against him . Indeed, during his drunk driving arrest, an
officer used defendant’s cell phone without permission. Defendant filed a complaint
because he believed the department should reimburse him for the call. When he was not
reimbursed, defendant became aggravated and fired a machine gun at police officers.
Without evidence of any material change to his personality difficulties, Dr. Deane
believed defendant was likely to commit a similar violent offense if released, particularly
if he had to deal with the frustrations of government bureaucracy transitioning back into
society.
Dr. Deane testified defendant remained “easily excitable, irritable and paranoid”
about police and held antigovernment views and sentiments. His “disdain for the legal
authority” and feeling of unfair treatment had not subsided. Defendant also continued to
be verbally abusive to Dr. Deane and other hospital staff. Defendant was a trained
soldier. At nearly 80 years old, the risk of defendant “boxing someone” or “hav[ing] a
fist fight” may be minimal, but he remained “physically capable [of] pull[ing] the trigger
or setting fire” to something, an important consideration to Dr. Deane due to the nature of
defendant’s original offense. His impulse control remained deficient, and when things do
not “go his way,” defendant can turn “potentially very volatile . . . if not violent.”
Thus, at the time of the commitment hearing, it was Dr. Deane’s opinion that
defendant had a mental disorder meeting the statutory requirements and had difficulty
controlling his dangerous impulses. Dr. Deane stated “with a high degree of medical
certainty” that defendant remained fundamentally unchanged and, given the difficulties
6
he would face outside the hospital, he would pose a substantial danger of physical harm
to others if released.
II
The Jury’s Finding And The Court’s Order
The jury unanimously found defendant suffered from a mental disease, defect, or
disorder, and that as a result, he posed a substantial danger of physical harm to others and
had serious difficulty controlling his dangerous behavior. Based on the jury’s finding,
the trial court ordered defendant be recommitted to Atascadero until January 10, 2024.
Defendant appeals.
DISCUSSION
Defendant does not dispute the jury’s finding he has a mental disease, defect, or
disorder meeting the statutory requirements. (See People v. Williams (2015)
242 Cal.App.4th 861, 872 (Williams) [finding whether defendant’s condition qualifies
under § 1026.5 is “ ‘not a question of law, but rather one for the trier of fact to be
resolved with the assistance of expert testimony’ ”].) Rather, defendant contends
insufficient evidence supports the jury’s findings that due to his disease, defect, or
disorder, he represents a substantial danger of physical harm to others and has serious
difficulty controlling his dangerous behavior. We disagree.
Under section 1026.5, subdivision (b)(1), “A person may be committed beyond the
term prescribed by subdivision (a) . . . only if the person has been committed under
Section 1026 for a felony and by reason of a mental disease, defect, or disorder represents
a substantial danger of physical harm to others.” This has been interpreted to require
“proof that the person has serious difficulty controlling . . . dangerous behavior.”
(Williams, supra, 242 Cal.App.4th at p. 872; see People v. Galindo (2006)
142 Cal.App.4th 531, 536.)
We review an order to extend commitment under section 1026.5 for substantial
evidence, examining the entire record in the light most favorable to the order to
7
determine whether a rational trier of fact could have found the requirements of the statute
satisfied beyond a reasonable doubt. (People v. Zapiesk (2007) 147 Cal.App.4th 1151,
1165.) A single psychiatric opinion can justify an order to extend commitment, so long
as the opinion is supported by “relevant, probative facts.” (People v. Redus (2020) 54
Cal.App.5th 998, 1011.)
I
The Evidence Was Sufficient To Find Defendant
Poses A Substantial Danger Of Physical Harm To Others
Defendant argues there was insufficient evidence he represents a danger of
physical harm to others, and that even if there was proof of some danger to others, that
danger was not substantial, and was not proven beyond a reasonable doubt. Specifically,
defendant argues facts in the record -- including his lack of a juvenile record, ability to
retain a coveted job at the hospital library, and prolonged period without exhibiting
physically violent behavior -- imply he would not pose a substantial risk of harm to
others if unconditionally released. We disagree. Although there are some mitigating
factors in defendant’s case, such as his good job performance, the jury also heard
evidence of defendant’s continued volatile behavior, demonstrated disdain for authority,
and refusal to seek treatment, all of which support a finding beyond a reasonable doubt
that defendant poses a substantial danger to others. And contrary to defendant’s
argument, defendant’s lack of a juvenile record does not imply he would not pose a risk
of harm to others if he were released today.
Defendant relies heavily on the fact that he has not been physically violent since
1993, even during the nine months he spent on conditional release. Although relevant to
consider, this fact is not dispositive. Further, Dr. Deane attributed defendant’s lack of
physical violence and drug use to his being in the controlled hospital setting, which
necessarily informs the determination of “whether [defendant] is likely to reoffend if
released into society at large,” in light of “his past behavior, his attitude toward treatment
8
and other risk factors applicable to the facts of his case.” (Cf. People v. Sumahit (2005)
128 Cal.App.4th 347, 353 [finding a defendant’s lack of “overt manifestations of a
sexually violent predator” while in the hospital was “not dispositive of whether he [wa]s
likely to reoffend if released into society at large”].) And while defendant did not use
substances or engage in physical violence while on conditional release, he was in a
controlled environment with resources targeted to help him. Even then, defendant
ultimately had to return to a state hospital due to his hostile behavior and failure to
engage with prescribed treatment on conditional release. The jury could have reasonably
concluded that, were defendant to be unconditionally released, he would face even
greater difficulties, and -- absent any evidence of him addressing his personality disorder
in the interim -- there was no reasonable doubt he would pose a substantial risk of harm
to others.
Defendant further argues Dr. Deane’s testimony was undermined by his rendering
of “opinions by a preponderance of the evidence,” because his “quantitative opinion was
it was ‘more likely than not’ ” defendant would be violent again if released. This
argument lacks merit. As an initial matter, saying something is “more likely than not” is
not inherently inconsistent with it being virtually certain. (See People v. Superior Court
(Ghilotti) (2002) 27 Cal.4th 888, 916-919 [exploring various definitions of “likely” and
“more likely than not” and acknowledging meanings may vary depending on the context
in which they are used].) And as the People point out, the jury, regardless of Dr. Deane’s
own degree of certainty that his opinions were true, was free to agree with the opinions
themselves and, based on that, find there was no reasonable doubt defendant would pose
a substantial danger of harm to others if released. That being so, here, the step the jury
needed to take from Dr. Deane’s stated certainty to a beyond-a-reasonable-doubt finding
was minimal and supported by the substance of Dr. Deane’s testimony apart from his
quantitative statement.
9
Moreover, defendant mischaracterizes the testimony when making his
insufficiency argument. He refers to a point on cross-examination when Dr. Deane
testified the likelihood of defendant being violent again if released was “high,” and when
asked if the likelihood was 50 percent, the doctor replied, “I think more than fifty
percent.” But Dr. Deane then went on to testify he believed “to a high degree of medical
certainty” defendant would be violent again if released, a position he said his report made
“crystal clear.” When asked if he would say it was likely beyond a reasonable doubt, Dr.
Deane said, “that is my sort of opinion,” but “ultimately it’s for the . . . jury to decide.”
Dr. Deane’s “more likely than not” statement was an answer to a question, not the way he
chose to define his opinion, and he repeatedly emphasized his opinion that defendant
remained a danger to others. The record makes clear Dr. Deane had a high level of
certainty in this opinion, and there is ample evidence from which a jury could have based
a finding beyond reasonable doubt.
We conclude substantial evidence shows defendant remained dangerous to others
by reason of his mental disease, defect, or disorder.
II
Sufficient Evidence Supported The Finding
Defendant Had Serious Difficulty Controlling His Dangerous Behavior
Defendant next argues there is insufficient evidence to show he had substantial
difficulty controlling his behavior, since Dr. Deane’s testimony was based on “guess,
surmise, and conjecture,” and thus lacked foundation. To the extent there is any debate
as to whether proper foundation was laid for Dr. Deane to testify as a qualified expert, we
conclude the foundation was adequate under Evidence Code section 801, as was
stipulated at trial. As we understand it, however, the crux of defendant’s argument is that
no factual basis existed to support Dr. Deane’s opinion defendant had serious difficulty
controlling his dangerous behavior.
10
In support of his argument, defendant relies on People v. Redus (2020)
54 Cal.App.5th 998. In Redus, as here, the defendant had not been physically violent
since his original commitment offense decades before. (Id. at p. 1011.) But in Redus,
“there had not been a hint of violence, threatening behavior, or aggressiveness of any kind
on the part of appellant over multiple decades, even through [conditional] releases and
medication lapses.” (Id. at p. 1012, italics added.) Not so here. Dr. Deane’s opinion was
not based on “guess, surmise, or conjecture,” but on defendant’s continued pattern of
aggressive and volatile behavior. (Id. at p. 1011 [substantial evidence must be based on
“relevant, probative facts”].) Indeed, Dr. Deane’s testimony included specific and recent
examples of such behavior. Although there was evidence of defendant’s ability to
“strategically be[] nice and pleasant” under some circumstances, “[t]he issue is not
whether defendant could put on a facade of friendliness and cooperation in the hospital
setting in order to achieve his goal of unsupervised release, but whether he would have
serious difficulty in controlling dangerous behavior once he had attained that goal and no
longer had expert help or support to keep him on the straight and narrow.” (Williams,
supra, 242 Cal.App.4th at p. 875.) The jury was entitled to conclude, despite evidence
defendant could control his impulses under some conditions, that the other evidence
demonstrated his impulse control was poor overall and would be even more so outside
the hospital.
We conclude substantial evidence shows defendant had significant difficulty
controlling his behavior.
III
There Was No Due Process Violation
Defendant’s due process argument is inextricably linked to his insufficient
evidence arguments. At its core, defendant’s argument is that there were no factual
underpinnings to Dr. Deane’s opinions that defendant was a substantial risk of harm and
could not control his behaviors. As demonstrated, however, Dr. Deane relied on specific
11
evidence pertaining to defendant’s documented behavior. Accordingly, because there
was substantial evidence defendant posed a substantial danger of physical harm to others
by reason of a mental disorder and that he has serious difficulty controlling his dangerous
behavior, the order for extended commitment did not violate the due process clause of the
Fourteenth Amendment. (See Foucha v. Louisiana (1992) 504 U.S. 71, 86 [118 L.Ed.2d
437, 452].)
DISPOSITION
The order extending defendant’s commitment is affirmed.
/s/
Robie, Acting P. J.
We concur:
/s/
Earl, J.
/s/
Boulware Eurie, J.
12 | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482184/ | 11/07/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
November 7, 2022
ALYONA FORREST v. OLUSEYI KUNNU
Appeal from the Juvenile Court for Maury County
No. 17JV26 Robert C. Richardson, Judge
___________________________________
No. M2021-01458-COA-R3-JV
___________________________________
A father appeals the modification of a parenting plan. Because the order appealed does not
resolve all of the claims between the parties, we dismiss the appeal for lack of a final
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
ANDY D. BENNETT, W. NEAL MCBRAYER, and JEFFREY USMAN, JJ.
Corletra Faye Mance, Nashville, Tennessee, for the appellant, Oluseyi Kunnu.
Jason R. Nabors, Spring Hill, Tennessee, for the appellee, Alyona Forrest.
MEMORANDUM OPINION1
Genesis F. was born in November of 2016. On February 10, 2017, the trial court
entered an order establishing parentage and support. The father subsequently sought
parenting time, and the trial court entered a parenting plan on January 19, 2018, naming
the mother as the primary residential parent. On June 17, 2021, the father filed a petition
for modification of the parenting plan and to change the child’s surname. The mother
opposed the petition and proposed her own modified parenting plan. On November 9, 2021,
the trial court entered an order denying the father’s request to change the child’s surname
and adopting, with some modification, the parenting plan proposed by the mother. The
order requires the father to provide opposing counsel with documentation reflecting his
earnings and provides that “support shall be calculated accordingly under the guidelines
with this visitation schedule.” The record does not contain a subsequent order setting the
amount of child support. The father filed his notice of appeal on December 8, 2021.
1
Under the rules of this Court, as a memorandum opinion, this opinion may not be published,
“cited[,] or relied on for any reason in any unrelated case.” TENN. CT. APP. R. 10.
A party is entitled to an appeal as of right only after the trial court has entered a final
judgment. TENN. R. APP. P. 3(a). A final judgment is a judgment that resolves all the claims
between all the parties, “leaving nothing else for the trial court to do.” In re Estate of
Henderson, 121 S.W.3d 643, 645 (Tenn. 2003) (quoting State ex rel. McAllister v. Goode,
968 S.W.2d 834, 840 (Tenn. Ct. App. 1997)). An order that adjudicates fewer than all the
claims between all the parties is subject to revision at any time before the entry of a final
judgment and is not appealable as of right. TENN. R. APP. P. 3(a); In re Estate of Henderson,
121 S.W.3d at 645.
This Court received the record on appeal on April 29, 2022. After reviewing the
record, the Court determined that the judgment appealed was not final because it did not
resolve the issue of child support. On May 13, 2022, the Court ordered the parties either to
obtain a final judgment disposing of the remaining issue within ninety days or else to show
cause why the appeal should not be dismissed. Although more than ninety days have
passed, the parties have not responded to the show cause order, and the trial court clerk has
notified the Court that the trial court has still not entered a final judgment.
The appeal is hereby dismissed for lack of a final judgment. The dismissal is without
prejudice to the filing of a new appeal once a final judgment has been entered. The case is
remanded to the trial court for further proceedings consistent with this opinion. The costs
are taxed to the appellant.
PER CURIAM
-2- | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482175/ | In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2485
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTWAIN MOORE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cr-00109-RLY-DML-1 — Richard L. Young, Judge.
____________________
ARGUED JUNE 7, 2022 — DECIDED NOVEMBER 7, 2022
____________________
Before HAMILTON, KIRSCH, and JACKSON-AKIWUMI, Circuit
Judges.
HAMILTON, Circuit Judge. Appellant Antwain Moore was
sentenced to 120 months in federal prison for multiple drug
offenses. One factual foundation for the sentence was the dis-
trict court’s finding that 55.6 grams of methamphetamine
found in Moore’s home were 100% pure. Moore appeals, ar-
guing that a chemist’s affidavit that he submitted was “some
evidence” sufficient to call the purity finding into question
2 No. 21-2485
and that the government failed to support the finding on pu-
rity. See, e.g., United States v. Mustread, 42 F.3d 1097, 1101 (7th
Cir. 1994) (if defendant produces “some evidence” that calls
information in presentence report into question, government
bears burden of persuasion on factual issue). Moore contends
that the district court erred by placing a burden on him to per-
form independent testing and by assuming, without support-
ing evidence, that the Drug Enforcement Administration’s
methods for testing purity are reliable and were applied cor-
rectly in Moore’s case.
We agree with Moore and remand for re-sentencing. The
“some evidence” standard is not a demanding one. The chem-
ist’s affidavit here did not purport to resolve conclusively the
accuracy of the DEA test results, but it raised a fair question
about them.
I. Factual and Procedural Background
Moore pled guilty to seven counts of violating 21 U.S.C.
§ 841(a)(1), including one count based on methamphetamine
found in Moore’s home. A probation officer submitted a
presentence investigation report (PSR) recommending a Sen-
tencing Guidelines base offense level of 30. That base offense
level depended on the total “converted drug weight” for all
counts. About 99% of the converted drug weight total was
based on 55.6 grams of methamphetamine found in Moore’s
house. To calculate the amount of “actual” methamphetamine
for purposes of U.S.S.G. § 2D1.1(5) and the drug conversion
tables, the probation officer consulted a laboratory report
from the DEA. According to that report, the net weight was
55.6 grams (± 0.2 grams), the amount of pure substance was
55.6 grams (± 3.4 grams), and the methamphetamine purity
was 100% (± 6%).
No. 21-2485 3
Before sentencing, Moore objected to the PSR’s recom-
mended offense level, arguing that the government did not
have evidence demonstrating that the reported purity level
was accurate. He argued that, absent better evidence of how
the purity was established, the court should treat the 55.6
grams as a “mixture” containing methamphetamine. That
would cut his base offense level from 30 to 24 and his guide-
line range from 130–162 months in prison to 77–96 months. If
Moore had done nothing more by way of objection, he would
have offered what we have repeatedly described as only a
“bare denial” of the PSR information, which ordinarily is not
enough to shift the burden of production or to require a hear-
ing. E.g., United States v. Willis, 300 F.3d 803, 807 (7th Cir.
2002); Mustread, 42 F.3d at 1102. 1
In this case, however, Moore offered more than a bare de-
nial. To support his objection, he submitted the affidavit of a
chemist, Dr. Derek Beauchamp, who explained that exact pu-
rity could not be determined with the DEA’s method and that
the purity level of Moore’s drugs could be substantially lower
than the DEA had reported:
Based on the reports I received, the material was
confirmed to be methamphetamine with high
purity based on the match to the reference GC
1 We say “ordinarily not enough” because there are cases where the
PSR itself may not indicate that information is reliable enough to support
a sentencing decision. In such cases, a “bare denial” may be enough to
require the government to come forward with reliable evidence. See, e.g.,
United States v. Helding, 948 F.3d 864, 870–71 (7th Cir. 2020) (PSR reported
drug quantities based on confidential informants of unknown reliability);
United States v. Isirov, 986 F.2d 183, 186 & n.1 (7th Cir. 1993), citing United
States v. Coonce, 961 F.2d 1268, 1280 (7th Cir. 1992).
4 No. 21-2485
chromatogram. Based on the match to a refer-
ence library pattern, the exact purity could not
be determined. To determine the purity, one
would collect a sample of a known purity refer-
ence material and use that to quantify the
amount of methamphetamine in the sample in
question. This approach could lead to a poten-
tial lower purity level of the sample, thus poten-
tially lowering the total amount of metham-
phetamine in the total sample. Nor can it be de-
termined if the purity level is consistent
throughout.
In response to this affidavit, the government did not sub-
mit additional evidence. It instead only argued that Dr. Beau-
champ’s affidavit was “not conclusive that the government’s
procedures were improper or led to a bad result” and that
“the DEA’s testing procedures are well accepted in the scien-
tific community.” The government added that Moore could
have retested the methamphetamine and did not.
The court agreed with the government’s arguments, over-
ruled Moore’s objection, and adopted the PSR’s determina-
tion that Moore was responsible for 55.6 grams of actual meth-
amphetamine. The court explained:
The DEA has standard protocol that they follow
when conducting tests to determine purity.
There’s no indication here or no evidence before
the Court that these protocols are not reliable.
So the Court finds that the government has es-
tablished the purity level by a preponderance of
the evidence here. [Moore] could have had an
independent test, did not, and the DEA
No. 21-2485 5
protocols are well accepted among the scientific
community.
Based on the higher purity level for those 55.6 grams, the
court calculated a guideline range of 130 to 162 months in
prison. The court then sentenced Moore to 120 months. Moore
has appealed, challenging only the purity finding.
II. Analysis
In applying the Sentencing Guidelines, facts like drug pu-
rity that can raise the guideline range must be established by
the government by a preponderance of reliable evidence.
United States v. Carnell, 972 F.3d 932, 938 (7th Cir. 2020); see
also United States v. Watts, 519 U.S. 148, 156 (1997); U.S.S.G.
§ 6A1.3, comment (“The Commission believes that use of the
preponderance of the evidence standard is appropriate to
meet due process requirements and policy concerns in resolv-
ing disputes regarding the application of the guidelines to the
facts of a case.”).
Reliability is the touchstone of this case: Moore has a due-
process right to be sentenced based on reliable information.
E.g., United States v. Helding, 948 F.3d 864, 870 (7th Cir. 2020),
citing United States v. Tucker, 404 U.S. 443, 447 (1972). We re-
view a decision on the reliability of evidence for abuse of dis-
cretion and any factual findings for clear error. Carnell, 972
F.3d at 943. 2
2 A word about terminology, because the record here contains numer-
ous references to “ice.” Under the Guidelines, the amount of “actual meth-
amphetamine” is the weight of that substance contained in a mixture.
U.S.S.G. § 2D1.1(c), note (B) (illustrating with example: “a mixture weigh-
ing 10 grams containing PCP at 50% purity contains 5 grams of PCP (ac-
tual)”). “Ice” refers to a mixture with “d-methamphetamine
6 No. 21-2485
We agree with Moore that the district court erred when it
determined that the government had “established the purity
level by a preponderance of the evidence,” and that “there
was no indication here or no evidence before the Court that
[the DEA] protocols are not reliable.” The government sub-
mitted DEA test results that were not supported by any affi-
davit. When the reliability was questioned in Dr. Beau-
champ’s affidavit, the government chose to rest on an as-
sumption that the district court adopted: that the DEA has re-
liable and generally accepted methods of testing drug purity.
We assume that’s probably true as a general matter, but in a
particular case, a defendant whose liberty is at stake is enti-
tled to hold the government to its burden of proof by a pre-
ponderance of reliable evidence. An unsupported assumption
does not tell us anything about whether test results in a par-
ticular case can reasonably be relied upon.
The district court overstated the case in saying there was
“no indication here or no evidence before the Court that these
protocols are not reliable.” The record’s only actual evidence
about the reliability of the test results is Dr. Beauchamp’s af-
fidavit. To call into question the reliability of evidence used in
a presentence investigation report, we have long required the
defendant to “furnish some evidence.” United States v. Mays,
593 F.3d 603, 608 (7th Cir. 2010) (assuming objection sufficient
to question reliability but finding no error because challenged
statements from confidential informants were corroborated in
record); accord, Willis, 300 F.3d at 807; United States v. Jones,
209 F.3d 991, 996 (7th Cir. 2000); United States v. Taylor, 72 F.3d
533, 547 (7th Cir. 1995); Mustread, 42 F.3d at 1101; United States
hydrochloride of at least 80% purity.” Id., note (C). Thus, a drug quantity
found to be “ice” can contain methamphetamine that is 80 to 100% pure.
No. 21-2485 7
v. Isirov, 986 F.2d 183, 186 & n.1 (7th Cir. 1993); United States
v. Coonce, 961 F.2d 1268, 1280 (7th Cir. 1992).
Producing “some evidence” is not a demanding standard,
however. See Superintendent v. Hill, 472 U.S. 445, 455–56 (1985)
(due process requires only “some evidence,” rather than more
stringent evidentiary standard, to support prison discipline
that deprives prisoner of liberty; fairness requires “some basis
in fact”); United States v. Mayfield, 771 F.3d 417, 440 (7th Cir.
2014) (en banc) (defendant who offers “some evidence” of en-
trapment is entitled to jury instruction on the defense, and
“this initial burden of production is not great”).
Moore provided more than a bare objection. He offered
the opinion of an independent expert about the reliability of
the DEA’s test results. Dr. Beauchamp explained that the
DEA’s results were potentially inexact and inconsistent,
pointing out in particular that the DEA’s report did not enable
him to determine whether the purity level of drugs was con-
sistent throughout the 55.6 grams.
We recognize that Dr. Beauchamp did not include the
words “not reliable” or “unreliable,” but that was the sub-
stance of his opinion, and we require no specific words to
question the evidence summarized in the PSR. In substance,
Dr. Beauchamp identified potential shortcomings. Given the
lack of information accompanying the DEA report, those po-
tential problems were sufficient to call into question the relia-
bility of the test results and to call for evidence supporting the
PSR’s recommendation.
The district court rejected the Beauchamp affidavit with-
out addressing it explicitly. The court instead pointed to
Moore’s failure to carry out his own purity test and to the
8 No. 21-2485
reliability of the DEA protocols. As to the former, recall that
Moore’s burden was to furnish “some evidence” calling into
question the reliability of the information in the PSR. E.g.,
Mays, 593 F.3d at 608. No specific type of evidence is required.
Moore certainly could have sought permission to do inde-
pendent testing, but the burden of persuasion is on the gov-
ernment. Moore was not required to come forward with more
specific and persuasive evidence contradicting the purity as-
sertion in the PSR, let alone “conclusive” contrary evidence,
as the government suggested. Cf. Carnell, 972 F.3d at 944
(“This is not to say that a lab report is always needed to meet
the burden required by 2D1.1, note C.”).
The district court’s assumption about the general reliabil-
ity of DEA testing protocols is also not supported by any evi-
dence in the record. The laboratory report contains only a
brief explanation of the process involved. That explanation is
all but opaque to generalist judges without substantial back-
ground in organic chemistry. It makes intuitive sense, of
course, that the nation’s premier drug-interdiction agency
would use reliable methods in analyzing drug samples. But
as noted, that general assumption says nothing about whether
the methods used in a particular case were suitable and relia-
ble. No evidence in this record supports the government’s as-
sertion, adopted by the district court, about the reliability and
general acceptance of DEA testing methods. See Helding, 948
F.3d at 869–70. Without such evidence, Moore is correct that
the court in effect took judicial notice of the trustworthiness
of DEA protocols, both in general and as applied. Yet those
facts are not “generally known,” nor can they be “accurately
and readily determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201.
No. 21-2485 9
The government suggested at oral argument that requir-
ing it to demonstrate the reliability of DEA drug analyses at
sentencing would waste resources and allow defendants to
clog up the courts with specious objections. We do not agree.
When the government relies on hearsay—such as the labora-
tory results here—and a defendant raises a plausible objection
about whether its contents are indeed reliable, the govern-
ment can reasonably be required to provide more of a foun-
dation. See Helding, 948 F.3d at 869–70 (district court abused
its discretion when its “reasoning came very close to … saying
it credited the [] information because of its inclusion in the
PSR”). Here, the government provided no support other than
a mistaken suggestion that Moore was required to have per-
formed independent testing and an unsupported assertion
that DEA protocols are so reliable that they are not subject to
question in an individual case.
We are not persuaded by the government’s parade of sys-
tem-choking horribles. The familiar requirement that the de-
fendant ordinarily offer “some evidence” supporting an ob-
jection to factual assertions in a presentence investigation re-
port should weed out most baseless objections. In the mine
run of cases, a defendant who has already been convicted of
a drug offense will often have reason to know whether con-
testing purity would be worthwhile. If the DEA protocols are
indeed as reliable as the district court thought in this case, a
few litigated and unsuccessful challenges are likely to per-
suade defendants not to keep raising the issue without some
case-specific reasons to question reliability. In any event, the
potential inefficiencies, which we do not think will be great,
do not warrant silencing reasonable questions by a criminal
defendant who faces a greater deprivation of liberty based on
the accuracy of a laboratory test of a drug sample.
10 No. 21-2485
Because Moore provided “some evidence” questioning
whether the alleged purity of the methamphetamine sample
was reliable, and because the government submitted no evi-
dence in response, the district court erred when it accepted
the government’s unsupported assertions and effectively
shifted the burden of persuasion to Moore. On remand, the
district court may not rely on the test results without requir-
ing the government to furnish affirmative support for their re-
liability and allowing Moore to challenge that evidence.
Moore’s sentence is VACATED and the case is REMANDED
for re-sentencing.
No. 21-2485 11
KIRSCH, Circuit Judge, dissenting. The district court did not
err when it accepted the Presentence Investigation Report’s
drug quantity finding and credited the Drug Enforcement
Agency’s lab results regarding the purity of the methamphet-
amine found in Antwain Moore’s home. It was Moore’s bur-
den to provide some evidence that “call[ed] into question the
reliability or correctness of the facts contained in the PSR.”
United States v. Mays, 593 F.3d 603, 608 (7th Cir. 2010). But
Moore offered only the speculative observations of a chemist
who provided nothing to cast doubt on the accuracy of the
DEA’s lab report. Because all of the reliable evidence before
the district court supported its drug quantity finding, we
should affirm Moore’s sentence.
When a district court relies on facts from a presentence re-
port “that is well-supported and facially reliable,” a defend-
ant raising a dispute must “show the judge that disputed fac-
tual information in the report is inaccurate.” United States v.
Marks, 864 F.3d 575, 580 (7th Cir. 2017). Put another way, it is
the defendant’s burden to show that a PSR is inaccurate or
unreliable with “more than a bare assertion of inaccuracy[.]”
Mays, 593 F.3d at 608. Instead, the defendant “must furnish
some evidence that calls into question the reliability or cor-
rectness of the facts contained in the PSR.” Id. Only when the
defendant produces such evidence does the burden shift back
“to the government to demonstrate the accuracy of the infor-
mation.” Id.
The majority’s holding rests on the false premise that Dr.
Derek Beauchamp’s affidavit called the reliability of the
DEA’s lab report into question. I fail to see how. Dr. Beau-
champ stated that “the exact purity could not be determined”
using the DEA’s methods. But exact purity is not required, the
12 No. 21-2485
DEA’s lab results provide a margin of error, and the report
expressly disclaims complete accuracy. Could the DEA’s
method determine purity within the margin of error provided
in the report? Dr. Beauchamp doesn’t say. Dr. Beauchamp
further posited that an alternative approach “could lead to a
potential lower purity of the sample, thus potentially lower-
ing the total amount of methamphetamine in the total sam-
ple.” But how likely and by how much? More precisely,
would the alternative method bring the purity level below the
threshold necessary to have any effect on Moore’s base of-
fense level? We are left to guess. Dr. Beauchamp’s heavily
qualified statement about an alternative approach offers no
basis to question the accuracy of the DEA’s report, let alone to
conclude, as the majority does, “that the purity level of
Moore’s drugs could be substantially lower.” Finally, Dr.
Beauchamp concluded his affidavit by declaring: “Nor can it
be determined if the purity level is consistent throughout.” It
is unclear whether Dr. Beauchamp is referencing the DEA’s
testing method, his proposed alternative method, or the test-
ing of methamphetamine purity in general. In any event, Dr.
Beauchamp’s concluding remark about the consistency of the
substance does not conflict with anything in the DEA’s report.
And overall, Dr. Beauchamp’s vague and equivocal affidavit
identified no potential shortcomings with the DEA report.
None of this means, as the majority suggests, that Moore
had no way of challenging the report. To the contrary, if
Moore wanted to raise genuine questions regarding the accu-
racy of the DEA’s purity finding, he had several options at his
disposal. First, Moore could have submitted an affidavit from
an expert that actually undermined the DEA’s lab report, or
he could have asked Dr. Beauchamp to appear at the sentenc-
ing hearing to fill the gaps in his affidavit. Moore decided not
No. 21-2485 13
to do so. Second, Moore could have subpoenaed the forensic
chemists who analyzed and approved the DEA’s report. For
whatever reason, despite having access to this information
well before sentencing and providing the report to Dr. Beau-
champ, Moore chose not to seek the forensic chemists’ testi-
mony. Third, Moore could have subpoenaed and cross-exam-
ined other DEA chemists or lab technicians about the agency’s
testing procedures. He didn’t do that either. Finally, as the
government and the district judge pointed out at sentencing,
Moore could have submitted the methamphetamine for inde-
pendent testing, but he decided against that route too.
The majority says that “[n]o specific type of evidence is re-
quired.” True enough, and the options above are by no means
an exhaustive list of the evidence Moore could have offered at
sentencing. But to carry his burden of showing that the DEA’s
lab results were inaccurate or unreliable, Moore was required
to at least “furnish some evidence that call[ed] into question
[its] reliability or correctness[.]” Mays, 593 F.3d at 608. No one
stopped Moore from presenting such evidence or silenced
reasonable questions about the accuracy of the DEA’s proce-
dures. It was Moore’s choice to supply one affidavit that failed
to undermine the report, and the district judge was not re-
quired to hold a hearing when no legitimate questions had
been raised about the report’s accuracy.
One other related point. Citing only Federal Rule of Evi-
dence 201, the majority says that the district judge “in effect
took judicial notice of the trustworthiness of DEA protocols.”
Rule 201 permits courts to take judicial notice of facts that are
generally known and not subject to reasonable dispute. By in-
voking judicial notice here, the majority implies that the dis-
trict judge determined that the reliability of the DEA’s
14 No. 21-2485
protocols was beyond reasonable dispute. But the judge did
no such thing. Far from finding the trustworthiness of the
DEA’s protocols beyond dispute, the judge merely deter-
mined that the chemists’ report (on which the PSR relied) con-
tained sufficient indicia of reliability to support its probable
accuracy. As with all facts contained in a PSR, that is all the
district court needed to find to rely on the report at sentenc-
ing. See United States v. Sunmola, 887 F.3d 830, 839 (7th Cir.
2018). Because Moore offered nothing to rebut the report’s re-
liability, the district court did not abuse its discretion in de-
termining Moore’s drug quantity.
The majority’s approach invites baseless challenges to
drug quantity determinations. Even when a defendant offers
no evidence suggesting that the government’s lab testing re-
sults are inaccurate, according to the majority, a defendant
need only point to an alternative method that “could lead to
a potential lower purity of the sample.” This result runs con-
trary to Mays and our precedents, which require a defendant
to furnish more than mere speculation to undermine facially
reliable information in the PSR. See, e.g., United States v. Betts-
Gaston, 860 F.3d 525, 539 (7th Cir. 2017) (“[W]here there is an
apparently reliable basis for information in a presentence re-
port, bare denial is not enough. The defendant must produce
some evidence calling the presentence report into question,
unless the report contains only a naked or unsupported
charge.”) (cleaned up).
But defendants who choose this route should proceed cau-
tiously. “In the mine run of cases,” the majority assures, “a
defendant who has already been convicted of a drug offense
will often have reason to know whether contesting purity
would be worthwhile.” I agree that defendants like Moore are
No. 21-2485 15
well-positioned to know whether their objections to the pu-
rity of the substances they intended to market will have any
merit. A baseless objection to drug quantity will not only
leave the defendant’s base offense level unchanged, it may
well result in a higher total offense level at the end of the day,
a risk that Moore now runs in this case. District courts have
broad discretion to deny acceptance of responsibility credit to
a defendant who frivolously contests drug quantity findings
that are “amply supported by the record.” United States v.
Acosta, 534 F.3d 574, 581 (7th Cir. 2008); U.S.S.G. § 3E1.1, Ap-
plication Note 1(A). Whether Moore’s objection falls into that
category is for the district judge to decide in the first instance
on remand.
I respectfully dissent. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482186/ | Filed 11/7/22 P. v. Ramirez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308080
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA075509)
v.
TOMAS CARRILLO
RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jared D. Moses, Judge. Reversed and remanded
with directions.
Gail Harper, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amenda V. Lopez, Idan Ivri and Charles S.
Lee, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
Tomas Carrillo Ramirez (Tomas),1 who was convicted of
second degree murder and other offenses in 2011, appeals from
an order denying his petition for resentencing under Penal Code
section 1172.6.2 At trial, the prosecution’s theory was that Tomas
was an accomplice to a gang-related shooting, and he was not the
actual shooter. The trial court instructed the jury on direct
aiding and abetting and natural and probable consequences
theories of liability. Tomas contends, the Attorney General
concedes, and we agree the trial court erred in finding Tomas
failed to make a prima facie showing he is eligible for relief under
section 1172.6, a statute which authorizes relief for, among
others, a person convicted of murder under the natural and
probable consequences doctrine. We reverse the order denying
the petition for resentencing and remand the matter for further
proceedings under section 1172.6, including the issuance of an
order to show cause under subdivision (c) and a hearing under
subdivision (d).
Tomas contends that upon remand, the hearing must be
held before the same judge who originally sentenced him, and the
trial court erred in designating another judge to rule on the
1Hereafter, we refer to appellant by his first name to avoid
confusion with his cousin, Dario Ramirez (Dario), who was
Tomas’s codefendant at one of Tomas’s two trials in this case.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). Tomas filed his petition prior to this renumbering,
and he therefore referred to the statute as section 1170.95 in his
petition. In this opinion, for the sake of consistency, we refer to
the statute by its current designation, section 1172.6.
Undesignated statutory references are to the Penal Code.
2
petition. As explained more fully below, we conclude the trial
court did not err in finding the judge who originally sentenced
Tomas was not available to hear his petition, as she was retired
from the bench and living outside California.
Finally, we reject Tomas’s contention that Assembly Bill
No. 333 applies to the jury’s true findings on gang enhancement
allegations against him. Assembly Bill No. 333 recently amended
section 186.22 to impose new substantive and procedural
requirements for gang allegations and added section 1109 to
require bifurcation of a gang enhancement upon the defense’s
request. Because Tomas’s judgment has been final since 2013,
Assembly Bill No. 333 affords him no relief at this juncture, as we
explain below.
BACKGROUND
I. Charges, Trials, and Direct Appeal
On December 28, 2008, Rodolfo Macias died as a result of
gunshot wounds, and Raymond Salcedo lost an eye due to a
gunshot to the head.
A 2009 information charged Tomas, Jose Arnaud, and
Dario with the murder of Macias (§ 187, subd. (a)), the willful,
deliberate, premediated attempted murder (§§ 664 & 187, subd.
(a)) of Salcedo, and aggravated mayhem (§ 205) as to Salcedo. As
to all three counts, the information charged a gang enhancement
(§ 186.22, subd. (b)(1)(C)), and alleged a principal personally and
intentionally discharged a firearm which proximately caused
great bodily injury or death to the victims (§ 12022.53, subds. (b)-
(e)).
3
At his first trial, Tomas was tried with Arnaud by separate
jury.3 Arnaud’s jury found him guilty of first degree murder,
attempted murder, and mayhem, and found gang and firearm
enhancement allegations to be true. Tomas’s jury could not reach
a verdict and a mistrial was declared.
At his second trial, Tomas was tried with Dario, using a
single jury. The prosecution’s theory at this trial was that
Arnaud was the shooter, and Tomas and Dario were his
accomplices. The prosecution presented direct aiding and
abetting and natural and probable consequences theories of
Tomas’s (and Dario’s) liability. The trial court instructed the jury
on both theories.
A detailed recitation of the facts and circumstances of the
shooting is not necessary to our resolution of the issues on
appeal. For purposes of context only, we state briefly that the
prosecution presented evidence at Tomas’s second trial
indicating: Tomas was driving a vehicle (a Jeep), with Dario and
Arnaud inside. Tomas knew there was a gun in the Jeep. Tomas
stopped the Jeep near two males who were standing on a
sidewalk. Someone in the Jeep asked the males where they were
from, meaning what was their gang affiliation. At some point,
Tomas and Dario exited the Jeep, and said the name of their
gang. Macias and Salcedo, who had been at a barbecue with the
two males, began to approach the group. Tomas and Dario
turned their attention to Macias and Salcedo. One or both asked
Macias and Salcedo where they were from. Arnaud exited the
3During this first trial, count 3 of the information was
amended to reflect a lesser charge of mayhem under section 203,
instead of aggravated mayhem under section 205 as originally
charged.
4
Jeep and shot Salcedo in the head. Tomas, Dario, or both were
holding onto or pushing Macias, when Arnaud fired several
rounds at Macias. Salcedo survived and Macias died. The
prosecution’s gang expert opined, based on her knowledge and
experience, that Tomas, Dario, and Arnaud were members of a
criminal street gang; and that hypothetical crimes, mirroring the
facts of this case as presented through the prosecution’s evidence,
would have been committed for the benefit of a criminal street
gang.4
The jury found Tomas and Dario guilty of second degree
murder, attempted voluntary manslaughter (as a lesser included
offense of attempted murder), and mayhem. The jury also found
the gang and firearm enhancement allegations to be true as to
each offense. The trial court sentenced Tomas (and Dario) to 69
years to life in prison: 15 years to life for the murder, plus 25
years to life for the firearm enhancement (§ 12022.53, subds. (d)-
(e)); and a consecutive term of four years (the midterm) for
mayhem, plus 25 years to life for the firearm enhancement. The
4This brief overview of the circumstances of the shooting is
taken from our opinion in Tomas’s direct appeal. (People v.
Ramirez (Mar. 26, 2013, B232114) [nonpub. opn.], pp. 3-4, 6-7.)
We reiterate that we provide this summary only to give context to
Tomas’s contentions in this appeal. The specific facts and
circumstances of the shooting are not material to our legal
analysis. We note that our summary of facts, while much less
detailed than Tomas’s, is not inconsistent with the facts Tomas
presented in his briefing in this appeal. Tomas asks us to strike
the Attorney General’s respondent’s brief because the Attorney
General provides a factual account taken from the appellate
opinion. We decline to do so. As in this opinion, the facts are
provided for context and are not material to the legal analysis.
5
court imposed and stayed a term of three years (the midterm) for
the attempted voluntary manslaughter.
Tomas and Dario appealed their convictions, and we
affirmed the judgments. (People v. Ramirez, supra, B232114.)
Tomas contended in the direct appeal that the trial court erred in
instructing the jury on the natural and probable consequence
doctrine over his and Dario’s objection to the instructions. We
rejected this contention based on the law at the time of the direct
appeal. (Id. at pp. 11-14.) Tomas and Dario also contended,
among other things, that there was insufficient evidence
supporting their convictions. We concluded “substantial evidence
supported the verdicts, with or without resort to the natural and
probable consequences doctrine,” as “the record provides
substantial evidence that defendants [Tomas and Dario] intended
to aid and abet a murder and an assault with a deadly weapon.”
(Id. at pp. 15, 17.)
II. Tomas’s Section 1172.6 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 “to
amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &
189, subd. (e).) Senate Bill No. 1437 amended sections 188
(defining malice) and 189 (felony murder) and added section
1170.95, now renumbered section 1172.6, which established a
procedure for vacating murder convictions and resentencing
defendants who could no longer be convicted of murder in light of
6
the amendments to sections 188 and 189. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
On January 10, 2019, Tomas filed a form petition for
resentencing under former section 1170.95, now section 1172.6.
In the petition, he checked boxes stating, in pertinent part, that
he was convicted of second degree murder under the natural and
probable consequences doctrine (or under the second degree
felony murder doctrine), and he could not now be convicted of
that crime because of changes to sections 188 and 189, effective
January 1, 2019. He also checked the box requesting the trial
court appoint counsel to represent him in connection with his
petition.
The judge who originally sentenced Tomas was retired from
the bench and living outside California. The supervising judge
assigned the petition to another judge in the same courthouse
where Tomas was originally sentenced. The trial court appointed
counsel to represent Tomas.
The district attorney filed an opposition to the petition,
arguing in pertinent part: “[T]he record of conviction proves
beyond a reasonable doubt that [Tomas] personally acted with
malice aforethought. Relief should be denied because there is
sufficient evidence in the record to support a conviction for second
degree murder under the current amendment of . . . sections 188
or 189 made effective January 1, 2019. In short, [Tomas] is not
eligible for relief because he could still be convicted of murder
under the laws as amended by [Senate Bill No.] 1437.” In
support of her arguments, the district attorney relied on, and
attached to the opposition, our opinion in Tomas’s direct appeal.
Tomas, through his appointed counsel, filed a reply brief in
support of his petition for resentencing. Therein, he argued he
7
had made a prima facie case for relief, and the trial court should
issue an order to show cause. He pointed out that at his second
trial, the court instructed the jury on both direct aiding and
abetting and natural and probable consequences theories of
liability, and the record of conviction does not indicate the theory
on which the jury relied.
At a September 17, 2020 hearing on Tomas’s petition for
resentencing, after hearing oral argument from the parties, the
trial court denied the petition without issuing an order to show
cause and holding an evidentiary hearing. The court noted at the
hearing that it had reviewed the entire trial court file, the trial
transcripts, and the opinion in Tomas’s direct appeal. The court
stated it agreed with Tomas that Arnaud was the “actual
shooter,” and there is nothing in the record indicating whether
the jury relied on a direct aiding and abetting theory of liability
or a natural and probable consequences theory of liability at
Tomas’s second trial. After citing the opinion in Tomas’s direct
appeal for the proposition that there was substantial evidence
supporting Tomas’s murder conviction under a direct aiding and
abetting theory of liability, the court found Tomas did not state a
prima facie case for relief in his petition for resentencing because
he “fail[ed] to show that he was not such a direct aider and
abettor.” The court concluded Tomas “would still be found guilty
[under] a valid theory of murder as a direct aider and abettor.”
The court issued a minute order stating it denied Tomas’s
petition for resentencing for the reasons “reflected in the notes of
the court reporter.”
At the same September 17, 2020 hearing, Tomas’s counsel
stated he “want[ed] to make sure” Tomas did not waive the issue
that he was entitled to have his petition for resentencing heard
8
by the judge who presided at his trial. Tomas’s counsel
acknowledged the judge who presided at Tomas’s trial was no
longer a sitting judge and lived outside Los Angeles. The court
commented that the judge lived outside California. Tomas’s
counsel did not dispute this and added that he had reviewed the
address information for the trial judge on The State Bar of
California’s Web site. There was no further discussion on this
issue.
DISCUSSION
I. As the Parties Agree, Tomas Made a Prima Facie
Case for Relief Under Section 1172.6, and the Matter
Must Be Remanded for Further Proceedings
A. Section 1172.6 and other applicable law
Under section 1172.6, subdivision (a), “A person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of murder, attempted murder, or
9
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder. [¶] (3) The petitioner could not presently
be convicted of murder or attempted murder because of changes
to Section 188 or 189 made effective January 1, 2019.”
Senate Bill No. 1437 added the following provision to
section 188: “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) The effect of this amendment was to
“eliminate[ ] natural and probable consequences liability for first
and second degree murder.” (People v. Gentile (2020) 10 Cal.5th
830, 849 (Gentile).) Senate Bill No. 1437 also added subdivision
(e) to section 189, limiting felony murder liability to a person who
was the actual killer, acted with the intent to kill, or was a major
participant in the underlying felony and acted with reckless
indifference to human life. (Gentile, at p. 842.)
When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme
Court explained: “While the trial court may look at the record of
conviction after the appointment of counsel to determine whether
a petitioner has made a prima facie case for section [1172.6]
relief, the prima facie inquiry under subdivision (c) is limited.
Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the
10
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
If the trial court issues an order to show cause, the final
step in the process is a hearing to determine if the petitioner is
entitled to relief, where the trial court must vacate the
petitioner’s murder (or attempted murder or manslaughter)
conviction and resentence him or her on any remaining counts
unless the prosecution can “prove, beyond a reasonable doubt,
that the petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
B. Analysis
Tomas contends, the Attorney General concedes, and we
agree the trial court erred in finding Tomas failed to make a
prima facie case for relief under section 1172.6. There is nothing
in the record of conviction conclusively refuting the allegations
Tomas made in his petition—that he was convicted of second
degree murder under the natural and probable consequences
doctrine, and he could not now be convicted of that crime because
of changes to sections 188 and 189, effective January 1, 2019. As
the trial court acknowledged at the September 17, 2020 hearing
on Tomas’s petition, the prosecution presented the theory that
Arnaud was the shooter; the trial court instructed the jury on
11
both direct aiding and abetting and natural and probable
consequences theories of Tomas’s liability; and there is no way to
determine on which theory the jury relied in finding Tomas guilty
of second degree murder. Thus, Tomas made a prima facie
showing he is entitled to relief under section 1172.6, and the trial
court erred in denying his petition for resentencing without
issuing an order to show cause under subdivision (c) and holding
under a hearing under subdivision (d). We reverse the order
denying the petition and remand the matter for these further
proceedings under section 1172.6.
II. The Trial Court Did Not Err in Designating the
Judge to Rule on the Petition
Tomas contends that upon remand, the hearing must be
held before the same judge who originally sentenced him, and the
trial court erred in designating another judge to rule on the
petition. We disagree.
In pertinent part, section 1172.6, subdivision (b)(1)
provides: “The petition shall be filed with the court that
sentenced the petitioner . . . . If the judge that originally
sentenced the petitioner is not available to resentence the
petitioner, the presiding judge shall designate another judge to
rule on the petition.”
Tomas does not dispute that the judge who originally
sentenced him is no longer a sitting judge and resides outside
California. He cites no authority supporting his assertion that
the trial court was required to “contact [the retired judge] to
determine when [the retired judge] might be available” to hear
his petition.
Tomas relies on People v. Rodriguez (2016) 1 Cal.5th 676
(Rodriguez), a case interpreting section 1538.5, subdivision (p),
12
which “provides that any suppression motion the defendant
subsequently files must be heard by the ‘same judge’ who granted
the prior motion so long as that judge is ‘available.’ ” (Rodriguez,
p. 679.) There, our Supreme Court concluded the trial court
abused its discretion in assigning the motion to a different judge,
after the judge who heard an earlier suppression motion was
transferred to a different division of the court within the same
county. (Id. at pp. 679-682.) The Court held: “A judge may be
found unavailable for purposes of section 1538.5(p) only if the
trial court, acting in good faith and taking reasonable steps,
cannot arrange for that judge to hear the motion.” (Id. at p. 679.)
Tomas cites no case in which an appellate court has
concluded a trial court errs in making a finding that a retired
judge is unavailable to hear a motion. Our Supreme Court
indicated in Rodriguez that retirement is a circumstance that
renders a judge unavailable to hear a motion, an unremarkable
proposition. In explaining how the trial court abused its
discretion in finding the judge unavailable, the Rodriguez Court
stated: “The ineluctable realities of life sometimes mean that the
judge designated by statute to hear a suppression motion has
died, retired, resigned, or lacks the capacity to undertake his or
her duty. This is not such a case.” (Rodriguez, supra, 1 Cal.5th
at p. 693, italics added.) The case before us, however, is such a
case. The judge who originally sentenced Tomas retired from the
bench and moved out of California. The trial court did not err in
concluding she was unavailable to rule on Tomas’s petition.
III. Assembly Bill No. 333 Does Not Apply to Tomas’s
Case at This Juncture
Tomas filed supplemental briefing in this appeal regarding
Assembly Bill No. 333. (Stats. 2021, ch. 699, § 3 (2021-2022 Reg.
13
Sess.).) Assembly Bill No. 333 “amended section 186.22 to impose
new substantive and procedural requirements for gang
allegations.” (People v. Sek (2022) 74 Cal.App.5th 657, 665.) It
also added section 1109, which requires that a gang enhancement
“be tried in [a] separate phase[]” from the defendant’s guilt if the
defendant so requests. (§ 1109, subd. (a)(1).)
Tomas contends that upon remand, at the hearing under
section 1172.6, subdivision (d), the trial court must determine
whether substantial evidence supports the elements of the gang
enhancement under section 186.22, as amended by Assembly Bill
No. 333. He further contends, if the trial court finds the evidence
sufficient, the judgment must nevertheless be reversed under
section 1109 because his request at trial to bifurcate the gang
enhancement was denied.
Assembly Bill No. 333’s amendments to section 186.22
apply retroactively “to acts committed before its passage provided
the judgment convicting the defendant of the act is not final.”
(People v. Sek, supra, 74 Cal.App.5th at pp. 666, 667.) Whether
section 1109 applies only prospectively or also retroactively to
judgments that are not final is on review in our Supreme Court.
(See People v. Perez (2022) 78 Cal.App.5th 192, 207, rev. granted
Aug. 17, 2022, S275090 [section 1109 “does not apply
retroactively to a trial that has already occurred”]; People v.
Burgos (2022) 77 Cal.App.5th 550, 568, rev. granted July 13,
2022, S274743 [“we conclude Assembly Bill [No.] 333 operates
retroactively, including the section that added Penal Code section
1109. Because appellants’ convictions are not yet final, they are
entitled to the benefit of the changes in the law”].)
Tomas’s judgment of conviction was final in 2013, when the
remittitur issued in his direct appeal. Our disposition here,
14
remanding the matter for a hearing under section 1172.6,
subdivision (d), has not rendered the judgment nonfinal. Thus,
Assembly Bill No. 333 affords Tomas no relief at this juncture.
Moreover, there is nothing in section 1172.6 indicating that at
the hearing under subdivision (d), where “the burden of proof [is]
on the prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
[current] California law,” that the prosecution must also
relitigate the gang enhancement under current law.
DISPOSITION
The September 17, 2020 order denying the petition for
resentencing is reversed and the matter is remanded for further
proceedings under section 1172.6, including the issuance of an
order to show cause under subdivision (c) and a hearing under
subdivision (d).
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
15 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482187/ | The slip opinion is the first version of an opinion released by the Chief Clerk of the
Supreme Court. Once an opinion is selected for publication by the Court, it is
assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-
112 NMRA, authenticated and formally published. The slip opinion may contain
deviations from the formal authenticated opinion.
1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________
3 Filing Date: November 7, 2022
4 No. A-1-CA-38144
5 WELLS FARGO BANK N.A., as
6 Trustee for the Certificateholders
7 of Banc of America Alternative Loan
8 Trust 2003-8, Mortgage Pass-Through
9 Certificates, Series 2003-8,
10 Plaintiff-Appellee,
11 v.
12 DAVID GRAHAM,
13 Defendant-Appellant,
14 and
15 DARLENE E. GURULE and
16 PHOENIX MECHANICAL, L.L.C.,
17 Defendants.
18 APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
19 Emilio J. Chavez, District Judge
20 McCarthy & Holthus, LLP
21 Jason Bousliman
22 Albuquerque, NM
23 for Appellee
1 Law Offices of Brian A. Thomas, P.C.
2 Brian A. Thomas
3 Albuquerque, NM
4 for Appellant
1 OPINION
2 WRAY, Judge.
3 {1} Defendant David Graham appeals the district court’s grant of summary
4 judgment in favor of Plaintiff Wells Fargo Bank, N.A. (the Bank) in this foreclosure
5 action, relating to a mortgage (the 2003 Loan) taken out on property Defendant owns
6 in Taos, New Mexico (the Property). Defendant contends that the 2003 Loan violates
7 public policy and additionally that certain payments were not properly credited. We
8 affirm.
9 BACKGROUND
10 {2} Defendant first purchased the Property and obtained a mortgage in 1993. In
11 1999, he effectively refinanced the 1993 mortgage with a line of credit from Centinel
12 Bank of Taos. The line of credit was modified and renewed in both 2000 and 2001.
13 In late December 2002, Defendant applied for and received a “no document loan.”
14 According to his affidavit, Defendant applied for the “no document” loan to avoid
15 having the lender verify his ability to repay the loan; instead, approval depended on
16 whether his “equity and [his] credit score met the guidelines.” Defendant used part
17 of this loan to repay Centinel Bank of Taos, and “a substantial balance” of the
18 remaining proceeds “was paid directly to [Defendant] in cash and was used to pay
19 ongoing [business] operating expenses as well as to service [Defendant’s] debt.”
20 Between June and August 2003, Defendant obtained the 2003 Loan, which is the
1 loan at issue in this case. The 2003 Loan was a second “no document” loan, and
2 Defendant used the $294,000 to pay off the loan he had received six months prior.
3 {3} In October 2014, the Bank filed a complaint for foreclosure and alleged that
4 Defendant had defaulted on the 2003 Loan. The Bank moved for summary judgment,
5 which the district court granted. Defendant appeals.
6 DISCUSSION
7 {4} Defendant argues that (1) the district court improperly granted summary
8 judgment because the 2003 Loan is unenforceable as a matter of public policy based
9 on statutory and equitable grounds; and (2) the district court incorrectly refused to
10 credit a 2011 payment. We address each issue in turn.
11 I. The Enforceability of the 2003 Loan
12 {5} Defendant argues that the 2003 Loan is unenforceable based on statutory
13 policy statements and the Bank’s unclean hands. The district court ruled that
14 Defendant failed to legally or factually support these claims and granted summary
15 judgment in favor of the Bank. “Summary judgment is appropriate where there are
16 no genuine issues of material fact and the movant is entitled to judgment as a matter
17 of law.” Bank of N.Y. Mellon v. Lopes, 2014-NMCA-097, ¶ 6, 336 P.3d 443 (internal
18 quotation marks and citation omitted). For both arguments, Defendant contends that
19 disputed facts should have prevented summary judgment, but ultimately
20 acknowledges that the statutory policy argument turns on the existence of a public
2
1 policy—a question of law—and the unclean hands argument relies on unrebutted
2 facts. Absent disputes of fact, we review de novo the grant of summary judgment.
3 See City of Albuquerque v. BPLW Architects & Eng’rs, Inc., 2009-NMCA-081, ¶ 7,
4 146 N.M. 717, 213 P.3d 1146 (observing that if the facts are undisputed, “and an
5 appeal presents only a question of law, we apply de novo review”); State Pub. Educ.
6 Dep’t v. Zuni Pub. Sch. Dist., 2018-NMSC-029, ¶¶ 16-17, 458 P.3d 362 (reviewing
7 de novo summary judgment, questions of law, and statutory construction).
8 {6} We first consider the Home Loan Protection Act (HLPA), NMSA 1978, §§
9 58-21A-1 to -14 (2003, as amended through 2021),1 and second turn to the doctrine
10 of unclean hands.
11 A. The HLPA and New Mexico Public Policy
12 {7} Defendant maintains that he has a complete defense to foreclosure of the 2003
13 Loan because the Legislature’s findings set forth in the HLPA established a public
14 policy that the 2003 Loan violated and the 2003 Loan is therefore unenforceable.
15 Generally, agreements are not void for public policy reasons “unless they are clearly
16 contrary to what the [L]egislature or judicial decision has declared to be the public
17 policy.” Berlangieri v. Running Elk Corp., 2002-NMCA-060, ¶ 11, 132 N.M. 332,
18 48 P.3d 70 (internal quotation marks and citation omitted). To evaluate whether an
1
Even though the HPLA has been amended through 2021, in this opinion, we
refer to the 2003 version of the HLPA, unless otherwise noted, because that is the
version of the statute in effect at the time the 2003 Loan originated.
3
1 agreement is void for public policy, we consider whether the Legislature has
2 declared a public policy, and if so, whether the 2003 Loan is clearly contrary to that
3 public policy. See DiGesu v. Weingardt, 1978-NMSC-017, ¶ 7, 91 N.M. 441, 575
4 P.2d 950 (“Contracts in violation of the public policy of the state cannot be
5 enforced.”). Because we conclude that the Legislature did not intend for the HLPA’s
6 findings to apply to the 2003 Loan, we do not continue to consider further whether
7 the terms of the 2003 Loan are clearly contrary to any policy set forth in the HLPA
8 findings.
9 {8} In 2003, our Legislature adopted the HLPA. Bank of N.Y. v. Romero, 2014-
10 NMSC-007, ¶ 41, 320 P.3d 1. The HLPA includes, in relevant part, the following
11 specific Legislative findings:
12 A. abusive mortgage lending has become an increasing problem
13 in New Mexico, exacerbating the loss of equity in homes and causing
14 the number of foreclosures to increase in recent years;
15 B. one of the most common forms of abusive lending is the
16 making of loans that are equity-based, rather than income-based.
17 Section 58-21A-2(A), (B). Relying on Section 58-21A-2(A) and (B), Defendant
18 contends, in part, that the HLPA establishes New Mexico’s “explicit public policy,”
19 which he argues forms a defense to foreclosure of the 2003 Loan. The HLPA,
20 however, did not bring every loan within its purview. When passing the HLPA, the
21 Legislature, in Chapter 436, Section 19 of the New Mexico Laws of 2003, stated,
4
1 A. Except as provided in Subsection B of this section, the [HLPA]
2 shall apply to all home loans made or entered into after January 1, 2004.
3 B. The effective date of the provisions of Section 10[2] of this act
4 is July 1, 2003 and, on or after that date, no county or municipality shall
5 enact or enforce any ordinance, resolution or rule regarding home loans
6 that are subject to the [HLPA] or that, except for the delayed
7 applicability date of Subsection A of this section, would otherwise be
8 subject to that act.
9 Subsequently, the official annotations for Section 58-21A-2 set forth the following:
10 Effective dates. — Laws 2003, ch. 436 contains no effective date
11 provision, but, pursuant to N.M. Const., art. IV, § 23, is effective June
12 20, 2003, 90 days after adjournment of the [L]egislature.
13 Applicability. — Laws 2003, ch. 436, § 19A makes the [HLPA]
14 applicable to all home loans made or entered into after January 1, 2004.
15 Section 58-21A-2 annot. Citing the “Effective dates,” Defendant maintains that the
16 legislative findings are policies set forth in the HLPA that were in effect at the time
17 the 2003 Loan originated. The Bank, however, argues that the Legislature did not
18 intend for the 2003 Loan to be subject to the HLPA. We agree with the Bank. While
19 the HLPA states a June 20, 2003 effective date, the Legislature used the applicability
20 date to clarify the class of home loans to which the HLPA applies—thus explicitly
21 narrowing the class to loans that were made or entered into after January 1, 2004.
22 The 2003 Loan originated on July 29, 2003, before the January 1, 2004 applicability
23 date for the category of loans that the Legislature made subject to the HLPA. The
Section 10 refers to Section 58-21A-10, the HLPA provision addressing the
2
preemption of conflicting county or municipal ordinances.
5
1 2003 Loan is therefore not subject to the HLPA. We remain unpersuaded by
2 Defendant’s arguments to the contrary and explain.
3 {9} Defendant constructs the case for the application of the HLPA’s public policy
4 as follows. According to Defendant, the different “Effective” and “Applicable” dates
5 render the HLPA ambiguous. While the Legislature affirmatively stated that the
6 HLPA “shall apply to all home loans made or entered into after January 1, 2004,”
7 2003 N.M. Laws, ch. 436, § 19(A) (emphasis added), and Defendant acknowledges
8 as much, he nevertheless maintains that the Legislature did not “declare the inverse,
9 that it does not apply to earlier-made loans and in what context.” Defendant next
10 argues that to follow the Legislature’s direction to liberally construe the HLPA “to
11 carry out its purpose,” see § 58-21A-14, this Court should liberally construe the
12 HLPA in a manner “that is most consonant with the legislative purpose and the
13 general protections[] of the statute.” Defendant additionally contends that the
14 Legislature would not have delayed the implementation of the HLPA’s policies to
15 remediate abusive lending, because the HLPA’s public policy arose out of the
16 earlier-enacted Unfair Practices Act (UPA), NMSA 1978, §§ 57-12-1 to -26 (1967,
17 as amended through 2019). To summarize, Defendant asserts that “[t]o conclude that
18 the Legislature intended the opposite of its declared public policy[] for all loans prior
19 to January 1, 2004, and then to diametrically reverse its policy on January 1, 2004,
20 defies logic” and would permit prohibited “subterfuge.”
6
1 {10} Defendant’s construction of the HLPA fails to consider the statute as a whole.
2 See Brenneman v. Bd. of Regents of Univ. of N.M., 2004-NMCA-003, ¶ 10, 135 N.M.
3 68, 84 P.3d 685 (construing a statute as a whole). Defendant insists that because the
4 HLPA was effective when the 2003 Loan originated, the policies expressed therein
5 must apply to the 2003 Loan in order to accomplish the Legislature’s intent. This
6 view, however, is blind to the full scope of the Legislature’s intent when enacted the
7 HLPA. The Legislature pragmatically implemented the HLPA to provide clarity for
8 which loans would be subject to the statute and give lenders time to adjust their
9 practices and in this manner, was able to address the policy problem of the
10 increasingly abusive lending environment while also limiting the class of loans that
11 would be subject to the HLPA and creating a specific remedy. See § 58-21A-2
12 (policy); § 58-21A-4 (prohibited practices); § 58-21A-5 (more prohibited practices);
13 § 58-21A-9 (civil action). The applicable date, rather than creating an ambiguity,
14 narrows the class of loans subject to the HLPA. See Cabazos v. Calloway Constr.,
15 1994-NMCA-091, ¶ 7, 118 N.M. 198, 879 P.2d 1217 (noting that, “if a statute is not
16 ambiguous, there is no reason to resort to principles of construction or considerations
17 of policy”). The 2003 Loan originated before January 1, 2004, and as a result, the
18 2003 Loan is not subject to the legislative findings set forth in the HLPA.
19 {11} The Legislature anticipated that some loans would not be subject to the HLPA.
20 In establishing a separate effective date for Section 58-21A-10 of the HLPA, the
7
1 preemption provision, the Legislature noted that some loans would be “subject to
2 the [HLPA]” and that some loans would otherwise be subject to the HLPA “except
3 for the delayed applicability date.” 2003 N.M. Laws, ch. 436, § 19(B). The 2003
4 Loan was a loan that would otherwise be subject to the HLPA, “except for the
5 delayed applicability date.” See id.
6 {12} In relation to those loans that are subject to the HLPA, the Legislature
7 expressed a new public policy related to specified abusive lending practices, contrary
8 to Defendant’s argument that the HLPA simply expanded UPA policies. The HLPA
9 expresses the Legislature’s finding that “abusive mortgage lending has become an
10 increasing problem in New Mexico,” Section 58-21A-2(A) (emphases added), and
11 our Supreme Court explained that the “Legislature passed the HLPA in 2003 to
12 combat abusive home mortgage procurement practices.” Romero, 2014-NMSC-007,
13 ¶ 41. The UPA, however, broadly addresses “unconscionable and unfair or deceptive
14 trade practices.” State ex rel. Stratton v. Gurley Motor Co., 1987-NMCA-063, ¶ 8,
15 105 N.M. 803, 737 P.2d 1180. While the HLPA explicitly establishes that violations
16 of the HLPA also constitute UPA violations, see § 58-21A-12, we are unpersuaded
17 that “[t]he public policy expressed in [the] HLPA was supplementary” to the UPA,
18 as Defendant argues.
19 {13} For these reasons, we conclude that the 2003 Loan was not in the class of
20 loans the Legislature intended to be subject to the HLPA. We reject the notion that
8
1 the HLPA’s legislative findings could form the basis to void an agreement when the
2 agreement was not subject to the HLPA. Because we discern no other applicable
3 public policy, we do not further consider Defendant’s arguments that the HLPA
4 provides a defense to enforcing the 2003 Loan.
5 B. Unclean Hands
6 {14} Defendant additionally argues that the 2003 Loan is unenforceable based on
7 the equitable doctrine of unclean hands and that the unclean hands claim was based
8 on asserted facts that the Bank had failed to rebut. “The question of whether, on a
9 particular set of facts, the district court is permitted to exercise its equitable powers
10 is a question of law, while the issue of how the district court uses its equitable powers
11 to provide an appropriate remedy is reviewed only for abuse of discretion.” Romero
12 v. Bank of Sw., 2003-NMCA-124, ¶ 28, 135 N.M. 1, 83 P.3d 288 (internal quotation
13 marks and citation omitted). Under the doctrine of unclean hands, a complainant
14 may not recover “where he or she has been guilty of fraudulent, illegal or inequitable
15 conduct in the matter with relation to which he or she seeks relief.” Randles v.
16 Hanson, 2011-NMCA-059, ¶ 21, 150 N.M. 362, 258 P.3d 1154 (alteration, internal
17 quotation marks, and citation omitted). Specifically, the doctrine applies “in
18 circumstances where the complainant has dirtied his or her hands in acquiring the
19 right he or she now asserts.” Id. (alterations, internal quotation marks, and citation
20 omitted). Defendant maintains that the Bank dirtied its hands by approving an
9
1 equity-based loan with no investigation into Defendant’s assets and ability to pay,
2 and therefore, the 2003 Loan is unenforceable. Under the circumstances of this case,
3 we cannot conclude the district court abused its discretion in rejecting Defendant’s
4 unclean hands argument.3
5 {15} The undisputed facts before the district court created no material issue of fact
6 to support equitable relief based on “fraudulent, illegal or inequitable conduct” by
7 the Bank in originating the 2003 Loan. See id. (internal quotation marks and citation
8 omitted). To the contrary, Defendant’s testimony demonstrates that he understood
9 the terms of the loan and purposefully sought the loan because its equity-based terms
10 were the only terms available to him in his situation. In his affidavit in response to
11 Plaintiff’s motion for summary judgment, Defendant testified that in 2002, he was
12 advised “due to the sporadic nature of my income and because my debt-to-income
13 ratio fell outside of the recommended guidelines, I would not likely qualify for a
14 mortgage loan using traditional underwriting criteria.” Defendant also testified that
15 he was told about a “no document loan” that “was available to self-employed people
16 like [him], who were unable to document a steady net income sufficient to repay the
17 loan after servicing other existing debt.” Defendant understood that “the loan would
18 be approved if [his] equity and . . . credit score met the guidelines” and further that
3
We assume without deciding that the doctrine of unclean hands can be
applied in a situation in which the right to be enforced was secured by one party and
later assigned to another.
10
1 “this ‘no document’ loan process was the only option [he] had to get a long-term
2 loan and mortgage approved at that time. By using this method, the bank would
3 never directly evaluate whether [he] had the financial ability to repay the loan.” With
4 this understanding, on the 2003 Loan application, Defendant reported his high
5 business income, low personal expenses, and high net worth, as well as ownership
6 of several properties and high-dollar assets. Later, however, in his affidavit,
7 Defendant explained that the 2003 Loan application was not an accurate picture of
8 his debt-to-income ratio, having omitted his business expenses and some additional
9 debt. Defendant’s evidence does not support fraudulent, inequitable, or illegal
10 conduct by the Bank.
11 {16} The undisputed evidence demonstrates that terms of the 2003 Loan were not
12 concealed and Defendant was not misled. Defendant understood those terms, and he
13 purposefully selected those terms in order to obtain the financing he desired. See
14 Wyrsch v. Milke, 1978-NMCA-085, ¶ 32, 92 N.M. 217, 585 P.2d 1098 (“He who
15 seeks equity must do equity.” (internal quotation marks and citation omitted)). Under
16 these circumstances, the district court did not abuse its discretion to reject
17 Defendant’s equitable defense and grant summary judgment to the Bank.
18 II. The Partial Payment
19 {17} Last, Defendant contends that the district court improperly failed to credit a
20 payment submitted by Defendant to the Bank on September 1, 2011. The Bank
11
1 asserts that Defendant failed to preserve or waived this argument, the 2011 payment
2 was made after default, and the Bank was not obligated to accept it. In reply,
3 Defendant maintains that the 2011 payment was rejected well before March 1, 2014,
4 “the effective date of default.” We conclude that Defendant preserved and did not
5 waive the issue but did not “tender” a payment in September 2011.
6 {18} Regarding preservation, an issue is preserved for our review if “a ruling or
7 decision by the trial court was fairly invoked.” Rule 12-321(A) NMRA. The Bank
8 does not dispute that Defendant raised the question in the district court in response
9 to summary judgment. Accordingly, the issue was preserved. The Bank additionally
10 argues that under Rule 1-008 NMRA, Defendant waived the issue by failing “to
11 plead partial tender” as an affirmative defense in a responsive pleading. Rule 1-
12 008(C) requires a party to plead affirmative defenses, including “accord and
13 satisfaction, arbitration and award, contributory negligence, discharge in
14 bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches,
15 license, payment, release, res judicata, statute of frauds, statute of limitations, waiver
16 and any other matter constituting an avoidance or affirmative defense.” The Bank
17 does not explain which of these defenses “partial tender” invokes or otherwise how
18 Rule 1-008 applies to the argument Defendant made. We therefore consider the
19 Bank’s waiver argument no further and turn to the merits of Defendant’s tender
20 argument.
12
1 {19} Defendant appears to concede that the 2011 payment was a partial payment.
2 The record appears to support this concession. Payment records show that payment
3 for August 2011 was not made until October 2011. The September 2011 payment
4 was for a single month, but an outstanding balance existed at that time, resulting in
5 an additional required payment to bring the account current. This discrepancy
6 explains the Bank’s communication dated September 27, 2011, stating that
7 “[b]ecause the payment we received was less than the total amount required for the
8 payment, we are returning this check to you.”
9 {20} Defendant argues that the district court’s failure to credit the September 2011
10 payment resulted in “an erroneous application of the Uniform Commercial Code”
11 (UCC). Specifically, Defendant contends that he “tendered” the funds in September
12 2011, and regardless of whether the Bank rejected the “tender,” the UCC required
13 the Bank to discharge the tendered portion of the debt, reduce the balance of the
14 debt, and stop accrual of interest on the debt. Defendant contends that because the
15 UCC does not require a tender to be “in the full amount of the debt,” the Bank could
16 not reject the September 2011 payment without consequence. According to
17 Defendant, the failure to credit a partial payment amounts to a prohibited
18 prepayment penalty. The Bank responds that the UCC permits parties to “override”
19 UCC provisions by agreement and that under the 2003 Loan agreement, the Bank
20 was permitted to reject partial payments. We agree with the Bank.
13
1 {21} The UCC directs that “[t]he parties, by agreement, may determine the
2 standards by which the performance of those obligations is to be measured if those
3 standards are not manifestly unreasonable.” NMSA 1978, § 55-1-302(b) (2005).4
4 The note in the present case identifies the amount of the monthly payment and states
5 that the borrower would be in default if he did not pay “the full amount of each
6 monthly payment on the date it is due.” The mortgage permits the Bank to “return
7 any payment or partial payment if the payment or partial payments [were]
8 insufficient to bring the [l]oan current.” A tender, according to Defendant, “is an
9 offer to perform coupled with the present ability of immediate performance, so that
10 the obligation could be satisfied but for the other party’s refusal to cooperate.” Miller
11 v. Johnson, 1998-NMCA-059, ¶ 21, 125 N.M. 175, 958 P.2d 745. According to the
12 parties’ agreement, the 2011 partial payment was not a tender, because even if the
13 Bank had accepted the payment, it would not have satisfied Defendant’s obligation
14 for the month—the loan would not have been brought current. The 2011 partial
4
The parties cite the current version of the statute, which includes essentially
the same language as the statute in effect at the time the 2003 Loan originated. See
NMSA 1978, § 55-1-102(3) (1961) (“The effect of provisions of this act may be
varied by agreement, except as otherwise provided in this act and except that the
obligations of good faith, diligence, reasonableness and care prescribed by this act
may not be disclaimed by agreement but the parties may by agreement determine
the standards by which the performance of such obligations is to be measured if such
standards are not manifestly unreasonable.”).
14
1 payment was therefore not a tender, and Defendant was not entitled to credit for the
2 payment.
3 CONCLUSION
4 {22} For the reasons stated herein, we affirm.
5 {23} IT IS SO ORDERED.
6 _________________________________
7 KATHERINE A. WRAY, Judge
8 WE CONCUR:
9 _________________________________
10 ZACHARY A. IVES, Judge
11 _________________________________
12 MICHAEL D. BUSTAMANTE, Judge, retired, sitting by designation
15 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482185/ | Filed 11/7/22 P. v. Reed CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075783
v. (Super.Ct.No. RIF1802434)
TAIWAN ORRAN REED, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge.
(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art.
VI, § 6 of the Cal. Const.) Affirmed.
Fay Arfa, a Law Corporation, and Fay Arfa for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Susan
Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
1
Following a jury trial, defendant and appellant Taiwan Orran Reed was convicted
of pimping, pandering, human trafficking, and rape involving two separate victims, A.M.
and S.M. The trial court sentenced him to a determinate term of 21 years four months,
plus an indeterminate term of 30 years to life.
On appeal, defendant contends: (1) the trial court erred in admitting hearsay
statements under the forfeiture by wrongdoing doctrine; (2) the court erred in admitting
evidence of uncharged offenses and instructing the jury with CALCRIM former
No. 11911 and No. 1190; (3) the evidence is insufficient to prove rape and human
trafficking of A.M.; (4) the prosecutor committed misconduct—or, more aptly,
prosecutorial error2—by (a) eliciting expert testimony from law enforcement witnesses
about the effects of human trafficking and prostitution, (b) cross-examining defense
character witnesses with guilt assuming hypotheticals, and (c) improperly vouching for
the victims’ credibility and by disparaging defense counsel; (5) the court erred in
admitting expert testimony to interpret words and analyze data on a prostitute’s cell
phone; and (6) the cumulative error doctrine applies. We reject these contentions and
affirm.
1
In March 2017, CALCRIM No. 1191 (evidence of uncharged sex offense) was
renumbered as CALCRIM No. 1191A.
“‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to the
2
extent that it suggests a prosecutor must act with a culpable state of mind. A more apt
description of the transgression is prosecutorial error.’” (People v. Centeno (2014)
60 Cal.4th 659, 666-667.)
2
I. PROCEDURAL BACKGROUND AND FACTS
A. The Charges.
On August 5, 2020, the Riverside County District Attorney’s Office filed a second
amended information alleging that defendant committed the crimes of pimping
(Pen. Code,3 § 266h, subd. (a) [count 1-A.M.]), pandering (§ 266i, subd. (a) [count 2-
A.M.]), human trafficking (§ 236.1, subd. (b) [count 3-A.M.] & § 236.1, subd. (c)(2)
[count 6-S.M.]), rape (§ 261, subd. (a)(2) [count 4-A.M., count 7-S.M.]) and robbery
(§ 211 [count 5-A.M.]). A multiple victim enhancement was also alleged. (§ 667.61,
subd. (e)(4).)
B. The Prosecution’s Case.
1. Expert testimony.
Riverside County Sheriff’s Deputy Daniel Engels was the prosecution’s first
witness at trial. He had spent 14 years as a police officer, including nine years assigned
to the human trafficking task force, and a part-time assignment to the Inland Empire
Child Exploitation Task Force. He “received training, both federally and through state
law enforcement agencies, on the investigation of human trafficking, pimping, pandering,
prostitution, [and] interview techniques with the victims” of pimping and pandering. He
conducts law enforcement training and has investigated over two hundred cases involving
pimping and pandering.
3 Further statutory references are to the Penal Code unless otherwise stated.
3
Deputy Engels provided the jury with definitions and explanations of terms used
by individuals who engage in human trafficking and pimping. He testified to the
following: (1) the “‘game’” is essentially the life of prostitution; (2) commercial sex
buyers are “tricks,” “clients,” or “johns”; (3) commercial sex workers (CSW) are the
prostitutes who engage in sex acts and collect money; (4) a third party pimp or trafficker
benefits monetarily from the proceeds of CSWs and is called “‘daddy.’” “‘Folks’” is
another term used to refer to a pimp or trafficker. The deputy defined a “bottom,”
“bottom girl,” or “bottom bitch” as a CSW who works for a pimp and is the most trusted
of all the pimp’s girls. She trains new girls, obtains hotel rooms, car rentals, and hosts
online advertisements so that the pimp’s name is not attached to anything that could be
used as evidence against him or her. “[K]nocked or chopped” was defined as victims
being “assaulted . . . by [their] exploiter.” A “‘renegade’” is an individual CSW who
does not work for a pimp. “‘[C]hoosing’ or ‘choose up’” involves a CSW leaving her
current pimp to work for another pimp. A “‘square’” is someone who is not willing to
engage in sex acts or get into the game, “green” refers to a new girl, and “the life” is
another term for the game. A “‘blade’ or a ‘track’” refers to an area or street typically
with a lot of businesses or high traffic vehicle volume where the girls engage in street
prostitution. A “‘circuit’” is destination locations where prostitution is known to occur.
According to Deputy Engels, there are types of pimps, including a “‘Romeo’
pimp” who recruits or grooms a girl who is new to prostitution through a relationship,
i.e., initially dating her, gaining trust, love, and affection, and then introducing her to the
“game.” In contrast, a “gorilla pimp” is someone who uses physical violence and sexual
4
assault to get victims to engage in sex acts. He also identified a third type of pimp, which
is a hybrid of the first two. He explained that a pimp may start as a Romeo but become a
gorilla when the victims realize this is not the life they want. In the game, all the “trap”
(money) made by CSWs goes to the pimps. If CSWs want to eat or purchase basic care
items, they must ask permission to use some of their trap. Pimps withhold permission if
CSWs have not made their daily “quota.” Also, if a CSW is robbed of her trap, she
remains responsible for replacing it. Pimps use tattoos—typically “a moniker, an AKA, a
nickname, or . . . a symbol”—on CSWs to show ownership. “304” is a term for “ho,” and
a “304 tattoo” means the person is “down for prostitution.”4 The lifestyle of pimps and
CSWs is transient.
Deputy Engels testified that pimps typically recruit girls who are vulnerable, very
young, runaways, have been sexually or physically abused, lack a stable foundation at
home, have a connection to social services, lack role models, trust, love, and affection,
and have drug or alcohol dependencies. Pimps offer “love, attention, affection,
perception of stability or family, . . . enough to get these girls to essentially at least try out
prostitution.” They recruit through face-to-face and social media. The deputy
acknowledged a CSW’s ability to run away, but stated that does not usually happen
because she believes her pimp loves, cares for, and protects her, or she is afraid of being
4 Detective Sturdavant was a detective with the Riverside Police Department
assigned to the special investigations bureau vice unit to investigate human trafficking
and crimes related to commercialized sex. He testified that a 608 refers to being “twice
the prostitute of the other ones. They’re much more successful . . . . Their hoing abilities
are much better than the typical 304, the standard ho.”
5
physically or sexually assaulted. He added that pimps may intentionally impregnate their
CSWs and use the children as control mechanisms; a CSW is less likely to disclose her
situation and have the father of her child locked up. Pimps also control CSWs by taking
their personal documents such as birth certificates, driver’s licenses, visas, or green cards.
Any girl who cooperates with law enforcement is referred to as a “faggot.”
According to Deputy Engels, there are two main rules to the game: bring in all the
money and do not talk to law enforcement. When any rule is broken, the bottom girl is
the one who is “made an example” by being denied food, sexually assaulted, or
physically assaulted in front of the other girls.
2. The charged offenses involving A.M. (counts 1-5).
In March 2018, A.M. (born 1998) was staying at a sober living facility when she
met S. Russell and R. Fulcher.5 Russell offered A.M. a better life and arranged for her to
meet defendant, aka “Daddy,” who could offer her a job. A.M. told Russell that she
wanted to earn “easy money” while working as an exotic dancer/stripper. After A.M.
sent pictures of herself to defendant, he responded, “‘Is all that ass for me?’” A.M.
texted, “‘Yes, baby.’”6 Text messages were exchanged between Russell and A.M., and
arrangements were made for defendant to pick up A.M. from her sober living house.
Defendant offered, and A.M. accepted, a position as a dancer and to live at his home.
5 Russell and Fulcher lived with defendant; they entered plea agreements and
were released from jail to serve in a human trafficking program.
6 In her cell phone, A.M. identified defendant’s number as, “‘boss.’”
6
Upon moving into defendant’s home, A.M. gave him her social security card and
birth certificate; he helped her get an identification card from the Department of Motor
Vehicles. She kept her cell phone, but she did not have any cellular phone service and
she did not know the Wi-Fi password. A.M. was instructed on the house rules, including
not going outside unless defendant was home or there was a reason to, sleeping in the
living room, only going into defendant’s bedroom when invited, calling defendant,
“Daddy” or “‘The Grate,’” and asking his permission to go out to eat, get food, or cook
dinner. She was also told to call defendant if she got arrested, but not to say that he was
her pimp.
Shortly after moving in, defendant took A.M., Russell, and Fulcher to Los Angeles
where A.M. learned how to prostitute by watching Fulcher. After that night, defendant
took her to Los Angeles almost every night to perform sex acts for money. She was
expected to make a certain amount each night, and she had to work until she reached her
quota. She did not feel like she had a choice because she was scared of defendant; he
yelled at her and called her a “‘sorry bitch.’” She also witnessed him yell at and hit both
Russell and Fulcher, and choke Fulcher to the point that she started seizing. He told
A.M. that she was lucky because she was new, and he did not hit new girls. A.M. was
afraid to talk to law enforcement because she did not want to go to jail or be “on [her]
ass[]” if defendant went to jail. Also, Fulcher told her that “snitches get stitches.”
Defendant wanted A.M. to tattoo herself with “‘The Grate Life’” and her “ho name,
‘Finesses.’” Fulcher’s leg was tattooed with “‘The Grate Life’” and her jawline
displayed “‘304.’”
7
Defendant initiated sexual intercourse with A.M. even though she did not want to
do so and told him so. When defendant perceived her lack of enjoyment, he told her to
calm down and relax. He said, “‘I need to break you in.’” There were other times when
he had sexual intercourse with her; if she tried to roll over, he would pull her back. A.M.
admitted that she never tried to stop defendant, and she acted as if she enjoyed it even
though she did not. She stopped trying to avoid his advances because she was “not trying
to get hit.”
In April 2018, A.M. told defendant she wanted to leave. To do so, she had to sign
over her $890 tax return to defendant. A.M. was afraid to initially report defendant to
police. After her trial testimony, she curled in a ball on the floor, cried uncontrollably,
and vomited into the trash can.
3. The charged offenses involving S.M. (counts 6-7).
S.M. testified that she was born in 1992, and defendant became her pimp in 2009
when she was 17 years old. S.M.’s mother was a drug addict, and her father was an
alcoholic who physically and sexually abused her. When she was 16 years old, she left
home, moved to San Diego, and became a prostitute. She moved back to Riverside, met
defendant, and the two began a romantic relationship. Initially, S.M. had consensual sex
with defendant but later the sex was nonconsensual. One time, when S.M. told him she
did not want to have sex, he pinned her down, choked her, and “just took it.” She did not
think she could fight him off.
Defendant suggested that S.M. return to working as a prostitute with him in charge.
After agreeing to do so, defendant kept her belongings—birth certificate and social
8
security card—and she called him, “Daddy” or “master.” He would take her to different
locations to work and required her to make at least $500 to $1,000 a night. She had to
remain on the street until she made her quota, or she would “get beat,” which included
getting choked, slapped, or punched. After defendant started to physically abuse her, she
did not believe she could tell him “no.” One time when she hit back at him, he hit her
harder. S.M. did not leave because she had no family, loved defendant, and feared him.
She testified that she could not run away from him because he would “sneak up and grab
[her] by the throat.” He told her that if she ever left him, he would find her and her family
and, if she ever testified against him or turned him in, he would kill her and anyone
affiliated with her. S.M. remained scared of defendant and continued to suffer from
posttraumatic stress syndrome because of his threats.
When defendant was arrested, S.M. left and moved away. A few months later,
when she was walking home from school, he snuck up behind her and said, “‘I told you
I’ll always find you.’” She was terrified because she had no idea how he had found her.
When S.M. first saw defendant in the courtroom during the preliminary hearing, she
started crying and shaking. According to Detective Sturdavant, on the way to the
courthouse, S.M. was visibly “distraught, upset, began crying and having difficulty
breathing.” During a break in her testimony, she was “seated in the corner with her face
buried in her hands, sobbing uncontrollably, borderline hyperventilating, and seeming
very distraught.” Neither S.M. nor A.M. knew each other.
9
4. Defendant’s prior uncharged offenses involving M.T.
Detective Sturdavant has investigated more than 150 human trafficking cases and
has over 120 hours of advanced officer training specifically related to human trafficking
and commercialized sex. He was present when Deputy Engels testified, had similar
training as Deputy Engels, confirmed the terminology used in the prostitution industry,
and defined the responsibility of the players in the game. Detective Sturdavant
interviewed M.T. in April and August 2019. According to the interview, the detective
learned that in 2008, M.T. met defendant and the two began dating.7 She soon
discovered that he was a pimp, and he convinced her to engage in prostitution to help
with his money problems. He taught her everything about “the game.” He took her to
Los Angeles, Long Beach, Compton, Orange, and Riverside Counties to work. As time
went on, defendant became increasingly violent and demanding; M.T. had to work each
day until she made her quota of $500. If she did not come home with enough money, he
became a “monster.” When she was robbed of her earnings defendant beat her. She
never left him because she was terrified of him and his family’s gang connections. Soon
defendant started demanding that she make $700; he would tell her, “‘Rain, sleet, shit or
snow, I’m gonna get some money from a ho.’” She became his “‘bottom bitch’” and
recruited other prostitutes to work for him. Defendant regularly beat M.T., put a knife to
her throat, and told her that he would cut her face so badly that no one would recognize
7 M.T. was deemed unavailable to testify, and her audiotaped phone conversation
with police was played for the jury.
10
her. At one point, defendant partnered with another pimp who taught M.T. how to
prostitute off the Internet.
In 2011, M.T. left defendant after he beat her to the point where she became
unconscious. She went to the hospital, and the police were called. Shortly thereafter she
left California and never saw defendant again. She remained “terrified” of defendant.
5. Evidence of defendant’s status as a pimp and further expert testimony.
Detective Sturdavant searched defendant’s apartment. A picture of defendant
hung on the wall with the caption: “‘Get Money Like a Boss’” and “‘The Grate.’” “‘The
Grate’” was consistent with defendant’s pimp name and a tattoo on Fulcher’s leg. In
other pictures, defendant is wearing a hat that said, “‘Mr. Most Hate,’” wearing a
necklace with a gold dollar bill, gold rings, or a belt buckle depicting a $100 bill. In the
closet were a pair of pants and a jacket with dollar signs and a photograph of defendant
wearing both. The detective also found a stack of cellular phones, two $100 bills
laminated and displayed with the saying, “‘Get money like a boss, The Grate,’” and a hat
with dollar signs and the name, “‘Mr. Most Hate.’” The detective also found a citation
for loitering for the purposes of prostitution issued to Russell, her California
identification card, her social security card, a court printout for loitering (prostitution)
bearing Fulcher’s name, and her social security card; Russell was not living with
defendant at the time of the search. The detective also searched defendant’s car and
observed the dashboard cover which was embroidered with the phrase, “‘The Grate
Life,’” and dollar signs. A search of Fulcher’s telephone revealed a message from
11
defendant that he was “knocking” or recruiting another woman to work for him as a
pimp.
Detective Sturdavant testified that, based on his training and experience, in
addition to A.M.’s statements, the items and symbols found in defendant’s apartment are
consistent with “people who identify themselves as pimps, such as flashy jewelry, showy
clothing, things that glorify their pimp status” because, in the pimping culture, money is
“everything.” He also testified that it is common in the game for a CSW to save a pimp’s
phone number under a term of endearment—boyfriend—and icons or symbols depicting
money. The detective noted a recent trend where CSWs “change up the way they save a
pimp’s phone number to further insulate their pimp, because they know that law
enforcement is aware that ‘daddy’ is a common term. So it will be something [like]
‘husband,’ ‘hubby,’ ‘my better half,’ . . . or something to that effect simulating a
relationship.” He opined that the more trusted a CSW is to a pimp, the more endearing
her phone reference to him. A.M.’s phone had defendant’s number saved as “boss,”
while Fulcher saved it as “my better half.” The detective identified a February 2018
social media video made and posted by Russell and Fulcher that glamorized prostitution.
The video was filmed in defendant’s apartment. Using cell phone service provider data,
he established an association between Fulcher and defendant by showing that they
traveled together.
Detective Sturdavant observed defendant’s tattoos. One tattoo indicated “200
percent,” which, according to M.T., referred to his expectation that his girls be
200 percent loyal. Another tattoo said, “‘bitches love me,’” “in reference to how he feels
12
he does as a pimp, that women love him and enjoy working for him as a pimp.” A third
tattoo says, “‘loyal to money,’” which is significant because in the pimping culture,
“money is everything.”
C. The Defense.
J.H., a coworker, had known defendant for more than four years and considered
defendant to be honest and nonviolent. L.R., defendant’s sister, knew M.T. because she
attended family functions. She also knew S.M. because she would drive S.M. and
defendant to work. A.F. lived in defendant’s apartment complex and stayed with
defendant for a month in 2017. While living with defendant, A.F. never saw anything
that suggested defendant was involved in prostitution. E.H. was defendant’s ex-
girlfriend. She dated defendant “about 16 years ago,” he was her daughter’s “godparent,”
and she did not consider him to be violent.
D. Rebuttal.
The parties stipulated that on February 12, 2012, defendant pled guilty to domestic
violence, a felony, in Riverside Superior Court; M.T. was the victim.
E. The Jury’s Verdict.
The jury found defendant guilty of pimping (count 1-A.M.), pandering (count 2-
A.M.), one count of human trafficking (count 3-A.M.), and two counts of rape (count 4-
A.M. & count 7-S.M.). The jury found him not guilty of robbery (count 5-A.M.) and
hung on one count of human trafficking (count 6-S.M.), which was later dismissed.
13
II. DISCUSSION
A. Admission of M.T.’s Statements Under Evidence Code Section 1390.
Defendant contends the trial court prejudicially erred by determining that M.T.’s
out-of-court statements to Detective Sturdavant were admissible under the forfeiture-by-
wrongdoing exception to the confrontation clause. We find no error.
1. Further background information.
a. Defendant’s prior acts of violence against M.T.
On November 15, 2011, M.T. was in the kitchen, and defendant began arguing
with her, ultimately striking her in the face numerous times with a closed fist. She fell to
the floor and laid motionless until defendant left. M.T. was taken to the hospital, and the
police were called. She told Riverside Police Officers Moulton and Barrette that
defendant was her pimp, who forced her to make money for him through prostitution.
She was reluctant to press charges because she feared him and his family, and he had
threatened her with violence. Following this incident, M.T. left California to get away
from defendant and refused to cooperate with the district attorney’s office after charges8
were filed. Defendant was arrested and pled guilty to felony domestic violence. (Pen.
Code, § 273.5.)
8 The district attorney charged defendant with violating sections 273.5, 1192.7,
subdivision (c)(8), and 12022.7, subdivision (e).
14
b. Prosecution’s contact with M.T.
On April 26, 2019, Detective Sturdavant spoke with M.T., who described her
relationship with defendant and agreed to testify against him. Defendant introduced her
to prostitution and told her that if she gets arrested, do not call him from jail or tell
anyone that he is her boyfriend. Nonetheless she was instructed to call him “Daddy” and
not come home with anything less than $500. Defendant told her that he was “‘always
gonna be a pimp,’” and she was his “‘bottom bitch.’” She stayed with him for four years.
He threatened to kill her if she ever left him.
M.T. told Detective Sturdavant that after defendant assaulted her in 2011, she left
him and stayed at a shelter for a few months to heal. During this time, defendant and his
family threatened her to stop her from pressing charges against him. His family was in
possession of “a bag of [her] valuable goods, [her] daughter’s baby book with her . . .
baby’s footprints in it, [the] umbilical cord and, . . . her baby’s ultra-sound pictures.”
Because of their threats and her fear of defendant, M.T. dropped the charges and left
California. She initially told the detective that she would testify against defendant so she
could “look him in the eyes.” However, when the detective spoke with her in August
2019, she stated that she did not want to speak to defense counsel, she feared defendant,
and she feared retaliation by his family if she testified in this case.
In March 2020, because of the national state of emergency due to the spread of
Covid-19, all trials were suspended and continued. On July 22, 2020, an investigator for
the Dallas County District Attorney’s Office attempted to serve M.T. with an out-of-state
subpoena for defendant’s current case. She talked to the investigator over the phone and
15
indicated several times that she was not going to California to testify because defendant
was a “‘killer,’” and she was “‘deathly afraid of him.’” On July 23, 2020, M.T.
confirmed her position in a text message to the investigator. That same day, Detective
Sturdavant spoke with her, and she immediately stated that she no longer wanted to
testify and did not want to talk about it. She stated that she was still “‘terrified’” of
defendant and feared retaliation if she cooperated with law enforcement by testifying.
M.T. explained that she had received threats from defendant’s family members in 2012,
defendant had threatened her in the past and physically assaulted her on numerous
occasions, and defendant had threatened physical violence toward her if she ever
cooperated with law enforcement against him. She insisted that she be left alone and
reiterated her refusal to testify against defendant because she felt her life would be in
danger. M.T. never stated that defendant or his family had contacted her in 2019 or 2020.
c. Prosecution’s motion to admit M.T.’s statements.
On July 28, 2020, the prosecution moved to admit M.T.’s statements to Detective
Sturdavant on the grounds defendant’s acts of dissuading her from testifying forfeited his
Sixth Amendment right to cross-exam her. The prosecution argued that M.T.’s
16
statements were admissible pursuant to Evidence Code section 1390,9 which codified the
forfeiture by wrongdoing doctrine. Defense counsel objected and argued that M.T.’s fear
of defendant was based on events that had occurred in 2011, there is no evidence
defendant engaged in any wrongdoing, M.T. is an “uncooperative witness, . . . not
unavailable,” and the prosecutor had not been “diligent in efforts to subpoena her.” In
response, the prosecutor referenced Giles v. California (2008) 554 U.S. 353 (Giles), and
argued that defendant’s earlier abuse or threats of abuse, while M.T. was “under his
thumb,” are relevant because they deterred her from cooperating with law enforcement.
He offered independent corroborating testimony from other victims, S.M. and A.M.
Regarding his failure to serve M.T. with a subpoena, the prosecutor described his
attempts, albeit unsuccessful, to serve her with an out-of-state subpoena, but she was a
victim of human trafficking who had been harassed, was fearful, and was living in a state
9 The forfeiture-by-wrongdoing exception to the hearsay rule was codified in
Evidence Code section 1390, which provides: “(a) Evidence of a statement is not made
inadmissible by the hearsay rule if the statement is offered against a party that has
engaged, or aided and abetted, in the wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness. [¶] (b)(1) The party seeking to introduce
a statement pursuant to subdivision (a) shall establish, by a preponderance of the
evidence, that the elements of subdivision (a) have been met at a foundational hearing.
[¶] (2) The hearsay evidence that is the subject of the foundational hearing is admissible
at the foundational hearing. However, a finding that the elements of subdivision (a) have
been met shall not be based solely on the unconfronted hearsay statement of the
unavailable declarant, and shall be supported by independent corroborative evidence.
[¶] (3) The foundational hearing shall be conducted outside the presence of the jury.
However, if the hearing is conducted after a jury trial has begun, the judge presiding at
the hearing may consider evidence already presented to the jury in deciding whether the
elements of subdivision (a) have been met. [¶] (4) In deciding whether or not to admit
the statement, the judge may take into account whether it is trustworthy and reliable.”
(Italics added.)
17
that was a pandemic hotspot. The trial court agreed that due to the Covid-19 pandemic
flying from Texas to California would not be a good idea. Defense counsel maintained
that the forfeiture doctrine applies “[w]hen the person is murdered, not when the person
just doesn’t want to cooperate, doesn’t want to testify.” Both parties filed supplemental
briefs.
On July 31, 2020, the trial court held an Evidence Code section 402 hearing
regarding the admission of M.T.’s out-of-court statements. Detective Sturdavant testified
that the other victims, A.M. and S.M. (neither of whom knew M.T.), stated that defendant
had instructed them to never cooperate with law enforcement or he would engage in
physical violence toward them and their family members. According to S.M., defendant
told her, “‘If anybody comes asking questions or if [she] was to ever testify, if [she] was
to ever turn him in for anything, he would not only kill [her] but he would kill anybody
that’s around and that’s affiliated with [her] family.’” The detective testified about his
April 2019 conversation with M.T., during which she acknowledged her domestic
violence charge against defendant in 2012, his threat to “come after her and physically
harm her or any of her loved ones” if she cooperated with law enforcement, his family’s
threats to “come after her” if she did not drop the charges, and her “fear for her life.”
M.T. stated that she was still terrified of defendant, and she moved out of California to
“hide” from him. When the detective spoke to her in August 2019, she stated that she did
not want to talk to defense counsel because “she felt like it was a trap” and “they were
trying to intimidate or dissuade her from cooperating with this investigation and
testifying against [defendant].” She remained “very much terrified” of defendant and
18
what he was “capable of” doing. She believed that if she testified against him, he would
retaliate against her through “any means necessary.”
Detective Sturdavant also testified about his conversation with M.T. on July 23,
2020, when she stated that she was not willing to cooperate and was “adamant that she be
left alone.” She explained that she was “terrified” that if she came to California and
testified against defendant, then he would retaliate against her or her family or children.
She recalled the 2011 domestic violence incident when his family “reached out to her and
intimidated her and coerced her to drop charges against [defendant].” She stated that “if
they were able to reach out to her then, she felt the same thing would happen again.” The
detective opined that he could do nothing to change her mind because she was angry and
frustrated from the attempts to get her to cooperate, and she felt fear, panic, and anxiety
as to what would happen to her if she did. On cross-examination, he acknowledged that
M.T. never told him that defendant or his family ever contacted her in 2018, 2019 or
2020.
The prosecution introduced e-mail and text communications with the Dallas
County District Attorney’s Office to and from M.T. concerning their attempts to serve
her with a subpoena.
After finding by a preponderance of the evidence that M.T. was unavailable
because of defendant’s wrongdoing, the trial court admitted her recorded statements to
the police about defendant, along with her statements to Detective Sturdavant and Officer
Moulton about her reasons for not wanting to testify.
19
2. Applicable legal principles.
“A criminal defendant has a Sixth Amendment right ‘to be confronted with the
witnesses against him.’ [Citation.] A court may not admit a witness’s testimonial
hearsay statements against a defendant unless the witness is unavailable and the
defendant had a prior opportunity for cross-examination. [Citation.] Nonetheless, in
narrow circumstances a defendant may forfeit his right to confrontation by his own
wrongdoing. [Citations.] ‘[W]hen defendants seek to undermine the judicial process by
procuring or coercing silence from witnesses and victims, the Sixth Amendment does not
require courts to acquiesce. While defendants have no duty to assist the State in proving
their guilt, they do have the duty to refrain from acting in ways that destroy the integrity
of the criminal-trial system.’ [Citation.] For the forfeiture-by-wrongdoing exception to
apply, a defendant must have engaged in wrongful conduct designed to prevent a witness
from testifying. [Citation.] Said differently, a defendant must ‘engag[e] in wrongdoing
that renders the declarant unavailable with an intent to prevent that declarant’s in-court
testimony.’ [Citation.]
“‘[W]rongdoing’ need not rise to the level of murder. [Citation.] ‘The common-
law forfeiture rule was aimed at removing the otherwise powerful incentive for defendants
to intimidate, bribe, and kill the witnesses against them—in other words, it is grounded in
“the ability of courts to protect the integrity of their proceedings.”’ [Citation.] Thus in
[People v.] Jones [(2012) 207 Cal.App.4th 1392, 1398-1399], the defendant forfeited his
right to confrontation when during phone calls from jail he dissuaded his ex-girlfriend
20
from testifying by implying he had friends on the outside available to do ‘“whatever [was]
necessary.”’” (People v. Merchant (2019) 40 Cal.App.5th 1179, 1185.)
“In general, ‘[w]e review claims regarding a trial court’s ruling on the
admissibility of evidence for abuse of discretion.’ [Citation.] However, when the
admission of evidence ‘depend[s] on a determination of preliminary facts by the trial
court[,] such determinations will be upheld if supported by substantial evidence.’
[Citation.] Thus in this case, where the central disputed issue is whether the trial court
erred in finding that a defendant engaged in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness, we apply a substantial evidence
standard in reviewing the trial court’s finding regarding the defendant’s intent.
[Citations.] Although we apply a substantial evidence standard of review to the trial
court’s factual finding, ‘[w]e review for abuse of discretion the ultimate decision whether
to admit the evidence.’” (People v. Quintanilla (2020) 45 Cal.App.5th 1039, 1049-1050.)
3. Analysis.
Defendant contends the trial court abused its discretion in admitting M.T.’s out-of-
court statements because the evidence fails to show that he committed any wrongdoing to
make her unavailable. He claims that any wrongdoing must involve his pending case.
(People v. Kerley (2018) 23 Cal.App.5th 513, 559; People v. Quintanilla, supra, 45
Cal.App.5th at p. 1055.) As we explain, we reject this contention.
To begin with, the evidence shows that defendant created an environment that by
its very nature was threatening to anyone who challenged his control and authority.
Defendant terrorized M.T. for years by bullying and beating her, retaining possession of
21
her important, personal, family items, and deterring her from talking to the police. Also,
defendant engaged in passive coercion (People v. Merchant, supra, 40 Cal.App.5th at
p. 1186) by having his family make threatening calls to her after she reported his assault
which prompted the filing of domestic violence charges. Because of these threats, M.T.
dropped the charges, refused to cooperate with law enforcement, and moved out of state.
Despite the passage of seven years, M.T. remained deathly afraid that defendant and his
family “would retaliate against her through any means necessary.” The fact that these
threats occurred prior to 2019 is irrelevant, given her sustained fear and motivation to not
testify against defendant. “Acts of domestic violence often are intended to dissuade a
victim from resorting to outside help, and include conduct designed to prevent testimony
to police officers or cooperation in criminal prosecutions. . . . Earlier abuse, or threats of
abuse, intended to dissuade the victim from resorting to outside help would be highly
relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the
victim would have been expected to testify.” (Giles, supra, 554 U.S. at p. 377.)
Nonetheless, defendant contends that because neither he nor his family made any
threats to M.T. regarding her testimony in his current case, the forfeiture by wrongdoing
doctrine does not apply. This interpretation of the doctrine is too narrow. “The common-
law forfeiture rule was aimed at removing the otherwise powerful incentive for
defendants to intimidate, bribe, and kill the witnesses against them—in other words, it is
grounded in ‘the ability of courts to protect the integrity of their proceedings.’” (Giles,
supra, 554 U.S. 353 at p. 374, citing Davis v. Washington (2006) 547 U.S. 813, 834
(Davis).) “[O]ne who obtains the absence of a witness by wrongdoing,” whatever the
22
nature of the wrongdoing, “forfeits the constitutional right to confront[]” that witness.
(Davis, at p. 833.) “Whether a defendant’s conduct constitutes ‘wrongdoing’ depends not
necessarily on its character, but on the defendant’s intent and whether his actions caused
the witness not to appear.” (People v. Reneaux (2020) 50 Cal.App.5th 852, 868.) Thus,
“wrongdoing” does not require the killing of a victim or a nonvictim witness. (People v.
Jones (2012) 207 Cal.App.4th 1392, 1399.) Rather, it may include threats, intimidation,
bribery, and “cajoling but nonthreatening behavior” so long as the defendant intended the
witness be made unavailable to testify. (Reneaux, at pp. 867, 868-869.)
Here, M.T. never provided testimony against defendant in 2012 because he “acted
with the intent to interfere with the court’s truth-finding function and his action caused
[her] not to appear.” (Reneaux, supra, 50 Cal.App.5th at p. 870.) The Supreme Court
has acknowledged that domestic violence victims are “notoriously susceptible to
intimidation or coercion” by their abuser to prevent them from testifying at trial. (Davis,
supra, 547 U.S. at p. 833; see Giles, supra, 554 U.S. at p. 377 [“[a]cts of domestic
violence often are intended to dissuade a victim from resorting to outside help, and
include conduct designed to prevent testimony to police officers or cooperation in
criminal prosecutions.”].) By creating an environment that intimidated women into a
code of silence, defendant continued to prevent M.T. from testifying against him. Both
A.M. and S.M. confirmed defendant’s use of intimidation and threats that there would be
consequences including physical violence and death to them and anyone affiliated with
them if they ever cooperated with law enforcement.
23
Accordingly, substantial evidence supports the trial court’s findings that defendant
successfully deterred M.T. from coming to court. It is apparent that he intended to create,
and succeeded in creating an environment of intimidation designed to prevent his “girls”
from ever testifying against him. Because defendant’s wrongdoing caused her to be
unavailable at trial, the court did not err in admitting her statements to the police.
B. Instructional Error: Evidence of Uncharged Sex Offense.
In addition to finding M.T.’s testimony admissible under the forfeiture-by-
wrongdoing doctrine, the trial court also admitted it as evidence of an uncharged sexual
offense. The court instructed the jury with CALCRIM former No. 1191, which provided:
“The People presented evidence that the defendant committed the crime of human
trafficking against Jane Doe (M.T.) that was not charged in this case. This crime is
defined for you in these instructions.” (Italics added.) Defendant contends the court
“abused its discretion by concluding that [his] conduct with M.T. constituted [an]
Evidence Code [section] 1108 ‘sexual offense,’ namely sex trafficking, because [he] did
not sex traffic M.T.” Moreover, he contends prejudice resulted when the court identified
“sex trafficking” as the uncharged sex offense in CALCRIM former No. 1191, and the
prosecution used M.T.’s testimony to prove that he trafficked, pimped, and used violence
against A.M. and S.M. We conclude the court properly exercised its discretion in
admitting the evidence and instructing the jury.
1. Further background information.
Before trial, the prosecution moved to admit evidence of defendant’s prior sexual
offenses and domestic violence against M.T. under Evidence Code section 1108. Defense
24
counsel objected on the grounds the prior offenses did not constitute sexual trafficking as
set forth in the statute, it would create a trial within a trial, and require an undue
consumption of time. The prosecutor responded that “when you engage in pimping and
pandering, you use force, violence, duress, fear, that’s human trafficking under [Penal
Code section] 236.l[, subdivision] (b).” After considering the parties’ arguments, the trial
court found that defendant’s prior acts of sexual misconduct fell within the parameters of
Evidence Code section 1108, subdivision (a), and explained that the uncharged conduct
was substantially similar to the charged offenses, not remote, would not require an undue
consumption of time, was no more inflammatory than the evidence the jury was going to
receive, and was more probative than prejudicial.10
M.T. testified via Detective Sturdavant’s April 26, 2019 audio recorded interview;
she did not appear in court. The jury was instructed with CALCRIM former No. 1191
(evidence of uncharged sex offense) as follows: “The People presented evidence that the
defendant committed the crime of human trafficking against Jane Doe (M.T.) that was
not charged in this case. This crime is defined for you in these instructions. [¶] You
may consider this evidence only if the People have proved by a preponderance of the
evidence that the defendant in fact committed the uncharged offense. Proof by a
preponderance of the evidence is different—a different burden of proof from proof
beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you
conclude that it’s more likely than not that that fact is true. [¶] . . . [¶] If the People have
10The prosecutor sought to admit evidence of another victim, A.E., under
Evidence Code section 1108. However, he never presented her testimony.
25
not met this burden of proof, you must disregard that evidence entirely. [¶] If you decide
that the defendant committed the uncharged offense, you may, but are not required to,
conclude from the evidence that the defendant was disposed or inclined to commit sexual
offenses, and based upon that decision, also conclude that the defendant was likely to
commit and did commit human trafficking against Jane Doe (A.M.) and Jane Doe (S.M.),
as charged here. If you conclude that the defendant committed the uncharged offense,
that conclusion is only one factor to consider with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of human trafficking against Jane
Doe (A.M.) and Jane Doe (S.M.). The People must still prove each charge beyond a
reasonable doubt.” Defense counsel raised no objection to this instruction.
2. Analysis.
a. The trial court did not abuse its discretion in admitting
evidence of defendant’s uncharged sex offenses involving M.T.
The Legislature has created certain exceptions to the general proscription against
admitting character evidence, or evidence of a propensity or disposition to engage in a
type of conduct, in cases involving sexual offenses (Evid. Code, § 1108, subd. (a)) and
domestic violence (id., § 1109, subd. (a)(1)), subject to balancing under Evidence Code
section 352. To be admissible under Evidence Code section 352 the evidence’s probative
value must not be “substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” “We apply the deferential
26
abuse of discretion standard when reviewing a trial court’s ruling under Evidence Code
section 352.” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
According to defendant, the trial court abused its discretion by concluding his
conduct with M.T. constituted sex trafficking. He argues the evidence shows that M.T.
voluntarily worked as a prostitute, and he never kept her dependent on him. We disagree.
Here, the prosecution was tasked with proving that A.M. and S.M. were the victims of
sex trafficking. M.T.’s testimony regarding defendant’s prior involvement with
prostitution and pimping was relevant to establishing the intent behind his actions with
A.M. and S.M. M.T. described her relationship with defendant, how it went from
romantic to prostitute/pimp, his demand that she earn a minimum daily amount, his anger
and assaultive behavior when she did not, his threats to keep her from talking to law
enforcement about their prostitute/pimp relationship, and his retention of personal items
to control her. The fact that she pumped and paid for the gas in defendant’s car, or took
care of him, does not show that she kept defendant “dependent on her.” Rather, it
provides additional evidence that she was his “‘bottom bitch,’” who did what he told her
to do.
The probative value of M.T.’s testimony lies in her description of an environment
of physical and psychological abuse wherein defendant controlled the women and their
daily lives. His familiarity with pimping and his treatment of M.T. makes it more likely
that he committed the offenses against S.M. and A.M. (See Evid. Code, § 1108; see also
People v. Williams (2016) 1 Cal.5th 1166, 1196-1197 [Evid. Code § 1108 permits
evidence admitted to show propensity].) Moreover, this evidence was more probative
27
than prejudicial because the crimes in the instant case are the same as those involving
M.T., and defendant’s commission of the same crimes several years earlier shows that he
has a long history of pimping. (Evid. Code, § 352.)
b. The trial court properly instructed the jury with CALCRIM
former No. 1191.
Defendant contends prejudice resulted when the trial court identified “‘sex
trafficking’” as the uncharged sex offense in CALCRIM former No. 1191, and the
prosecution used M.T.’s testimony to prove that he trafficked, pimped, and used violence
against A.M. and S.M.
Although defendant asserts that sex trafficking was not listed as a sex offense
under Evidence Code section 1108 until 2017 (Stats. 2017, ch. 805, § 1, eff. Jan. 1, 2018)
when the Legislature amended the law with Senate Bill No. 230 (2017-2018 Reg. Sess.),
he offers no argument as to why this exclusion contributed to the alleged prejudice that
he faced by instructing the jury with CALCRIM former No. 1191. Given Evidence Code
section 1108, subdivision (d)’s definition of “‘[s]exual offense,’” we perceive no issue
with the delayed inclusion of Penal Code section 236.1, subdivisions (b) and (c), because
Evidence Code section 1108 allows the trial court to admit evidence of uncharged sexual
offenses from any witness subject to Evidence Code section 352. (See People v. Ennis
(2010) 190 Cal.App.4th 721, 733 [upholding trial court’s ruling under Evid. Code § 352,
that evidence of uncharged crimes from the same witness who testified to charged crimes
is admissible].) In this case, the trial court complied with the statute and instructed the
jury with CALCRIM former No. 1191.
28
Nor do we perceive any violation of due process or prejudice from the prosecution’s
use of M.T.’s testimony of defendant’s uncharged sexual offenses to corroborate the
victims’ testimony of the charged sexual offenses. (People v. Gonzales (2017) 16
Cal.App.5th 494, 502 [CALCRIM former No. 1191 does not lower prosecution’s burden of
proof].) Victims are allowed to support their testimony with testimony of uncharged
sexual offenses. CALCRIM former No. 1191, as given here, correctly stated the law
regarding the jury’s use of evidence of an uncharged sexual offense. (See People v.
Reliford (2003) 29 Cal.4th 1007, 1011-1016 [rejecting a similar challenge to CALJIC
No. 2.50.01, an instruction based on Evid. Code § 1108]; People v. Cromp (2007)
153 Cal.App.4th 476, 480 [CALCRIM former No. 1191 is not materially different from
CALJIC No. 2.50.01; defendant’s due process challenge to CALCRIM former No. 1191
failed].) Moreover, the instruction told jurors: (1) they may not even consider the
evidence unless it is proved by a preponderance of the evidence; (2) if they decide that
standard is met, they “may, but are not required to, conclude from the evidence that the
defendant was disposed or inclined to commit sexual offenses”; (3) based on that decision,
they may conclude that the defendant was likely to commit the charged offenses (not that
he did commit the charged offenses); (4) the determination the defendant committed the
prior misconduct “is only one factor to consider with all the other evidence”; (5) the
determination the defendant committed the prior acts is “not sufficient by itself to prove
that the defendant is guilty of ” the charged offenses; and (6) “[t]he People must still prove”
the charge “beyond a reasonable doubt.” (Italics added.) The jury was also instructed on
how to consider defendant’s uncharged sex offenses against M.T., how to evaluate the
29
evidence (CALCRIM No. 302 [evaluating conflicting evidence], No. 303 [limited purpose
evidence in general], & No. 318 [prior statements as evidence]), and to judge the credibility
of the witnesses (CALCRIM No. 226 [witnesses]). We presume the jury understood and
followed these instructions. (See People v. Silveria and Travis (2020) 10 Cal.5th 195,
245.)
Moreover, we reject defendant’s assertion that CALCRIM former No. 1191 and
the prosecutor’s argument allowed the jury to use M.T.’s testimony to “find him guilty of
all the charged offenses.” (Italics added.) The record belies this assertion: The jury
hung on the charge of human trafficking of S.M., which was dismissed, and found him
not guilty of robbing A.M.
C. Substantial Evidence.
Defendant contends the evidence is insufficient to support his convictions of rape
(§ 261, subd. (a)(2)) and human trafficking (§ 236.1, subd. (b)), as alleged in counts 3
and 4 (against A.M.). We disagree.
“In considering a challenge to the sufficiency of the evidence . . . , we review the
entire record in the light most favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] We presume every fact in support of the judgment the trier of fact
could have reasonably deduced from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
30
finding. [Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility.’” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.)
1. Count 4 - rape - (§ 261, subd. (a)(2)).
Rape is defined as “an act of sexual intercourse” accomplished with a person “not
the spouse” of the perpetrator “against a person’s will by means of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on the person or
another.” (§ 261, subd. (a)(1), (2).) In the context of sexual assault, “‘against one’s will’
means ‘without the consent of the alleged victim.’” (People v. Lee (2011) 51 Cal.4th
620, 664, fn. 10.)
Here, A.M. testified that she did not want to have sex with defendant and that no
less than three times she was unsuccessful at stopping him from having sex with her. She
described the first time as follows: “We were at the apartment. And I was in the living
room because that’s where the girls stayed was in the living room. And I was sleeping on
the floor. He’s touching me. And I feel like—I feel a pull on my hips, like, backwards,
because I’m [lying] on my stomach. And he tells me to get up, so I get up. [¶] He tells
me to take off my clothes, so I take off my clothes. And he puts on a condom, and he
tells me to get on top. And I get on top of him. And I’m not enjoying it, and he knows
that. And he tells me I need to calm down. I need to relax. He said, ‘I need to break you
in.’ It was the worst.” When defendant initiated sexual intercourse, she would roll over,
but he would “pull [her] back.” She stated that she did not try to make it stop because
“[i]t was gonna happen whether or not [she] liked it. It wasn’t about [her]. It wasn’t
about . . . intimacy. . . . It was sex for him. He needed to get off.” She testified that
31
during the act she was afraid of defendant, adding that if she refused to comply “he
would do it harder.” Ultimately, she stopped trying to avoid having sexual intercourse
with him because she was “not trying to get hit.” According to defendant, A.M.’s
testimony shows that she “never refused his sexual advances.” He adds that there was
“no physical or forensic evidence” to prove that he raped her at “some unknown date and
time,” there were no witnesses, A.M. never disclosed that she was raped, and a cell phone
video shows that she engaged in a consensual threesome.
To prove that defendant committed rape by force, “the prosecutor was merely
required to prove that the act of [rape] was accomplished by enough physical force to
overcome the victim’s will.” (People v. Hale (2012) 204 Cal.App.4th 961, 979.) Rape is
committed by duress where the defendant uses “‘“‘a direct or implied threat of . . . hardship
or retribution sufficient to coerce a reasonable person of ordinary sensibilities to . . .
perform an act which otherwise would not have been performed . . . .’” [Citation.]’
[Citations.] ‘Duress can arise from various circumstances, including the relationship
between the defendant and the victim and their relative ages and sizes. . . .’” (Id. at p. 979.)
Here, the question is whether defendant used intimidation, threats, or coercion to overcome
A.M.’s ability to convey her lack of consent. (See, e.g., People v. Maury (2003) 30 Cal.4th
342, 403; People v. Ireland (2010) 188 Cal.App.4th 328, 338.) The jury resolved that
question against defendant. “‘We do not reweigh evidence or reevaluate a witness’s
credibility.’” (People v. Brown (2014) 59 Cal.4th 86, 106.) Accordingly, sufficient
evidence supports this conviction.
32
2. Count 3 - human trafficking - (§ 236.1, subd. (b)).
“‘A person who deprives or violates the personal liberty of another with the intent
to effect or maintain a violation of Section 266, 266h, 266i, 266j, 267, 311.1, 311.2,
311.3, 311.4, 311.5, 311.6, or 518 is guilty of human trafficking . . . .’ [Citation.]
‘“Deprivation or violation of the personal liberty of another” includes substantial and
sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit,
coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another
person, under circumstances where the person receiving or apprehending the threat
reasonably believes that it is likely that the person making the threat would carry it out.’”
(People v. Oliver (2020) 54 Cal.App.5th 1084, 1095.) “When determining whether the
victim’s liberty was deprived or violated, and when determining whether a defendant
used duress or coercion, the jury must consider ‘[t]he total circumstances’ including a list
of nonexhaustive ‘factors’ such as the victim’s age, the relationship between the victim
and his or her trafficker or the trafficker’s agents, and any handicap or disability of the
victim.” (Id. at p. 1095, fn. 7.) Moreover, “the victim’s consent or lack thereof is
irrelevant” because “section 236.1, subdivision (h)(3)’s nonexhaustive definition of
deprivation or violation of personal liberty leaves open the possibility that a victim may
agree to have his or her freedom of movement limited by a pimp, for example, to help
facilitate and share in the profits of a prostitution ring. Yet, the crime of human
trafficking will still have been committed if the deprivation was done with the requisite
mental state.” (Ibid.)
33
According to defendant, he monitored A.M. to keep her safe and provided her with
shelter, food, and other daily necessities; however, once she completed her assignments,
she could leave. Thus, he contends the evidence fails to support his human trafficking
conviction since he never deprived A.M. of, or violated her, personal liberty. However,
the totality of the circumstances reveals otherwise. (People v. Oliver, supra, 54
Cal.App.5th at p. 1095, fn. 7.) A.M. was vulnerable when defendant recruited and
groomed her to become a prostitute. He professed a romantic interest in her until she
acquiesced to returning to a life of prostitution. At that point, defendant demanded that
she hand over her social security card and birth certificate, restricted her cellular phone
service, required her to remain inside the house unless he was home or there was a reason
to leave, and decided whether she could cook or go out to get food. Having witnessed
defendant beat his other prostitutes when they did not follow his rules, A.M. feared
defendant, was scared to leave, and was afraid to talk to law enforcement for fear that she
or defendant would be arrested and then she would be out “on [her] ass[].” She was told
that “snitches get stitches.”
From A.M.’s testimony, a jury could reasonably conclude defendant limited her
freedom of movement with the specific intent of pimping her. By taking her important
identification documents, constantly monitoring her, making her financially dependent on
him, and using verbal and physical abuse to secure her compliance with his demand that
she earn a minimum daily amount, the jury could conclude defendant trafficked A.M.
(See People v. Guyton (2018) 20 Cal.App.5th 499, 507 [human trafficking conviction
affirmed where, inter alia, the defendant isolated the victim, constantly monitored her,
34
made her work when she was exhausted, and made her financially dependent on him].)
Substantial evidence supports the jury’s conclusion.
D. Expert Testimony About the Effects of Human Trafficking on CSWs.
Over defense objection, the trial court allowed Deputy Engels to testify “as an
expert as to what the various words associated with human trafficking mean.” Defendant
contends (1) this testimony was inappropriate because Evidence Code section 1107.5 did
not apply, (2) the prosecutor committed misconduct by exceeding the court’s ruling and
eliciting the deputy’s opinions about CSWs’ mental and psychological processes, and (3)
the deputy lacked qualifications to testify about CSWs’ mental and psychological
processes.
1. Further background information.
Prior to trial, the prosecution moved to admit expert testimony regarding human
trafficking, pimping, and pandering, on the grounds these crimes “involve dynamics and
terminology outside the scope of the average trier of fact’s experience.” The prosecutor
argued that Evidence Code section 1107.5 allows for the admission of expert testimony
“‘by either the prosecution or the defense regarding the effects of human trafficking on
human trafficking victims, including the nature and effect of physical, emotional, or
mental abuse on the beliefs, perceptions, or behavior of human trafficking victims.’” He
stated his plan “to elicit testimony on pimping, pandering and human trafficking to
educate the jury on the ways in which pimps and traffickers exert control, the mental
manipulation involved, payment structure, concepts of a ‘bottom’ and ‘pimp partners,’ and
use terms common in commercial sexual exploitation. [He explained that t]he differing
35
reactions of sex victims in cases involving pimping and human trafficking are not
necessarily common knowledge to lay jurors. In addition, it is unlikely that jurors will be
aware of the various trends governing the infrastructure of street-level and Internet
prostitution, particularly the culture of protecting the pimp and the consequences of
cooperating with law enforcement.”
Defense counsel objected on the grounds the evidence lacks foundation and
because he was not provided “with a statement of what this witness is expected to say,”
and he does not “know specifically what [the expert is] going to say, whether it’s fact-
specific or general.” The prosecutor noted that defense counsel was notified in April
2019 that Deputy Engels would be called as an expert on human trafficking and was
provided with his resume; however, counsel never asked for clarification. The trial court
overruled defense counsel’s objection but directed the prosecutor to make the expert
available if counsel wished to speak to him.
In addition to defining and explaining terms used by individuals who engage in
human trafficking and pimping, Deputy Engels opined on why women become
prostitutes, their typical background, and why they do not leave their pimps. On cross-
examination, he acknowledged that he had testified only a few times as the prosecution’s
expert on human trafficking, he was not a psychologist nor a psychiatrist, his training was
from the law enforcement perspective, and he assumed that CSWs and pimps spoke to
him truthfully. On redirect, he stated that his opinions were based on his “investigations,
[and his] own experience.”
36
2. Analysis.
A trial court has wide discretion to admit or exclude expert testimony. (People v.
Leonard (2014) 228 Cal.App.4th 465, 493.) “‘California law permits a person with
“special knowledge, skill, experience, training, or education” in a particular field to
qualify as an expert witness [citation] and to give testimony in the form of an opinion
[citation].’ [Citation.] An expert opinion must not be based upon speculative or
conjectural data. [Citations.] An expert’s opinion must be ‘[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.’ [Citation.] ‘Testimony in the form of an opinion that is otherwise
admissible is not objectionable because it embraces the ultimate issue to be decided by
the trier of fact.’ [Citation.] [¶] However, ‘“[a] witness may not express an opinion on a
defendant’s guilt. [Citations.] The reason for this rule is not because guilt is the ultimate
issue of fact for the jury, as opinion testimony often goes to the ultimate issue.
[Citations.] ‘Rather, opinions on guilt or innocence are inadmissible because they are of
no assistance to the trier of fact. To put it another way, the trier of fact is as competent as
the witness to weigh the evidence and draw a conclusion on the issue of guilt.’”’” (Ibid.)
Contrary to defendant’s assertion, Evidence Code section 1107.5 applies to this
case. Pursuant to that statute, once “relevancy and the proper qualifications of the expert
witness” are established, the prosecutor may introduce expert testimony “regarding the
effects of human trafficking on human trafficking victims, including the nature and effect
of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of human
trafficking victims.” (Evid. Code, § 1107.5, subds. (a), (b).) Here, the prosecutor
37
explained, and the trial court agreed, that expert testimony will assist the jury on
understanding the terminology used in, and culture of, pimping and pandering for
“commercial sexploitation.” Deputy Engels’ testimony did just that. We reject
defendant’s attempt to limit the use of such evidence to cases that only involved “an
affirmative defense for sex trafficking victims.” (People v. Calhoun (2019) 38
Cal.App.5th 275, 288-290; People v. Leonard, supra, 228 Cal.App.4th at pp. 492-494
[use of expert testimony regarding the culture of pimping and pandering, including
expert’s interpretation of defendant’s social media postings and the victims’ statements
against defendant]; U.S. v. Taylor (9th Cir. 2001) 239 F.3d 994, 998 [“A trier of fact who
is in the dark about that relationship may be unprepared to assess the veracity of an
alleged pimp, prostitute, or other witness testifying about prostitution.”].)
Likewise, we reject defendant’s assertion that the prosecutor committed
misconduct by eliciting Deputy Engels’ opinions about CSWs’ mental and psychological
processes. More specifically, defendant challenges the prosecutor’s questions concerning
why women become CSWs, why CSWs do not leave their pimps, who controls the
money made by CSWs, how pimps gain control over CSWs, what happens when CSWs
cooperate with law enforcement, what type of women become CSWs, and why CSWs
find it difficult to leave their pimps. When granting the prosecution’s request to admit
expert testimony on human trafficking, pimping and pandering, the trial court stated that
it was allowing “the People to introduce expert testimony regarding human trafficking,
[and the] pimping and pandering culture. . . . Because the Court does feel that under the
nature of the charges here, human trafficking for commercial sexploitation, that an expert
38
would be helpful to the jury to understand exactly what it is that we’re talking about.”
The court did not limit the scope of the expert’s testimony. Its later reference to the
expert testifying about “words associated with human trafficking” was in response to
defense counsel’s concern: “Just to be abundantly clear, while there’s been reference to
different terminology in police reports, no police report actually has been authored by
Deputy Engels.” Thus, the prosecutor did not exceed the scope of the court’s ruling.
Moreover, Deputy Engels’ expert opinions were based on his experience as a
human trafficking investigator, including his interviews with hundreds of such women.
Because expertise may come from “experience” (Evid. Code, § 720, subds. (a), (b); see
People v. Prince (2007) 40 Cal.4th 1179, 1219-1220), and because experience may come
from what one learns during interviews (People v. Sengpadychith (2001) 26 Cal.4th 316,
324), Engels was qualified to offer this expert testimony. Contrary to what defendant
asserts, this was not “psychological processes” testimony.
For the above reasons, we find no merit in defendant’s challenges to the
introduction and use of Deputy Engels’ expert testimony.
E. Admission of Expert Testimony to Interpret Words and Analyze Data on
Witness’s Cell Phone.
Defendant contends the trial court admitted irrelevant and unqualified expert
testimony concerning the “meaning of statements on Fulcher’s telephone” and “the
location of either Fulcher and/or [defendant] based on the cell phone data.”
39
1. Further background information.
Detective Sturdavant conducted a forensic examination of Fulcher’s cell phone.
He found voicemails saved under defendant’s number, which was identified as “‘my
better half,’” and included different characters and emojis, i.e., a money bag, two fingers,
and paper currency emojis. The detective explained that this contact name and the emojis
mean that Fulcher associated defendant with money. A video on her phone showed her
talking about life on the street11 and about Russell being “‘jealous of a green bitch’”
(referring to A.M.). In a text message, Fulcher told Russell that she could have explained
the situation (jealousy of A.M.) to defendant, and she would not have had to leave. In
another video, Fulcher called herself a “‘big old prostitute’” and asked, “‘Who wants the
ho low.’”12 The detective testified that Fulcher was referring to soliciting people for
prostitution, was proud to be a prostitute, and was a more experienced prostitute. The
detective opined that Fulcher was defendant’s most trusted woman.
Detective Sturdavant created a map using a software program, “Cell Hawk,”
which showed cell phone towers that defendant’s and Fulcher’s cell phones had used. He
identified a few heavy concentration areas, including “known or established blades or
tracks in the Los Angeles area” and defendant’s apartment. Defense counsel objected on
foundation grounds and moved to strike; however, the trial court overruled the objection
and motion. The detective explained that he had obtained a “subscriber information
11 The video was played for the jury.
12 The video was played for the jury.
40
search warrant” for defendant’s and Fulcher’s cell phone call records, the service
provider delivered information pertaining to the accounts’ interaction with various cell
phone towers within 100 to 1000 meters. Defense counsel again unsuccessfully objected,
but the court noted a standing objection.
2. Analysis.
To begin with, we conclude Detective Sturdavant was qualified to provide expert
testimony concerning the “meaning of statements on Fulcher’s telephone” based on his
investigation of 150 human trafficking cases, his 120 hours plus of advanced officer
training specifically related to human trafficking and commercialized sex, and his
conversations with more than 100 CSWs. (See discussion, ante, § II.D.2.; Evid. Code,
§720; People v. Prince, supra, 40 Cal.4th at pp. 1219-1220.) However, we do not agree
that he was qualified to provide expert testimony concerning the cell phone mapping.
The detective explained the process of obtaining the records but failed to provide his
41
qualifications as an expert in analyzing these records.13 (People v. Garlinger (2016)
247 Cal.App.4th 1185, 1190-1193.)
Although the trial court erred in admitting the detective’s testimony regarding
Fulcher’s and defendant’s locations, the error was harmless. “‘[T]he erroneous
admission of expert testimony,’ including expert testimony containing inadmissible case-
specific hearsay statements, is reviewed under the Watson[14] standard.” (People v. Flint
(2018) 22 Cal.App.5th 983, 1003-1004.) “‘[U]nder Watson, a defendant must show it is
reasonably probable a more favorable result would have been obtained absent the error.’”
(People v. Beltran (2013) 56 Cal.4th 935, 955.) “[T]he Watson test for harmless error
‘focuses not on what a reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the evidence supporting the
13 The detective testified that a software program called Cell Hawk produces a
map that displays “plots indicating the color matched numbers interacting with cell phone
towers in various locations.” He later added that when he prepares a “subscriber
information search warrant for someone’s cell phone, [he is] requesting records from the
service provider—such as Verizon, ATT, T-Mobile, Sprint—for any and all records
associated with that account attached to a specific phone number. In this case,
[defendant’s] phone number and . . . Fulcher’s phone number. [¶] And in return, the
service provider will send . . . information pertaining to that account’s interaction with
various cell phone towers. Whenever somebody makes a phone call, or uses data and
interacts with a cell phone tower, or triangulates with cell phone towers—so those
plots—each plot represents a point in time where either [defendant] or . . . Fulcher were
using their phone to either text, call, or some kind of data function, and in approximation
based off triangulation of the three closest cell phone towers. [¶] So it doesn’t give a
precise GPS pinpoint location, but it’s an approximation, typically, within 100 to a
thousand meters. And I use this information to show that parties are traveling together to
establish that there was affiliation between [defendant] and . . . Fulcher.”
14 People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).
42
existing judgment is so relatively strong, and the evidence supporting a different outcome
is so comparatively weak, that there is no reasonable probability the error of which the
defendant complains affected the result.’” (Id. at p. 956.)
Applying this standard, we note that evidence of Fulcher’s relationship with
defendant and their locations in Los Angeles and Riverside was presented through the
testimony of other witnesses. Detective Sturdavant’s testimony regarding cell phone
mapping merely duplicated their testimony. More importantly, the prosecution presented
substantial evidence demonstrating defendant’s guilt, the jury was instructed on how to
consider expert testimony (CALCRIM No. 332 [expert witness testimony]), and the
prosecutor’s closing argument did not mention cell phone mapping data. Accordingly,
we reject defendant’s argument that the error in admitting the detective’s testimony
regarding cell phone mapping was prejudicial.
F. The Prosecutor’s Cross-Examination of Defendant’s Character Witnesses.
Defendant presented character witnesses in his defense. When cross-examining
these witnesses, the prosecutor asked whether their opinion of defendant’s character
would change if they knew that he was involved in pimping, that women called him
daddy, that he was in possession of their social security cards and driver’s licenses, and
that they had suffered injuries at his hands. On appeal, defendant argues his case should
be reversed because the trial court deprived him of his constitutional rights to due
process, a fair trial, and proof beyond a reasonable doubt by allowing the prosecutor to
question his character witnesses with “highly improper and inflammatory guilt-assuming
questions,” which “unfairly destroyed [their] credibility and erroneously injected
43
assumptions of guilt into the fact-finding process.” Acknowledging his trial counsel’s
failure to object, defendant argues ineffective assistance.
1. Further background information.
Defendant presented witnesses who testified about his good and nonviolent
character. He charges the prosecutor with asking improper and inflammatory guilt
assuming, hypothetical questions as follows:
a. J.H. (the coworker)
J.H. considered defendant to be honest and nonviolent. The prosecutor asked J.H.
if he knew Fulcher, if he had seen her tattoos, if he knew she called defendant “Daddy,”
and whether his opinion would change if he knew that defendant was involved in
pimping.15
15 “Q. Have you ever met a young woman by the name of . . . Fulcher? [¶] A. I
know of her. I don’t know her.
“Q. Would it change your mind as to if he has been involved in pimping—I’m
going to show you what has been previously marked as People’s Exhibit 9. [¶] If I told
you that that’s . . . Fulcher, and you see that writing on her, the tattoo? [¶] A. Uh-huh.
“Q. That says ‘The Grate Life,’ sir? [¶] A. I’ve never seen that tattoo on her,
never.
“Q. Okay. And I’m just asking, would that change your opinion? [¶] A. No, it
wouldn’t, because I’ve never seen it on her.
“Q. What if I told you that she made a video, and she referred to [defendant] as
‘Daddy,’ and that she was a ‘304,’ which we’ve learned is—you already know what that
is? [¶] A. Yes, I do.
“Q. That she commits commercial sex acts for Daddy, and she referred to
[defendant] as ‘Daddy,’ would that change your opinion possibly as to [defendant] being
a pimp or not? [¶] A. No. Because I don’t know, she could have been high or anything.
I don’t know. Drug—you know, they say drugs alters your mind. So I don’t know.
“Q. Basically, is there anything I could tell you, sir, that would change your
opinion about your brother? [¶] A. No.”
44
b. L.R. (defendant’s sister)
L.R. knew M.T. and S.M. The prosecutor asked whether she had seen M.T.
injured, whether she knew her brother to be a pimp, whether she heard him called, “‘H
the Grate,’” whether she knew if he collected other people’s identifying information,
whether knowledge of Russell and Fulcher’s video—made in defendant’s apartment—
referring to themselves as 304s would affect her opinion of him, and whether she had
seen tattoos on Fulcher and pictures of defendant with “‘Grate’” spelled on the bottom.16
16 “Q. Would it surprise you if I told you that [Russell’s] social security card and
driver’s license was found in your brother’s apartment? [¶] A. I never heard nothing
about social securities or nothing like that ever before. This is my first time hearing it.
So it’s a surprise to me because you’re telling me now.
“Q. Would it surprise you if I told you that this young lady and . . . Fulcher were
making a video in your brother’s apartment where they were referring to themselves as
304s, which means someone that commits commercial sex acts, commonly known as,
like, a prostitute? That they were 304s and that your brother was their daddy, basically
their pimp? [¶] A. Never heard of any of it.
“Q. Okay. Would that kind of change your opinion on your brother? [¶] A. No.
I’ve always known my brother to help. No, I know him helping. He’s always helping
people—women, man. So this, I don’t know nothing about it.”
“Q. Let me ask you this: Do you remember there being a domestic violence issue
between your brother and [M.T.] around that time? Or did they—did no one discuss that
with you? [¶] A. No one discussed that with me. Because I never heard of—never seen
it. I only know about—I only seen them doing good times. I never seen her abused ever.
When she was in my presence—ever—I never seen her abused.”
“Q. Your brother got into the relationship with M.T. in about 2008; correct? [¶]
A. I believe so. I believe so, 2008.
“Q. Okay. So he’s in a relationship with her in about 2008. [¶] Would it surprise
you if you learned that in 2009, 2010, M.T. was contacted for prostitution? [¶] A. No.
“Q. You didn’t know about that? [¶] A. Huh-uh.
“Q. Okay. That’s the first that you’ve heard about it? [¶] A. Yes.”
45
c. A.F. (defendant’s friend)
A.F. lived in defendant’s apartment complex, stayed with defendant for a month in
2017, and never saw anything to suggest defendant was involved in prostitution. The
prosecutor asked if he had heard defendant refer to himself as “‘H the Grate,’” had ever
been inside defendant’s car and seen “‘The Grate Life,’” or seen him wear clothing with
dollar signs.17
d. E.H. (the ex-girlfriend)
E.H. dated defendant “about 16 years ago,” he was her daughter’s “godparent,”
and she did not consider him to be violent. The prosecutor asked if she heard his
nickname to be “‘H the Grate,’” saw any woman associated with him to have a tattoo that
spelled, “‘The Grate Life,’” knew the inside of his car was embroidered with “‘The Grate
17 “Q. Have you ever heard [defendant] refer to himself as ‘H the Grate?’ [¶]
A. No sir.
“Q. Have you ever been inside of his car and seen in the front passenger seat, it
says—or on the front passenger seat, it says, ‘The Grate Life?’ [¶] A. No. Every time
he’s always been in my car. I’ve never been in his car.
“Q. Okay. Showing you People's Exhibit 22, do you see this outfit on the screen?
[¶] A. Yes, sir.
“Q. Do you see these pants with the dollar signs? [¶] A. Yes, sir.
“Q. Have you ever seen him wear that? [¶] A. No.”
46
Life’” and dollar signs, or would change her opinion of his nonviolent nature if she knew
a young woman suffered injuries at his hands.18
2. Analysis.
In general, evidence of someone’s character is inadmissible, whether in the form
of an opinion, reputation, or specific instances of conduct, to prove that person’s conduct
on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, in criminal cases,
“evidence of the defendant’s character or a trait of his character in the form of an opinion
or evidence of his reputation” is admissible when “[o]ffered by the defendant to prove his
conduct in conformity with such character or trait of character[; or] [¶] [o]ffered by the
prosecution to rebut evidence adduced by the defendant . . . .” (Evid. Code, § 1102,
18 “Q. Would it surprise you—showing you . . . Exhibit 9, if a woman that’s
associated with [defendant] had a tattoo that’s spelled ‘The Grate Life,’ and ‘grate’ is
spelled the same way that I showed you in that picture? [¶] A. No.
“Q. What if I told you that he had that same ‘The Grate Life’ in his car in the
passenger seat? It’s kind of embroidered in it. Says ‘The Grate Life,’ and it has dollar
signs. [¶] A. No, I haven’t.
“Q. Okay. Now, you also said you don’t know [defendant] to be a violent
person? [¶] A. No, I don’t.
“Q. Would it affect your opinion at all, or not, if I told you—in showing you
People’s Exhibit 39, that this—do you see the young woman in that picture? [¶] A. Yes,
I see her.
“Q. Okay. That she suffered injuries at the hands of [defendant]. [¶] A. What is
your question?
“Q. Would that change your opinion, or not, as if he’s a violent person? [¶] A.
No, that doesn’t change my opinion. Because I’ve never seen him violent. I don’t have
an opinion.
“Q. What if I told you he admitted to being violent with her? [¶] A. It’s still—to
me, I never witnessed that myself.
“Q. So that wouldn’t change your opinion? [¶] A. No.”
47
subds. (a), (b); see Evid. Code, § 1100 [Character evidence also “include[es] evidence . . .
of specific instances of such person’s conduct . . . .”].)
“When a witness testifies to a defendant’s good reputation, the prosecutor is
entitled to ask in good faith if the witness has heard of misconduct by the defendant.
[Citations.] . . . [¶] . . . When a witness offers an opinion of a defendant’s good character,
it is often based on personal knowledge as well as reputation. [Citation.] This opens the
door for the prosecutor to offer rebuttal evidence of defendant’s character. [Citation.] . . .
The prosecutor can test the witness’s opinion by asking about his or her knowledge of the
defendant’s misconduct [citation], even if the witness professes ignorance.” (People v.
Lopez (2005) 129 Cal.App.4th 1508, 1528.) Accordingly, “‘[w]hen . . . a witness is
called to express an opinion as to the good character of the defendant, the prosecution
must have the opportunity [under the Evidence Code] to let the jury test the validity of
the opinion or the weight to be given to it by asking whether the holder of the opinion has
knowledge of events or acts which have indisputably occurred.’ [Citation.] . . . When
such cross-examination of a good-character witness is permitted, the jury should be
instructed that such questions and answers of a character witness are to be considered
only for the purpose of determining the weight to be given to the opinion or testimony of
the witness.’” (People v. Clair (1992) 2 Cal.4th 629, 682-683.)
Nothing in Evidence Code section 1102, subdivision (b), excludes evidence of a
defendant’s current charged offenses from the prosecutor’s ability to counter the
defense’s good character opinion evidence. However, as defendant points out, federal
courts have found that it is improper for a prosecutor to ask defense character witnesses
48
by using guilt assuming hypotheticals. (See U.S. v. Shwayder (9th Cir. 2002) 312 F.3d
1109, 1121 [“use of guilt assuming hypotheticals undermines the presumption of
innocence and thus violates a defendant’s right to due process”]; U.S. v. Guzman (11th
Cir. 1999) 167 F.3d 1350, 1354 [“district court should not have allowed the government
to ask [the defendant’s] character witness to assume that she was guilty of the instant
offense”]; U.S. v. McGuire (6th Cir. 1984) 744 F.2d 1197, 1204 [“It would be error to
allow the prosecution to ask the character witness to assume defendant’s guilt of the
offenses for which he is then on trial.”]; U.S. v. Candelaria-Gonzalez (5th Cir. 1977) 547
F.2d 291, 294; U.S. v. Oshatz (2d Cir. 1990) 912 F.2d 534, 539.) Yet, the federal cases
finding error are inapposite.
Here, the prosecutor did not ask the witnesses to assume defendant was guilty but
rather whether it would change their opinions if they heard about the accusations. In
People v. Qui Mei Lee (1975) 48 Cal.App.3d 516, a character witness testified that the
defendant was honest. (Id. at p. 524.) On cross-examination, the prosecutor asked
whether the witness had heard of the allegations made against the defendant. (Ibid.) In
concluding that the cross-examination was proper, the Court of Appeal observed that “the
witness’ testimony [was] delivered in the present tense. . . . Whatever [the defendant’s]
reputation might have been before the charge, after the charge it is at least dubious. Thus
where the character witness nonetheless states under oath that such defendant’s
reputation for honesty is presently good, there is a strong suggestion (to say the least) that
he is not a credible witness. And on cross-examination, such lack of credibility may be
49
demonstrated by asking him whether he in fact has heard of the commission of the
offense for which the defendant is on trial.” (Id. at p. 527.)
Here, defendant’s character witnesses claimed ignorance about the details of what
defendant was charged with, his nicknames (on his clothing, in his car, and tattooed on
women he associated with), and his guilty plea to assaulting a former girlfriend (M.T.).
The prosecutor, therefore, was entitled to ask if their opinions would change if they were
aware of this evidence in order to test their knowledge of defendant’s character. A
witness’ deliberate attempts to stay ignorant of the underlying facts of the case are
relevant to such a test. (See U.S. v. Oshatz, supra, 912 F.2d at p. 544 (conc. opn. of
Mukasey, J.) [“If the witness’ judgment is distorted either by such partisanship that the
witness would think highly of the defendant despite misbehavior, or by a warped ethical
standard, the witness’ opinion may be correspondingly discounted.”].) Defendant’s
character witnesses testified that none of this evidence would change their opinions about
defendant; their responses made them less credible witnesses.19
Nonetheless, defendant argues that it was not proper for the prosecutor to ask these
questions because he could not have had a good faith belief that the acts took place since
the jury had not found any allegations true or convicted defendant of the charges. Not so.
Based on the evidence presented in his case-in-chief, the prosecutor was entitled to a
“good faith belief” that the acts in question “actually happened.” (See People v. Tuggles
(2009) 179 Cal.App.4th 339, 358 [“A good faith belief by the prosecution that the acts or
19 There was another reason to doubt L.R.’s impartiality—she is defendant’s
sister.
50
statements asked about actually happened suffices to allow questioning of the witness
about their occurrence.”]; People v. Qui Mei Lee, supra, 48 Cal.App.3d at p. 528
[“[L]ong before [the witness] was cross-examined as to whether he had heard of the acts
mentioned by the prosecutor, the prosecutor had already placed evidence of all those acts
before the jury as integral parts of the People’s case.”].)
Moreover, the jury was instructed with CALCRIM No. 351 (cross-examination of
character witnesses), and specifically told: “The attorney for the People were allowed . . .
to ask defendant’s character witnesses if they had heard that the defendant engaged in
certain conduct. These . . . ‘have you heard’ questions and their answers are not evidence
that the defendant engaged in any conduct. You may consider these questions and
answers only to evaluate the meaning and importance of a character witness's testimony.”
Similarly, the jury was told: “During the trial, certain evidence was admitted for a
limited purpose. You may consider that evidence only for that purpose and no other
purpose.” (See CALCRIM No. 303 [limited purpose evidence in general].) Thus, “any
possibility the jury might have misunderstood the purpose of this evidence was obviated
by the limiting instruction, which we presume the jury understood and followed.”
(People v. Panah (2005) 35 Cal.4th 395, 492 [defense expert’s opinion properly
impeached by lack of knowledge of the defendant’s criminal record]; see People v.
Edwards (2013) 57 Cal.4th 658, 746 [“‘We of course presume “that jurors understand
and follow the court’s instructions.”’”].) Defendant points to nothing in the record to
rebut that presumption.
51
We, therefore, conclude the prosecutor’s brief questioning of defendant’s
character witnesses regarding their opinions of his character was not misconduct, and
defense counsel was not deficient for failing to object.
G. Prosecutorial Misconduct in Closing Argument.
Defendant contends the prosecutor committed reversible misconduct in his closing
argument by vouching for the victims’ credibility and attacking defense counsel’s
integrity; alternatively, he argues his trial counsel was ineffective by failing to object to
the prosecutor’s argument.
1. Further background information.
During closing argument, the prosecutor argued that A.M., S.M., and M.T. “were
asked tough questions. They were asked intimate questions. And they sat up here and
told their truth.” He asserted that A.M. “has no reasonable motive to lie here.” He added
that A.M. is “honest about how naïve she was. . . . [¶] . . . [¶] She also gave details about
how she reacted [when defendant raped her]. She was very honest about that. . . . She
[admitted that she did not fight it off.] No. She said what her reaction was. And she’s
been honest about that.” According to the prosecutor, there was “no reasonable motive
for [A.M.] to lie in this case” because what she said was corroborated.
In response, defense counsel argued that this case was about A.M., S.M., and M.T.
“[g]etting revenge on [defendant] by making up lies and half-truths and using it to their
advantage to get revenge.” Regarding A.M., counsel argued that her claim that she had
to sign over her $890 tax return to defendant was “a lie. That’s not true. If it is true, why
is she looking through a purse/folder-type thing for her legal documents? Why is she
52
looking for her tax return? She told you she had to give that up the day she walked in
there. ‘I had to give him my stuff,’ she said. This proves she’s lying. She’s not telling
you the truth. It’s half-truths.” Regarding the charge of raping A.M., he argued the jury
should find defendant not guilty. Pointing to the instruction (CALCRIM No. 1000),20
counsel emphasized elements three and four, and argued that she consented to the
intercourse; there is no evidence that defendant accomplished the intercourse by “force,
violence, duress, menace, or fear of immediate bodily injury to [her] or someone else.”
He added that defendant is not guilty of rape if he “actually and reasonably believed the
woman consented to the intercourse.”
20 CALCRIM No. 1000, in relevant part, provides: “To prove that the defendant
is guilty of this crime, the People must prove that: [¶] 1. The defendant had sexual
intercourse with a woman; [¶] 2. He and the woman were not married to each other at the
time of the intercourse; [¶] 3. The woman did not consent to the intercourse; [¶] AND
[¶] 4. The defendant accomplished the intercourse by; [¶] force, violence, duress, menace,
or fear of immediate and unlawful bodily injury to the woman or to someone else. [¶]
OR [¶] threatening to retaliate in the future against the woman or someone else when
there was a reasonable possibility that the defendant would carry out the threat. A threat
to retaliate is a threat to kidnap, falsely imprison, or inflict extreme pain, serious bodily
injury, or death. [¶] . . . [¶] Intercourse is accomplished by force if a person uses enough
physical force to overcome the woman’s will. [¶] Duress means a direct or implied
threat of force, violence, danger, or retribution that would cause a reasonable person to do
or submit to something that she would not do or submit to otherwise. When deciding
whether the act was accomplished by duress, consider all the circumstances, including the
woman’s age and her relationship to the defendant. [¶] Retribution is a form of payback
or revenge. [¶] Menace means a threat, statement, or act showing an intent to injure
someone. [¶] Intercourse is accomplished by fear if the woman is actually and
reasonably afraid or she is actually but unreasonably afraid and the defendant knows of
her fear and takes advantage of it. [¶] The defendant is not guilty of rape if he actually
and reasonably believed that the woman consented to the intercourse and actually and
reasonably believed that she consented throughout the act of intercourse. The People
have the burden of proving beyond a reasonable doubt that the defendant did not actually
and reasonably believe that the woman consented. If the People have not met this
burden, you must find the defendant not guilty.”
53
Regarding the offense of human trafficking, defense counsel pointed out that the
instruction gives “more guidance about what is involved with depriving or violating
another person’s personal liberties. It says depriving or violating another person’s
personal liberties, as used here, includes substantial and sustained restriction of another
person’s liberty accomplished by force, fear, fraud, deceit, coercion, violence, duress,
menace, or threat of unlawful-injury to the victim or to another person under
circumstances in which the person receiving or perceiving the threat reasonably believes
that it is likely that the person making the threat would carry it out.” He then argued, “So
ask yourself whether there’s . . . any substantial and sustained restriction of [A.M.] in this
case. There isn’t. There’s absolutely no substantial and sustained restriction of her
freedom. It’s, in fact, the opposite, the reverse. It’s unrestrained freedom. Go where you
want to go. Do what you want to do. . . . You’re out on the street by yourself. You can
walk away. . . . No one is stopping you. That element has not been proved beyond a
reasonable doubt. Your verdict has to be not guilty of human trafficking.” Regarding
M.T.’s absence from the trial, defense counsel argued that “she didn’t want to come and
lie on the witness stand to you and repeat the lie she told Detective Sturdavant.”
In rebuttal, the prosecutor argued that defense counsel offered “an unreliable
recitation of the report. It’s taking things out of context. It’s just misstating the law,
leaving things out, misstating testimony.” The prosecutor explained, “So I want to start
with the law. [Defense counsel] put up CALCRIM [No.] 1000 when he was talking
about his client’s belief. But he didn’t talk about that paragraph right above it.
Intercourse is accomplished by fear if the woman is actually and reasonably afraid or she
54
is actually but unreasonably afraid and the defendant knows of her fear and takes
advantage of it. [¶] He wants you to forget that [defendant] knows that she’s scared. He
wants you to forget that [defendant] is the one that put her in fear. He wants to confuse
the issues.” He later added, “You know from [M.T.’s] interview with Detective
Sturdavant that that’s what he does, that he has had her recruit girls to work for him. So
again, he’s leaving out parts of the instructions. [¶] Another example, [CALCRIM No.]
1243,[21] the human trafficking, [defense counsel] wants to focus and use his kind of
interpretation of things. So he reads this paragraph, and he says this is important. But he
doesn’t read you what duress is. He doesn’t read you what menace is.” The prosecutor
argued, “This fairy-tale land of the game that [defense counsel] is trying to sell you is not
the truth.” He closed with, “[defendant] is guilty as charged. . . . Three women did not
lie [about defendant]. They told you the truth. They exposed this man for what he is, a
human trafficker, a rapist.”
21 CALCRIM No. 1243, in relevant part, provides: [¶] To prove that the
defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant either
deprived another person of personal liberty or violated that other person’s personal
liberty; [¶] AND [¶] 2. When the defendant acted, he intended to commit or maintain a
violation of PC 266h and PC 266i. [¶] Depriving or violating another person’s personal
liberty, as used here, includes substantial and sustained restriction of another person’s
liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress,
menace, or threat of unlawful injury to the victim or to another person under
circumstances in which the person receiving or perceiving the threat reasonably believes
that it is likely that the person making the threat would carry it out. [¶] Duress means a
direct or implied threat of force, violence, danger, hardship, or retribution that is enough
to cause a reasonable person to do or submit to something that he or she would not
otherwise do or submit to. [¶] Violence means using physical force that is greater than
the force reasonably necessary to restrain someone. [¶] Menace means a verbal or
physical threat of harm, including use of a deadly weapon. The threat of harm may be
express or implied.”
55
Defense counsel did not object to any of the prosecutor’s argument.
2. Analysis.
“‘“[A] prosecutor is given wide latitude to vigorously argue his or her case”’
[citation] and ‘“may make ‘assurances regarding the apparent honesty or reliability of’ a
witness ‘based on the “facts of [the] record and the inferences reasonably drawn
therefrom.”’”’ [Citation.] ‘Improper vouching occurs when the prosecutor either
(1) suggests that evidence not available to the jury supports the argument, or (2) invokes
his or her personal prestige or depth of experience, or the prestige or reputation of the
office, in support of the argument.’ [Citation.] Referring to facts not in evidence is
‘clearly’ misconduct ‘because such statements “tend[] to make the prosecutor his own
witness—offering unsworn testimony not subject to cross-examination. It has been
recognized that such testimony, ‘although worthless as a matter of law, can be
“dynamite” to the jury because of the special regard the jury has for the prosecutor,
thereby effectively circumventing the rules of evidence.’ [Citations.]” [Citations.]
“Statements of supposed facts not in evidence . . . are a highly prejudicial form of
misconduct, and a frequent basis for reversal.”’ [Citation.] We ‘view the statements in
the context of the argument as a whole.’” (People v. Rodriguez (2020) 9 Cal.5th 474,
480.)
Here, the prosecutor’s assertion that A.M. “has no reasonable motive to lie here”
was proper because it did not “suggest the prosecutor had personal knowledge of facts
outside the record showing [A.M.] was telling the truth” or “invite[] the jury to abdicate
its responsibility to independently evaluate for itself whether [A.M.] should be believed.”
56
(People v. Bonilla (2007) 41 Cal.4th 313, 337-338.) Likewise, the reference to her being
honest about her reaction to the rape was proper because it was based on the record, i.e.,
A.M. admitted that she did not try to stop defendant and she acted as if she enjoyed it,
even though she did not want to have intercourse with defendant, and she did not enjoy it.
We do not find these statements to constitute improper prosecutorial vouching. However,
we cannot say the same about the prosecutor’s statements during rebuttal—the three
women “did not lie” but “told you the truth”—and in reply to defense counsel’s argument
that the women made up lies and half-truths to get revenge on defendant, and M.T.
refused to testify in person because she did not want to “lie on the witness stand.”
An argument constitutes vouching if it bolsters a witness’s credibility by relying
on matter outside the record, matter the jury might improperly accept based solely on the
prestige and authority of the prosecutor’s office. Here, the challenged statements were in
response to defense counsel’s argument that all three women were liars out for revenge.
However, defense counsel does not open the door for prosecutorial vouching every time
he or she argues that a prosecution witness’s testimony is not to be believed. Also, it is
unclear what matter the prosecutor was relying on when making these statements. Thus,
arguably, these statements by the prosecutor—the three women “did not lie” but “told
you the truth”—constitute impermissible vouching.
Finally, defendant contends that the prosecutor impugned the integrity of defense
counsel by “unjustifiably intimating that he breached his ethical obligations, instructed
the jury to disregard the law, and informed the jury to follow his own version of the law.”
We agree the prosecutor could properly point out that defense counsel tailored his
57
discussion of the applicable jury instructions to support his narrative for finding the
defendant not guilty by leaving out parts of the instruction that prejudiced the case.
However, it was not proper for the prosecutor to argue that defense counsel was “just
misstating the law, leaving things out, misstating testimony.”
Although we have found prosecutorial error, we find the error harmless. “Error
with respect to prosecutorial misconduct is evaluated under Chapman v. California
(1967) 386 U.S. 18 . . . to the extent federal constitutional rights are implicated, and
[Watson, supra,] 46 Cal.2d 818 . . . , if only state law issues were involved. [Citation.]
Chapman is implicated if the prosecutor’s conduct renders the trial so fundamentally
unfair that due process is violated. [Citations.] Watson applies where the prosecutor uses
‘“‘deceptive or reprehensible methods to attempt to persuade either the court or the
jury.’”’ [Citation.]
“We find that, even if the prosecutor’s argument constituted misconduct, it did not
render the trial so fundamentally unfair that it triggered the Chapman standard. Nor is it
reasonably probable that a more favorable result would have been reached absent the
alleged objectionable argument. Reversal is neither warranted nor appropriate.” (People
v. Fernandez (2013) 216 Cal.App.4th 540, 564.) The jurors heard credible and
substantial evidence against defendant. Moreover, they were admonished that nothing
the attorneys say is evidence, which was defined as “the sworn testimony of witnesses,
the exhibits admitted into evidence, and anything else [the judge] told [jurors] to consider
as evidence.” (See CALCRIM No. 222 [evidence].) It is not reasonably probable that
58
defendant would have achieved a more favorable outcome had the prosecutor not made
his improper argument.
H. CALCRIM No. 1190
Defendant contends CALCRIM No. 1190 “deprived [him] of due process and a
fair trial by unfairly pinpointing the accusers’ testimony” and “lower[ing] the
prosecution’s burden of proof.”
1. Further background information.
At trial, the court instructed the jury with both CALCRIM Nos. 301 and 1190.
CALCRIM No. 301 instructed: “The testimony of only one witness can prove any fact.
Before you conclude that the testimony of one witness proves a fact, you should carefully
review all the evidence.” And, CALCRIM No. 1190 instructed: “[C]onviction of a
sexual assault crime may be based on the testimony of a complaining witness alone.”
Defense counsel did not object to CALCRIM No. 1190.
2. Analysis.
Defendant argues that CALCRIM No. 1190, in combination with CALCRIM
No. 301, “created an unconstitutional ‘imbalance’ in favor of the prosecution” by
informing the jury that they could “convict solely upon the testimony of the accuser in a
sex offense case,” regardless of the other evidence. Nevertheless, he acknowledges that
the California Supreme Court rejected an identical argument. (People v. Gammage
(1992) 2 Cal.4th 693, 700-702.) In that case, the Supreme Court stated: “[CALCRIM
No. 301] focuses on how the jury should evaluate a fact (or at least a fact required to be
established by the prosecution) proved solely by the testimony of a single witness. It is
59
given with other instructions advising the jury how to engage in the fact-finding process.
[CALCRIM No. 1190], on the other hand, declares a substantive rule of law, that the
testimony of the complaining witness need not be corroborated. It is given with other
instructions on the legal elements of the charged crimes.” (Id. at pp. 700-701.)
“[CALCRIM No. 301] merely suggests careful review when a fact depends on the
testimony of one witness. [CALCRIM No. 1190] tells the jury there is no legal
corroboration requirement. Neither eviscerates or modifies the other.”22 (Id. at p. 701.)
The People argue that People v. Gammage, supra, 2 Cal.4th 693, “disposes of
appellant’s claim of error and is binding on this court.” We agree. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Courts exercising inferior
jurisdiction must accept the law declared by courts of superior jurisdiction.”]; see also
People v. Cromp (2007) 153 Cal.App.4th 476, 480 [rejecting constitutional challenge to
CALCRIM instruction based on California Supreme Court’s approval of materially
similar CALJIC instruction].) Accordingly, we find no violation of defendant’s rights to
due process and a fair trial.
22We have used brackets to substitute the current instructions, CALCRIM
No. 301 and CALCRIM No. 1190, for their predecessors, CALJIC No. 2.27 and CALJIC
No. 10.60, respectively.
60
I. Cumulative Error Doctrine.
Because we have rejected defendant’s claims of prejudicial error,23 “‘we likewise
conclude that the cumulative effect of these asserted errors was not prejudicial and does
not require reversal.’” (See People v. Byers (2021) 61 Cal.App.5th 447, 460.)
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
23 Although the trial court erred in admitting Detective Sturdavant’s testimony
regarding cell phone mapping evidence, and the prosecutor erred in the closing argument,
these errors were not prejudicial.
61 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482197/ | IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN JOSEPH MCDONALD, No. 83585
Appellant, A F.7
vs.
ALLISON LYNN MCDONALD,
Respondent. NOV 0 ii 2022
EL IZAFIEVH 14 - ROWN
CY. GOUP.1:
ORDER DISMISSING APPEAL 'if liR1( L".>11;1
EPt) re 1.:::ERK
This is a pro se appeal from a divorce decree. Eighth Judicial
District Court, Family Court Division, Clark County; Soonhee Bailey,
Judge.
On May 24, 2022, this court entered an order reinstating the
briefing schedule and directing appellant to file the opening brief within 90
days. Pursuant to that order, the opening brief was due to be filed by
August 22, 2022. Appellant did not file the brief. On September 19, 2022,
this court entered an order approving the withdraw of counsel for
respondent and directing appellant to file the opening brief within 14 days.
Pursuant to that order, the opening brief was due to be filed by October 3,
2022. Both orders cautioned appellant that failure to timely file an informal
brief or an opening brief could result in the dismissal of this appeal. See
NRAP 31(d). To date, appellant has not filed the brief. Accordingly. this
court
ORDERS this appeal DISMISSED.
Hardesty
J
SUPREME COURT
Stiglich Herndon
OF
NEVADA
(C 7) 1447A
21- -kVAcA
cc: Hon. Soonhee Bailey, District Judge, Family Court Division
John Joseph McDonald
Robinson Law Group
Law Practice, Ltd.
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
i(11 Pm7A | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482206/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00305-CV
Dianne Hensley, Appellant
v.
State Commission on Judicial Conduct; David Schenck, in his official capacity as Chair of
the State Commission on Judicial Conduct; Janis Hold, in her official capacity as Vice-
Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his official
capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,
David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick
Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their
official capacities as Members of the State Commission on Judicial Conduct, Appellees
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-003926, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
CONCURRING OPINION
Because I agree with the Court’s disposition but not its analysis, I concur in the
judgment only.
To the extent that Dianne Hensley seeks to challenge the Commission’s
investigation and subsequent disciplinary action, she could have sought de novo review of the
Commission’s decision by a special court of review but chose not to do so. See Tex. Gov’t Code
§ 33.034 (providing review of Commission’s decision). Thus, she may not complain in this case
about the Commission’s disciplinary action and is foreclosed from separately litigating her
asserted defense to that action that her conduct was protected under the Texas Religious Freedom
Restoration Act (TRFRA). See Tex. Civ. Prac. & Rem. Code § 110.004; Hagstette v. State
Comm’n on Judicial Conduct, No. 01-19-00208-CV, 2020 Tex. App. LEXIS 9838, at *14 (Tex.
App.—Houston [1st Dist.] Dec. 15, 2020, no pet.) (mem. op.); see also Patel v. Texas Dep’t of
Licensing & Reg., 469 S.W.3d 69, 79 (Tex. 2015) (“[C]ourts will not entertain an action brought
under the UDJA when the same claim could be pursued through different channels.”). Although
the Court reaches this conclusion, it then unnecessarily and, in my view improperly, discusses
and describes the Commission’s investigation and actions. See Valley Baptist Med. Ctr.
v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (stating that under article II, section 1 of Texas
Constitution, “courts have no jurisdiction to issue advisory opinions”).
Further, I would decide Hensley’s TRFRA claims on the ground that she did not
comply with its notice provisions. See Tex. Civ. Prac. & Rem. Code § 110.006 (addressing
notice requirements). I do not agree with the Court’s analysis or its ultimate determinations
about those claims or the evidence surrounding those claims, particularly the Court making an
implicit finding by the Commission that its investigation and disciplinary action did not
substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed
any future claims. The TRFRA’s express statutory language waives sovereign immunity and
allows a plaintiff to seek compensatory damages and “injunctive relief to prevent [a] threatened
violation” when a governmental entity is violating or has threatened to violate the plaintiff’s right
to religious freedom. See id. §§ 110.005 (addressing available remedies), .008 (addressing
waiver of sovereign immunity to suit and from liability to extent liability is created by
section 110.005).
For these reasons, I concur in the judgment only.
2
__________________________________________
Melissa Goodwin, Justice
Before Justices Goodwin, Baker, and Smith
Filed: November 3, 2022
3 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482194/ | IN THE SUPREME COURT OF THE STATE OF NEVADA
UMC PHYSICIANS’ BARGAINING UNIT No. 85446
OF NEVADA SERVICE EMPLOYEES
UNION, SEIU LOCAL 1107, AFL-CIO,
CLC, AN EMPLOYEE ORGANIZATION;
DEBORAH BOLAND, M.D.; JOEL
CANGA, M.D.; EDGAR L. COX, M.D.;
ANDREA FONG, D.O.; NEIL W. F L E D
GOODSELL, M.D.; DEBORAH NOV 07 2022
GOODWIN, M.D.; MARIA MARTINEZ,
M.D.; JOHN NEPOMUCENO, M.D.; Hoe oN NS OURT
GEORGE OEHLSEN, D.O.; ARDESHIR BY LA
ROHANTI, M.D.; ERNESTO RUBIO, M.D.;
TIMOTHY SCHRADER, M.D.; RONALD
TAYLOR, M.D.; BRADLEY WALKER,
M.D.; AND MICHAEL 8. TANNER AS
SPECIAL ADMINISTRATOR OF THE
ESTATE OF STERLING TANNER, M.D.,
AS INDIVIDUAL LOCAL GOVERNMENT
EMPLOYEES AND MEMBERS OF THE
UMC PHYSCIANS' BARGAINING UNIT
OF NEVADA SERVICE EMPLOYEES
UNION, SEIU LOCAL 1107, AFL-CIO,
CLC,
Appellants,
VS.
NEVADA SERVICE EMPLOYEES
UNION, SEIU LOCAL 1107, AFL-CIO, A
NONPROFIT COOPERATIVE
CORPORATION,
Respondent.
ORDER DISMISSING APPEAL
This is an appeal from a district court order granting a motion for
summary judgment. Eighth Judicial District Court, Clark County; Ronald J.
Israel, Judge.
On October 7, 2022, respondent filed a motion to dismiss this
appeal for lack of jurisdiction. Respondent asserts that the appeal is
Supreme Gourt
oF premature because appellants timely filed a motion for reconsideration that
Nevapa
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Supreme Court
oF
NEVADA
(0) (947A eRe.
sought relief under NRCP 52(b) and NRCP 59 and the district court has not
yet resolved the motion. Appellants oppose the motion, arguing that the notice
of appeal is not premature because they filed the notice of appeal after the
written judgment was entered, Appellants argue that even if their motion for
reconsideration is considered a tolling motion, under NRAP 4(a)(6), upon entry
of the district court order resolving the motion for reconsideration, jurisdiction
will be properly vested in this court.
The record before this court demonstrates appellants filed the
notice of appeal after filing the motion for reconsideration. The motion for
reconsideration was a timely filed tolling motion under NRAP 4(a)(4). See AA
Primo Builders v. Washington, 126 Nev. 578, 245 P.3d 1190 (2010) (a motion
for reconsideration may be considered a tolling motion to alter or amend). The
tolling motion has not yet been resolved. A timely tolling motion tolls the 30-
day appeal period, and a notice of appeal is of no effect if it is filed after such a
tolling motion is filed and before the district court enters a written order finally
resolving the motion, See NRAP 4({a)(4). Further, “[t]his court may dismiss as
premature a notice of appeal filed after the oral pronouncement of a decision
or order but... before entry of the written disposition of the last-remaining
timely motion listed in Rule 4(a)(4).” NRAP 4(a)(6). Accordingly, we conclude
this court lacks jurisdiction. The motion to dismiss is granted and we
ORDER this appeal DISMISSED.!
és
(eK.
Cadish .
Pickering J Gitbons
1The Honorable Mark Gibbons, Senior Justice, participated in this
matter under a general order of assignment.
ce: Hon. Ronald J. Israel, District Judge
Stephen E. Haberfeld, Settlement Judge
Rodriguez Law Offices, P.C.
Christensen James & Martin
Eighth District Court Clerk
Supreme Court
oF
NevaDa
(0) IMTA @cSihie> 3 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482198/ | IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF: THE LENK No. 85457
FAMILY TRUST.
ROBERT R. PILKINGTON; AND
DENISE L. PILKINGTON,
F" d
Appellants, NOV 0 2022
vs.
THE LENK FAMILY TRUST; HUNTER
LIGGETT; JILL RENE STYNDA;
JANET E. LENK COHEN; CARIN
LENK SLOAN; KRISTIN NOEL LENK
PFEIFER; AND GINGER STUMNE,
NYE COUNTY PUBLIC
ADMINISTRATOR,
Respondents.
ORDER DISMISSING APPEAL
This is a pro se appeal from district court orders in a probate
case dated August 27, 2021;1 September 27, 2021; and August 2, 2022. Fifth
Judicial District Court, Nye County; Kimberly A. Wanker, Judge.
The notice of appeal was filed in the district court on September
30, 2022. Appellants thereafter filed an emergency motion for stay in this
court, and respondents opposed the stay motion and countermoved to
dismiss the appeal for lack of jurisdiction. Respondents contend, among
other things, that the notice of appeal was untimely filed more than 30 days
1No order was entered on August 27, 2021, but the district court
clerk's case appeal statement assumes and appellants' docketing statement
confirms that the notice of appeal contains a typo, such that the appealed
order is actually dated August 26, 2021.
SUPREME COURT
OF
NEVADA
MITA • •:11,19,i'7..,
zz-
from service of notice of entry of each appealed order.2 Appellants have filed
a reply/opposition to the countermotion, and respondents have filed a reply
in support of their countermotion.
Appeals from orders entered in probate and trust cases are
generally governed by NRS 155.190. See also NRS 164.005. That statute
allows for immediate appeal, within 30 days from service of notice of entry,
from orders instructing personal representatives and trustees and from
orders that grant an order for conveyance directing that persons in
possession of estate property transfer or deliver it to those entitled thereto.
NRS 155.190(1)(h), (p); see also NRS 164.033 (governing conveyance orders
in trust cases and allowing an appeal therefrom within 30 days of notice of
entry). Failure to timely appeal under NRS 155.190 precludes any
challenge to an order listed therein in an appeal from a later-entered
judgment. In re Estate of Herrmann, 100 Nev. 1, 21, 677 P.2d 594, 607
(1984) ("[T]his court has specifically held that unless appeal is taken within
30 days, an order of the kinds mentioned in NRS 155.190 is not thereafter
subject to attack.").
Here, the August 2021 order appears to have been appealable
under NRS 155.190(1)(h) and (p) because it directed the public
2 Respondents also contend that appellant Denise Pilkington lacks
standing to challenge the 2021 orders, as she was not a party to the action
when those orders were entered. In light of this order, we need not address
this contention. Respondents further assert that appellants waived their
right to appeal in the parties' settlement agreement below and are not
aggrieved by the court's order confirming that settlement. From what is
currently before this court, it appears that appellants contest, in part, the
district court's failure to fully resolve their claims to, and to unfreeze, funds
in two Wells Fargo bank accounts that the court had previously found
contained at least some funds belonging to the estate, and while we do not
now decide the matter, it is not clear that the settlement agreement
precludes appellants from seeking relief as to this issue.
SUPREME COURT
OF
NEVARA
2
JUJ PLI7A
administrator/trustee to take various actions and also directed appellant
Robert Pilkington to return estate and trust property. Notice of entry of the
August 2021 order was served on August 26, 2021. The September 2021
order further directed Robert Pilkington to return estate and trust property
and thus likewise appears appealable under NRS 155.190(1)(p); notice of
the September 2021 order's entry was served on September 27, 2021.
Finally, the August 2022 order, notice of entry of which was served on
August 4, 2022, confirmed a settlement agreement among the parties
acknowledging that certain trusts and a pour-over will were invalid,
providing that appellants had no authority to transfer estate or trust assets,
directing the court-appointed fiduciary to transfer such assets to the estate
for further administration, and closing the case upon such transfer. That
order appears to fall under NRS 155.190(1)(i); see also NRS 155.190(1)(b)
(refusing to admit a will to probate). The notice of appeal was filed more
than 30 days after notice of entry of each appealed order was served and is
thus untimely. Moreover, to the extent that appellants assert jurisdiction
over the orders pursuant to NRAP 3A(b)(1) (final judgment) and (5) (orders
refusing to dissolve an attachment), the notice of appeal is likewise
untimely. NRAP 4(a)(1) (providing that notices of appeal must be filed
within 30 days from when notice of the appealed order's entry is served).
In their docketing statement, appellants suggest that the
appeal is timely under NRAP 4(a)(6) (premature notice of appeal) because
the district court denied an NRCP 60(b) motion on October 12, 2022.3 But
the NRCP 60(b) motion was filed on February 18, 2022, which was not
within the tirneframe in which tolling motions must be filed, and thus the
motion could not toll the appeal period. NRAP 4(a)(4); see NRCP 50(b);
3This court has not received any notice of appeal from the October 12
order.
SUPREME COURT
OF
NEVADA
3
,t 1,147A
NRCP 52(b); NRCP 59(b), (e). And in their response to the countermotion
to dismiss, appellants assert that the appeal is timely because the appealed
orders are void. However, allegations that an order is void does not waive
the time period to appeal, which is jurisdictional. Zugel v. Miller, 99 Nev.
100, 101, 659 P.2d 296, 297 (1983) ("Filing a timely notice of appeal is
jurisdictional and an untimely appeal may not be considered."); State ex rel.
Smith v. Sixth Judicial Dist. Court, 63 Nev. 249, 256, 167 P.2d 648, 651
(1946) (distinguishing between direct attacks, like an appeal in an original
action to have an order vacated or reversed, and collateral attacks through
other proceedings), overruled on other grounds by Poirier v. Bd. of Dental
Exam'rs, 81 Nev. 384, 404 P.2d 1 (1965). Accordingly, as we lack
jurisdiction, we grant the countermotion and
ORDER this appeal DISMISSED.4
• 17, —67.
Hardesty
Stiglich Herndon
41n light of this order, appellants' emergency motion for stay is denied
as moot. Nevertheless, we note that appellants' failure to first seek relief
in the district court per NRAP 8(a)(1) would preclude relief. See TRP Fund
VI, LLC v. PHH Mortg. Corp., 138 Nev. Adv. Op. 21, 506 P.3d 1056, 1058
(2022) (explaining that a belief that the district court will not grant a stay
motion does not excuse the requirement that such relief first be sought in
the district court, as lilmpracticable' requires the movant to show that it
was 'not capable' of first seeking relief in the district court or that such an
act could not be done").
SUPREME COURT
OF
NEVA0A
4
In47A
cc: Hon. Kimberly A. Wanker, District Judge
Denise L. Pilkington
Robert R. Pilkington
Anthony L. Barney, Ltd.
Roland Law Firm
Law Office of Sean M. Tanko, Ltd.
Nye County Clerk
SUPREME COURT
OF
NEVADA
ilh 1.147A | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482200/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON MOTION FOR REHEARING
NO. 03-22-00189-CV
S. W., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
NO. CV40326, THE HONORABLE JOHN YOUNGBLOOD, JUDGE PRESIDING
MEMORANDUM OPINION
After considering Appellee’s motion for rehearing and Appellant’s response, we
grant rehearing; withdraw our previous opinion and judgment issued on August 31, 2022; and
substitute the following opinion in its place. We make no ruling on the motion for en banc
reconsideration as it is moot.
In this appeal, S.W. (Mother) complains of the trial court’s order terminating her
parental rights to her children, arguing that (1) the trial did not make the findings necessary for
an extension of the statutory one-year dismissal deadline, see Tex. Fam. Code § 263.401; and
(2) the termination order included a statutory ground that was not submitted to the jury and not
established by the Texas Department of Family and Protective Services (the “Department”).
Because the trial court timely made the necessary findings for extending the dismissal deadline
but erroneously included the waived statutory ground in its final Order of Termination, we
modify the trial court’s order and affirm the judgment as modified.
APPLICABLE LAW
Section 263.401(a) provides that unless the trial court begins the trial on the
merits or grants an extension by the first Monday after a year from the date the court rendered its
order appointing the Department as temporary managing conservator, the trial court’s
jurisdiction over the case “is terminated and the suit is automatically dismissed without court
order.” Tex. Fam. Code § 263.401(a). As applicable here, the court cannot retain the suit past
the one-year deadline unless it “finds that extraordinary circumstances necessitate the child
remaining in the temporary managing conservatorship of the department and that continuing the
appointment of the department as temporary managing conservator is in the best interest of the
child.” Id. § 263.401(b). A trial court “shall find” extraordinary circumstances necessitating an
extension if (1) a parent has made good-faith efforts to complete their service plan but needs
additional time and (2) the court intends to order the child to be returned to the parent upon their
completion of their service plan. Id. § 263.401(b-3).
FACTUAL SUMMARY
The Department filed its petition for protection of a child on August 6, 2020, and
the trial court signed an order naming the Department as temporary managing conservator on
August 7, making the dismissal deadline August 9, 2021. See id. § 263.401(a). On April 16,
2021, the trial court signed a Permanency Hearing Order that states:
[E]xtraordinary circumstances necessitate the children remaining in the temporary
managing conservatorship of the Department and that continuing the appointment
of the Department as temporary managing conservator is in the best interest of the
2
children, and extension of not more than 180 days should be granted due to
extraordinary circumstances, the case should be retained on the Court’s docket
and a new dismissal date should be scheduled and the suit should be set for final
hearing on a date that will allow the Court to commence the trial on the merits
before that automatic dismissal date.
This portion of the Order appears to have been made without a request from a party. The April
2021 Permanency Hearing Order lists the original dismissal date; it does not set a new date for
trial or otherwise indicate to when the original dismissal date was extended.
In June 2021, the trial court held a permanency hearing, during which the
Department caseworker testified that the parents were making good progress on their services
but that there were concerns because their “drug tests are up and down.” The caseworker
testified that the week before the hearing, she had requested that the parents get new
prescriptions “so that I know what it is that they are taking” and that they take hair follicle tests
but “as of this morning that has not been done.” She testified that until the parents had “a month
or two” of negative drug tests, the Department recommended against a monitored return to the
parents. She said that the parents had been cooperative and communicative and that they “did
really well” in the visitation that the caseworker witnessed. During her testimony, the case
worker said that the one-year deadline was approaching and that the Department “is asking for
an extension that would give us another six months.”
At the conclusion of the hearing, the Department’s attorney said, “Judge, we need
an extension too.” The trial court responded, “Yes, I will grant the extension in this case. It
would appear that we are making progress which I’m very glad to hear and I don’t mind granting
the extension at all.” The court then discussed when the parties could attend an August
permanency hearing and stated, “All right, extension granted. Current placement will continue.
3
I’m writing in the issues we need to get addressed. I say I’m writing to get in it in [sic], I’m
looking for an appropriate space for it. I will stick it somewhere.” None of the attorneys
objected to the extension, and the trial court, after saying it was “pleased with the progress”
shown by the parents and encouraging them to “keep up the good work,” signed an order stating,
“Extension granted,” but also stating that the dismissal date was August 9, 2021, 1 and that the
suit would be set for a trial on the merits on August 13, 2021. Unlike the earlier April 2021
order, which included the subsection (b) findings of extraordinary circumstances and best
interest, the June 2021 permanency order did not include any language expressly restating the
findings required by subsection (b). However, the June 2021 order did contain the following
language:
IT IS ORDERED that all previous orders issued by this Court shall continue
without modification.
On January 26, 2022, the trial court signed an Order Extending Dismissal Date,
setting a new dismissal date of April 1, 2022, in accordance with the Texas Supreme Court’s
Forty-Seventh Emergency Order. Forty-Seventh Emergency Order Regarding COVID-19 State
of Disaster, No. 22-9005, 2022 WL 175669, at *2 (Tex. Jan. 19, 2022). A jury trial was held on
March 21 through March 25, 2022, and culminated with both parents’ rights being terminated.
DISCUSSION
Mother argues that the trial court lost jurisdiction automatically on August 9,
2021, because it did not make the subsection (b) findings when it granted the Department’s
1The new dismissal date of February 5, 2022 was subsequently referenced in the
September 20, 2021 Permanency Report.
4
requested extension at the June 2021 permanency hearing. Mother also contends that the district
court erred by including a finding under subsection (P) as a statutory ground in support of
termination in its final order when that specific statutory ground was not submitted to the jury.
We address each in turn.
Initial Dismissal Extension Challenge
Appellate courts generally try to uphold trial court grants of subsection (b)
extensions. See, e.g., In re G.X.H., 627 S.W.3d 288, 299 (Tex. 2021); In re O.O.,
No. 13-21-00411-CV, 2022 WL 1559725, at *8 (Tex. App.—Corpus Christi-Edinburg
May 17, 2022, pet. denied) (mem. op.); In R.J.R., No. 04-21-00246-CV, 2021 WL 5813827, at
*2 (Tex. App.—San Antonio Dec. 8, 2021, pet. denied) (mem. op.); In re P.Z.F., 651 S.W.3d
147, 152–53 (Tex. App.—Dallas Sept. 2021, pet. denied). The Department caseworker stated in
the June 2021 hearing that the Department was asking for an extension of the dismissal deadline
for 180 days to February 2022, and the trial court stated that it was granting the extension.
However, Mother is correct that the two subsection (b) findings must be made for a court to
retain jurisdiction through a subsection 263.401(b) extension. In re G.X.H., 627 S.W.3d at 298–99.
In this case, the trial court made the requisite findings under subsection (b) in its
April 16, 2021, Permanency Hearing Order when it expressly found “that extraordinary
circumstances necessitate the children remaining in the temporary managing conservatorship of
the Department and that continuing the appointment of the Department as temporary managing
conservator is in the best interest of the children, and extension of not more than 180 days should
be granted due to extraordinary circumstances.” See Tex. Fam. Code § 263.401(b). Although
the transcript of the April 16, 2021 hearing has not been included in the record on appeal, we
5
presume that the evidence presented at the hearing supports the trial court’s findings as to
extraordinary circumstances and best interest. See In re G.X.H., 627 S.W.3d at 299; see also id.
at 300 (stating that parents challenging dismissal date extension have burden to present record
demonstrating lack of evidence supporting necessary findings); see also Tex. Fam. Code
§ 263.401(b-3).
Additionally, the trial court reconfirmed its extension at the June 2021 hearing,
which the trial court memorialized by writing “[e]xtension granted” on the June 18, 2021
Permanency Order. That June 2021 Order also expressly provided that the April 16, 2021
Hearing Order—a “previous order issued by” the trial court—“continue[d] without
modification.” Taken together, the subsection (b) extension granted by the trial court in
June 2021 is supported by the necessary factual findings made by the trial court in its earlier
April 16, 2021 order. See In re G.X.H., 627 S.W.3d at 299 (providing that subsection (b)
findings may be made either “orally on the record or in some other writing” (emphasis added));
see also A.N. v. Texas Dep’t of Fam. & Protective Servs., No. 03-22-00099-CV,
2022 WL 3638211, at *2 (Tex. App.—Austin Aug. 23, 2022, no pet. h.) (mem. op.) (stating that
extension order should be interpreted by its plain meaning).
Although the April and June 2021 Orders incorrectly list “August 9, 2021” as the
dismissal deadline, a scrivener’s error in the written orders do not change that the trial court
properly extended the dismissal deadline when it granted the extension in the April 2021 hearing,
sua sponte with the subsection (b) findings, and during the June 2021 hearing when it stated on
the record that the extension was granted, wrote “extension granted” in the Order, and
incorporated the April 16, 2021 Order. See Tex. Fam. Code § 101.026 (permitting trial court to
render orders orally in presence of the court reporter); see also P.R.M. v. Texas Dep’t of Fam. &
6
Protective Servs., No. 03-16-00065-CV, 2016 WL 4506301, at *3 (Tex. App.—Austin Aug. 26,
2016, no pet.) (mem. op.) (explaining that later signed written order “merely memorializes”
ruling rendered orally). Furthermore, the trial court still retained jurisdiction over the case even
if we assume the trial court erred by failing to expressly include the new dismissal date in the
April or June 2021 orders. See Tex. Fam. Code § 263.401(b)(1) (requiring trial court to render
an order scheduling new automatic dismissal date “if the court retains the suit on the court’s
docket”); see also In re G.X.H., 627 S.W.3d at 301 (concluding that “claimed defects relating to
the other requirements of 263.401(b)”—including setting new dismissal date—are not
jurisdictional). Because the district court made the necessary predicate findings pursuant to
subsection 263.401(b) to maintain jurisdiction of the case beyond the initial dismissal date, the
termination order is not void. See In re G.X.H., 627 S.W.3d at 298–301.
Additional statutory ground
Mother also contends that the trial court erred when it included a subsection (P)
finding as a statutory ground supporting termination when that specific ground was not
submitted to the jury. See Tex. Fam. Code § 161.001 (b)(1)(P). Although the Department
alleged subsection (P) as a statutory ground supporting termination in its original petition, that
specific statutory ground was not submitted to the jury in the charge, and the Department did not
object to its omission. But subsection (P) was still included in the final Order of Termination. 2
The Department agrees that the trial court erred by including an erroneous ground in the
final order.
2 The trial court entered an agreed order that struck paragraphs concerning two other
statutory grounds (Subsections (K) and (N)) from the Order of Termination but left the
Subsection (P) finding unaltered.
7
This Court is authorized to modify errors when we have the necessary information
to do so. See Tex. R. App. P. 43.2(b) (authorizing appellate court to modify trial court’s
judgment and to affirm it as modified). When subsection (P) was not submitted to the jury
without objection, the Department waived that ground. See Tex. R. Civ. P. 279 (“Upon appeal
all independent grounds of recovery or of defense not conclusively established under the
evidence and no element of which is submitted or requested are waived.”); see also DiGiuseppe
v. Lawler, 269 S.W.3d 588, 598 (Tex. 2008). We therefore modify the district court’s Order of
Termination to delete the finding under subsection 161.001(b)(1)(P) of the Texas Family Code.
See Tex. R. App. P. 43.2(b).
CONCLUSION
We affirm the judgment as modified. See Tex. R. App. P. 43.2(b).
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Triana and Smith
Modified and, as Modified, Affirmed, on Rehearing
Filed: November 4, 2022
8 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482205/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00461-CV
Normel Tech, LLC and Joshua Burch, Appellants
v.
Planview Delaware, LLC, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-22-000421, THE HONORABLE TODD T. WONG, JUDGE PRESIDING
ORDER
PER CURIAM
Joshua Burch filed a pro se notice of appeal from the trial court’s final default
judgment against him and Normel Tech, LLC, which he describes in the notice of appeal as “my
company,” stating that he is the company’s founder and CEO. After an initial review of the
record, we informed Burch that it appears that he is attempting to represent Normel Tech pro se
but that Rule 7 of the Texas Rules of Civil Procedure allows a person to represent himself pro se
only to litigate rights on his own behalf, not to litigate rights in a representative capacity. Tex. R.
Civ. P. 7; see, e.g., Kaminetzky v. Newman, No. 01-10-01113-CV, 2011 WL 6938536, at *2
(Tex. App.—Houston [1st Dist.] Dec. 29, 2011, no pet.) (concluding appellant could not
represent pro se two corporate defendants as assignee of corporations); see also Kunstoplast of
Am., Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455, 456 (Tex. 1996) (although
corporate officer could perform “specific ministerial task of depositing cash with a clerk in lieu
of a cost bond,” nonlawyer may not represent corporation in court). We further informed Burch
that because under Texas law, only a licensed attorney is allowed to represent other parties, to
continue its appeal, Normel Tech must obtain counsel for the appeal. See Tex. Gov’t Code §§
81.101-.102 (prohibiting practice of law in Texas unless person is member of state bar); id. §§
83.001-.006 (prohibiting unlicensed persons from practicing law without a license); see also
Jimison v. Mann, 957 S.W.2d 860, 861 (Tex. App.—Amarillo 1997, order) (per curiam) (striking
documents filed by layperson having no authority to file them on behalf of another). We
informed Burch that an attorney representing Normel Tech, LLC must file an amended notice of
appeal on or before October 3, 2022, and that failure to do so might result in the dismissal of
Normel Tech from this appeal. To date, Burch has not responded to our request, nor has any
counsel responded on behalf of Normel Tech.
Because Burch cannot represent Normel Tech, and Normel Tech has not complied
with the Court’s directive to obtain counsel and have an attorney file an amended notice of
appeal on its behalf, Normel Tech’s appeal is dismissed for want of prosecution and for failure to
follow this Court’s directive. See Tex. R. App. P. 42.3(b), (c); see also, e.g., Gore v. South
Dallas Fair Park Innercity Cmty. Dev. Corp., No. 05-03-00627-CV, 2003 WL 21197242, at *1
(Tex. App.—Dallas May 22, 2003, no pet.) (mem. op.) (per curiam) (dismissing for want of
prosecution and for failure to comply with court’s directive after appellate court directed
appellant to obtain counsel and appellant failed to do so); see also Olive & Vine v. City Ctr.,
No. 14-18-01042-CV, 2019 WL 758419, at *1 (Tex. App.—Houston [14th Dist.] Feb. 21, 2019,
no pet.) (mem. op.) (per curiam) (following same procedure).
2
The appeal shall continue as to the remaining appellant, Joshua Burch. We have
amended the style of the case to reflect the partial dismissal: Joshua Burch, Appellant
v. Planview Delaware, LLC, Appellee.
It is ordered November 3, 2022.
Before Chief Justice Byrne, Justices Triana and Smith
3 | 01-04-2023 | 11-08-2022 |
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https://www.courtlistener.com/api/rest/v3/opinions/8482338/ | J-A23022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES STEVEN LEZINSKY :
:
Appellant : No. 915 MDA 2021
Appeal from the Judgment of Sentence Entered May 25, 2021
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000222-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES STEVEN LEZINSKY :
:
Appellant : No. 916 MDA 2021
Appeal from the Judgment of Sentence Entered May 25, 2021
In the Court of Common Pleas of Wyoming County Criminal Division at
No(s): CP-66-CR-0000223-2017
BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: NOVEMBER 8, 2022
James Steven Lezinsky (Appellant) appeals from the judgments of
sentence entered at two dockets in the Wyoming County Court of Common
Pleas, following his guilty pleas to two counts of fleeing or attempting to elude
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A23022-22
a police officer (fleeing), graded as felonies of the third degree.1 The trial
court imposed above-aggravated guideline range, maximum sentences of 42
to 84 months’ imprisonment at each count, to run consecutively, for an
aggregate term of seven to 14 years. On appeal, Appellant avers the court
abused its discretion by failing to consider mitigating factors, misconstruing
his prior record, and improperly weighing factors already accounted for in the
grading of the offenses and the sentencing guidelines. We affirm.
I. Facts & Procedural History
At trial docket CP-66-CR-0000222-2017 (Docket 222), the
Commonwealth alleged the following. On March 5, 2017, Meshoppen Borough
Police Chief John Krieg attempted to stop Appellant, who was driving a red
pickup truck, on SR 6 in Washington Township, Wyoming County. Appellant
“turned onto SR 4008 and slowed as if [he] was going to stop[, but] then
fled.” Affidavit of Probable Cause, Police Criminal Complaint, Docket 222,
____________________________________________
1 75 Pa.C.S. § 3733(a), (a.2)(2)(iii). We note the trial court issued separate
orders at each docket, and thus Walker is not implicated. See
Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018) (“[W]here a single
order resolves issues arising on more than one docket, separate notices of
appeal must be filed for each case.”), overruled in part, Commonwealth v.
Young, 265 A.3d 462, 477 (Pa. Dec. 22, 2021) (reaffirming that Pa.R.A.P.
341 requires separate notices of appeal when single order resolves issues
under more than one docket, but holding Pa.R.A.P. 902 permits appellate
court to consider appellant’s request to remediate error when notice of appeal
is timely filed). In any event, Appellant properly filed two separate notices of
appeal. On August 10, 2021, this Court sua sponte consolidated the two
appeals.
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J-A23022-22
4/26/17, at 1. The officer pursued Appellant at speeds over 65 miles per hour
in a 40 miles per hour zone, and “had to slam the brakes” to avoid a herd of
deer that had jumped out. Id. The officer then continued to pursue Appellant,
who continued to flee, before losing sight of him. Id. Two days later,
Appellant’s ex-girlfriend reported that on the night of the incident, Appellant
called and asked her to pick him up. Appellant told her “he just out ran the
police by Tyler Hospital and [was] hiding in the woods.” Id. at 2. At this
time, Appellant had a suspended license for driving under the influence (DUI).
Id.
At trial docket CP-66-CR-0000223-2017 (Docket 223), the
Commonwealth alleged that on May 6, 2017, Pennsylvania State Trooper
Taylor Smith was on routine patrol on SR 92 in Nicholson Borough when he
observed a red pickup truck, driven by Appellant, with an inoperable taillight.
Trooper Smith followed Appellant a short distance. Appellant was following a
vehicle within 50 feet and activated “‘off road’ lighting” that was mounted on
the front of the truck. Affidavit of Probable Cause, Police Criminal Complaint,
Docket 223, 4/26/17, at 1. Trooper Smither activated his emergency lights
and siren, but Appellant failed to stop and instead
passed the vehicle it was following without signaling and
[traveled] at speeds of more than 80 MPH in a careless and
reckless manner. [Trooper Smith] pursued the truck[, which]
negotiate[d] turns in the opposing lane of travel at a high rate of
speed. . . .
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Id. Appellant “nearly crashed into the rear of [an] ambulance” that was
stopped, for an unrelated matter, with emergency lights activated. Id.
Appellant swerved into the oncoming lane without signaling, and nearly struck
an oncoming vehicle and the two ambulance personnel standing outside the
ambulance. These actions put the ambulance personnel at undue risk of
harm, serious injury, or death. Id.
On March 18, 2019, Appellant entered a guilty plea to fleeing at Docket
223 only. As a part of this plea agreement, the charges at Docket 222, as
well as unrelated docket “CR 103-17,” were nolle prossed, although Appellant
would pay restitution for those cases. Guilty Plea Agreement, Docket 223,
3/19/19. However, six months later, before sentencing, Appellant filed a
motion to withdraw his plea, asserting his innocence. The trial court granted
this motion on October 10, 2019.
Meanwhile, the reinstated charges at Docket 222 proceeded to a jury
trial on January 19, 2021. Appellant appeared, but before jury selection was
completed, he left the courthouse. Accordingly, that same day, the trial court
issued a bench warrant for Appellant’s arrest. Order, Docket 222, 1/19/21.
Appellant also failed to appear for a status conference at Docket 223 on
February 10th, and thus the trial court likewise issued a bench warrant in that
matter. Appellant was apprehended on February 24th, 36 days after he left
the courthouse. On May 11th, upon agreement of the parties, the trial court
scheduled a jury trial for the July 2021 term. Order, 5/12/11.
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However, Appellant subsequently agreed to an open plea deal, and on
May 25, 2021, proceeded to a combined plea and sentencing hearing on both
dockets.2 Pursuant to the parties’ agreement, Appellant pleaded guilty to one
count of fleeing at each docket, graded as felonies of the third degree. N.T.
at 5. While Appellant was on bail, he also incurred four new arrests — two in
Susquehanna County and two in Wyoming County.3 As part of his plea
agreement, Appellant would pay restitution of $695.07 for one of the cases,
“103 of 2018, which is to be nolle prossed[,]” and the charges at “magisterial
docket, R103445-6” would likewise be nolle prossed. Id.
Appellant was 63 years old at the time of the plea and sentencing
hearing. N.T. at 41. He had a prior record score of 5, and the offense gravity
score for each count of fleeing was 5. The standard range guideline for each
count was 12 to 18 months. The mitigated range guideline was 9 months and
the aggravated range 21 months. As stated above, each count was graded
as a felony of the third degree, and the statutory maximum sentence was 84
months, or 7 years. See 18 Pa.C.S. § 1103(3).
____________________________________________
2 The hearing was conducted by video. See N.T., 5/21/21, at 4.
3The given docket numbers for these matters were: (1) Susquehanna County
MDJ docket CR-181 of 2020; (2) Susquehanna County MDJ docket 227 of
2020; (3) Wyoming County criminal docket 103 of 2018; and (4) “OTN
R103445-6.” N.T. at 47-48.
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The Probation Department recommended an aggregate sentence of 24
months to 168 months, which was within the standard range. 4 Appellant
argued the trial court should adopt this recommendation. N.T. at 41. The
Commonwealth deferred to the court’s discretion. Id. at 46.
In his allocution, Appellant stated he left the trial on January 19, 2021,
because he was “scared and [his] anxiety got the best of” him. N.T. at 43.
With respect to the underlying charges of fleeing, Appellant stated he did not
“know why [he] didn’t pull over:” “I knew I was going to get caught. I should
have turned myself in. I . . . was confused . . . I made a bad decision[.]” Id.
at 43-44. Appellant’s counsel argued Appellant had health problems, including
a fall from a tree the previous summer, which resulted in “numerous cracked
ribs, some heart problems, some bleeding around his heart[,]” and three or
four hospitalizations. Id. at 37.
The trial court stated it reviewed “the extensive pre-sentence
investigation report” (PSI), as well as the affidavits of probable cause. N.T.
at 32-33. The court imposed sentences of 42 to 84 months’ imprisonment for
each fleeing count, to run consecutively, for an aggregate term of seven to 14
____________________________________________
4 This recommendation was set forth in a one-page, undated “Sentence
Recommendation Sheet,” prepared by the Probation Department. This sheet
was included in Appellant’s reproduced record as a part of the PSI; however,
it was not a part of the PSI that appears in the certified record. Nevertheless,
as the Commonwealth does not dispute the accuracy of this information, we
will consider it. See Commonwealth v. Landis, 89 A.3d 694, 697 n.5 (Pa.
Super. 2014).
-6-
J-A23022-22
years. See id. at 46, 50. Each sentence was above the aggravated range
guideline, as well as at the statutory maximum.
The trial court acknowledged the sentences were outside the aggravated
guideline range, and provided six reasons for the sentences. First, Appellant’s
conduct posed “a severe threat” to the officers in pursuit, other motorists, and
the public. N.T. at 49. Second, Appellant was charged with four new crimes
while on bail: (1) possession of a firearm and hindering apprehension or
prosecution in Susquehanna County; (2) possession of drug paraphernalia,
also in Susquehanna County; (3) theft in Wyoming County; and (4) witness
tampering, also in Wyoming County. Id. at 47-48. The court acknowledged
Appellant “has only been charged and has not been convicted” of these
offenses, but the court considered it “highly unusual and the first time in [the
court’s] judicial career that a person has been charged with four separate
offenses in two different counties while on bail supervision.” Id. at 48. Next,
the court considered the above two factors — the commission of the
underlying offenses along with the four new criminal matters while on bail —
showed Appellant “is an extreme threat to himself and . . . society as a whole.”
Id. at 49.
The trial court’s fourth reason for sentencing above the aggravated
range guideline was Appellant’s “continual[ ] fail[ure] to take responsibility for
these matters.” N.T. at 48. The court acknowledged Appellant had a right to
seek withdrawal of his first plea, but nevertheless considered the “delay in
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J-A23022-22
reaching this matter to final conclusion.” Id. Fifth, the trial court considered
that Appellant left the courthouse, during his trial proceedings in January of
2019, “and became a fugitive from justice. [Appellant] was aware that he
was in violation of his bail conditions, [as] he was told by his attorney to turn
himself in[, but he] refused to do so, causing the US Marshal[ ] Service and
other law enforcement to arrest him[.]” Id. at 48-49. Finally, the trial court
considered Appellant’s “lengthy criminal record commencing in 1977[,] that
previously, all sentencing and/or probation has failed to address [his] criminal
propensities[,]” and that any sentence other “than a lengthy prison term
would [not] be appropriate[.]” Id. at 49.
Appellant filed timely post-sentence motions at each docket, which were
denied. He then filed timely notices of appeal and court-ordered Pa.R.A.P.
1925(b) statements of errors complained of on appeal.
II. Statement of Questions Involved
Appellant raises one issue for this Court’s review:
Did the trial court abuse its discretion in sentencing . . . Appellant
to manifestly excessive sentences, individually and in the
aggregate, and disproportionate to the circumstances by failing to
consider mitigating circumstances, relying upon reasons already
accounted for in the guidelines and motor vehicle statute and
disregarding Appellant’s age, serious health issues, acceptance of
responsibility, expression of remorse and the rehabilitative needs
of . . . Appellant, impact upon the community and the need for
protection of the public pursuant to 42 Pa.C.S.A. § 9721(b)?
Appellant’s Brief at 5.
-8-
J-A23022-22
III. Preservation of Discretionary Sentencing Claims
As Appellant presents a challenge to the discretionary aspects of his
sentence, we note:
An appeal raising the discretionary aspects of sentencing is not
guaranteed as of right; rather, it is considered a petition for
permission to appeal. In order to reach the merits of a
discretionary aspects claim, we must engage in a four-part
analysis to determine:
(1) whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. [720];
(3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under
the Sentencing Code.
* * *
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exists only when the appellant
advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing
process.
See Commonwealth v. Mulkin, 228 A.3d 913, 916 (Pa. Super. 2020) (some
citations omitted).
Here, Appellant filed a timely notice of appeal and timely post-sentence
motion. We observe, however, that he argues several mitigating factors for
the first time on appeal — (1) the fact that his parents and all of his siblings
are deceased, which has affected “his psychological makeup, . . . poor
-9-
J-A23022-22
decisions and activity[;]” (2) his lifelong residence at the same address in
Susquehanna County; and (3) his long time self-employment, from which he
made “a respectable amount of money.”5 See Appellant’s Brief at 32-34.
Because these claims were not raised at the sentencing hearing or in
Appellant’s post-sentence motion, they are waived. See Mulkin, 228 A.3d at
916. See also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”). Appellant’s
argument, that the Commonwealth did not submit victim impact statements,
is similarly waived on the same basis. See Mulkin, 228 A.3d at 916;
Appellant’s Brief at 24.
However, Appellant’s remaining issues — discussed infra — were
properly preserved in his post-sentence motion. See Mulkin, 228 A.3d at
916. Furthermore, his brief includes a Rule 2119(f) concise statement of the
reasons relied upon for allowance of appeal. See Pa.R.A.P. 2119(f). Finally,
this Court has held that Appellant’s present claims — that the trial court relied
on impermissible factors and ignored mitigating evidence in imposing a
sentence above the aggravated range guidelines — raise a substantial
____________________________________________
5 Rather than stating the amount of his income, Appellant’s counsel twice
refers this Court to the PSI for that information. Appellant’s Brief at 12, 34.
The PSI, in turn, stated Appellant earned $30,000 weekly. Wyoming County
Pre-Sentence Investigation (undated), at 4 (unpaginated).
- 10 -
J-A23022-22
question. See Mulkin, 228 A.3d at 916. Accordingly, we proceed to consider
his arguments.
IV. Appellant’s Arguments
Appellant advances multiple arguments that the trial court abused its
discretion by imposing a manifestly excessive and unreasonable sentence.
Preliminarily, he points out the minimum sentences of 42 months were
“double the highest end of the aggravated range of the guidelines[,]”6 and the
maximum terms of seven years were “the maximum sentence[s] allowed at
law.” Appellant’s Brief at 19, 24. Appellant contends the Commonwealth did
not seek a sentence outside the standard range guideline. Id.
Appellant’s first claim is that the trial court failed to consider mitigating
factors, and merely made a “passing reference” to the PSI. Appellant’s Brief
at 29. He refers to: his age of 63; his attempt, though unsuccessful, to enroll
in the Wyoming/Sullivan County drug court;7 and his poor health, which
included anxiety, his “need to control his illicit drug use,” high blood pressure,
and serious injuries following a fall from a tree. Id. at 31-34. Appellant
maintains that, contrary to the court’s finding, he did accept responsibility for
his conduct; he reasons that “trial [was] scheduled for July 2021, [but he]
____________________________________________
6 As stated above, the aggravated range guideline was 21 months.
7 Appellant acknowledges he was a resident of Susquehanna County, which
was “an impediment” to admission into the Wyoming and Sullivan County drug
court. Appellant’s Brief at 33.
- 11 -
J-A23022-22
instead chose to immediately plead guilty[.]” Id. at 35, 37. Appellant also
points out that the COVID-19 pandemic caused trial delays. Id. at 37-38.
Appellant’s next claim is that the trial court improperly considered
factors that had already informed the sentencing statutes and guidelines.
First, he contends the court improperly focused on his prior record because it
was already factored into his prior record score. Appellant’s Brief at 31. In
any event, he asserts, the trial court’s characterization of his prior history as
“lengthy” was inaccurate. Id. at 31. Instead, Appellant alleges, he merely
had “a sporadic past history, interspersed with long periods” of being crime-
free, and he did not have any “revolving door history[.]” Id. at 31, 41.
Appellant summarizes that he: (1) had two criminal charges in 1977 and two
more criminal charges 1980; (2) did not incur another criminal charge for 22
years; (3) had a DUI in 2004; and (4) nine years later, in 2017, committed
the instant two fleeing charges. Id. at 11-12.
Second, Appellant avers the trial court erred in considering that his
commission of the two underlying fleeing offenses placed others in danger,
because this element was already a part of the grading of the offense and
reflected in the offense gravity score. Appellant’s Brief at 39-40, citing 18
Pa.C.S. § 3733(a.2)(2)(iii) (fleeing is graded as a felony of the third degree if
offender endangers a law enforcement officer or member of general public due
to engaging in a high-speed chase).
- 12 -
J-A23022-22
Third, Appellant alleges the court erred in considering his four new
charges. Appellant’s Brief at 36. He reasons that three of those matters “had
not even reached . . . a preliminary hearing” and none of the prosecutors
initially “sought or fully prosecuted revocation of . . . bail.” Id. at 36-37.
Appellant, however, concedes his bail was revoked when he absconded from
trial in January of 2021. Id. at 37. Furthermore, with respect to the charges
at docket 103-2018, which were nolle prossed, he nevertheless paid
restitution as a part of the instant plea deal. Id. Appellant also denies he
was a “fugitive” when he absconded from trial, as the trial court characterized
him. Id. at 38. In support, he asserts there was no “large manhunt” for him,
he did not have “to be physically taken down[,]” and he “was apprehended
within 36 days[.]” Id.
Appellant concludes this Court should vacate his judgment of sentence
pursuant to Sub-section 9781(c)(3) of the Sentencing Code, which mandates
a remand for resentencing if “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” Appellant’s Brief at
26, citing 42 Pa.C.S. § 9781(c)(3). We conclude no relief is due.
V. Standard of Review & Relevant Authority
We consider the relevant standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
- 13 -
J-A23022-22
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Clemat, 218 A.3d 944, 959 (Pa. Super. 2019) (citation
omitted). “[W]hen imposing sentence, the trial court is granted broad
discretion, as it is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances
before it.” Mulkin, 228 A.3d at 917.
This Court has also stated:
[W]hen imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
the victim and community, and rehabilitative needs of the
defendant. . . .
Furthermore, [a] trial court judge has wide discretion in
sentencing and can, on the appropriate record and for the
appropriate reasons, consider any legal factor in imposing a
sentence[.] The sentencing court, however, must also consider
the sentencing guidelines.
Clemat, 218 A.3d at 960 (citation omitted & paragraph break added).
When imposing sentence, the trial court is required to consider
the particular circumstances of the offense and the character of
the defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation.
However, where the sentencing judge had the benefit of a pre-
sentence investigation report . . . it will be presumed that he or
she was aware of the relevant information regarding the
defendant’s character and weighed those considerations along
with mitigating statutory factors.
Id. at 959-60 (citations omitted & paragraph break added).
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J-A23022-22
With respect to aggravated-range sentences and so-called “double
counting” factors, this Court has explained:
Generally, “[i]t is impermissible for a court to consider factors
already included within the sentencing guidelines as the sole
reason for increasing or decreasing a sentence to the aggravated
or mitigated range.” However, “[t]rial courts are permitted
to use factors already included in the guidelines if they are
used to supplement other extraneous sentencing
information.”
When deciding whether a court improperly has based an
aggravated sentence on a factor that is already considered by the
sentencing guidelines, we have stated:
[t]he guidelines were implemented to create greater
consistency and rationality in sentencing. The guidelines
accomplish the above purposes by providing a norm for
comparison, i.e., the standard range of punishment, for
the panoply of crimes found in the crimes code and by
providing a scale of progressively greater punishment as
the gravity of the offense increases. . . . The provision
of a “norm” also strongly implies that deviation from the
norm should be correlated with facts about the crime that
also deviate from the norm for the offense, or facts
relating to the offender’s character or criminal history
that deviates from the norm and must be regarded as
not within the guidelines contemplation. Given this
predicate, simply indicating that an offense is a serious,
heinous or grave offense misplaces the proper focus. The
focus should not be upon the seriousness, heinousness
or egregiousness of the offense generally speaking, but,
rather, upon how the present case deviates from what
might be regarded as a “typical” or “normal” case of the
offense under consideration.
Moreover, “[a]n aggravated range sentence [is] justified to the
extent that the individual circumstances of [the defendant’s] case
are atypical of the crime for which [the defendant] was convicted,
such that a more severe punishment is appropriate.”
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Clemat, 218 A.3d at 960 (citations omitted & emphasis added). “It is well-
settled that where ‘the sentencing court proffers reasons indicating that its
decision to depart from the guidelines is not unreasonable, the sentence will
be upheld.’” Mulkin, 228 A.3d at 917.
Finally, “Section 9781(c) of the Sentencing Code directs this Court to
vacate a sentence and remand to the sentencing court if ‘the sentencing court
sentenced outside the sentencing guidelines and the sentence is
unreasonable.’” Commonwealth v. Smith, 206 A.3d 551, 567 (Pa. Super.
2019), citing 42 Pa.C.S.A. § 9781(c)(3).
VI. Analysis
First, we observe the trial court did not specifically address mitigating
factors. Nevertheless, the court stated both at the sentencing hearing and in
its opinion that it reviewed the “extensive” PSI. N.T. at 32; Trial Ct. Op.,
8/4/11, at 4. Accordingly, we may presume the court properly “weighed all
relevant information regarding the defendant’s character against any
mitigating factors.” See Mulkin, 228 A.3d at 917. Appellant’s argument,
that the court merely made a “passing reference” to the PSI, does not
undermine this presumption. See Appellant’s Brief at 29. In any event, at
the sentencing hearing, Appellant specifically argued the court should consider
his poor health, including heart problems and the injuries resulting from a fall
from a tree the prior summer. N.T. at 37, 40.
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Additionally, Appellant’s portrayal that he “chose to immediately plead
guilty” in May of 2021, following the scheduling of a second jury trial for July
of 2021, wholly ignores the fact he absconded from the first trial in January of
2021 and refused to turn himself in, against his attorney’s advice. See
Appellant’s Brief at 35. Elsewhere in his brief, Appellant minimizes the
significance of this evidence, by rationalizing there was no “large manhunt”
for him, he did not have “to be physically taken down[,]” and, ostensibly, he
was merely at large for 36 days. Appellant’s Brief at 38. However, the trial
court weighed the same evidence differently, and Appellant’s present
argument would require this Court to reweigh the evidence in his favor and
supplant the court’s findings with our own. This we may not do. Instead, we
defer to the trial court’s discretion in weighing the reasons for the delays in
this matter. See Clemat, 218 A.3d at 959.
Next, we find no abuse of discretion in the totality of the trial court’s
reasons for imposing sentence. As stated above, it is generally “impermissible
for a court to consider factors already included within the sentencing
guidelines as the sole reason for increasing . . . a sentence to the aggravated
. . . range.” Clemat, 218 A.3d at 960 (emphasis added). A court may
consider “factors already included in the guidelines if they are used to
supplement other extraneous sentencing information.” Id. Here, we do not
review the court’s reasons for the sentence in isolation, but instead in context
with each other. Although the court considered the risk of danger caused by
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Appellant in the two underlying fleeing offenses, this factor was not the sole
reason for departing from the sentencing guidelines — and we note Appellant
does not claim it was. Instead, the trial court stated multiple, varied reasons
for the sentence, including Appellant’s absconding from the first jury trial and
his incurring four new charges in two different counties while on bail — which
the trial court noted was not only particularly unusual, but also the first the
court had encountered in its years on the bench. See N.T. at 50.
Furthermore, the trial court properly considered Appellant’s prior record.
We reiterate that Appellant committed the fleeing offenses while his license
was suspended due to a DUI conviction. His present attempt to portray his
criminal history, which is not in dispute, in a different light is again an appeal
to this Court to reweigh the evidence in his favor. While Appellant highlights
long periods of crime-free conduct, we defer to the trial court’s weighing of
his eight prior criminal cases, which included burglary, theft, manufacture of
controlled substances, and possession of firearms, and which spanned 43
years and four counties. See Wyoming County Pre-Sentence Investigation at
2. Again, the trial court considered this history along with, and in context of,
the fact Appellant absconded from the courthouse during trial proceedings
and incurred four new criminal cases while on bail on these charges.
Accordingly, we cannot conclude the trial court’s consideration of these factors
was so improper to warrant a remand for a new sentence. See Clemat, 218
A.3d at 959-60.
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Finally, we reiterate the trial court found prior prison and probation
terms have “failed to address [Appellant’s] criminal propensities” and “all
previous attempts of rehabilitation have failed.” N.T. at 49-50. Accordingly,
the court found a long prison term was necessary in light of his “lengthy
criminal record commencing in 1977[.]” Id. at 49. The court had wide
discretion in sentencing and properly considered all the relevant factors. See
Clemat, 218 A.3d at 960. Appellant has not established the court acted with
partiality, prejudice, bias, or ill will against him. See id. at 959. Thus, we
affirm the judgments of sentence.
VII. Conclusion
Having concluded no relief is due on Appellant’s sentencing challenge,
we affirm the judgments of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 19 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482335/ | J-S32035-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD EUGENE RAKER :
:
Appellant : No. 609 MDA 2022
Appeal from the PCRA Order Entered April 1, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006711-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 8, 2022
Richard Eugene Raker appeals from the order,1 entered in the Court of
Common Pleas of Dauphin County, denying his petition filed pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful
review, we affirm in part, vacate in part, and remand for further proceedings.
Raker was convicted by a jury of aggravated indecent assault and
related charges stemming from an incident in which he fondled and digitally
penetrated his friend’s intellectually-challenged 15-year-old daughter. On
December 10, 2020, the trial court sentenced Raker to an aggregate term of
____________________________________________
1 Raker’s notice of appeal states that the instant appeal is from the April 1,
2022 order denying his post-sentence motion. However, an order dated April
1, 2022, denying PCRA relief, is attached to the docketing statement filed by
counsel. Thus, it appears that the notice of appeal’s reference to the denial
of post-sentence motions is a typographical error, which we have corrected.
See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super.
2001) (en banc) (correcting appeal’s caption when appellant misstates where
appeal lies).
J-S32035-22
three to six years’ incarceration, followed by three years of probation. Raker
obtained new counsel and filed a post-sentence motion for a new trial, in which
he raised four claims of trial counsel’s ineffectiveness. Raker acknowledged
that, pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002),
ineffectiveness claims are generally deferred until collateral review. However,
he asserted that he had no other issues to raise on direct appeal, and attached
a written waiver of his future rights under the PCRA. The trial court dismissed
Raker’s motion without a hearing and he timely appealed.
In his court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, Raker raised three claims relating to trial counsel’s
ineffectiveness. In its Rule 1925(a) opinion, the trial court acknowledged the
rule in Grant, but stated that it had exercised its discretion to consider Raker’s
claims in post-sentence motions under the “good cause shown/waiver”
exception to Grant carved out by our Supreme Court in Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013) (holding trial court could exercise discretion
to entertain ineffectiveness claims on post-sentence motions when claim of
ineffectiveness is apparent from record and meritorious such that immediate
consideration serves interest of justice or there is good cause shown and
defendant has given knowing and express waiver, following full colloquy, of
right to seek subsequent PCRA review). This Court dismissed Raker’s appeal,
holding that the trial court had abused its discretion in applying the Holmes
exception, where no colloquy was held and Raker’s written waiver did not
-2-
J-S32035-22
demonstrate his awareness of all relevant considerations. See
Commonwealth v. Raker, 264 A.3d 380 (Pa. Super. 2021) (Table), at *3.
On October 18, 2021, Raker filed the instant PCRA petition, raising the
same ineffectiveness claims presented in his post-sentence motion. The
Commonwealth filed a response and, on March 2, 2022, the PCRA court issued
Pa.R.Crim.P. 907 notice of its intent to dismiss the petition. Raker filed a
response and, on April 1, 2022, the court denied relief. On April 5, 2022,
Raker filed a timely notice of appeal, followed by a court-ordered Rule 1925(b)
statement. He raises the following claims for our review:
1. Was trial counsel ineffective for advising [Raker] to waive his
right to testify?
2. Was trial counsel ineffective for [failing] to object to the
prosecutor’s improper closing argument?
3. Was trial counsel ineffective [in] her failure to properly prepare
and present readily available witnesses to attest to [Raker’s]
excellent reputation in the community for chastity?
4. Did the [PCRA] court commit reversible error by denying
[Raker’s] request for an evidentiary hearing to examine trial
counsel as to her ineffectiveness?
Brief of Appellant, at 3 (reordered for ease of disposition).
It is well-settled that, in reviewing the denial of PCRA relief, “we examine
whether the PCRA court’s determination is supported by the record and free
of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)
(quotations and citations omitted). The PCRA court’s credibility
determinations are binding on this Court when they are supported by the
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J-S32035-22
record; its legal conclusions, however, are subject to de novo review.
Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa. 2011).
Here, Raker raises three claims of trial counsel’s ineffectiveness. To
establish such a claim, a petitioner must overcome the presumption that
counsel was effective by proving “(1) that the underlying claim has merit; (2)
counsel had no reasonable strategic basis for his or her action or inaction; and
(3) but for the errors or omissions of counsel, there is a reasonable probability
that the outcome of the proceedings would have been different.”
Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011) (citation
omitted). “The failure to prove any one of the three prongs results in the
failure of petitioner’s claim.” Id.
Raker also claims that the PCRA court erred in dismissing his petition
without first holding a hearing. Under Pennsylvania Rule of Criminal Procedure
907, the PCRA court has the discretion to dismiss a petition without a hearing
when the court is satisfied “that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-conviction collateral
relief, and no legitimate purpose would be served by any further
proceedings[.]” Pa.R.Crim.P. 907(1). “[T]o obtain reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must show that
he raised a genuine issue of fact which, if resolved in his favor, would have
entitled him to relief, or that the court otherwise abused its discretion in
denying a hearing.” Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa.
2011).
-4-
J-S32035-22
Raker first asserts that trial counsel was ineffective for advising him not
to testify at trial. Specifically, Raker claims that, because the case “was a
classic ‘he said, she said,’” counsel’s advice lacked any reasonable basis
because “only [Raker] could provide the jury with evidence contradicting the
alleged victim’s testimony.” Brief of Appellant, at 9, 11. “[W]ithout an
alternative history of the relevant events, the jury was left with only the
alleged victim’s uncorroborated version of events[.]” Id. at 11-12. Raker
asserts that, had he testified, the outcome of trial would have been different.
See id. at 12. He is entitled to no relief.
The decision of whether or not to testify on one’s own behalf is
ultimately to be made by the defendant after full consultation with
counsel. In order to sustain a claim that counsel was ineffective
for failing to advise the appellant of his rights in this regard, the
appellant must demonstrate either that counsel interfered with his
right to testify, or that counsel gave specific advice so
unreasonable as to vitiate a knowing and intelligent
decision to testify on his own behalf.
Commonwealth v. Nieves, 746 A.2d 1102, 1104 (Pa. 2000) (emphasis
added).
Here, Raker has failed to allege and offer to prove what advice counsel
gave him and how it was unreasonable. See id. Rather, he baldly claims that
counsel’s advice “lacked any reasonable basis designed to effectuate [Raker’s]
interests.” Brief of Appellant, at 9. This is insufficient. Raker’s argument is
devoid of any allegations of specific statements of trial counsel that might
have misled him. Accordingly, he failed to raise a genuine issue of fact which,
if proven, would entitle him to relief, Hanible, supra, and the PCRA court
-5-
J-S32035-22
properly denied relief without a hearing. See Commonwealth v. Bazabe,
590 A.2d 1298, 1302 (Pa. Super. 1991) (where issue is whether evidentiary
hearing must be held, it is settled law that mere boilerplate allegations will
not suffice to require hearing).
Importantly, the trial court engaged in a thorough colloquy with Raker
regarding his decision not to testify. Raker stated, under oath, that he was
aware of his right to testify, had discussed the matter with counsel, and made
a knowing and intelligent decision not to testify. See N.T. Trial, 9/16/20, at
208-210. An appellant “is bound by the statements he makes in open court
while under oath and he may not later . . . contradict the statements he
made[.]” Commonwealth v. Hopkins, 228 A.3d 577, 583 (Pa. Super.
2020). Accordingly, Raker is entitled to no relief.
Raker next asserts that trial counsel was ineffective for failing to object
to the prosecutor’s allegedly improper closing argument. In particular, Raker
claims that the prosecutor “made a number of statements . . . based upon her
own personal experience with matters not on the record, which amounted to
unsworn expert and lay witness testimony.” Brief of Appellant, at 17. Raker
argues that the statements had the effect of supporting the credibility of the
victim and, given the importance of credibility in this matter, were prejudicial.
Id. Raker complains about the following portion of the prosecutor’s closing
argument:
I was in a serious car accident several years ago. I was actually
on my way to work, not here, but when I worked someplace else.
I was in a bad accident. And a gentleman went through a stop
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J-S32035-22
sign and T-boned me. Now, I ended up having to be taken away
by ambulance that day from the car crash. And, you know, it’s
funny the things that your mind remembers about a situation like
that. And it’s a traumatic situation. I mean, this is no difference
in terms of things that we remember. I can remember being at
the scene and saying over and over again about how I had just
paid off my car and now it was totaled. They’re loading me up
into an ambulance, and all I care about is, you know, my car is
gone and I've already paid it off.
You know, those are the things that I remember. I remember the
fact that there was a public defender who stopped to help until the
ambulance got there. He happened to be on his way to work, too,
and was a volunteer firefighter. I remember that it was an older
man who hit me. Beyond that, ladies and gentlemen of the jury,
I couldn’t tell you if it was a car that hit me. I couldn’t tell you
how fast I was going when that car hit me. I couldn’t tell you
what color the car was that hit me. I couldn’t tell you where my
car ended up after the crash, after the impact. Those are all
details that just didn’t resonate with me at the time because it
was a traumatic situation. Everyone looks at things differently. I
mean, I remember I was on my way to work. That would seem
like an insignificant detail.
***
Now, in terms of, you know, one of the things that you’re going
to hear an instruction from the [c]ourt about is, you know, prompt
complaint and she did not report immediately what had happened.
And I think there’s kind of a natural inclination—I mean, for
example, my car accident, the police came right away. I think
there’s a natural inclination to think, gees, if a person has be[en]
raped, . . . that they would report it immediately. But the reality
of the situation is we know that folks don’t. We know that they
don’t. I mean, you know, whether it be because of maturity,
because of an understanding, because of our inability to
understand, whether it be because of an emotional attachment to
the family, whether it be because your parents won’t believe you,
she talked about that. She thought that her parents wouldn’t
believe her. Why? Why did she feel that way? Because her dad
was really good friends with him. I mean that’s how kids look at
these things.
-7-
J-S32035-22
We can tell kids—and gosh, I go to schools all the time and tell
kids that they will be believed if they talk about it, that they will
be believed. But kids deep down still think to themselves if I talk
about this, about the person who is a family friend, about the
person who brings us food, about the person who lets my dad
work with him, they’re not going to believe me. It’s sad, it’s sad
to think that kids in our society still feel that way, but it’s the
reality of the situation. And there’s no doubt— You know, I’ll get
off my soapbox now—that’s an area where we need to make
strides.
N.T. Trial, 9/17/20, at 33-34, 42-43.
Raker alleges that the prosecutor’s references to her automobile
accident “were completely irrelevant to the charges against” him and she
“invited the jury to excuse the victim’s lapses of memory, allegedly resulting
from the incident, by comparing them to [her own] lapses of memory resulting
from her accident.” Brief of Appellant, at 20-21. Raker asserts that the
prosecutor’s remarks were “unprofessional, improper, and prejudicial because
she argued facts and opinions not in the record, thereby giving unsworn lay
and expert testimony.” Id. at 23. As such, counsel’s failure to object
undermined the truth-determining process, entitling Raker to a new trial. Id.
He is entitled to no relief.
A prosecutor has great discretion during closing argument;
indeed, closing “argument” is just that: argument. [T]he
prosecutor must limit [her] argument to the facts in evidence and
legitimate inferences therefrom. However, the prosecutor must
have reasonable latitude in [fairly] presenting [a] case [to the
jury,] and must be free [to present] [her closing] arguments with
logical force and vigor. Therefore, [c]omments by a prosecutor
constitute reversible error only where their unavoidable effect is
to prejudice the jury, forming in the jurors’ minds a fixed bias and
hostility toward the defendant such that they could not weigh the
evidence objectively and render a fair verdict.
-8-
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Commonwealth v. Eichinger, 108 A.3d 821, 836 (Pa. 2014) (internal
citations and quotation marks omitted)
Here, the prosecutor’s remarks did not have the unavoidable effect of
causing bias, hostility, or prejudice in the minds of the jurors. See id. Rather,
as the PCRA court correctly noted, her argument “directly addressed the
[defense’s] attack on the victim’s credibility by utilizing an anecdotal example
of memory.” PCRA Court Opinion, 4/26/21, at 13. We agree with the
Commonwealth that the prosecutor was not rendering “expert testimony,” but
rather “encouraging the jury to rely on its own experience to show how details
sometimes can be important to one person but not [another].” Brief of
Appellee, at 15.
Moreover, the trial court specifically instructed the jury that the remarks
of counsel during argument are not to be considered as evidence.
[THE COURT:] The speeches of counsel are not part of the
evidence, and you should not consider them as such. However,
in deciding the case, you should carefully consider the evidence in
light of the various reasons and arguments each lawyer presented.
It is the right and duty of each lawyer to discuss the evidence in
a manner that is most favorable to the side she represents.
You should be guided by each lawyer’s arguments to the extent
they are supported by the evidence and insofar as they aid you in
applying your own reason and common sense. However, you are
not required to accept the arguments of either counsel. It is for
you and you alone to decide the case based on the evidence as it
was presented from the witness stand and in accordance with the
instructions I am now giving you.
N.T. Trial, 9/17/20, at 214. The jury is presumed to have followed the court’s
instructions. Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).
-9-
J-S32035-22
Accordingly, because trial counsel cannot be deemed ineffective for failing to
raise a meritless objection, Raker is entitled to no relief on this claim.
Finally, Raker claims that trial counsel was ineffective for failing to
properly prepare and present readily available character witnesses.
Specifically, Raker asserts that there were six individuals present in the
courthouse and ready to testify as to his excellent reputation in the community
for chastity. See Brief of Appellant, at 12. Raker argues that the first such
witness called to testify, Timothy Wert, “obviously was not prepared” and
counsel thereafter failed to call the remaining witnesses. Id. at 13. Raker
argues that, if counsel did not call the remaining witnesses because she had
failed to prepare them properly, “that would constitute clear negligence on her
part.” Id. at 14. Moreover, given the nature of the case, Raker argues that
counsel’s failure to either prepare or present character testimony could not
have had a reasonable basis designed to effectuate his interests. Id. at 16.
However, because the PCRA court did not conduct a hearing, it could only
speculate that counsel did not present the testimony because “presumably”
the witnesses “did not meet the correct standard for character testimony.”
Id. at 13, quoting PCRA Court Opinion, at 10. Finally, Raker asserts that, had
character testimony been presented, “the court would have been required to
instruct the jury that evidence of [Raker’s] excellent reputation in the
community for chastity may, in and of itself, have been sufficient to raise a
reasonable doubt[.]” Id. at 16.
- 10 -
J-S32035-22
The failure to call character witnesses does not constitute per se
ineffectiveness. Commonwealth v. Cox, 983 A.2d 666, 693 (Pa. 2009)
(citation omitted). Rather, to establish that defense counsel was ineffective
for failing to call witnesses, a petitioner must prove:
(1) the witness existed; (2) the witness was available to testify
for the defense; (3) counsel knew of, or should have known of,
the existence of the witness; (4) the witness was willing to testify
for the defense; and (5) the absence of the testimony of the
witness was so prejudicial as to have denied the defendant a fair
trial.
Commonwealth v. Puksar, 951 A.2d 267, 277 (Pa. 2008) (citation omitted).
Here, Raker attached to his PCRA petition the statements of six
individuals who indicated that they were present in the courthouse, willing and
expecting to be called to testify as to Raker’s reputation in the community for
chastity. The individuals all stated that Raker’s counsel failed to review with
them the questions she would be asking on direct examination. Timothy Wert,
who briefly took the stand but was quickly dismissed, see discussion, infra,
indicated in his written statement that counsel had failed to properly prepare
him to testify and that he was, in fact, familiar with Raker’s reputation in the
community for chastity. Thus, Raker has satisfied the first four prongs of the
test for ineffectiveness for failure to call character witnesses.
As to the question of prejudice, this Court has previously observed that:
In a case such as this, where there are only two direct witnesses
involved, credibility of the witnesses is of paramount importance,
and character evidence is critical to the jury’s determination of
credibility. Evidence of good character is substantive, not mere
makeweight evidence, and may, in and of itself, create a
- 11 -
J-S32035-22
reasonable doubt of guilt and, thus, require a verdict of not
guilty[.]
Commonwealth v. Hull, 982 A.2d 1020, 1025–26 (Pa. Super. 2009),
quoting Commonwealth v. Weiss, 606 A.2d 439, 442 (Pa. 1992). In light
of the nature of this case, in which the only evidence against Raker was the
testimony of the complainant, character evidence is critical. Accordingly,
Raker’s claim possesses arguable merit. The sole remaining question is
whether trial counsel had a reasonable basis for failing to call character
witnesses.
The PCRA court denied this claim based on counsel’s prerogative to
make strategic decisions.
Here, trial counsel did not fail to find or prepare potential character
witnesses as they were physically present at trial and ready to
testify. Indeed, Tim Wert, a potential character witness was called
to the stand to testify by trial counsel. The Commonwealth
objected to the testimony because he attempted to testify to his
personal beliefs regarding [Raker] instead of community
consensus as required. As a result, the witness was prohibited
from testifying further. Trial counsel is permitted to make
strategic decisions. Here, trial counsel’s decision to not call
the remaining character witnesses is presumably because
they, like Tim Wert, did not meet the correct standard for
character testimony. As [Raker] fails to show how this
testimony would have met the proper standard for character
testimony and how it would have changed the outcome of trial,
we must find this argument lacks merit.
PCRA Court Opinion, 4/26/21, at 9-10 (citations to record omitted).
However, there is nothing in the record to support the court’s finding
that counsel made a “strategic decision” to forgo character testimony. Having
declined to hold a hearing and receive testimony from trial counsel as to her
- 12 -
J-S32035-22
trial strategy, the PCRA court simply made an assumption. See id. at 10 (trial
court concluding trial counsel did not call remaining character witnesses
because, “presumably,” they could not meet the standard for character
testimony).
In fact, a review of the trial record lends credence to Raker’s allegation
that trial counsel failed to properly prepare Timothy Wert and the other
potential witnesses. Rather than demonstrating that Wert could not testify to
Raker’s community reputation for chastity, the transcript supports the
contention that Wert was unprepared for the questions he was asked. Wert’s
testimony proceeded as follows:
Q. Mr. Wert, could you say your name and spell it for the court
reporter, please?
A. Timothy Wert, W-e-r-t.
Q. And, Mr. Wert, I don’t need to know your house address, but
where do you live?
A. I live in Millersburg.
Q. Do you know the gentleman sitting to my right?
A. Yes, I do.
Q. How long have you known, um, Mr. Raker?
A. Real close to 50 years.
Q. And, um, and are you familiar—and without any specific for
instance—are you familiar, um— Let me ask you this. Where Mr.
Raker lives, it’s in that [] Millersburg kind of greater area, right?
A. Yes.
Q. So are you familiar, um, with Mr. Raker’s reputation for
chastity in your community?
- 13 -
J-S32035-22
A. Yeah. I see him talking to—
Q. No. No. So it can only be— Are you familiar with his
reputation? Not what you see, but— Let me ask you this[:]
You’re a part of the community there in Millersburg, right?
A. Right.
Q. And, um, do you meet with—for breakfast in a—in a group of,
um, retired folks?
A. Right.
Q. Okay. So what I asked you about was Mr. Raker’s reputation
for, um, chastity. And in [] particular—I want to sort of explain a
little bit, [c]hastity, like, you know, out catting around or
something of that sort. Are you familiar with his reputation for
chastity?
A. Yes
Q. And, [i]n your community, what [] is his reputation with regard
to chastity?
A. That he is a—basically a home person. So[,] he—I’ve never
seen him out running around.
[ASSISTANT DISTRICT ATTORNEY]: Objection. Your
Honor, may we approach, please?
THE COURT: You may.
(A discussion was held off the record at sidebar.)
THE COURT: Sir, you may step down.
(A discussion was held off the record at sidebar.)
[DEFENSE COUNSEL]: At this point, Your Honor, I have no
further witnesses.
N.T. Trial, 9/16/20, at 204-06.
Raker’s assertion that counsel failed to properly prepare Wert is
supported by the fact that counsel felt the need to define for Wert—in the
middle of his testimony—the meaning of the word “chastity.” Moreover, Wert
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indicated in his sworn statement that he was, in fact, aware of Raker’s
reputation for chastity and was not properly prepared by counsel to testify.
Without an evidentiary hearing, the court lacked any record basis to conclude
that counsel’s failure to present character testimony was grounded in sound
trial strategy. As our Supreme Court has stated,
the court should not glean or surmise from the record whether
[counsel] had a reasonable basis for [her] action or inaction. It is
only in the most clear-cut of cases that the reasons for the conduct
of counsel are clear from the record. Thus, only where the record
clearly establishes that the action or omission of [counsel] was
without a reasonable basis should the court resolve the reasonable
basis prong absent a remand for an evidentiary hearing as to the
strategy of counsel[.]
Commonwealth v. McGill, 832 A.2d 1014, 1022 (Pa. 2003).
Where, as here, there are only two witnesses to the events in question,
the credibility of the witnesses was of paramount importance, and counsel’s
failure to employ character witnesses undermined Raker’s chances of instilling
reasonable doubt in the minds of the jury and could have resulted in prejudice
to Raker. Because the PCRA court failed to hold a hearing, the record before
us is incomplete as to counsel’s rationale for forgoing such testimony.
Accordingly, we are constrained to vacate the PCRA court’s order to the extent
that it denied relief on this claim, and remand the case for a hearing, at which
time the court may hear the testimony of trial counsel and any other witnesses
the parties deem appropriate.
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Order affirmed in part and vacated in part. Case remanded for a hearing
in accordance with the dictates of this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2022
- 16 - | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482344/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1939
__________
CHAKA KWANZAA,
Appellant
v.
GIRARD TELL, OFFICER, PLEASANTVILLE POLICE DEPARTMENT;
RYAN VAN SYCKLE
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 1-19-cv-16052)
District Judge: Honorable Renée M. Bumb
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 25, 2022
Before: RESTREPO, PHIPPS and RENDELL, Circuit Judges
(Opinion filed: November 8, 2022)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Pro se Appellant Chaka Kwanzaa appeals from the judgment of the United States
District Court for the District of New Jersey in this civil rights action. For the reasons set
forth below, we will affirm the District Court’s judgment in part, vacate in part, and
remand this matter for further proceedings.
I.
In the operative second amended complaint, Kwanzaa, proceeding in forma
pauperis, brought claims with two other plaintiffs, his wife, Peggy Boler Kwanzaa
(“Boler”), and Lamont Scott, neither of whom had moved for in forma pauperis status or
paid the fee. They sued the defendants under 42 U.S.C. § 1983 in relation to several
incidents.
Because we write primarily for the parties, who are familiar with the facts, we will
discuss the details of the claims only as they are relevant to the analysis. To summarize,
in his second amended complaint, Kwanzaa alleged that, in 2019, a police officer,
Defendant Tell, racially profiled him, approached him and arrested him without probable
cause, and stole a diamond ring from the console of his car. Kwanzaa further claimed
that Tell, with Defendant Van Syckle, assaulted him, and that two senior police
department officials were liable because of their roles in supervising and training Tell and
Van Syckle. Kwanzaa connected the incident to a 2017 traffic ticket for driving without
a license that he claimed was improperly issued. Kwanzaa also included a claim that his
due process rights were violated by delays in the resolution of his criminal case arising
2
from the 2019 arrest. Finally, Kwanzaa alleged that, at some point, four police officers
handcuffed him because he elected to represent himself in Municipal Court. Also
included in the complaint were claims relating to a traffic stop of Scott while he was
riding as a passenger in a car owned by Boler, who arrived at the scene of the traffic stop
and asked that the officers not search the vehicle.
The District Court screened the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)
and dismissed all of Kwanzaa’s claims with prejudice except one, Kwanzaa’s claim that
Defendant Tell stole a ring out of his car during a search incident to his arrest. The
District Court also refused to consider the claims brought by Boler and Scott because
they had not paid a filing fee or moved to proceed in forma pauperis. Once both parties
complied with the fee requirements, the District Court ordered each of their cases severed
from Kwanzaa’s action.
Kwanzaa filed a motion to reconsider the dismissal of his claims and later renewed
his request for a ruling. Tell moved for summary judgment. The District Court
“administratively terminated” both motions pending the outcome of Kwanzaa’s motion
for counsel. After the motion for counsel was denied, Kwanzaa renewed his request for a
ruling on his motion to reconsider. The District Court then granted summary judgement
in favor of Tell after concluding that Kwanzaa offered no evidence to dispute Tell’s
evidence that he did not steal the ring. The District Court nonetheless invited Kwanzaa to
3
move for reconsideration if he wished to present an affidavit that would support his claim
concerning the stolen ring. Instead, Kwanzaa timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291. Our review of a grant of summary
judgment and dismissal under 28 U.S.C. § 1915 is de novo. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d
Cir. 2014). To survive dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotations omitted). Summary judgment is proper
where, viewing the evidence in the light most favorable to the nonmoving party and
drawing all inferences in favor of that party, there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); Kaucher v. County of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).
III.
Although some of Kwanzaa’s arguments on appeal are difficult to decipher, he
appears to argue:1 (1) relating to his claim that his ring was stolen, the District Court
1
Kwanzaa also alleges that the District Court “acted in a biased manner, extending
favorable rulings to the defendants even in the face of overwhelming evidence.” The
only ruling Kwanzaa identifies as “bias[ed]” is the District Court’s ruling on summary
judgment. Although Kwanzaa’s allegation is vague and conclusory, to the extent that he
seeks to refer to something other than the summary judgment decision, we have reviewed
4
erred in (a) granting summary judgment to Defendant Tell in light of the holding of Heck
v. Humphrey,2 and (b) dismissing the claim against Defendant Van Syckle; (2) the
District Court erred in severing the suits of the other plaintiffs; and (3) the District Court
erred in failing to rule on his motion to reconsider.
First, the District Court properly granted summary judgment in favor of Tell on
Kwanzaa’s claim that his ring was stolen by Tell during the arrest. In moving for
summary judgment, Tell averred that he did not steal a “ring, diamond ring, item of
jewelry, or any thing of any value to Mr. Kwanzaa.” See ECF No. 34-6, at *2. Kwanzaa
provided no evidence to the contrary. On appeal, Kwanzaa relies on Heck to argue that
the District Court erred in granting summary judgment without considering the effect of
the dismissal of the criminal charges. However, the District Court did not rely on Heck
to bar Kwanzaa’s claim and the outcome of his criminal charge was irrelevant to the
District Court’s grant of summary judgement. Kwanzaa also argues that the District
Court erred in dismissing Defendant Van Syckle because Van Syckle stole his ring.
However, the claim that Van Syckle stole his ring conflicts with Kwanzaa’s second
amended complaint, wherein he alleged that Defendant Tell stole his ring. ECF No. 5, at
*11.
the record and see no evidence of bias. See Securacomm Consulting, Inc. v. Securacom
Inc., 224 F.3d 273, 278 (3d Cir. 2000) (repeating that disagreement with legal rulings
“does not form an adequate basis for recusal”).
2
512, U.S. 477 (1994)
5
Next, Kwanzaa appears to argue that the District Court erred in severing Boler’s
and Scott’s claims, but we discern no error. As the District Court explained, misjoinder
of claims occurs when, among other things, the events that give rise to the plaintiff’s
claims do not stem from the same transaction. See DirecTV, Inc. v. Leto, 467 F.3d 842,
844 (3d Cir. 2006). To remedy misjoinder, Federal Rule of Civil Procedure 21 allows
District Courts to sever the claims and proceed with them separately. Here, the District
Court did not abuse its discretion in determining that Kwanzaa’s claims did not stem
from the same transaction as the incident underlying Kwanza’s where the severed claims
arose following a traffic stop of a different driver, in a separate town, nearly two months
later. See DirecTV, Inc., 467 F.3d at 844 n.1.
Finally, Kwanzaa argues that the District Court erred because it failed to rule on
his “motion for reconsideration pursuant to Fed. R. Civ. Proc. 59(e).” App. Br. at *2.
Kwanzaa filed a motion requesting the District Court reconsider the order dismissing the
majority of his claims. Initially, the District Court administratively terminated the
motion, as well as the Defendants’ motion for summary judgment, pending the
disposition of a counsel motion. After the District Court denied the counsel motion,
Kwanzaa requested a ruling on his reconsideration motion. The District Court then
administratively reopened the summary judgment motion and granted it without
reopening or explicitly ruling on the motion for reconsideration.
Under the circumstances, we construe the District Court’s actions as an
6
implicit denial of the motion for reconsideration. See United States v. Claxton, 766 F.3d
280, 290 (3d Cir. 2014) (“[T]reating the District Court’s failure to issue an explicit ruling
as an implicit denial of his … motion.”); see also DLJ Mortg. Cap., Inc. v. Sheridan, 975
F.3d 358, 369 (3d Cir. 2020) (construing District Court’s decision to “proceed to
judgment at the conclusion of the bench trial as an implicit denial of the motion for leave
to amend”). We thus consider the motion on the merits, see Claxton, 766 F.3d at 291,
granting relief only if the District Court abused its discretion in denying it, see DLJ
Mortg. Cap., Inc., 975 F.3d at 369-70. See also Max’s Seafood Café ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir. 1999) (explaining also that we review the
legal determinations de novo and the factual determinations for clear error).
In his motion for reconsideration, Kwanzaa challenged the District Court’s
reliance on documents that conflicted with the allegations in his complaint. Specifically,
the District Court relied on a police report that Kwanzaa attached to his complaint to
determine that the arresting officer had probable cause to initiate a traffic stop, although
Kwanzaa alleged that this report included false statements. In doing so, the District Court
stated that “[w]here the facts as stated in the exhibits cannot be reconciled with the facts
alleged in the pleading, the exhibit controls.” ECF No. 6, at *2-3. In fact, as we recently
explained, the opposite is true. See Doe v. Princeton Univ., 30 F.4th 335, 342 (3d Cir.
2022) (“When the truth of facts in an ‘integral’ document are contested by the well-
pleaded facts of a complaint, the facts in the complaint must prevail.”)
7
When evaluating the possible dismissal of a complaint, it was appropriate for the
District Court to consider “the allegations contained in the complaint, exhibits attached to
the complaint[,] and matters of public record.” Doe v. Univ. of Scis., 961 F.3d 203, 208
(3d Cir. 2020) (alteration in original) (quoting Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). However, “consideration only
goes so far.” Doe, 30 F.4th at 342. Here, as Kwanzaa argued in his motion to reconsider,
the District Court improperly credited the police report that was attached to the complaint
over the allegations in Kwanzaa’s complaint. This was error. Id.
The District Court appears to have based its dismissal of several of Kwanzaa’s
claims on its erroneous probable cause determination, including: a claimed Fourth
Amendment violation against Tell for an improper search of his vehicle; an apparent
claim that Kwanzaa was falsely arrested by Tell and Van Syckle pursuant to the stop; and
a claim that Tell and Van Syckle violated his rights to equal protection by engaging in an
improper stop and arrest that was improperly motivated by racial profiling.3
3
In his motion for reconsideration, Kwanzaa also challenged the dismissal of the two
senior police officials related to their role in supervising and training Tell and Van Sycle.
However, Kwanzaa did not present anything in his motion for reconsideration that
undermined the dismissal of those defendants on the basis that the allegations against
them were too vague and conclusory to support a claim. Additionally, on
reconsideration, Kwanzaa asked the District Court to consider a state court ruling
dismissing a charge of “obstruction of justice” that post-dated the District Court’s ruling.
On appeal, he assigns error to the District Court for failing to consider the import of the
dismissal of his criminal charge or charges in ruling on his claims. We need not reach the
issue as it relates to the claims that should have not been dismissed while there remained
a factual dispute about probable cause. And it appears that Kwanzaa raises no challenge
8
Accordingly, we will vacate the District Court’s judgment insomuch as it implicitly
denied reconsideration of these claims and remand for further proceedings consistent
with this opinion. On remand, the District Court may reconsider its dismissal of the
claims in the complaint that turned on the probable cause determination while applying
the standard set forth in Princeton. We will otherwise affirm the District Court’s
judgment.4
to the dismissal of the claims against the officers who handcuffed him in municipal court,
so any argument regarding those claims has been forfeited. See M.S. by & through Hall
v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020). Regardless, we
note that, putting aside whether District Court was obligated to consider any state court
ruling, the dismissal of any criminal charges is a question distinct from whether there is
probable cause to institute criminal proceedings. See e.g., Dowling v. City of Phila., 855
F.2d 136, 141 (3d Cir. 1988) (inquiry in § 1983 claim based on false arrest “is not
whether the person arrested in fact committed the offense but whether the arresting
officers had probable cause”); Allen v. N.J. State Police, 974 F.3d 497, 504 (3d Cir.
2020) (explaining that a litigant must show that that a defendant initiated a proceeding
without probable cause in order to prevail on a malicious prosecution claim).
4
We deny Appellee Tell’s motion to supplement the record as moot. The information
Appellee requests to be supplemented into the record was submitted in the District Court
by Appellant. See ECF No. 21, at *8-16.
9 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482346/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
WILLIAM B.,
Appellant,
v.
DEPARTMENT OF CHILD SAFETY, B.B.,
Appellees.
No. 1 CA-JV 22-0078
FILED 11-8-2022
Appeal from the Superior Court in Maricopa County
No. JD524480
The Honorable Jeffrey A. Rueter, Judge
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Mesa
By Suzanne W. Sanchez
Counsel for Appellant
Arizona Attorney General’s Office, Mesa
By Amanda Adams
Counsel for Appellee
WILLIAM B. v. DCS, B.B.
Decision of the Court
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
M O R S E, Judge:
¶1 William B. ("Father") appeals the superior court's dependency
and disposition orders. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Father is the legal parent of B.B. ("Child"), born in 2004.
Child's biological parents are not parties to this appeal.
¶3 Child was born substance-exposed to marijuana. To avoid
placing Child in the foster-care system, Father has cared for Child from
birth. Initially, Father and Child lived with Child's great-grandmother,
great-grandfather, and great-aunt.
¶4 In 2010, the family court granted Child's biological mother's
request for Father to have sole custody of Child. Subsequently, Father got
married and Child lived with Father, Father's wife, and Father's daughter.
Later, Father acceded to great-grandmother's request that Child live with
her. Child then went to live with his aunt and uncle. In 2020, Child
returned to Father's home after the aunt and uncle reported that Child hit
their minor daughter.
¶5 In December 2021, Father learned that Child had allegedly
sexually assaulted his minor cousin in 2019 while living with his aunt and
uncle. Father then contacted the Department of Child Safety ("DCS") to
remove Child from Father's home. Father insisted that DCS remove Child
from his home and told the DCS investigator that he believed Child posed
a risk to the other minor children living in Father's home and no relative
was willing to care for Child at the time. The court ordered Child into
temporary out-of-home care and DCS placed Child in an independent-
living group home.
¶6 Shortly after, DCS filed a dependency petition alleging Father
(1) neglected Child due to his inability or unwillingness to provide Child
with supervision, food, clothing, shelter, or medical care, which placed
2
WILLIAM B. v. DCS, B.B.
Decision of the Court
Child in an unreasonable risk of harm; and (2) was unwilling or unable to
provide proper and effective parental care. At the pretrial conference
hearing, Father contested the allegations of the dependency petition and the
court ordered Child into his great-aunt's care.
¶7 At the March 2022 dependency hearing, Father requested that
the court find Child dependent on the inability-to-parent ground but
contested the neglect ground. After adjudicating Child dependent, the
court held a disposition hearing and ordered a case plan of supervised
independent living.
¶8 In July 2022, a week before Child's eighteenth birthday, the
court dismissed the dependency action and affirmed the case plan of
independent living. While living with his great-aunt and shortly after his
eighteenth birthday, Child executed a voluntary agreement under A.R.S. §
8-521.02(3) to participate in the extended foster care program.
¶9 Father timely appealed. We have jurisdiction under A.R.S. §§
8-235(A), 12-120.21(A)(1), and 12-2101(A)(1).
DISCUSSION
¶10 We review a dependency order for an abuse of discretion,
Louis C. v. Dep't of Child Safety, 237 Ariz. 484, 488, ¶ 12 (App. 2015), and view
the evidence in the light most favorable to upholding the court's order,
Willie G. v. Ariz. Dep't of Econ. Sec., 211 Ariz. 231, 235, ¶ 21 (App. 2005).
Because trial courts are "in the best position to weigh the evidence, observe
the parties, judge the credibility of witnesses, and resolve disputed facts,"
Ariz. Dep't of Econ. Sec. v. Oscar O., 209 Ariz. 332, 334, ¶ 4 (App. 2004), we
will affirm an order if reasonable evidence supports it, Willie G., 211 Ariz.
at 235, ¶ 21. DCS bears the burden of proving the allegations of a
dependency petition by a preponderance of the evidence. A.R.S. § 8-
844(C)(1); Shella H. v. Dep't of Child Safety, 239 Ariz. 47, 50, ¶ 13 (App. 2016).
Moreover, the circumstances that indicate dependency must be present at
the time of the adjudication. Shella H., 239 Ariz. at 50, ¶ 12.
¶11 We note that the dismissal of the dependency petition does
not render Father's appeal moot. See A.R.S. § 8-804(A), (G) (requiring DCS
to maintain a central registry of "substantiated" reports of child neglect—
dependency based on an allegation of neglect is a substantiated report that
must be maintained for a maximum of 25 years); see, e.g., Bradley T. v. Dep't
of Child Safety, 1 CA-JV 20-0036, 2020 WL 3970994, at *1, ¶ 5 n.4 (Ariz. App.
July 14, 2020) (mem. decision) (considering the merits of an appeal based
on a dependency finding of neglect despite the child turning 18).
3
WILLIAM B. v. DCS, B.B.
Decision of the Court
I. Neglect Ground.
¶12 We reject Father's argument that reasonable evidence does
not support the court's order adjudicating Child dependent on the neglect
ground. We will affirm an order unless no reasonable evidence supports
the court's findings. Willie G., 211 Ariz. at 235, ¶ 21.
¶13 A child is dependent if his home is unfit due to neglect by a
parent. A.R.S. § 8-201(15)(a)(iii). Neglect means the "inability or
unwillingness of a parent, guardian or custodian of a child to provide that
child with supervision, food, clothing, shelter or medical care if that
inability or unwillingness causes unreasonable risk of harm to the child's
health or welfare." A.R.S. § 8-201(25)(a)(2019). Moreover, a dependency
adjudication must be "based upon the circumstances existing at the time of
the adjudication hearing" and "not merely on past circumstances." Francine
C. v. Dep't of Child Safety, 249 Ariz. 289, 300, ¶ 35 (App. 2020) (quoting Shella
H., 239 Ariz. at 50, ¶ 12).
¶14 At the dependency hearing, the court heard evidence that (1)
Father did not know the learning disability Child had been diagnosed with
and the services that Child received under Child's individualized education
plan ("IEP"), (2) Father had not taken Child to a dentist in the year and a
half Child lived with Father, (3) Father had not taken Child to a doctor while
Child lived with Father despite Child requiring an inhaler, (4) Father did
not seek out professional counseling for Child when Child expressed that
he "felt like self-harming," and (5) Father had not visited or attempted to
visit Child since his removal in December 2021. Thus, based upon the
circumstances that existed at the time of the adjudication hearing,
reasonable evidence supports the court's finding that Father neglected
Child due to Father's inability or unwillingness to provide Child with
supervision and medical care. See A.R.S. § 8-201(25)(a) (defining neglect).
¶15 Moreover, Father's inability or unwillingness caused
unreasonable risks of harm to Child's health or welfare. See A.R.S. § 8-
201(25)(a). The court heard evidence that Child required extensive dental
care after he was removed from Father's care, and Father did not arrange
counseling when Child told Father he thought about hurting himself. In
addition, the DCS investigator testified about Child's developmental
shortcomings, struggles in school, and Father's belief that Child was lazy
even though Child required an IEP.
¶16 The burden of proof to establish a dependency is less than
required for termination of parental rights. See A.R.S. § 8-537(B) (requiring
4
WILLIAM B. v. DCS, B.B.
Decision of the Court
clear and convincing evidence for termination proceedings). The record
contains reasonable evidence to support the court's findings. See Willie G.,
211 Ariz. at 235, ¶ 21 ("On review of an adjudication of dependency, we
view the evidence in the light most favorable to sustaining the juvenile
court's findings."); Oscar O., 209 Ariz. at 334, ¶ 4 ("A juvenile court as the
trier of fact in a termination proceeding is in the best position to weigh the
evidence . . . .").
II. Inability-to-Parent Ground.
¶17 We also reject Father's argument that the court did not make
sufficient findings of fact to support the inability-to-parent ground. When
courts find DCS has proven the allegations in a dependency petition by a
preponderance of the evidence, they must "state specific facts that support
a finding of dependency." Ariz. R.P. Juv. Ct. 338(h)(4). A court's finding
must include all the "ultimate facts," but it need not list "each fact that
supports its ruling." Francine C., 249 Ariz. at 296, ¶ 14 (citations omitted).
"[U]ltimate facts are at least the essential and determinative facts on which
the conclusion was reached. They are the controlling facts, without which
the court cannot correctly apply the law in resolving the disputed issues in
the case." Id. (quoting Logan B. v. Dep't of Child Safety, 244 Ariz. 532, 537, ¶ 15
(App. 2018)). "We review the sufficiency of findings of fact de novo as a
mixed question of fact and law." Id.
¶18 Here, the court found DCS had proven by a preponderance of
the evidence that Child is dependent as to Father on the grounds that Father
is unable or unwilling to provide the child with proper and effective
parental care and control. See A.R.S. § 8-201(15)(a)(i) (defining dependency
on the inability-to-parent ground). The court adjudicated Child dependent
by finding "Father refuse[d] to have the child back in his home due to
allegations of inappropriate conduct by the child." There is no dispute that
Father asked the court to find Child dependent on the inability-to-parent
ground. Because the court's finding of fact is sufficient, the court did not
abuse its discretion. Louis C., 237 Ariz. at 488, ¶ 12.
CONCLUSION
¶19 We affirm the dependency. We also note that Child has
voluntarily agreed to participate in DCS's extended foster care program.
See A.R.S. § 8-521.02(A)(1) (qualifying young adults must "have been in the
custody of [DCS] as a dependent child" when they turned 18). Because the
extended foster care program is consistent with the court's disposition
5
WILLIAM B. v. DCS, B.B.
Decision of the Court
order of supervised independent living, we affirm the court's disposition
order.
AMY M. WOOD • Clerk of the Court
FILED: AA
6 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482406/ | Filed 10/12/22; certified for publication 11/8/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JANE DOE,
Plaintiff and Respondent, G060554
v. (Super. Ct. No. 30-2019-01045961)
SOFTWARE ONE, INC., OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
Jackson Lewis, Elizabeth A. Murphy, Reem Blaik, Jennifer S. Gutenberg,
and Dylan B. Carp for Defendants and Appellants.
Trujillo & Winnick, Anthony W. Trujillo and Alexander H. Winnick for
Plaintiff and Respondent.
* * *
FACTS AND PROCEDURAL HISTORY
Plaintiff Jane Doe was the founder and owner of a company called House
of Lync, which was purchased by defendant SoftwareONE Inc. As part of the
acquisition, plaintiff was offered a position with defendant as “Head Solutions Sales,
Skype for Business,” which she accepted. At the time, plaintiff was 49 years old.
Nine months later, defendant hosted a “National Sales Kick-off” event in
Cancun, Mexico. Plaintiff attended, and felt the event was “full of outlandish behavior.”
For example, plaintiff testified “the CEO Patrick Winter expected the women to join him
on stage to dance, and he poured champagne down their throats.” Plaintiff refused to
participate, and later complained to the president of defendant’s American division.
Beginning shortly after the event, defendant received complaints about
plaintiff, including her “demeaning manner, withholding of important information,
bullying, humiliation, and other unacceptable behaviors.” Defendant reassigned plaintiff
to a new position: “Global Alliances and Practice Development Leader, Skype for
Business.” Frustration about plaintiff within defendant’s leadership team continued after
the reassignment. About six months after plaintiff’s reassignment, Jason Cochran,
defendant’s director of technical solutions told plaintiff, during an after-work event, that
defendant “is a guy’s club,” plaintiff was “never going to make it” working for defendant,
and called plaintiff a “bitch.” After plaintiff complained, defendant’s human resources
manager investigated, “coached” Cochran, and informed plaintiff that defendant did not
condone this behavior.
A few months later, defendant purchased another company similar to
plaintiff’s. Defendant then terminated plaintiff, citing poor performance and redundancy.
Plaintiff sued defendant, alleging her firing was discriminatory and retaliatory.
Defendant moved for summary judgment. Defendant argued (1) plaintiff
could not establish a prima facie case for discrimination or retaliation, (2) defendant had
legitimate, nondiscriminatory reasons for terminating plaintiff, and (3) plaintiff could not
2
show defendant’s nondiscriminatory reasons were pretextual. The trial court granted
defendant’s motion and entered judgment for defendant.
Plaintiff moved for a new trial. Plaintiff argued, among other things, that
the trial court had failed to apply Light v. Department of Parks & Recreation (2017) 14
Cal.App.5th 75 (Light), where the Court of Appeal held, “The showing of pretext, while
it may indicate retaliatory intent or animus, is not the sole means of rebutting the
employer’s evidence of nonretaliatory intent.” (Id. at p. 94.) Plaintiff contended that,
even absent evidence of pretext, her claims could survive (and should have survived)
summary judgment because she made a sufficient showing of retaliatory intent.
The trial court agreed and granted plaintiff’s motion. The trial court found
“there was no substantial evidence to establish pretext,” but that the evidence, “taken as a
whole, could support a reasoned inference of discriminatory or retaliatory animus.” The
trial court included in its ruling a nonexclusive list of items of evidence supporting
animus: “evidence that plaintiff was replaced by younger males, both when she was
demoted and terminated [citation], evidence that plaintiff had been performing well at the
company [citation], comments by [Cochran] that the company ‘is a guy’s club’ so she
was ‘never going to make it’ and by another executive that she was a ‘bitch’ [citation],
and the arguable temporal connection between her demotion and her asserted complaints
1
about a discriminatory culture.” With respect specifically to the three quoted statements,
the trial court overruled defendant’s hearsay objection. Defendant timely appealed.
1
As defendant points out on appeal, the trial court appears to have
mistakenly believed Cochran’s “bitch” comment came from another executive. The
evidence shows Cochran made all three comments. Defendant does not appear to argue
this makes any significant difference, and we see none.
3
DISCUSSION
Defendant argues the trial court erred by granting plaintiff’s motion for a
new trial. Specifically, defendant contends plaintiff did not produce evidence that, per
Light, could “‘“support[] a reasoned inference that the challenged action was the product
of discriminatory or retaliatory animus.”’” (Light, supra, 14 Cal.App.5th at p. 94.)
Defendant’s argument rests on five principal contentions: (1) the “same-actor” inference
applies, which increases the burden on plaintiff; (2) there is no substantial evidence
plaintiff was replaced by younger males; (3) plaintiff’s evidence showed she did not meet
her performance goals; (4) Cochran’s comments are inadmissible hearsay and not
probative of defendant’s motives; and (5) defendant’s employees’ complaints about
plaintiff predated her protected activity, which occurred long before any adverse
employment actions.
1. Standard of Review
Defendant’s contentions implicate two potential standards of review: that
applicable to an order granting a motion for new trial based on a finding the trial court
erroneously granted summary judgment, and that applicable to an evidentiary ruling in
the same context.
As to the trial court’s determination on the motion for new trial itself,
defendant contends the de novo standard of review applies because the trial court
determined it made an error of law in granting defendant’s motion for summary
judgment. Plaintiff contends the abuse of discretion standard applies. We agree with
defendant. On this point, this case is indistinguishable from Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, in which the Supreme Court held the de novo standard of
review applies when a trial court grants a motion for new trial based on an error of law in
granting a summary judgment motion. (Id. at pp. 859-860.)
4
As to the evidentiary issues, defendant again contends the de novo standard
of review applies, citing Pipitone v. Williams (2016) 244 Cal.App.4th 1437 (Pipitone).
Here, we acknowledge a split in authority. In Pipitone, the Sixth District Court of Appeal
concluded the de novo standard of review applied to evidentiary rulings “determined on
the papers and based on questions of law such as hearsay.” (Id. at p. 1451.) The Pipitone
court based its conclusion on Reid v. Google, Inc. (2010) 50 Cal.4th 512 (Reid).
In Reid, the Supreme Court applied the de novo standard of review to
evidentiary objections upon which the trial court had failed to rule. (Reid, supra, 50
Cal.4th at p. 535.) The Supreme Court reasoned, “First, because there was no exercise of
trial court discretion, the Court of Appeal had no occasion to determine whether the trial
court abused it. Second, Google expressly invited the Court of Appeal to address its
evidentiary objections, which the Court of Appeal reviewed de novo, consistent with the
general standard of review applicable to summary judgment rulings, that any doubts as to
the propriety of granting a summary judgment motion should be resolved in favor of the
party opposing the motion.” (Ibid.) The Supreme Court expressly declined to consider
“whether a trial court’s rulings on evidentiary objections based on papers alone in
summary judgment proceedings are reviewed for abuse of discretion or reviewed de
novo.” (Ibid.) The Pipitone court was joined, at least in part, by the Fourth District,
Division One, in Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th
206, which held, “De novo review is proper [in summary judgment situations] where
evidentiary objections raise questions of law, such as whether or not a statement is
hearsay.” (Id. at p. 226.)
But the weight of authority since Reid supports application of the abuse of
discretion standard. Cases considering this question and applying the abuse of discretion
standard after Reid have been published by the First District, Second District, Third
5
2
District, Fourth District (Division One), Fifth District, and Sixth District — in other
words, essentially every district of the appellate courts of the State of California (except
for this division and Division Two of this district), including the two courts with contrary
published authority.
Moreover, application of the abuse of discretion standard is eminently
sensible in light of the practical realities of evidentiary objections in summary judgment
proceedings. Defendant raised evidentiary objections to some 79 separate portions of
plaintiff’s declarations opposing summary judgment — typically, multiple objections to
each such portion. Defendant’s evidentiary objections span nearly 100 pages. This
quantity is not unusual for a motion for summary judgment: “We recognize that it has
become common practice for litigants to flood the trial courts with inconsequential
written evidentiary objections, without focusing on those that are critical.” (Reid, supra,
50 Cal.4th at p. 532.) As a result, trial courts typically rule on evidentiary objections in
summary fashion, which often prevents us from determining the precise nature (i.e.,
principally legal or factual) of the trial court’s ruling. And rulings on evidentiary
objections often “involve trial courts making qualitative and sometimes equitable
determinations,” which are the sort of decisions we typically review for abuse of
discretion. (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1124
(conc. opn. of Turner, P. J.).)
We therefore join the great weight of authority and conclude the abuse of
discretion standard applies.
2
See, e.g., Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1118
(Fourth District, Division One); Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1169
(Third District); Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52 (First
District); O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th
1184, 1198 (Fifth District); Ryder v. Lightstorm Entertainment, Inc. (2016) 246
Cal.App.4th 1064, 1072 (Second District); Jones v. Wachovia Bank (2014) 230
Cal.App.4th 935, 951 (Sixth District).
6
2. The “Same Actor” Inference
Defendant argues the “‘same actor inference’” applies and requires plaintiff
to present strong evidence of discriminatory motives to survive summary judgment.
(Nazir v. United Airlines Inc. (2009) 178 Cal.App.4th 243, 273) “‘“‘[W]here the same
actor is responsible for both the hiring and the firing of a discrimination plaintiff, and
both actions occur within a short period of time, a strong inference arises that there was
no discriminatory motive.”’” (Id. at p. 272.) This “‘“strong inference”’” must be
considered on a summary judgment motion. (Id. at p. 273.) However, while “same actor
evidence will often generate an inference of nondiscrimination . . . the effect should not
be an a priori determination, divorced from its factual context.” (Ibid.) It is an inference
derived from the logic of the situation, not a presumption imposed by the law. (Ibid.)
We conclude the same actor inference either does not apply or applies with
greatly reduced force under these circumstances. The rationale for the inference “is that
‘“[f]rom the standpoint of the putative discriminator, ‘[i]t hardly makes sense to hire
workers from a group one dislikes (thereby incurring the psychological costs of
associating with them), only to fire them once they are on the job.’”’” (Nazir, supra, 178
Cal.App.4th at p. 273.) But that rationale is much weaker when the person being hired is
the owner and principal of a firm being simultaneously acquired by the employer. The
employer might be motivated to acquire the business by a desire for access to customer
lists and relationships, intellectual or physical property, goodwill, technical expertise, or
other considerations having nothing to do with the identity of the owner of the company
to be acquired. Thus, a jury might easily conclude the employer hired the principal of the
company as a prerequisite for acquiring the company, even while harboring
discriminatory motives against that person.
Accordingly, we see no reason, on this evidence, to depart from the usual
standard applicable to summary judgment motions of this type, as described in Light, or
to impose any increased burden on the plaintiff.
7
3. Replacement by Younger Males
Defendant contends plaintiff produced no substantial evidence she was
replaced by younger males, and that the trial court’s reliance on this factor to grant a new
trial was erroneous. Plaintiff points to two sources of such evidence in response:
plaintiff’s own declaration, in which she claims she was demoted and replaced by a
younger man, John De Los Reyes, and the declaration of John De Los Reyes, in which he
states he replaced plaintiff.
Defendant argues each of these is insufficient. First, defendant points to an
excerpt from plaintiff’s deposition in which she admits defendant “broke [her] role up
into several different people.” However, this testimony is not necessarily inconsistent
with her declaration or that of De Los Reyes. During her deposition, plaintiff testified
that her initial role, which was broken up, was “Head Solutions, Sales, Skype for
Business.” In her declaration, she indicates she was replaced as “Leader of the Skype for
Business team” by De Los Reyes. De Los Reyes’s declaration uses the same
terminology. Thus, viewed in the light most favorable to plaintiff, the evidence supports
a reasonable inference that De Los Reyes replaced plaintiff in some, if not all, of her job
duties by taking over management of the Skype for Business team.
Next, defendant takes issue with the particulars of the declarations
themselves. Defendant argues that both plaintiff and De Los Reyes’s declarations are
“uncorroborated,” but the declarations corroborate each other. Defendant also argues the
declarations are “self-serving.” Plaintiff’s declaration is undeniably self-serving, but
defendant offers no explanation for its characterization of De Los Reyes’s declaration as
“self-serving.” We reject that characterization.
Defendant also argues De Los Reyes contradicts himself in his declaration.
Defendant points out De Los Reyes only claims to have become “Global Practice Lead
for Skype for Business” in 2018, even though plaintiff lost her position as “Head
Solutions, Sales, Skype for Business” in April 2017. It is unclear whether this actually
8
reflects a factual issue around the timeline, as the text of the relevant portion of De Los
Reyes’s declaration reads “When Plaintiff was demoted in 2018, I took over Plaintiff’s
role as the Global Practice Lead for Skype for Business.” This might reflect confusion by
De Los Reyes over the precise sequence of events, a typographical error (replacing 2017
with 2018), or a period of several months during which plaintiff’s position was vacant.
But even if plaintiff’s position was vacant for a period of months before De Los Reyes
assumed it, as defendant appears to be suggesting, De Los Reyes is still properly
characterized as “replacing” plaintiff in the position.
Lastly, defendant similarly criticizes plaintiff’s declaration as lacking
precision. Defendant points out plaintiff states only that De Los Reyes replaced her as
“Leader of the Skype for Business team,” and is silent as to any replacement carrying her
official job title of “Head Solutions, Sales, Skype for Business.” However, as discussed
above, viewed in the light most favorable to plaintiff, the evidence supports an inference
that plaintiff’s job of “Head Solutions, Sales, Skype for Business” was broken up, with
some of her job duties being transferred to De Los Reyes, who took over management of
the Skype for Business team.
We also note that all of defendant’s criticism regarding plaintiff’s evidence
on this point goes to the weight of the evidence, not to its admissibility. And while
“‘“‘uncorroborated and self-serving declarations’”’” of an employee-plaintiff are
insufficient to create a triable issue of fact in this context, plaintiff’s evidence on this
point cannot be so characterized. (Taylor v. Financial Casualty & Surety, Inc. (2021) 67
Cal.App.5th 966, 994.) Accordingly, we conclude plaintiff produced substantial
evidence supporting an inference that she was replaced by a younger man.
4. Plaintiff’s Performance
Defendant next criticizes the trial court’s reference to plaintiff’s evidence of
good performance at work. Defendant argues plaintiff’s claim in her declaration that she
9
was paid a bonus every quarter for meeting her goals was false, and the trial court’s
citation to only that paragraph of her declaration demonstrates there was, in fact, no
evidence plaintiff performed well at the company. But our review on this point is de
novo, and we are not confined to the single item of evidence cited by the trial court.
Instead, we look to the evidence itself, viewed in the light most favorable to plaintiff, to
determine if plaintiff created a triable issue of fact on this point.
The record is replete with evidence of plaintiff’s good performance at work.
Plaintiff’s opposition to defendant’s summary judgment motion included declarations
from six different employees, all attesting to plaintiff’s professionalism and model
behavior.
For example, one declarant wrote: “I never heard a single complaint about
Plaintiff’s behavior. She always communicated effectively and supported those
employees she worked with at [defendant]. I recognized Plaintiff’s capacity as a great
leader and knowledgeable in her industry, as I came from the same space and could
recognize her talents. Her sales ability was excellent, and she was a closer. She could
carry the deal from pre-sales to post-sales, she knew it all, and her reputation carried
much weight with clients. Plaintiff’s behavior and performance were exemplary and
always professional. . . . She maintained herself at every moment. She was highly
regarded as a great example of a corporate executive and elevated the professionalism at
[defendant].”
Another wrote: “I never heard a single complaint about Plaintiff while
working at [defendant]. Plaintiff was a talented professional and a great team leader.
Her team always praised Plaintiff’s hard work for [defendant] and how much they liked
working for such a supportive manager. Plaintiff also had in-depth knowledge about the
UC practice and [was] an excellent source for her team.”
Another: “Plaintiff had excellent work ethics. She was always very
professional and was a great resource and talent for [defendant]. I never heard about any
10
problems or complaints regarding her performance or leadership skills, she was a great
professional, and people enjoyed working with her.”
Another: “Plaintiff was a great employee at [defendant], a great coworker,
and an example to follow.
Another: “Plaintiff worked all hours of the day, she traveled endlessly, and
her task load was insane. Her value to the business unit was exceptional. I think she
worked more than anyone I can remember. She was a consummate professional and
worked to the bone. I never heard anything negative about how she treated anyone,
including her team. She made time for everyone and got back to us in a timely fashion.
She was extremely knowledgeable and an excellent resource. She traveled 99% of the
time, and no one wanted to cover her job duties due to the travel and demands.”
Still another: “I am unaware of any unacceptable behavior by Plaintiff
which would have led to her termination. Plaintiff was always a professional. I never
heard about any issue with her work performance or leadership. She was always
responsive and did an outstanding job.”
Of course, the record also contains several declarations attesting to
plaintiff’s poor performance at work, proffered by defendant. However, the existence of
this contrary evidence only serves to create a triable issue of fact.
Defendant further contends plaintiff’s completion of quarterly goals is
irrelevant to a showing of discriminatory intent because defendant “did not take either
employment action [the demotion or subsequent firing] because [plaintiff] failed to meet
any quarterly goals.” This misses the point. Defendant claims it demoted and then fired
plaintiff because of her poor performance, particularly in terms of managing her team. In
response, plaintiff produced evidence that she was a good manager and well-liked by her
team. Plaintiff’s evidence, if accepted, would tend to show defendant’s stated rationale
was pretextual. The trial court’s consideration of this factor was proper.
11
5. Cochran’s Comments
As described above, at an after-work event, Jason Cochran, defendant’s
director of technical services, stated that defendant is a “guy’s club,” and that plaintiff
was “never going to make it” at the company, and called her a “bitch.” The trial court, in
granting the motion for a new trial, relied in part on these statements, and overruled
defendant’s objections thereto. Defendant argues that the statements by Cochran are
inadmissible hearsay, and therefore do not support an inference of discriminatory
motives. We agree that one of the three statements was inadmissible hearsay and should
have been excluded but conclude the trial court did not abuse its discretion in admitting
the other two statements into evidence, and properly relied upon them as support for a
potential inference of discriminatory motives.
“‘Hearsay evidence’ is evidence of a statement that was made other than by
a witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) In other words, “a hearsay statement is one in
which a person makes a factual assertion out of court and the proponent seeks to rely on
the statement to prove that assertion is true” (People v. Sanchez (2016) 63 Cal.4th 670,
665, 674.)
We begin by considering whether each of the three statements is hearsay.
The first statement, that defendant is a “guy’s club,” is indisputably hearsay. Plaintiff is
offering the statement to show that defendant’s workplace is hostile to her because she is
a woman. The second statement, that plaintiff was “never going to make it,” is also
hearsay, as it is being offered to show defendant was discriminating against plaintiff.
However, the third statement, wherein Cochran called plaintiff a “bitch,” is not hearsay.
It is not being offered to prove the truth of the matter stated but is instead offered as
evidence of animus against plaintiff. The third statement, not being hearsay, was
properly admitted.
12
Next, we consider whether the two hearsay statements fell within a hearsay
exception. The only likely candidate is the authorized admissions exception, Evidence
Code section 1222. “Evidence of a statement offered against a party is not made
inadmissible by the hearsay rule if: [¶] (a) The statement was made by a person
authorized by the party to make a statement or statements for him concerning the subject
matter of the statement; and [¶] (b) The evidence is offered either after admission of
evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to
the order of proof, subject to the admission of such evidence.” (Ibid.) Defendant argues
plaintiff failed to establish that Cochran was authorized to speak for defendant on these
issues, pointing out that Cochran was not the decisionmaker as to plaintiff’s demotion or
termination.
As discussed above, we apply the abuse of discretion standard to this issue.
Under that standard, “[W]e defer to the trial court’s factual findings so long as they are
supported by substantial evidence, and determine whether, under those facts, the court
abused its discretion. If there is no evidence to support the court’s findings, then an
abuse of discretion has occurred.” (Tire Distributors, Inc. v. Cobrae (2005) 132
Cal.App.4th 538, 544.)
In Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, several internal e-
mails related to the plaintiff’s employment were held to be inadmissible hearsay because
the authors of those e-mails were not authorized to speak on the subject matter. (Id. at
pp. 616-617.) The court explained the applicable rule: “‘“‘“[W]hatever is said by an
agent, either in the making of a contract for his principal, or at the time, and
accompanying the performance of any act, within the scope of his authority, . . . of the
particular contract or transaction in which he is engaged, is, in legal effect, said by his
principal, and admissible as evidence . . . .”’”’” (Id. at p. 612.) It elaborated, “[W]hen
based on job title alone, [the adoptive admission exception] applies only to high-ranking
organizational agents.” (Id. at p. 613.)
13
It is undisputed that Cochran was not responsible for managing plaintiff
and was not her supervisor. Thus, there is no evidence that Cochran’s job duties were
related to plaintiff’s and the subject matter of her job performance did not fall within the
scope of his employment or authority. While his position was relatively high on the
corporate ladder, there is no evidence of any relationship between his position and
plaintiff’s, which calls into question Cochran’s authority to speak for defendant about
plaintiff’s job performance or prospects.
However, Cochran’s high position in the corporate hierarchy and
defendant’s characterization of him in its motion and supporting evidence as “leadership”
are substantial evidence of his authority to speak, in general terms, about defendant’s
company culture. Thus, as to Cochran’s statement that defendant is a “guy’s club,” we
conclude the trial court did not abuse its discretion by overruling defendant’s objection
and admitting that statement into evidence.
Defendant cites two cases as contrary authority: Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52 (Morgan), and O’Neill v. Novartis
Consumer Health, Inc. (2007) 147 Cal.App.4th 1388 (O’Neill). Morgan involved
statements specifically about the plaintiff’s personnel matters by an administrator and
two personnel analysts. (Morgan, supra, at pp. 70-71.) We conclude Morgan says little
that is relevant to the admissibility of the “guy’s club” statement.
In O’Neill, the Court of Appeal affirmed the trial court’s exclusion of
certain meeting minutes, signed by the defendant’s director of regulatory affairs.
(O’Neill, supra, 147 Cal.App.4th at pp. 1402-1403.) The court concluded the employee’s
title alone was insufficient to show his authority to speak on behalf of the company. (Id.
at p. 1403.) O’Neill is both procedurally and factually distinguishable. Procedurally, in
O’Neill, the Court of Appeal was reviewing the trial court’s exclusion of evidence at trial.
Thus, the deferential abuse-of-discretion standard of review applicable to evidentiary
rulings cut in favor of exclusion in that case, while it cuts in favor of admission here.
14
Factually, in O’Neill, the only evidence of authority was the employee’s job title. Here,
defendant’s papers also admit the employee was “leadership,” which is a significant
factor in determining authority. Moreover, O’Neill involved a statement addressing a
very technical matter relating to the safety of certain medication manufactured by the
defendant (id. at p. 1393), while the present case involves a much more general
description of the company’s culture. One would expect authority for the former type of
statement to be tightly constrained to those with relevant technical expertise, while the
latter type of statement would ordinarily be within the general authority of most
executive leadership in a typical organization.
Lastly, defendant is only entitled to raise evidentiary issues it properly
preserved for appeal by objecting. (Evid. Code, § 353.) Plaintiff submitted two separate
declarations describing Cochran’s comments, one in connection with her opposition to
defendant’s motion for summary judgment, and another in connection with her motion
for new trial. Defendant submitted written objections to both declarations, but only
objected to plaintiff’s description of Cochran’s comments in her second declaration, not
in her declaration in opposition to the summary judgment motion. Thus, defendant
waived its objection to Cochran’s comments in the context of the summary judgment
motion. Even if the trial court had sustained defendant’s objection to plaintiff’s second
declaration, the same evidence would still have been before the court through plaintiff’s
first declaration.
Accordingly, we conclude the trial court properly considered and relied
upon Cochran’s three comments in considering the motion for new trial.
6. The Timing of Complaints About Plaintiff
Lastly, defendant argues the trial court’s reliance on “the arguable temporal
connection between [plaintiff’s] demotion and her asserted complaints about
discriminatory culture,” to find a triable issue of fact regarding discriminatory motives
15
was erroneous. Defendant contends its evidence of legitimate, nondiscriminatory reasons
for plaintiff’s demotion and firing renders the timing irrelevant. Defendant quotes
Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327: “[T]emporal proximity alone is not
sufficient to raise a triable issue as to pretext once the employer has offered evidence of a
legitimate, nondiscriminatory reason for the termination.” (Id. at p. 353.)
We take no issue with this assertion as a general statement of the law. But
considering our rejection of defendant’s other arguments regarding plaintiff’s other
evidence of discriminatory motives, we are far from a situation where plaintiff is relying
on “temporal proximity alone” to create a triable issue of fact.
7. Light and Aggregating the Evidence
Under Light, the trial court here could not grant summary judgment, and
could properly have granted plaintiff a new trial if the evidence could “‘“support[] a
reasoned inference that the challenged action was the product of discriminatory or
retaliatory animus.”’” (Light, supra, 14 Cal.App.5th at p. 94.) As discussed above, other
than our conclusion that the trial court should have excluded Cochran’s statement that
plaintiff would “never make it” working for defendant, we reject defendant’s arguments
regarding the insufficiency of the individual factors relied upon by the trial court to
conclude this showing had been made, and that any increased burden should have been
imposed by virtue of the same actor inference.
We conclude the evidence, in the aggregate, is sufficient to support a
reasoned inference that plaintiff’s demotion or firing was the result of discriminatory or
retaliatory animus. Viewed in the light most favorable to plaintiff, we are persuaded
plaintiff’s evidence that she was replaced by a younger man, had been performing well at
the company, was told defendant was a “guy’s club,” was called a “bitch” by a member
of defendant’s leadership team, was demoted and then fired within a relatively short span
of time after complaining about defendant’s allegedly discriminatory culture is enough
16
that a jury could reasonably conclude defendant was motivated not by its stated reasons,
but by discriminatory or retaliatory animus. That conclusion compels us to affirm the
court’s order vacating its prior judgment and granting plaintiff a new trial.
DISPOSITION
The order is affirmed. Plaintiff Jane Doe shall recover her costs on appeal.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J.
17
Filed 11/8/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
JANE DOE,
Plaintiff and Respondent, G060554
v. (Super. Ct. No. 30-2019-01045961)
SOFTWARE ONE, INC., ORDER
Defendant and Appellant.
Timothy M. Kowal Esq. from Thomas Vogele & Associates has requested
that our opinion filed on October 12, 2022, be certified for publication. It appears that
our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c).
The request is GRANTED.
The opinion is ordered published in the Official Reports.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
GOETHALS, J. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482199/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED NOVEMBER 4, 2022
NO. 03-22-00189-CV
S. W., Appellant
v.
Texas Department of Family and Protective Services, Appellee
APPEAL FROM THE 20TH DISTRICT COURT OF MILAM COUNTY
BEFORE CHIEF JUSTICE BYRNE, JUSTICES TRIANA AND SMITH
MODIFIED AND, AS MODIFIED, AFFIRMED ON MOTION FOR REHEARING
OPINION BY CHIEF JUSTICE BYRNE
This is an appeal from the order signed by the trial court on April 7, 2022. The Court’s opinion
and judgment dated August 31, 2022, are withdrawn. Having reviewed the record and the
parties’ arguments, the Court holds that there was no reversible error in the trial court’s order but
that there was error requiring correction. Therefore, we modify the trial court’s order and affirm
the judgment as modified. Because appellant is indigent and unable to pay costs, no adjudication
of costs is made. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482201/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED NOVEMBER 4, 2022
NO. 03-21-00109-CV
Darrell Williams, in his Capacity as Trustee; as Independent Executor of the Estate of
Thea Elaine Williams-Douglas; and Individually, Appellant
v.
Marcia Williams, as Agent for Amira Elaine Douglas, Appellee
APPEAL FROM PROBATE COURT NO. 1 OF TRAVIS COUNTY
BEFORE JUSTICES GOODWIN, BAKER, AND SMITH
REVERSED AND REMANDED -- OPINION BY JUSTICE GOODWIN
This is an appeal from the judgment signed by the trial court on November 23, 2020. Having
reviewed the record and the parties’ arguments, the Court holds that there was reversible error in
the court’s judgment. Therefore, the Court reverses the trial court’s judgment and remands the
case to the trial court for further proceedings consistent with the Court’s opinion. The appellee
shall pay all costs relating to this appeal, both in this Court and in the court below. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482203/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED NOVEMBER 4, 2022
NO. 03-22-00270-CV
Amanda L. Estrada, Appellant
v.
Jessica Hellums and Tyler McClintock, Appellees
APPEAL FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
BEFORE JUSTICES GOODWIN, BAKER, AND KELLY
DISMISSED FOR WANT OF PROSECUTION -- OPINION BY JUSTICE KELLY
This is an appeal from the judgment signed by the trial court on April 14, 2022. Having
reviewed the record, the Court holds that appellant has not prosecuted her appeal and did not
comply with a notice from the Clerk of this Court. Therefore, the Court dismisses the appeal for
want of prosecution. Because appellant is indigent and unable to pay costs, no adjudication of
costs is made. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482208/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED NOVEMBER 3, 2022
NO. 03-21-00305-CV
Dianne Hensley, Appellant
v.
State Commission on Judicial Conduct; David Schenck, in his official capacity as Chair of
the State Commission on Judicial Conduct; Janis Hold, in her official capacity as
Vice-Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his official
capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,
David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick
Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their
official capacities as Members of the State Commission on Judicial Conduct, Appellees
APPEAL FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
BEFORE JUSTICES GOODWIN, BAKER, AND SMITH
AFFIRMED -- OPINION BY JUSTICE BAKER
CONCURRING OPINION BY JUSTICE GOODWIN
This is an appeal from the order signed by the trial court on June 25, 2021. Having reviewed the
record and the parties’ arguments, the Court holds that there was no reversible error in the order.
Therefore, the Court affirms the trial court’s order. Appellant shall pay all costs relating to this
appeal, both in this Court and in the court below. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482210/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00626-CV
A. S. and P. S., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-20-000252, THE HONORABLE CLEVE WESTON DOTY, JUDGE PRESIDING
ORDER
PER CURIAM
Appellant A. S. and P. S. filed their notices of appeal on October 3, 2022 and
October 5, 2022 respectively. The appellate record was complete on October 13, 2022, making
appellants’ briefs due on November 3, 2022. On October 25, 2022 and October 27, 2022,
counsel for appellants filed motions for extension of time to file appellants’ briefs.
The rules of judicial administration accelerate the final disposition of appeals
from suits for termination of parental rights. See Tex. R. Jud. Admin. 6.2(a) (providing 180 days
for court’s final disposition). The accelerated schedule constrains this Court’s leeway in granting
extensions. In this instance, we will grant the motions and order Karen J. Langsley and Colin
Gaffney to file appellants’ briefs no later than November 17, 2022. If the briefs are not filed by
that date, counsel may be required to show cause why they should not be held in contempt
of court.
It is ordered on November 2, 2022.
Before Chief Justice Byrne, Justices Triana and Smith
2 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482207/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00305-CV
Dianne Hensley, Appellant
v.
State Commission on Judicial Conduct; David Schenck, in his official capacity as Chair of
the State Commission on Judicial Conduct; Janis Hold, in her official capacity as
Vice-Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his official
capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,
David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick
Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their
official capacities as Members of the State Commission on Judicial Conduct, Appellees1
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-20-003926, THE HONORABLE JAN SOIFER, JUDGE PRESIDING
MEMORANDUM OPINION
Dianne Hensley appeals from the trial court’s order dismissing her suit against the
State Commission on Judicial Conduct (the Commission) and David Schenck, in his official
capacity as Chair of the State Commission on Judicial Conduct; Janis Hold, in her official
capacity as Vice-Chair of the State Commission on Judicial Conduct; Frederick C. Tate, in his
official capacity as Secretary of the State Commission on Judicial Conduct; and David C. Hall,
David M. Petronella, Sujeeth B. Draksharam, Ronald E. Bunch, Valerie Ertz, M. Patrick
Maguire, Clifton Roberson, Lucy M. Hebron, Gary L. Steel, and Katy P. Ward, in their official
1
Pursuant to Rule 7.2 of the Texas Rules of Appellate Procedure, the current officers
and members of the State Commission on Judicial Conduct have been automatically substituted
for its former officers and members.
capacities as Members of the State Commission on Judicial Conduct (collectively “the
Officials”). Hensley brought claims against the Commission and the Officials alleging that
they violated the Texas Religious Freedom Restoration Act, see Tex. Civ. Prac. & Rem. Code
§ 110.005 (the TRFRA), and acted ultra vires regarding the Commission’s disciplinary action
against her. Hensley also sought declaratory relief under the Texas Uniform Declaratory
Judgments Act. See id. §§ 37.001-.011 (the UDJA). On the Commission’s and the Officials’
plea to the jurisdiction and, in the alternative, plea in estoppel, the trial court dismissed Hensley’s
claims, concluding that (1) Hensley failed to exercise her exclusive statutory remedy for issues
related to the disciplinary proceeding; (2) Hensley failed to comply with jurisdictional statutory
notice requirements governing her claims under the TRFRA; (3) sovereign immunity barred her
claims; (4) her claims were barred by statutory immunity under Texas Government Code section
33.006, see Tex. Gov’t Code § 33.006; (5) her claims were not ripe; (6) her claims sought
impermissible advisory opinions; and (6) her claims were barred by the doctrine of res judicata.
We will affirm.
BACKGROUND
Hensley is a justice of the peace in Waco, Texas. After a Waco newspaper
published an article about Hensley, which included an interview with her, the Commission sent
Hensley a letter of inquiry asking her to respond to written questions. The Commission’s
questions inquired into Hensley’s policy, from the time she assumed the bench until the date of
the inquiry, regarding performing wedding ceremonies for same-sex couples. The Commission
also asked Hensley to confirm whether the Waco newspaper article, which was titled “No
courthouse weddings in Waco for same-sex couples, 2 years after Supreme Court ruling” and
2
included quotes attributed to Hensley regarding the issue of performing same-sex marriages,
accurately and fairly represented her statements to the media on that issue. The Commission also
asked Hensley to discuss whether, in her opinion, refusing requests to perform same-sex
marriages but continuing to perform marriage ceremonies for heterosexual couples violated
Canons 2(A), 3B(5), or 3B(6) of the Texas Code of Judicial Conduct. In her June 20, 2018
response, Hensley included contentions that her conduct was protected by the TRFRA.
In January 2019, the Commission wrote Hensley and identified two alleged
violations of the Texas Code of Judicial Conduct and one alleged violation of the Texas
Constitution’s restrictions on judicial conduct. An attached unsigned “tentative Public Warning”
identified (1) an alleged violation of Canon 3B(6), which prohibits bias and prejudice in
the performance of judicial duties; (2) an alleged violation of Canon 4A(1), which prohibits
conduct in extra-judicial activities that would cast reasonable doubt on the judge’s capacity
to act impartially; and (3) an alleged violation of Article V, Section 1-a(6)(A) of the Texas
Constitution, which prohibits “willful or persistent conduct that is clearly inconsistent with the
proper performance of [the judge’s] duties or casts public discredit upon the judiciary or
administration of justice.” The Commission gave Hensley the option of either accepting the
tentative Public Warning or appearing before the Commission for a hearing. Hensley elected to
appear for a hearing, and the tentative Public Warning never became effective and remained
confidential by statute.2
At an August 2019 hearing before the Commission, Hensley appeared and was
represented by three attorneys. Hensley testified under oath to the Commission’s questions.
2
The tentative Public Warning was not made public before the conclusion of the
Commission’s disciplinary proceedings and only became public when Hensley attached a copy
of it as an exhibit to her pleadings in the underlying trial court proceedings.
3
Hensley argued that her conduct was protected by the TRFRA and disputed that her conduct
constituted a violation of the Texas Constitution or of Canons 3B(6) or 4A(1). She also asserted
that she was protected from discipline by Article 1, Section 8 of the Texas Constitution. See
Tex. Const. art 1, § 8 (providing that “[e]very person shall be at liberty to speak, write or publish
his opinions on any subject” and that “no law shall ever be passed curtailing the liberty of speech
or of the press”). After the hearing, the Commission issued a Public Warning on November 12,
2019. The Public Warning included the following findings of fact:
1. At all times relevant hereto, the Honorable Dianne Hensley was Justice of the
Peace for Precinct 1, Place 1, in Waco, McLennan County, Texas.
2. On June 24, 2017, the Waco Tribune newspaper published an article on their
website entitled No Courthouse Weddings in Waco for Same-sex Couples, 2 Years
After Supreme Court Ruling which reported that Justice of the Peace Dianne
Hensley “would only do a wedding between a man and a woman.”
3. From August 1, 2016, to the present, Judge Hensley has performed opposite-
sex weddings for couples, but has declined to perform same-sex wedding
ceremonies.
4. Beginning on about August 1, 2016, Judge Hensley and her court staff began
giving all same-sex couples wishing to be married by Judge Hensley a document
which stated “I’m sorry, but Judge Hensley has a sincerely held religious belief
as a Christian, and will not be able to perform any same sex weddings.” The
document contained a list of local persons who would officiate a same-sex
wedding.
5. Judge Hensley told the Waco-Tribune, the public and the Commission that her
conscience and religion prohibited her from officiating same-sex weddings.
6. At her appearance before the Commission, Judge Hensley testified that she
would recuse herself from a case in which a party doubted her impartiality on the
basis that she publicly refuses to perform same-sex weddings.
Based on the record before it and these findings, the Commission determined that Hensley should
“be publicly warned for casting doubt on her capacity to act impartially to persons appearing
4
before her as a judge due to the person’s sexual orientation in violation of Canon 4A(1) of the
Texas Code of Judicial Conduct.”
The Public Warning was sent to Hensley’s counsel on November 14, 2019, after
which Hensley had 30 days to file an appeal. See Tex. Gov’t Code § 33.034(a) (judge who
receives sanction or censure by Commission entitled to review of Commission’s decision);
(b) (judge must file written request for appointment of special court of review with chief justice
of supreme court not later than 30th day after date on which Commission issues its decision);
(e) (providing for review by trial de novo as that term is used in appeal of cases from justice
to county court). Hensley did not file an appeal. Instead, she filed the underlying suit in
December 2019.3
In her petition, Hensley asserted that the Commission violated her rights under
the TRFRA by punishing her for “recusing herself from officiating at same-sex weddings, in
accordance with the commands of her Christian faith.” Hensley asserted that “the Commission’s
investigation and punishment” of her for “acting in accordance with the commands of her
Christian faith” substantially burdened her free exercise of religion. Hensley also asserted that
“the Commission’s threat to impose further discipline on Judge Hensley if she persists in
recusing herself from officiating at same-sex weddings” also substantially burdens her free
exercise of religion. Hensley alleged that “the Commission’s investigation and punishment” of
her and “its threat to impose further discipline” on her “if she persists in recusing herself from
officiating at same-sex weddings” further no compelling governmental interest. Hensley
asserted that the Commission’s determination that her actions violated Canon 4A(1) because they
3
The underlying suit was originally filed in McLennan County but, after a contested
hearing, venue was transferred to Travis County District Court.
5
cast reasonable doubt on her capacity to act impartially as a judge was erroneous because, she
contends, “disapproval of an individual’s behavior does not evince bias toward that individual as
a person when they appear in court.” Hensley described the Commission’s determination as
“absurd” because, according to her, the Commission “equate[d] a judge’s publicly stated
opposition to an individual’s behavior as casting doubt on the judge’s impartiality toward
litigants who engage in that conduct.” She asserted that under this reasoning, “no judge who
publicly opposes murder or rape could be regarded as impartial when an accused murderer or
rapist appears in his court.” Hensley alleged that, pursuant to the TRFRA, she was entitled to
declaratory and injunctive relief, compensatory damages, and attorneys’ fees. See Tex. Civ.
Prac. & Rem. Code § 110.005 (person who successfully asserts claim or defense under TRFRA
entitled to declaratory relief under UDJA, injunctive relief, compensatory damages, and
reasonable attorneys’ fees).
Hensley sought additional declaratory relief under the UDJA. Specifically,
Hensley sought declarations that (1) a judge does not violate Canon 4A by merely expressing
disapproval of homosexual behavior or same-sex marriage or by belonging to or supporting a
church or charitable organization that opposes homosexual behavior or same-sex marriage
(Declaration 1); (2) the officiating of weddings is not a “judicial duty” under Canon 3B(6)
(Declaration 2); (3) Hensley’s decision to recuse herself from officiating at same-sex weddings
does not constitute “willful or persistent conduct clearly inconsistent with the proper
performance of [a judge’s] duties or casts public discredit upon the judiciary or administration of
justice” such that it violates article V, section 1-a(6)(A) of the Texas Constitution (Declaration
3); and (4) the Commission’s interpretation of Canon 4A violates article I, section 8 of the Texas
6
Constitution (Declaration 4). Hensley also sought this declaratory relief against the Officials
based on her assertion that they had acted ultra vires.
The Commission and the Officials filed a plea to the jurisdiction and, in the
alternative, a plea in estoppel. They argued that Hensley’s claims should be dismissed for lack
of jurisdiction because she failed to utilize the exclusive statutory review process provided by the
Legislature to challenge the Commission’s determination to issue the Public Warning. They also
asserted that sovereign immunity bars Hensley’s claims brought under the TRFRA because she
failed to comply with the TRFRA’s statutory notice requirements. The Commission and the
Officials argued further that sovereign immunity bars Hensley’s UDJA claims and that she failed
to plead any ultra vires conduct by the Officials. They also maintained that, to the extent
Hensley seeks declarations about her potential future conduct, the court lacks jurisdiction
because those issues are not ripe for adjudication and Hensley is seeking impermissible
advisory opinions. In the alternative, the Commission and the Officials asserted that Hensley’s
claims should be dismissed because they are barred by the doctrines of res judicata and
collateral estoppel.
After an evidentiary hearing, the trial court granted the plea to the jurisdiction,
concluding that the court lacked jurisdiction over Hensley’s claims concerning issues pertinent to
her disciplinary proceeding because she failed to exercise her exclusive statutory remedy. The
trial court concluded that it lacked jurisdiction over Hensley’s claims under the TRFRA because
she failed to strictly comply with jurisdictional statutory notice requirements. The trial court also
concluded that Hensley’s claims were barred by sovereign immunity and statutory immunity
under section 33.006 of the Texas Government Code, were not ripe for adjudication and sought
7
impermissible advisory opinions, and were barred by the doctrine of res judicata. Hensley then
perfected this appeal.
DISCUSSION
Standard of Review
A plea to the jurisdiction is a procedural mechanism “through which a party
may challenge a trial court’s authority to decide the subject matter” of a claim. Texas Dep’t of
State Health Servs. v. Balquinta, 429 S.W.3d 726, 737 (Tex. App.—Austin 2014, pet. dism’d).
Because whether a court has subject-matter jurisdiction is a question of law, we review de novo
a trial court’s ruling on a plea to the jurisdiction. Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225 (Tex. 2004).
A plea to the jurisdiction may challenge whether the plaintiff has alleged facts
that affirmatively demonstrate a court’s jurisdiction to hear the case, the existence of those
jurisdictional facts, or both. Texas Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021).
When the jurisdictional plea challenges the pleadings, we determine whether the plaintiff’s
pleadings allege facts affirmatively demonstrating subject-matter jurisdiction. Miranda,
133 S.W.3d at 226. In making this assessment, we construe the plaintiff’s pleadings liberally,
taking all assertions as true, and look to the pleader’s intent. Texas Dep’t of Crim. Justice v.
Rangel, 595 S.W.3d 198, 205 (Tex. 2020). Allegations found in pleadings may affirmatively
demonstrate or negate the court’s jurisdiction. City of Waco v. Kirwan, 298 S.W.3d 618, 622
(Tex. 2009). If the pleadings affirmatively negate the existence of jurisdiction, the plea may be
granted without affording the plaintiff an opportunity to replead. Miranda, 133 S.W.3d at 226.
8
When the plea challenges the existence of jurisdictional facts, we must move
beyond the pleadings and consider evidence when necessary to resolve the jurisdictional issues.
Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); Bland Indep. Sch.
Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). When those challenged jurisdictional facts
also implicate the merits of the plaintiff’s claim, as in this case, the plaintiff’s burden mirrors that
of a traditional motion for summary judgment. Lara, 625 S.W.3d at 46 (quoting Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)). Consequently, we review the
relevant evidence in the light most favorable to the plaintiff to determine whether a genuine issue
of material fact exists. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019)
(citing Miranda, 133 S.W.3d at 226). If the evidence creates a fact issue regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue
will be resolved by the fact finder. Miranda, 133 S.W.3d at 227-28. But if the relevant evidence
is undisputed or does not raise a fact question on jurisdiction, we rule on the plea as a matter of
law. See id. at 228.
The State Commission on Judicial Conduct is a constitutionally created agency
composed of judges, attorneys, and citizens from the State of Texas. See Tex. Const. art. V,
§ 1-a(2); Tex. Gov’t Code § 33.002(a-1) (“The commission is an agency of the judicial branch of
state government and administers judicial discipline.”). As a state agency, the Commission is
entitled to sovereign immunity. See Miranda, 133 S.W.3d at 224; Hagstette v. State Comm’n on
Jud. Conduct, No. 01-19-00208-CV, 2020 WL 7349502, at *4 (Tex. App.—Houston [1st Dist.]
Dec. 15, 2020, no pet.) (mem. op.); see also Tex. Gov’t Code § 33.006 (providing that
commission and its members are immune from liability for acts or omissions committed by
person within scope of person’s official duties). When a governmental entity challenges
9
jurisdiction on immunity grounds, the plaintiff’s burden of affirmatively demonstrating
jurisdiction includes establishing a waiver of immunity. Swanson, 590 S.W.3d at 550.
TRFRA Claims
We first consider whether the trial court erred by dismissing Hensley’s TRFRA
claims that relate to the Commission’s investigation and determination, after conducting a
hearing, to issue a Public Reprimand. Hensley’s claims reduce to two complaints. First, she
contends that the Commission’s investigating and issuing a Public Reprimand were improper
because they violated her rights under the TRFRA. Second, she takes issue with the
Commission’s determination that her conduct did in fact violate Canon 4A. Both these
complaints challenge an agency’s determination after a hearing. With regard to Hensley’s
complaint that the Commission’s investigation and decision to issue a Public Warning violated
her rights under the TRFRA, we note that Hensley could have, and did, raise this as a defense to
the Commission’s action. See Tex. Civ. Prac. & Rem. Code § 110.004 (“A person whose free
exercise of religion has been substantially burdened in violation of Section 110.003 or 110.0031
may assert that violation as a defense in a judicial or administrative proceeding without regard
to whether the proceeding is brought in the name of the state or by another person.”). By
issuing the Public Warning in the face of this asserted defense, the Commission implicitly found
that its investigation and subsequent Public Warning did not substantially burden Hensley’s
free exercise of religion. Similarly, regarding whether her conduct violated Canon 4A, the
Commission determined that it did. Rather than pursue an appeal of the Commission’s
determination—the avenue established by the Legislature to obtain review of Commission
decisions and set forth in Texas Government Code section 33.034—Hensley filed a proceeding
10
in district court asserting the same argument she presented to the Commission and requesting
that the district court declare that the Commission was incorrect in its determinations that
(1) Hensley’s conduct violated the Code of Judicial Conduct and (2) that its investigation and
public reprimand did not substantially burden her free exercise of religion so as to violate the
TRFRA. The trial court correctly dismissed this impermissible collateral attack on the
Commission’s order. See Chocolate Bayou Water Co. & Sand Supply v. Texas Nat. Res.
Conservation Comm’n, 124 S.W.3d 844, 853 (Tex. App.—Austin 2003, pet. denied) (“Collateral
attacks upon an agency order may be maintained successfully on one ground alone—that the
order is void.”); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (“A collateral
attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the
purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific
relief which the judgment stands as a bar against.”).
Also pursuant to the TRFRA, Hensley sought injunctive relief “that will prevent
the Commission and its members from investigating or sanctioning judges or justices of the
peace who recuse themselves from officiating at same-sex weddings on account of their sincere
religious beliefs.” This injunctive relief is not available to Hensley under the TRFRA. The
statute provides that a person who successfully asserts a claim or defense under the TRFRA is
entitled to injunctive relief to prevent the threatened or continued violation. See Tex. Civ. Prac.
& Rem. Code § 110.005(a)(2). In this case, the trial court properly dismissed Hensley’s claims
brought under the TRFRA and, consequently, she has not successfully asserted a claim under
that statute that would entitle her to injunctive relief.
The trial court also properly dismissed Hensley’s claims for relief under the
TRFRA that were based on her allegations that the Commission violated her right to religious
11
freedom by “threatening to impose further discipline if she persists in recusing herself from
officiating at same-sex weddings.” The undisputed evidence, presented at the evidentiary
hearing through the testimony of the Commission’s Executive Director, was that, since issuing
the Public Warning, the Commission has not initiated any new investigation of Hensley, has not
initiated any new disciplinary proceeding involving Hensley, and has not communicated to
Hensley any threat that any new investigation or disciplinary proceeding is planned or imminent.
Because the evidence establishes that the Commission has in fact not threatened further
disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the
TRFRA waives the Commission’s immunity for her claim that threats of further discipline
by the Commission have burdened her free exercise of religion. See id. §§ 111.005 (person
who successfully asserts claim under TRFRA entitled to declaratory and injunctive relief),
.008(a) (providing that sovereign immunity to suit is waived to extent of liability created by
section 110.005).
UDJA Claims
In addition to the declarations she requested pursuant to the TRFRA, Hensley also
sought Declarations 1, 2, 3, and 4 under the UDJA. The trial court dismissed these claims for
lack of jurisdiction on several grounds, including that they were barred by sovereign immunity.
Because it is dispositive, we first consider whether the trial court correctly concluded that
Hensley’s UDJA claims were barred by sovereign immunity. The UDJA provides that “[a]
person . . . whose rights, status, or other legal relations are affected by a statute . . . may have
determined any question of construction or validity arising under the . . . statute . . . and may
obtain a declaration of rights, status, or other legal relations thereunder.” Id. § 37.004(a). The
12
Texas Supreme Court has explained that “the UDJA does not enlarge the trial court’s jurisdiction
but is ‘merely a procedural device for deciding cases already within a court’s jurisdiction.’”
Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 621-22 (Tex. 2011) (per curiam) (quoting
Texas Parks & Wildlife Dep’t v. Sawyer Tr., 354 S.W.3d 384, 388 (Tex. 2011)). Accordingly,
the UDJA “is not a general waiver of sovereign immunity.” Sawyer Tr., 354 S.W.3d at 388.
Instead, the UDJA only “waives sovereign immunity in particular cases.” Sefzik, 355 S.W.3d
at 622. “For example, the state may be a proper party to a declaratory judgment action that
challenges the validity of a statute.” Id. However, “the UDJA does not waive the state’s
sovereign immunity when the plaintiff seeks a declaration of his or her rights under a statute or
other law.” Id. at 621. On appeal, Hensley does not challenge the trial court’s dismissal of her
request for Declarations 1, 2, or 3. Instead, she asserts only that the UDJA waives sovereign
immunity for her request for Declaration 4 that “the Commission’s interpretation of Canon 4A
violates article 1, section 8 of the Texas Constitution.” Hensley maintains that this constitutes a
challenge to the validity of Canon 4A for which the UDJA provides a waiver of immunity. See
Town of Shady Shores, 590 S.W.3d at 552 (holding that UDJA provides “only limited waiver for
challenges to the validity of an ordinance or statute”). Hensley asserts that, although Canon 4A
is not a statute, supreme court precedent in Patel v. Texas Department of Licensing &
Regulation, 469 S.W.3d 69 (Tex. 2015), supports the conclusion that the UDJA waives sovereign
immunity for a claim challenging a Canon of the Code of Judicial Conduct. Hensley asserts that
“Patel holds that the UDJA allows litigants to sue government entities when challenging the
validity of agency regulations, even though agency rules are not mentioned in section 37.006(b)”
and that “there is no basis for excluding claims that challenge the validity of a judicial canon
from the UDJA’s waiver of immunity.”
13
In Patel, in the context of evaluating whether the plaintiffs had alleged an ultra
vires claim, the court held that “because the [plaintiffs] challenge the validity of the cosmetology
statutes and regulations, rather than complaining that officials illegally acted or failed to act, the
ultra vires exception does not apply.” Id. at 77. We do not believe that this constitutes a holding
that the UDJA waives immunity for challenges to agency regulations. In fact, challenges to
agency rules and regulations are properly brought as a rule challenge under Texas Government
Code section 2001.038, and courts routinely dismiss challenges to agency rules brought under
the UDJA instead of under section 2001.038. See Tex. Gov’t Code § 2001.038 (validity or
applicability of rule may be determined in action for declaratory judgment under Administrative
Procedure Act); see also Patel, 469 S.W.3d at 78 (stating that “[u]nder the redundant remedies
doctrine, courts will not entertain an action brought under the UDJA when the same claim could
be pursued through different channels” and that focus of doctrine is “whether the Legislature
created a statutory waiver of sovereign immunity that permits the parties to raise their claims
through some avenue other than the UDJA”); id. at 79 (“When a plaintiff files a proceeding that
only challenges the validity of an administrative rule, the parties are bound by the APA and may
not seek relief under the UDJA because such relief would be redundant.”). In Patel, the supreme
court concluded that the trial court had jurisdiction over the plaintiffs’ claims under the UDJA
because they challenged the constitutionality of a statute, along with rules promulgated pursuant
to that statute. Id. at 80. Here, Hensley’s UDJA claim does not purport to challenge any statute;
she challenges only the validity of Canon 4A. Moreover, even if Patel could be read to stand
for the proposition that the UDJA waives immunity for a challenge to an agency regulation, as an
intermediate appellate court we will not expand any such waiver to include challenges to Canons
of the Texas Code of Judicial Conduct. See Anderson v. Archer, 490 S.W.3d 175, 177 (Tex.
14
App.—Austin 2016) (declining to recognize cause of action for tortious interference with
inheritance and observing that “[w]e must, in short, follow the existing law rather than change it,
and we have adhered to that basic limiting principle in a variety of contexts”), aff’d, Archer v.
Anderson, 556 S.W.3d 228, 229 (Tex. 2018) (holding that there is no cause of action in Texas for
intentional interference with inheritance); Texas Dep’t of Pub. Safety v. Cox Tex. Newspapers,
L.P., 287 S.W.3d 390, 394-95, 398 (Tex. App.—Austin 2009) (declining to recognize proposed
judicial expansion of common-law or constitutional privacy exceptions to mandatory disclosure
under Public Information Act), rev’d on other grounds, 343 S.W.3d 112, 120 (Tex. 2011) (Texas
Supreme Court ultimately adopting proposed expansion).4
Because sovereign immunity bars Hensley’s claims for declaratory relief under
the UDJA, the trial court properly dismissed them.
Ultra Vires Claims
Sovereign immunity does not bar claims alleging that state officials acted ultra
vires, or without legal authority, in carrying out their duties. See Houston Belt & Terminal Ry.
Co. v. City of Houston, 487 S.W.3d 154, 158 n.1 (Tex. 2016) (“[W]hen a governmental officer
is sued for allegedly ultra vires acts, governmental immunity does not apply from the outset.”).
An ultra vires action requires a plaintiff to “allege, and ultimately prove, that the officer acted
without legal authority or failed to perform a purely ministerial act.” City of El Paso v. Heinrich,
284 S.W.3d 366, 372 (Tex. 2009). The Texas Supreme Court clarified what it means for an
4
We also note that, rather than challenging the validity of Canon 4A, Hensley is actually
challenging the Commission’s actions under its own interpretation of the Canon. The UDJA
does not provide a waiver for challenges to an agency’s interpretation of rules it is charged with
enforcing or applying. Complaints that the Commission misinterpreted or misapplied the
Canons are properly brought through the available appeal process that Hensley declined to
pursue.
15
official to act “without legal authority.” See Houston Belt & Terminal Ry. Co., 487 S.W.3d at
158. The court said that “a government officer with some discretion to interpret and apply a law
may nonetheless act ‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of
his granted authority or if his acts conflict with the law itself.” Id. “[U]ltra vires suits do not
attempt to exert control over the state—they attempt to reassert the control of the state.”
Heinrich, 284 S.W.3d at 372. To reassert such control, an ultra vires suit must lie against the
“allegedly responsible government actor in his official capacity.” Patel, 469 S.W.3d at 76.
Therefore, an ultra vires claim against the Officials must complain of conduct taken pursuant to
their authority: their duty to determine whether Hensley’s conduct contravened judicial canons
and whether that conduct was, as she asserted, nevertheless protected by the TRFRA.
An ultra vires claim against the Officials in the present case, therefore, must be
based on the assertion that the Officials acted without legal authority when they rejected her
defense under the TRFRA that publicly reprimanding her for her conduct would substantially
burden her free exercise of religion. See Tex. Gov’t Code § 110.004 (person whose free exercise
of religion has been substantially burdened in violation of Section 110.003 or 110.031 may assert
that violation as defense in administrative proceeding). The dispositive issue, then, is whether
the Commission’s alleged mistake of law constituted an ultra vires act. The Texas Supreme
Court has explained that, when considering whether a legal mistake is an ultra vires act, “it is the
mistake’s impact on the official’s authority that carries dispositive weight.” Hall v. McRaven,
508 S.W.3d 232, 241 (Tex. 2017). The court explained that an official’s mistake in interpreting
his enabling authority can give rise to an ultra vires claim because it results in a misinterpretation
of the bounds of his own authority. Id. at 241-42. In Hall, the court concluded that the official’s
alleged misinterpretation of federal privacy law, a law “collateral to [the official’s] authority,”
16
did not give rise to an ultra vires claim because that federal privacy law did not “suppl[y] the
parameters of [his] authority.” Id. at 242. The court held that “[i]n order to act without legal
authority in carrying out a duty to interpret and apply the law, [an official] must have exercised
discretion “without reference to or in conflict with the constraints of the law authorizing [him] to
act.” Id. (emphasis added).
Informed by the court’s explanation in Hall, Hensley must have alleged, and
ultimately prove, that the Officials exercised their discretion in conflict with the constraints of
the law authorizing them to act. Without that showing, Hensley “would simply have no basis
for ‘reassert[ing] control of the state.’” Id. (quoting Heinrich, 284 S.W.3d at 372). Here, the
Officials carried out their duty to determine whether Hensley’s conduct violated Canon 4A
and whether punishing that conduct with a Public Reprimand would substantially burden her
free exercise of religion. Their discretion in making those determinations was otherwise
unconstrained. Cf. Houston Belt & Terminal Ry. Co., 487 S.W.3d at 159 (official’s neglecting
what he was required to consider in making permeability determination rendered it—right or
wrong—ultra vires). As the supreme court explained in Hall:
When the ultimate and unrestrained objective of an official’s duty is to interpret
collateral law, a misinterpretation is not overstepping such authority; it is a
compliant action even if ultimately erroneous. Our intermediate courts of appeals
have repeatedly stated that it is not an ultra vires act for an official or agency to
make an erroneous decision while staying within its authority. Indeed, an ultra
vires doctrine that requires nothing more than an identifiable mistake would not
be a narrow exception to immunity: it would swallow immunity. [] As important
as a mistake may be, sovereign immunity comes with a price; it often allows the
“improvident actions” of the government to go unredressed. Only when these
improvident actions are unauthorized does an official shed the cloak of the
sovereign and act ultra vires.
Hall, 508 S.W.3d at 242 (citations omitted).
17
The Officials—whether right or wrong—were not acting without legal authority
in making their determinations regarding Hensley’s conduct.5 Moreover, the Commissioner’s
determinations did not constitute violations of “a purely ministerial duty.” See id. at 243
(“Perhaps it goes without saying, but if an official’s duty is discretionary, it is not also
nondiscretionary.”). Because Hensley failed to meet either of the bases for establishing an ultra
vires claim against the Officials, the trial court properly dismissed her ultra vires claims for
lack of jurisdiction.
CONCLUSION
Because the trial court lacked jurisdiction to consider Hensley’s claims under the
TRFRA and the UDJA, and because Hensley failed to establish ultra vires claims against the
Officials, the court did not err in granting the plea to the jurisdiction and dismissing the case.
Accordingly, we affirm the trial court’s judgment.
__________________________________________
Thomas J. Baker, Justice
Before Justices Goodwin, Baker, and Smith
Concurring Opinion by Justice Goodwin
Affirmed
Filed: November 3, 2022
5
We need not, and do not, express any opinion on the correctness of the Commission’s
determinations.
18 | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482195/ | IN THE SUPREME COURT OF THE STATE OF NEVADA
KATHLEEN SUSAN STIPE, No. 85581
Appellant,
vs. FILE
SATICOY BAY LLC,
Respondent. NOV 04 2022
ORDER DISMISSING APPEAL
This is a pro se appeal from a district court order affirming a
justice court order of summary eviction. Eighth Judicial District Court,
Clark County; Tara D. Clark Newberry, Judge.
The district courts have final appellate jurisdiction over cases
arising in the justice courts. Nev. Const. art 6, § 6; see also Waugh v.
Casazza, 85 Nev. 520, 521, 458 P.2d 359, 360 (1696). Accordingly, this court
lacks jurisdiction over this appeal, and therefore
ORDERS this appeal DISMISSED.1
Cadish
Ade.
Pickering
J. , Sr.J.
1TheHonorable Mark Gibbons, Senior Justice, participated in this
matter under a general order of assignment.
In light of this order, no action will be taken on the pro se motion to
stay filed on November 2, 2022.
SUPREME COURT
OF
NEVADA
101 [947A
2-3-18To
cc: Hon. Tara D. Clark Newberry, District Judge
Kathleen Susan Stipe
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
2
1"in . | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482227/ | Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
IN THE MATTER OF M.A.A.
From the 436th District Court, Bexar County, Texas
Trial Court Nos. 2020JUV00120, 2020JUV01099A, 2020JUV00725
Honorable Lisa Jarrett, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Beth Watkins, Justice
Delivered and Filed: November 2, 2022
AFFIRMED
Appellant M.A.A. challenges the trial court’s March 10, 2022 order committing her to the
custody of the Texas Juvenile Justice Department (TJJD). We affirm the trial court’s order.
BACKGROUND
When M.A.A. was sixteen years old, the State alleged in three separate cause numbers that
she had engaged in delinquent conduct that was “an offense against the State of Texas of the Grade
of Felony.” M.A.A. pleaded true to the State’s allegations, and the trial court entered an order of
adjudication and placed her on probation in all three cases. See TEX. FAM. CODE ANN. §§ 54.03,
54.04. Because the trial court found that it was in M.A.A.’s best interest to be placed outside her
home while she was on probation, it ordered her into the care, custody, and control of the Chief
Juvenile Probation Officer of Bexar County until her eighteenth birthday.
04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
When M.A.A. was seventeen, the State moved to modify that disposition in all three cases.
The State alleged M.A.A. had violated the terms of her probation by “fail[ing] to cooperate fully
and obey all rules of the residential placement facility or foster home where she was placed.” The
State asked the trial court to declare that M.A.A. had “violated a reasonable and lawful order of a
juvenile court” and to modify its previous disposition “in accordance with the provisions of Title
3 of the Texas Family Code,” also known as the Juvenile Justice Code.
On March 8, 2022, the trial court held a hearing to modify its previous disposition via
Zoom. See TEX. FAM. CODE ANN. § 54.05. M.A.A., her attorney, her guardian ad litem, and her
father appeared and did not object to holding the hearing virtually. During that hearing, M.A.A.
pleaded true to the allegations in the State’s motions. The trial court then advised M.A.A. on the
record that she had the right to remain silent, the right to cross-examine and confront witnesses,
and the right to an attorney to “provide a defense for [her] and make the State prove the case by
preponderance of the evidence.” The trial court also asked the State to read the allegations against
M.A.A. on the record. After the trial court’s admonition and the reading of the allegations, M.A.A.
confirmed that she wanted to plead true. The trial court accepted M.A.A.’s plea, found the State’s
evidence supported the plea, and found that M.A.A. “was on probation and violated the terms” of
her probation. Importantly, M.A.A. did not complain about any of these admonishments or
challenge the adequacy of her remote signature on the plea paperwork.
After making these findings, the court immediately transitioned to disposition. During that
portion of the hearing, M.A.A.’s probation officer recommended “no disposition for [M.A.A.] and
to be in the care and custody of her father” because “[M.A.A.] has charges pending in the adult
courts, and they have other resources that may be suitable for her needs.” The State acknowledged
that M.A.A. was under investigation for assault of a public servant, but it told the trial court those
allegations had not yet “been referred to the State for prosecution.” The State recommended that
-2-
04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
M.A.A. “be placed in the custody of the Texas Juvenile Justice Department” until her nineteenth
birthday. The prosecuting attorney represented that if the trial court committed M.A.A. to TJJD,
the State would “make sure that those charges [under investigation] do not come forward so when
she is released from TJJD, on or before her 19th birthday, she will have a clean slate.”
M.A.A.’s attorney stated that he had informed her about the difference between “no
disposition” and a commitment to TJJD, and he indicated that M.A.A. wanted to be released to her
father and “face adult court, if the adult court system files charges against her.” M.A.A.’s guardian
ad litem confirmed that M.A.A. wanted the court to “find no disposition and let her deal with the
adult case, should it come down.” M.A.A. testified that she understood the options that were
available to the trial court and explained she did not want to be committed to TJJD because she
did not plan “to continue doing bad.”
At the conclusion of the hearing, the trial court found it was in M.A.A.’s best interest to be
placed outside her home, that reasonable efforts had been made to prevent or eliminate the need to
remove her from her home, and that she could not be provided an adequate level of support and
supervision to meet the conditions of probation in her home. Based on those findings, it concluded
that it was in M.A.A.’s best interest and the best interest of the public to commit M.A.A. to TJJD.
This appeal followed.
ANALYSIS
In a single issue, M.A.A. argues she was denied the right to meaningfully participate in the
modification of disposition hearing that resulted in her commitment to TJJD.
Standard of Review and Applicable Law
“[A] disposition based on a finding that the child engaged in delinquent conduct that
violates a penal law of this state . . . of the grade of felony may be modified so as to commit the
child to the Texas Juvenile Justice Department[.]” TEX. FAM. CODE ANN. § 54.05(f). To preserve
-3-
04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
a complaint about a modified disposition for appellate review, the child generally “must present
the trial court with a timely request, objection, or motion stating the specific grounds for the ruling
desired.” In re J.M.E., No. 04-19-00062-CV, 2020 WL 86212, at *3 (Tex. App.—San Antonio
Jan. 8, 2020, no pet.) (mem. op.). This preservation rule applies to constitutional claims. Id.
Application
M.A.A. first argues that the record does not show she was properly admonished regarding
her rights. She does not dispute that the trial court orally advised her of her rights before it accepted
her plea, and she notes that several written admonishment documents in the clerk’s record appear
to bear her electronic signature. She contends, however, the trial court did not inquire whether
those markings “actually represented [her] intended electronic signature.” She also argues that
even if the electronic signature is hers, “she was not asked what she believed might transpire upon
her signing it,” and she contends the trial court “did not verify [her] understanding that her plea of
true could result in her incarceration until her nineteenth birthday.”
The Texas Family Code requires a trial court conducting a juvenile adjudication hearing to
explain several matters to the child and her parents at the beginning of the hearing. TEX. FAM.
CODE ANN. § 54.03(b). The Family Code does not specifically require similar admonishments in
a hearing to modify a previous adjudication. TEX. FAM. CODE ANN. § 54.05; but see id. § 54.05(g)
(commitment of child to TJJD requires “[a] new finding in compliance with Section 54.03”). We
will assume, without deciding, that the admonishments that are statutorily required during an initial
adjudication hearing are also required at a subsequent modification hearing. Compare TEX. FAM.
CODE § 54.03, with TEX. FAM. CODE § 54.05. The admonishments required by section 54.03
include “the allegations made against the child,” “the nature and possible consequences of the
proceedings,” “the child’s privilege against self-incrimination,” and the child’s right to trial, the
-4-
04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
confrontation of witnesses, and representation by counsel. Id. The Family Code also provides,
however:
In order to preserve for appellate or collateral review the failure of the court to
provide the child the explanation required by Subsection (b), the attorney for the
child must comply with Rule 33.1, Texas Rules of Appellate Procedure, before
testimony begins or, if the adjudication is uncontested, before the child pleads to
the petition or agrees to a stipulation of evidence.
TEX. FAM. CODE ANN. § 54.03(i). Texas Rule of Appellate Procedure 33.1 requires a complainant
to show that she made a timely, specific objection below and that she obtained a ruling on her
objection. TEX. R. APP. P. 33.1(a). Here, there is nothing in the record showing that M.A.A.
objected to the trial court’s oral and written admonishments at either the initial adjudication
hearing or the modification hearing. Accordingly, she has not preserved that complaint for our
review. TEX. FAM. CODE § 54.03(i); TEX. R. APP. P. 33.1(a).
Next, M.A.A. challenges the trial court’s decision to hold a virtual hearing on the State’s
motions to modify, arguing that she had a constitutional right to be physically present before the
court. As support for this proposition, she cites article 27.18 of the Texas Code of Criminal
Procedure. Article 27.18 provides that in an adult criminal proceeding, a trial court may accept a
defendant’s plea or waiver of a defendant’s rights by videoconference, but only if both the
defendant and the State file “written consent to the use of videoconference.” TEX. CODE CRIM.
PROC. ANN. art. 27.18(a)(1). She also cites an opinion from the Texas Court of Criminal Appeals
holding that the Texas Supreme Court’s emergency orders arising out of the COVID-19 pandemic
do not “purport to authorize courts to modify substantive rights.” In re State ex rel. Ogg, 618
S.W.3d 361, 364–66 (Tex. Crim. App. 2021).
M.A.A. did not raise any constitutional claims below. See In re E.A.P., No. 04-08-00503-
CV, 2009 WL 618463, at *1 (Tex. App.—San Antonio Mar. 11, 2009, pet. denied) (mem. op)
(holding juvenile waived constitutional complaint by failing to assert it before adjudication
-5-
04-22-00186-CV, 04-22-00187-CV, 04-22-00188-CV
hearing). She also did not object to the virtual hearing, argue that a virtual hearing would deprive
her of any substantial right, or assert that the trial court was bound by any statutory requirements
that apply to proceedings in adult criminal cases. TEX. R. APP. P. 33.1(a); In re E.A.P., 2009 WL
618463, at *1. We conclude M.A.A. has not preserved this complaint for our review. See, e.g., In
re D.T.M., 932 S.W.2d 647, 652 (Tex. App.—Fort Worth 1996, no pet.).
Having concluded that M.A.A.’s arguments are not preserved for our review, we overrule
her sole issue.
CONCLUSION
We affirm the trial court’s March 10, 2022 order committing M.A.A. to the Texas Juvenile
Justice Department.
Beth Watkins, Justice
-6- | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482213/ | Fourth Court of Appeals
San Antonio, Texas
November 4, 2022
No. 04-22-00745-CV
IN RE CHRISTUS SANTA ROSA HEALTH CARE CORPORATION D/B/A CHRISTUS
SANTA ROSA HOSPITAL - WESTOVER HILLS
Original Mandamus Proceeding1
ORDER
Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
On November 3, 2022, relator filed a petition for writ of mandamus and an emergency
motion for immediate temporary relief pending the final resolution of the petition for writ of
mandamus. This court believes a serious question concerning the mandamus relief sought
requires further consideration. See TEX. R. APP. P. 52.8(b). The respondent and the real party in
interest may file a response to the petition in this court on or before November 28, 2022. Any
such response must conform to Texas Rule of Appellate Procedure 52.4.
Relator’s request for immediate temporary relief is GRANTED. The deadline to
produce Sheryl Sullivan’s June 16, 2021 report is STAYED pending further order from this
court.
We ORDER relator to file a written order from the October 6, 2022 hearing on or before
November 9, 2022.
It is so ORDERED November 4, 2022.
PER CURIAM
ATTESTED TO:__________________________
MICHAEL A. CRUZ,
CLERK OF COURT
1
This proceeding arises out of Cause No. 2022-CI-01107, styled Sharon Kay Goodman v. Christus Santa Rosa
Health Care Corporation d/b/a Christus Santa Rosa Hospital - Westover Hills and Franklin Dale Barber, pending
in the 166th Judicial District Court, Bexar County, Texas, the Honorable Laura Salinas presiding. | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482214/ | Fourth Court of Appeals
San Antonio, Texas
November 4, 2022
No. 04-22-00139-CV
Richard WALKER,
Appellant
v.
SKYVUE APARTMENTS,
Appellee
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 2021CV04545
Honorable J Frank Davis, Judge Presiding
ORDER
Appellant’s brief was due to be filed by November 2, 2022. Neither the brief nor a
motion for extension of time have been filed. It is therefore ORDERED that appellant show
cause in writing within fifteen days from the date of this order why this appeal should not be
dismissed for want of prosecution. See TEX. R. APP. P. 38.8(a).
_________________________________
Liza A. Rodriguez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of November, 2022.
___________________________________
MICHAEL A. CRUZ, Clerk of Court | 01-04-2023 | 11-08-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482312/ | Case: 22-1802 Document: 25 Page: 1 Filed: 11/08/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JESSIE I. CAMPBELL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1802
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-8643, Senior Judge Frank Q.
Nebeker.
______________________
Decided: November 8, 2022
______________________
JESSIE IVORY CAMPBELL, Holly Springs, MS, pro se.
SONIA W. MURPHY, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, RICHARD STEPHEN HUBER,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
Case: 22-1802 Document: 25 Page: 2 Filed: 11/08/2022
2 CAMPBELL v. MCDONOUGH
______________________
Before NEWMAN, REYNA, and STOLL, Circuit Judges.
PER CURIAM.
Jessie I. Campbell appeals from a judgment of the
United States Court of Appeals for Veterans Claims affirm-
ing the decision of the Board of Veterans’ Appeals. Because
we lack jurisdiction to consider Mr. Campbell’s claims, we
dismiss.
BACKGROUND
Mr. Campbell served honorably in the Army from
July 1970 to April 1972. In 2003, the Department of Vet-
erans Affairs (VA) awarded Mr. Campbell service connec-
tion for bilateral hearing loss and assigned him a 40%
disability rating. Appx. 1 4. In 2008, Mr. Campbell’s disa-
bility rating was increased to 50%. Appx. 4–5. In 2010,
Mr. Campbell submitted a claim for a further increased
disability rating. During the following decade, Mr. Camp-
bell continued to pursue this claim, including undergoing
seven hearing examinations, three of which were adminis-
tered by the VA and four of which were administered pri-
vately. Appx. 5–7.
In September 2020, the Board reviewed the multiple
hearing examinations and found that Mr. Campbell had, at
most, a “[L]evel IX” hearing impairment in the right ear
and a “[L]evel VIII” hearing impairment in the left ear.
Appx. 7. The Board found that these impairments did not
meet the criteria for a disability rating above 50%. Id.
Mr. Campbell appealed to the Court of Appeals for Veter-
ans Claims (Veterans Court), arguing that the Board did
not “provide[] an adequate statement of its reasons or bases
1 Citations to “Appx.” refer to the Appendix attached
to the appellee’s brief.
Case: 22-1802 Document: 25 Page: 3 Filed: 11/08/2022
CAMPBELL v. MCDONOUGH 3
for its decision because the Board failed to address whether
a new VA examination was warranted.” Id.
The Veterans Court found that the Board adequately
addressed each of the hearing examination reports in the
record and appropriately determined that none of them en-
titled Mr. Campbell to a disability rating higher than 50%.
Appx. 8–9. Although the court found that the Board should
have addressed whether Mr. Campbell was entitled to an-
other hearing examination, the court noted that Mr. Camp-
bell neither alleged in his briefs, nor put forth any new
evidence of, symptoms beyond those indicated in the hear-
ing examination reports of record. Thus, the Veterans
Court determined that Mr. Campbell “failed to meet his
burden of demonstrating prejudicial error,” for example by
showing that a new hearing examination would differ from
the hearing examinations of record and potentially alter
the outcome of the case. Appx. 9. In other words, the Vet-
erans Court determined that although the Board erred in
not addressing whether the VA should have ordered an-
other medical examination, that error was ultimately
harmless. The court therefore affirmed the Board’s deci-
sion.
Mr. Campbell appeals. We have jurisdiction under
38 U.S.C. § 7292.
DISCUSSION
We have limited jurisdiction to review decisions of the
Veterans Court. We may not review factual findings, nor
the application of law to fact. 38 U.S.C. §§ 7292(c), (d)(2);
see also, e.g., Conway v. Principi, 353 F.3d 1369, 1372
(Fed. Cir. 2004). Our review is limited to legal challenges
regarding the “validity of any statute or regulation or any
interpretation thereof, and to interpret constitutional and
statutory provisions, to the extent presented and necessary
to a decision.” § 7292(c).
Case: 22-1802 Document: 25 Page: 4 Filed: 11/08/2022
4 CAMPBELL v. MCDONOUGH
On appeal, Mr. Campbell again appears to argue that
the Board should have found that he was entitled to a new
hearing examination. See Appellant’s Br. 2–3. In addition,
Mr. Campbell argues: (1) that he is entitled to a higher dis-
ability rating, see id. 2–3; see generally also Reply Br. 1–4 2;
(2) that he has “been discriminated against,” Appellant’s
Br. 2; and (3) that he has been denied due process, Reply
Br. 3. We address each argument in turn.
First, we address Mr. Campbell’s argument that the
Board should have found he was entitled to a new medical
examination. He does not challenge the Veterans Court’s
determination that the Board erred by not addressing this
issue (because he won on this issue); rather, he contests
that the error was harmless. Appx. 7–8. Whether the
Board committed harmless error is a factual determination
over which we lack jurisdiction. Pitts v. Shinseki, 700 F.3d
1279, 1286 (Fed. Cir. 2012) (determining that the argu-
ment that the Veterans Court erred in finding harmless er-
ror by the Board “challenges the [Veterans Court]’s
application of law to fact and therefore falls outside this
court’s jurisdiction”). Accordingly, we dismiss this portion
of Mr. Campbell’s appeal.
Related to this argument, Mr. Campbell also alleges
that the “Court of Appeal was given false information.” Ap-
pellant’s Br. 1. He does not elaborate on this statement;
for example, Mr. Campbell does not identify any allegedly
false information provided to the Veterans Court, nor does
he explain how such information could have impacted that
court’s decision in his case. In his reply brief, however,
Mr. Campbell appears to argue that the VA has misrepre-
sented the results of his medical examinations to the Vet-
erans Court. See Reply Br. 3–4. Giving Mr. Campbell
2 “Reply Br. __” refers to pages in Mr. Campbell’s in-
formal reply brief as numbered by operation of an elec-
tronic file viewing system.
Case: 22-1802 Document: 25 Page: 5 Filed: 11/08/2022
CAMPBELL v. MCDONOUGH 5
“leniency with respect to mere formalities” in view of his
pro se status, Kelley v. Sec’y, U.S. Dep’t of Lab., 812 F.2d
1378, 1380 (Fed. Cir. 1987), we assume that these details
are an elaboration of his “false information” argument.
Even so, the credibility and “weighing of . . . evidence is not
within our appellate jurisdiction.” Maxson v. Gober,
230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Gardin
v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (noting
that the Board’s “credibility determination is a question of
fact beyond this court’s jurisdiction”). And the question to
which the allegedly “false information” is relevant—
whether Mr. Campbell was entitled to a new medical ex-
amination—is a question of fact beyond our jurisdiction.
Prinkey v. Shinseki, 735 F.3d 1375, 1383 (Fed. Cir. 2013).
We thus also dismiss this portion of the appeal.
Next, we address Mr. Campbell’s argument that he is
entitled to a higher disability rating, an argument we sim-
ilarly do not have jurisdiction to consider. In his briefing,
Mr. Campbell appears to argue that because his hearing
examinations resulted in a hearing discrimination score of
over 70%, he should have been given an over 70% disability
rating. See, e.g., Reply Br. 4 (“I am asking this court to ac-
cept my 73% rating.”). As an initial matter, we note that
the hearing discrimination score assigned to a veteran by
a physician is not equivalent to the corresponding disabil-
ity ratings for bilateral hearing loss. For example, the dis-
ability rating guidelines provide that a veteran with a
“Level VII” hearing impairment in both ears (a level which
corresponds, depending on other factors, with anywhere
from a 44 to 74 percent hearing discrimination score) would
be entitled to a 40 percent disability rating. See 38 C.F.R.
§ 4.85, Tables VI and VII. In this case, as the Veterans
Court explained, the Board applied the disability rating
guidelines and determined that Mr. Campbell’s hearing
impairment “does not meet the criteria for a rating in ex-
cess of 50%.” Appx. 7.
Case: 22-1802 Document: 25 Page: 6 Filed: 11/08/2022
6 CAMPBELL v. MCDONOUGH
In any event, determining whether Mr. Campbell’s dis-
ability entitles him to a higher rating “requires an applica-
tion of law to fact that is beyond our jurisdiction.”
Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013)
(citing 38 U.S.C. § 7292(d)(2) and Jackson v. Shinseki,
587 F.3d 1106, 1109 (Fed. Cir. 2009)). In other words,
Mr. Campbell does not ask us to review the “validity of any
statute or regulation or any interpretation thereof,” nor “to
interpret constitutional and statutory provisions,”
§ 7292(c), and thus we do not have jurisdiction to consider
this argument. We therefore dismiss this portion of
Mr. Campbell’s appeal.
We turn next to Mr. Campbell’s discrimination argu-
ment. Mr. Campbell states, in full, “I feel that I have been
discriminated against. I don’t think this is a normal case.”
Appellant’s Br. 2. Mr. Campbell does not elaborate nor
provide evidence of discrimination. We have explained
that “[a]n issue that is merely alluded to and not developed
as an argument in a party’s brief is deemed waived.” Ro-
driguez v. Dep’t of Veterans Affs., 8 F.4th 1290, 1305
(Fed. Cir. 2021) (citing cases); see also, e.g., Monsanto Co.
v. Scruggs, 459 F.3d 1328, 1341 (Fed. Cir. 2006) (“In order
for this court to reach the merits of an issue on appeal, it
must be adequately developed.”). In this case, Mr. Camp-
bell’s undeveloped discrimination argument, “unsupported
by [] citation to any authority,” Rodriguez, 8 F.4th at 1305,
is therefore waived. Even if the argument were not waived,
Mr. Campbell’s brief argument on this issue has not raised
any constitutional issue nor any issue concerning the va-
lidity or interpretation of any statute, regulation, or rule of
law that could provide a basis for our jurisdiction. See
§ 7292(c). We thus dismiss this portion of the appeal.
Finally, in his reply brief, Mr. Campbell raises an issue
for the first time: that he has been denied due process be-
cause the VA “closed [his] claim without any notice given.”
See Reply Br. 3. Although Mr. Campbell alleges a consti-
tutional violation, he provides no further detail or support
Case: 22-1802 Document: 25 Page: 7 Filed: 11/08/2022
CAMPBELL v. MCDONOUGH 7
for his claim other than an unsupported statement that he
did not receive notice. Our court lacks jurisdiction over as-
sertions that are “constitutional in name” only. Helfer
v. West, 174 F.3d 1332, 1335 (Fed. Cir. 1999). In other
words, nothing in Mr. Campbell’s briefs presents a true
constitutional question or any other issue that gives this
court jurisdiction. We therefore must also dismiss this por-
tion of Mr. Campbell’s appeal.
CONCLUSION
For the foregoing reasons, we conclude that Mr. Camp-
bell has failed to raise any issue that could provide a basis
for our jurisdiction. We therefore dismiss this appeal.
DISMISSED
COSTS
No costs. | 01-04-2023 | 11-08-2022 |
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