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https://www.courtlistener.com/api/rest/v3/opinions/8483068/ | Filed 11/10/22 In re J.V. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
In re J.V. et al., Persons Coming Under
the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E078618
Plaintiff and Respondent, (Super.Ct.Nos. J288234, J288235,
J288236 & J288237)
v.
OPINION
V.V.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and
Appellant.
Tom Bunton, Interim County Counsel, and Pamela J. Walls, Deputy County
Counsel, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant V.V. (father) appeals from the juvenile court’s summary
denials of two Welfare and Institutions Code1 section 388 petitions regarding his
children, J.V., Viv.V., Vio.V., and Vin.V. (the children). We affirm.
PROCEDURAL BACKGROUND
On February 19, 2021, the San Bernardino County Children and Family Services
(CFS) filed petitions alleging that the children came within the provisions of section 300,
subdivisions (a) (serious physical harm), (b) (failure to protect, (g) (no provision for
support), and (j) (abuse of sibling). At the time, J.V. was approximately three weeks old,
Viv.V. was 14 months old, Vio.V was two years old, and Vin.V. was three years old.
The petitions included allegations that while in the custody of mother, J.G. (mother),2
Viv.V. sustained bruising under her eye and a gash to the back of her head, which were
consistent with physical abuse; that mother had a history of substance abuse; that father’s
whereabouts were unknown; and that mother’s parental rights as to three of the children’s
half siblings were previously terminated.
The social worker filed a detention report recommending that the children be
removed from the custody of mother and father (the parents). The social worker reported
that CFS received a referral on February 16, 2021, alleging general neglect and physical
1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise noted.
2 Mother is not a party to this appeal.
2
abuse of Viv.V., general neglect and sexual abuse of Vio.V., and general neglect of J.V.
and Vin.V. It was reported that a relative observed Viv.V. with an open wound on the
back of her head, a “busted lip,” and bruising on both of her eyes. It was also reported
that she had an infection in her mouth and could barely eat. The social worker made
several attempts to locate mother, father, and the children but was unsuccessful.
Nonetheless, due to Viv.V.’s injuries, CFS decided to proceed with the petition anyway.
A judge signed a detention warrant on February 17, 2021, ordering the children to be
detained from the parents’ custody.
The social worker reported that mother had a total of seven children, three of
whom (the children’s half siblings) had previously been removed from her custody due to
concerns of drug use, a transient lifestyle, caretaker absence, general neglect, and
physical abuse. Mother’s parental rights to those three children were terminated.
The court held a detention hearing on February 22, 2021, and ordered the children
removed from the parents’ care upon apprehension.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on March 10, 2021,
recommending the children be placed in out-of-home care, with no reunification services
provided to the parents. The whereabouts of the children and the parents were still
unknown at that time. The social worker stated that mother fell under the provisions of
section 361.5, subdivision (b)(10), (b)(11), and (b)(13), as she failed to reunify with the
half-siblings of the children and had failed to ameliorate the issues that led to their
removal.
3
The children were located at mother’s residence on April 7, 2021, and placed into
CFS custody; thus, the bench warrant was recalled. The condition of the residence was
found to be hazardous to the children’s safety, and mother was arrested on child cruelty
charges. The police observed the home to have no running water, human feces on the
floor, a lack of ventilation and/or any type of air conditioning, various electrical cords
easily within reach of the children, and rotten food and spoiled milk sitting out
throughout the home.
The police located and arrested father on April 12, 2021, on child abuse charges,
and he was released on April 16, 2021. Father was interviewed and stated he was the
biological father to all the children except Viv.V.; nonetheless, he held out all the
children as his own. Father reported he did not reside with mother, but was at her
residence daily and had daily contact with the children. He admitted he observed
Viv.V.’s injuries that were noted in the detention report and stated the injuries occurred
while she was in mother’s care. He said mother told him Viv.V. fell out of a high chair.
Father denied ever observing any bruises on the other children, despite his admission to
last seeing them three days prior to when they were located and detained.
The court held a jurisdiction/disposition hearing on May 3, 2021. Father was
present with counsel, but mother was not since she was in custody. The court asked him
about paternity, and he said he believed he was the father of J.V., Vio.V., and Vin.V. but
not Viv.V. He had never been married to mother, but he lived with her from 2017-2019.
He said that after he stopped living with them, he still visited the children once every
other week, or sometimes twice a week. The court ordered that father be assessed for
4
services and be given supervised visitation. It also ordered predisposition services for
him.
Amended Petitions
On June 7, 2021, the social worker filed amended section 300 petitions to reword
some of the allegations against mother and to add allegations against father under
subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling).
The amended petitions included allegations that while in father’s custody, Viv.V.
sustained injuries and bruises noted to be in various stages of healing, he had a domestic
violence history, and he failed to provide safe living conditions for the children. The
amended petitions deleted the allegation under section 300, subdivision (g), that father’s
whereabouts were unknown.
The social worker filed an addendum report on June 8, 2021, regarding the
amended allegations and recommending no reunification services for either parent.
Mother confirmed that father did not live with her and the children but said he frequently
slept at her home and had frequent contact with the children. The social worker reported
that father was referred to parenting education classes and domestic violence classes on
May 27, 2021; however, the CFS service coordinator reported that various attempts were
made to contact him to schedule services, but he did not return any of the calls.
The social worker also reported that when the children were located on April 7,
2021, Viv.V. was observed to have injuries that were consistent with physical abuse. A
forensic medical exam was conducted on April 8, 2021, plus a subsequent evaluation at
Loma Linda University Children’s Hospital. The Loma Linda doctor reported that
5
Viv.V. had oral trauma that was indicative of blunt force trauma to the mouth, had
multiple holes on the back of her ears that could be bite marks, and had linear abrasions
on her neck that were possibly an indication of strangulation or suffocation. The doctor
stated that the injuries were most consistent with inflicted trauma, and they occurred from
multiple acts of physical abuse, as evidenced by the various stages of healing of her
bruises and injuries. He also stated that each act resulted in significant bleeding and/or
bruising.
The social worker reported that although the evidence indicated that Viv.V.
sustained injuries consistent with physical abuse while in the parents’ care, the parents
refused to acknowledge most of her injuries. The social worker further reported that on
May 11, 2021, Vin.V. was interviewed by the Children’s Assessment Center. He stated,
“Mommy smack my butt, my butt hurt, I crying,” indicating she used her hand. He also
said he was afraid of her, and that “mommy give Vivi owies.” Vin.V. further reported
that “Dada (Daddy) always hit me.”
The court held a hearing on June 8, 2021, and both parents appeared. Mother
confirmed that father lived with her and the children from 2017-2019, and that once he
stopped living with them, he still visited them consistently. The court noted that the
social worker was recommending no reunification services for mother under section
361.5, subdivision (b)(5), (b)(6), (b)(l0), (b)(11), and (b)(13), and for father under section
361.5, subdivision (b)(5) and (b)(6). The court set a contested jurisdiction hearing for
June 29, 2021, and a contested disposition hearing for August 10, 2021.
6
Additional Information
In an additional information to the court memorandum (CFS 6.7), the social
worker reported that father did a paternity test with regard to Viv.V., and the results
indicated he was 99.99% her father.
In a CFS 6.7 report filed on June 29, 2021, the social worker reported concerns
regarding the children’s visits with father. The children were fearful of him and reluctant
to interact with him. The social worker reported the children have cried, screamed, and
clung to CFS staff upon entering the visitation room with father. The caregivers for J.V.
and Viv.V. have also reported that J.V. and Viv.V. appeared highly distressed and their
behavior regressed following visits.
Jurisdiction/Disposition Hearings
The court held a contested jurisdiction hearing on June 29, 2021. The court noted
the evidence of Viv.V.’s extensive injuries and stated: “[T]he unexplained injuries don’t
preclude either parent as being responsible for them. It’s clear that each parent would
have been aware of them due to the ongoing nature and the photographic detail and each
had a duty to protect her from that abuse.” The court particularly noted that father
indicated he had almost daily contact with the children and did not provide any plausible
explanation for Viv.V.’s serious injuries. It also noted Vin.V.’s statement that his daddy
always hit him. The court sustained the amended petitions, finding that Viv.V. came
within section 300, subdivisions (a), (b), (e), and (j), and Vio.V., J.V., and Vin.V. came
within section 300, subdivisions (a), (b), and (j).
7
The court held a contested disposition hearing on August 10, 2021, and found
father to be the presumed father of the children. It then bypassed the parents’
reunification services pursuant to section 361.5, subdivision (b)(5), (b)(6), and (b)(7),3
declared them dependents of the court, and removed them from the parents’ custody. The
court ordered no visitation for mother and supervised visitation for father, and it set a
section 366.26 hearing.
The social worker subsequently asked for the 366.26 to be continued in order to
allow enough time for J.V. and Viv.V. to move into the same placement as Vin.V. and
Vio.V. The court continued the section 366.26 hearing to April 7, 2022.
First Section 388 Petition
On December 13, 2021, father filed a section 388 petition requesting the court to
order that he be granted reunification services. As to changed circumstances, he alleged
that he completed 16 weeks of parenting, 12 weeks of anger management, 25 hours of
Narcotics Anonymous (NA) meetings, eight sessions of counseling, and “plenty clean
drug test [sic]” As to best interests, father stated it would be best for J.V.4 to be with him
because he had “learned how to cope with [his] kids and how to be a better father and
how to protect [his] children.” In support of his petition, father attached a letter from
Youths Hope Licensed Clinical Social Worker Inc. (Youths Hope), verifying that he self-
3 The court additionally denied mother services pursuant to section 361.5,
subdivision (b)(10) and (b)(11).
4 Father named J.V. in the petition, but not the other children.
8
enrolled in individual therapy on August 16, 2021, completed eight sessions, and
“benefitted from therapy.”5
The social worker filed an opposition to father’s petition, recommending that the
petition be denied. The social worker reported that the children were placed together in
the home of Mr. and Mrs. G., who were available, willing, and eligible to adopt them.
The children were provided with love and structure, and were observed to be stable and
thriving in the home. The social worker reported that father had maintained monthly
visitation with the children and was observed to be attentive to their needs. However, the
social worker reported that the children “identify the father as a friendly visitor and not as
a parent[].” She noted that they did not appear affected when visits ended, and they were
observed to become excited to see the caregivers and would run to hug them. The social
worker recommended that the section 388 petition be denied, as the children had a stable
living environment, and they identified their current caregivers as their parents.
On February 17, 2022, the court held a hearing to determine if there was sufficient
evidence to warrant an evidentiary hearing on the section 388 petition. Father’s counsel
essentially repeated the allegations in the petition, noted that father had maintained
consistent visitation, and stated that father filed the petition because he wanted to be there
for his children and see them grow up. Counsel noted father had taken classes on his own
initiative and was now asking the court to grant him reunification services.
5 The letter does not indicate the title or position of the author of the letter.
9
Counsel for the children argued that father continued to deny responsibility for the
court’s true findings. She pointed out the court specifically found that both parents were
responsible for the serious injuries, and there were a number of serious injuries that
would be impossible not to notice. She noted the therapy progress report did not indicate
that the therapist had any of that information or that father had addressed any of those
concerns. Counsel further noted that visits were only once a month, and father admitted
he did not have much of a relationship with the children. County counsel joined in the
arguments of the children’s counsel and argued that father had not met his burden of
showing changed circumstances or best interests.
The court stated that it considered the reports and listened to arguments, and it did
not believe there was sufficient evidence on either prong to set a hearing. Thus, the court
denied the petition. It then noted that the trial court did find the injuries were sustained in
the care of both parents, that father continued to deny such, and that he continued to deny
he saw any risk when it was clear the child had injuries over a period of time that were
numerous and visible. The court observed father’s complete lack of acknowledgment
regarding the true findings of the case (i.e., that Viv.V. sustained serious injuries and
bruises while in his care, and that he failed to provide safe living conditions). The court
additionally noted its concerns about the therapist’s report, which did not address the
physical safety of the children, and it was not clear how many sessions father had
completed since it looked like the number of sessions “was changed in pen to a different
10
number.” The court also stated there was insufficient evidence to show best interests.
Father filed a notice of appeal on March 4, 2022, in propria persona.6
Second Section 388 Petition and Section 366.26
Father filed a second section 388 petition on March 25, 2022, again requesting
reunification services. For changed circumstances, father alleged that he completed 13
sessions of individual counseling, and that he had a letter from mother admitting the
allegations.7 As to best interests, he repeated the same allegations from the first section
388 petition. In support of the second petition, father attached another letter from Youths
Hope, which stated it was written at father’s request. The letter indicated father had
completed 13 sessions of individual therapy. It further stated that father had
“significantly processed and addressed issues related to abuse and neglect of his
daughter,” addressed “issues related to protection and safety of his children,” “denied
personal involvement in physical abuse of his children,” and significantly benefitted from
therapy.
6 We note the notice of appeal does not specify that father was appealing the
denial of the section 388 petition. He checked the boxes on the form indicating he was
appealing the removal order and the termination of parental rights. However, we observe
that he also wrote “2-17-2022” and “Reunification” on the form. Because the court
denied his section 388 petition requesting reunification services on February 17, 2022, we
will liberally construe the notice of appeal to include the denial of his petition. (See In re
Joshua S. (2007) 41 Cal.4th 261, 272 [A notice of appeal shall be “ ‘liberally construed
so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying
to appeal from, and where the respondent could not possibly have been misled or
prejudiced.’ ”].)
7 Father did not attach a letter from mother to his section 388 petition.
11
The social worker filed an addendum report on March 28, 2022, recommending
that parental rights be terminated and adoption be implemented as the permanent plan.
The social worker reported that Vin.V. and Vio.V. had been placed in the home of Mr.
and Mrs. G. since May 17, 2021, and J.V. and Viv.V. joined them in the placement on
December 6, 2021, and that the children were likely to be adopted. She stated the
children and caregivers appeared to share a mutual bond and attachment, and Mr. and
Mrs. G. had expressed a strong desire to adopt them. Mr. and Mrs. G. were meeting their
needs and were committed to raising them to adulthood.
The court summarily denied father’s second section 388 petition on April 6, 2022,
since it did not show a change of circumstance or best interests of the children. The court
specifically stated that it had sustained significant allegations against both parents
regarding serious injuries from physical abuse. It also noted that it found father either
lived in the home or had frequent contact with the children, such that they were in his
care. The court stated that father’s denial of these facts did not show a change of
circumstance and his blaming of mother showed a lack of progress in therapy.
On April 7, 2022, the court held a contested section 366.26 hearing. At the outset,
the court advised father that his second section 388 was summarily denied. The court
expressed its continued concern about the lack of acknowledgment of the sustained true
findings regarding physical abuse of the children and about the best interests of the
children. The court then continued the section 366.26 matter to June 28, 2022.
Father filed a notice of appeal on April 27, 2022, with regard to the order on the
section 388 petition.
12
DISCUSSION
The Court Properly Denied Father’s Section 388 Petitions
Father argues that the court erred in summarily denying his two section 388
petitions. He claims he should have been granted an evidentiary hearing since he made
the requisite prima facie showing that his circumstances had changed, and that offering
him reunification services would be in the children’s best interest.8 We conclude the
court properly denied father’s petitions.
A. The Court Did Not Abuse its Discretion
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist and (2) the proposed change would promote the best
interests of the child.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).)
“Thus, the parent must sufficiently allege both a change in circumstances or new
evidence and the promotion of the child’s best interests.” (In re G.B. (2014) 227
Cal.App.4th 1147, 1157 (G.B.).) “A parent need only make a prima facie showing of
these elements to trigger the right to a hearing on a section 388 petition and the petition
should be liberally construed in favor of granting a hearing to consider the parent’s
request. [Citation.] [¶] However, if the liberally construed allegations of the petition do
not make a prima facie showing of changed circumstances and that the proposed change
8 We note that father’s petitions only name J.V., but not the other children.
However, his notices of appeal name all four children. Since father filed the section 388
petitions in propria persona, we will assume that he intended to name all four children
and will address the petitions as if he did.
13
would promote the best interests of the child, the court need not order a hearing on the
petition.” (Zachary G., at p. 806.) “The prima facie requirement is not met unless the
facts alleged, if supported by evidence given credit at the hearing, would sustain a
favorable decision on the petition.” (Ibid.) “While the petition must be liberally
construed in favor of its sufficiency [citation], the allegations must nonetheless describe
specifically how the petition will advance the child’s best interests.” (G.B., supra, 227
Cal.App.4th at p. 1157.) More than general conclusory allegations are required to make
this showing, even when the petition is liberally construed. (In re Edward H. (1996) 43
Cal.App.4th 584, 593 (Edward H.).) “We review the juvenile court’s summary denial of
a section 388 petition for abuse of discretion.” (In re Anthony W. (2001) 87 Cal.App.4th
246, 250.)
Father’s section 388 petitions sought the provision of reunification services. The
juvenile court did not abuse its discretion in summarily denying the petitions, as father
was unable to demonstrate changed circumstances or that a changed order was in the best
interests of the children. As to changed circumstances, the first petition alleged that
father completed several weeks of parenting classes and anger management, that he
participated in NA meetings and counseling sessions, and he drug tested clean. He
attached a letter from Youths Hope to verify his participation in the counseling sessions.
However, the letter did not indicate that father had benefitted from any of these classes or
counseling sessions. This is particularly concerning since although the evidence
indicated that Viv.V. sustained serious and visible injuries consistent with physical abuse
while in his care, father had no plausible explanation for the injuries and did not take any
14
responsibility for protecting the children. Moreover, the court originally bypassed
father’s services pursuant to section 361.5, subdivision (b)(5), (b)(6), and (b)(7).9 Thus,
father failed to show changed circumstances. Additionally, despite the therapy sessions
and classes completed, father still failed to acknowledge that Viv.V. suffered severe
physical abuse while in his care and sustained serious injuries, that the other children
were at risk of similar abuse, and that he failed to provide safe living conditions for the
children. Thus, the counseling attended by father did not provide a sufficient evidentiary
basis to demonstrate a change of circumstances.
Furthermore, for best interests, father’s first petition merely asserted that it would
be best for the children to be with him because he had “learned how to cope with [his]
kids and how to be a better father and how to protect [his] children.” These general
conclusory allegations were simply inadequate. (Edward H., supra, 43 Cal.App.4th at p.
593.) The petition did not allege how the proposed change would promote the best
interests of the children. (G.B., supra, 227 Cal.App.4th at p. 1157.) Accordingly, there
was no need for the court to order a hearing on the first petition. (Zachary G., supra, 77
Cal.App.4th at p. 806.)
9 Section 361.5 provides that reunification services need not be provided where
“the child was brought within the jurisdiction of the court under subdivision (e) of
Section 300 because of the conduct of that parent” (subd. (b)(5)), where the child has
been adjudicated a dependent as a result of the infliction of severe physical harm to the
child by a parent, and “the court makes a factual finding that it would not benefit the
child to pursue reunification services with the offending parent” (subd. (b)(6)), and the
parent is not receiving reunification services for the child’s sibling pursuant to paragraph
(5) or (6) (subd. (b)(7)).
15
Similarly, there was no need for a hearing on the second section 388 petition. For
changed circumstances, father alleged that he completed a few more counseling sessions
than he alleged in the first petition, and he attached another letter from Youths Hope,
stating that he had addressed issues related to the abuse and neglect of his daughter and
the protection and safety of his children, and that he had significantly benefitted from
therapy. However, we note the letter specifically stated that it was written at father’s
request, indicating he asked Youths Hope to revise the letter submitted with his first
petition, perhaps in light of the court’s expressed concerns. Most troubling, however, is
that the revised letter expressly stated that father “denied personal involvement in
physical abuse of his children.” In other words, he apparently still refused to
acknowledge the court’s true findings in this case, even despite evidence that Vin.V.
reported father “always hit [him]” and the clearly visible injuries on Viv.V. of which he
should have been aware. Furthermore, as to best interests, father simply repeated the
same conclusory allegations from the first section 388 petition, which were inadequate.
Even on appeal, father fails to show it was in the children’s best interests to
provide him with reunification services. He asserts that the social worker confirmed the
services he completed, that he was working full time, and that he was living with family.
He adds that he visited the children regularly and had a positive relationship with them,
noting that, although they were once fearful of him, he was now having appropriate visits
with them. Father also points out that, in its ruling on the petitions, the court “focused on
the original finding that [he] either lived in the home or had frequent contact with the
children and the allegations were against both parents.” He claims that if the court had
16
set the petition for hearing, he could have “introduced evidence that put the original
findings in doubt.” In making this claim, he refers to “a written letter from [m]other
taking responsibility for the allegations in the [section 300] petition.” Father appears to
be asserting that a hearing was warranted since he had evidence that mother was solely
responsible for Viv.V.’s injuries and the protection of the other children. However, this
claim only confirms the court’s concern that father has refused to acknowledge the
court’s true findings, despite already participating in services on his own. In other words,
father is not likely to benefit from the requested services if he continues to deny
responsibility for Viv.V.’s abuse and substantial injuries, for the unsafe living conditions,
and for the protection of the children.
We conclude the court did not abuse its discretion in denying father a hearing on
either of his section 388 petitions. The petitions did not demonstrate a change of
circumstances, nor did they allege any facts to support the conclusion that the children’s
best interests would be served by granting father reunification services.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
17 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483060/ | ALD-021 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-2521
___________
IN RE: ROSALINDA O. CARINO,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the District of New Jersey
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
November 3, 2022
Before: HARDIMAN, RESTREPO, and BIBAS, Circuit Judges
(Opinion filed: November 10, 2022)
_________
OPINION*
_________
PER CURIAM
Rosalinda Carino, proceeding pro se, petitions this Court for a writ of mandamus
pursuant to 28 U.S.C. § 1651. For the following reasons, we will deny the petition.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
The nature of Carino’s request for mandamus relief is not entirely clear. She
appears to allege that her properties at “81 & 79 Lake Street, Belleville, NJ” were the
subject of fraudulent tax foreclosure proceedings, and that respondent, Essex County
Sheriff Armando B. Fontoura, wrongfully evicted her from her home at 71 Franklin
Street in Belleville. As relief, Carino appears to seek an order restoring title to the Lake
Street properties back into her name and that of her spouse, Juan D. Carino, and
“allowing [her] to reclaim residency” at her Franklin Street home. In a document filed in
support of the mandamus petition, Carino asserts that the District Judge who dismissed
Carino’s federal civil complaint filed against Fontoura for failure to state a claim for
relief abused her authority and erred as a matter of law. 1 See D.N.J. Civ. No. 2:15-cv-
06143. Carino requests that the Judge be censured, suspended, or removed from the
bench.
Section 1651 confers jurisdiction on this Court to issue a writ of mandamus “in aid
of” our jurisdiction. 28 U.S.C. § 1651. Mandamus provides a “drastic remedy that a
court should grant only in extraordinary circumstances in response to an act amounting to
a judicial usurpation of power.” Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d
Cir. 1996) (citations and internal quotation marks omitted). To justify the Court’s use of
this extraordinary remedy, Carino must show a clear and indisputable right to the writ
1
To the extent that Carino intended this document to be filed as a separate mandamus
petition, she failed to submit the required certificate of service showing that a copy was
served on the intended respondent. In any event, for the reasons discussed herein, Carino
is not entitled to mandamus relief.
and that she has no other adequate means to obtain the relief desired. Haines v. Liggett
Group Inc., 975 F.2d 81, 89 (3d Cir. 1992). She cannot make this requisite showing.
First, there is no pending action over which a writ of mandamus might aid our
jurisdiction. See United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981) (explaining
that, “[b]efore entertaining” a petition for a writ of mandamus, “we must identify a
jurisdiction that the issuance of the writ might assist”). The complaint against Fontoura
was dismissed in 2015, see D.N.J. Civ. No. 2:15-cv-06143, ECF No. 6, and Carino’s
belated appeal in that matter was dismissed for lack of appellate jurisdiction. See Carino
v. Fontoura, C.A. No. 22-2159, Order entered October 14, 2022; see also In re Nwanze,
242 F.3d 521, 524 (3d Cir. 2001) (noting that, “given its drastic nature, a writ of
mandamus should not be issued where relief may be obtained through an ordinary
appeal”) (citation omitted). And, to the extent Carino seeks an order compelling a state
actor to perform a state action, we lack authority to grant mandamus relief in any event.
See In re Wolenski, 324 F.2d 309, 309 (3d Cir. 1963) (per curiam).2
For the foregoing reasons, we will deny the petition for a writ of mandamus.
2
To the extent that Carino seeks “Injunction Relief, Equity Relief Pursuant to the
National Emergency Mandate,” the request is denied because, among other reasons, she
provides no support or explanation for such relief. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483071/ | [Cite as In re Guardianship of Pond, 2022-Ohio-4023.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: : Hon. Earle E. Wise, P.J.
THE GUARDIANSHIP OF : Hon. W. Scott Gwin, J.
MARY ANN POND : Hon. Patricia A. Delaney, J.
:
:
: Case No. 22 CAF 06 0045
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Delaware Court of
Common Pleas, Probate Division, Case No.
21020198PGU
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 10, 2022
APPEARANCES:
For Appellee For Appellant
ADRIANN MCGEE DAVID POND, PRO SE
200 Civic Center Drive, Ste. 800 5952 Nike Drive
Columbus, OH 43215 Hilliard, OH 43026
[Cite as In re Guardianship of Pond, 2022-Ohio-4023.]
Gwin, J.,
{¶1} Appellant appeals the May 16, 2022, judgment entry of the Delaware
County Court of Common Pleas, Probate Division, overruling his objections to the
magistrate’s decision.
Facts & Procedural History
{¶2} On February 18, 2021, Elizabeth Carey (“Carey”), a caseworker with
Delaware County Department of Job and Family Services (“DCDJFS”), filed an
application for appointment of guardian of alleged incompetent Mary Ann Pond (“Mary”).
Attached to the application is a document entitled “supplemental information for
guardianship.” The document includes the following information: in October of 2020,
DCDJFS received a report about financial exploitation of Mary; when the caseworker
made contact with Mary in November of 2020, she observed Mary to be thin, disheveled,
hard to understand, and not making sense; Mary was not oriented to the month, day,
year, or her age; DCDJFS received another report about Mary regarding her increased
confusion; on January 26, 2021, medics reported Mary was very confused; Mary’s son,
appellant David Pond, reported she left a burner on the stove on and a wooden cover
over the burner caught fire; appellant accompanied Mary to the Gerlach Center on
February 5, 2021 for an evaluation of competency; appellant met with the doctor and
insisted the doctor back-date the expert report to July of 2020; when the doctor refused,
appellant got upset and left with Mary; and appellant refused to have Mary immediately
evaluated for competency to ensure her immediate safety.
{¶3} Due to a miscommunication, DCDJFS contacted multiple potential
guardians. Accordingly, attorneys Adriann McGee, S. Brewster Randall, and Christopher
Delaware County, Case No. 22 CAF 06 0045 3
Gasper each filed guardianship applications. Appellant also filed his own application for
guardianship of Mary.
{¶4} The trial court set the guardianship applications for hearing on March 9,
2021. On February 26, 2021, an “affidavit of service” was filed. The affidavit states that
a deputy clerk of court “served upon David Pond a Notice of Hearing for Appointment of
Guardian of Alleged Incompetent” by “personal service” at the Probate Court in Delaware
Ohio on February 26, 2021. The notices of hearing to Mary’s other living next of kin, sons
Robert Pond and Scott Pond, were sent via certified mail. Mary was served personally
by the probate court’s investigator.
{¶5} DCDJFS requested the trial court, pursuant to R.C. 2111.031, appoint a
physician or other qualified person to examine Mary and provide an expert evaluation to
decide whether a guardianship is necessary. The trial court granted the motion, and
appointed Princess Black, a licensed psychologist, to complete an expert evaluation of
Mary. Black submitted her statement of expert evaluation and report on March 3, 2021.
She diagnosed Mary with dementia and stated Mary could not answer any medical
questions, as Mary was disoriented and started talking about random things. Black stated
Mary was very difficult to follow, and much of what she said did not make sense. Black
concluded, due to “Mary’s state of dementia, disorientation and confusion, lack of medical
treatment, and being unable to manage her finances, a guardianship is recommended at
this time. Given her recent decline in cognitive functioning it is also recommended she
be medically assessed as soon as possible.”
{¶6} After Black’s report was filed, Nikolas McCoy (“McCoy”) filed an application
for emergency guardianship on March 3, 2021, citing Mary’s recent, substantial cognitive
Delaware County, Case No. 22 CAF 06 0045 4
decline and possible malnutrition. After an ex parte hearing, the magistrate granted the
application for emergency guardianship for a period of seventy-two hours. After a hearing
on March 5, 2021, the trial court extended the emergency guardianship until April 5, 2021.
{¶7} The trial court conducted a hearing on the five applications for appointment
of guardianship on March 9, 2021. Prior to the hearing, S. Brewster Randall withdrew his
application for guardianship due to a potential conflict of interest because he previously
served as Mary’s personal estate planning lawyer.
{¶8} At the beginning of the hearing, the magistrate inquired of each party and
their counsel, “does your client wish to challenge that finding of incompetency by the
court?” Each party/counsel responded, “no,” including appellant’s counsel. The
magistrate stated, “everyone is in agreement that Mary Ann Pond is an incompetent
person pursuant to Chapter 2111 of the Ohio Revised Code. So that issue is at rest and
does not need to be re-litigated.” During appellant’s cross-examination, counsel for
DCDJFS inquired, “at the beginning of the hearing today, you did, through your attorney,
agree to the Court’s finding of incompetence, correct?” Appellant responded, “yes.”
{¶9} Appellant presented a 2018 durable power of attorney he held for Mary’s
finances and health care. However, these powers of attorney were subsequently revoked
by Mary. Appellant also presented a durable power of attorney for financial management
Mary signed on February 11, 2021. Appellant downloaded the form for the power of
attorney from a legal website. Appellant believed Mary understood what she was doing
when she signed the document because, “she would have good days and she would have
bad days. And if – if you give her a cup of coffee, she would have a great day.” Appellant
Delaware County, Case No. 22 CAF 06 0045 5
took Mary to a bank so the employees could notarize the power of attorney. He testified
they spent about five minutes having a meeting at the bank.
{¶10} When asked if Mary is capable of making her own medical decisions,
appellant stated she can on her good days, but cannot on her bad days. Appellant
believes Mary can do activities of daily living, and “if you give her a cup of coffee, she
does great.” However, appellant confirmed Mary has had dementia “probably since about
2019.” Appellant believes Mary has Alzheimer’s dementia, and would sundown in the
evening and get very confused, but if you caught her in the morning and give her coffee,
she was not a danger to herself. When asked how he attempted to make Mary’s home
safe so she could stay at home, appellant stated he tried, but Mary would not let him
install a hand-rail or remove carpet. Appellant did turn the circuit breaker off after a
kitchen fire. Appellant did not previously exercise his power of attorney because he felt
Mary was making decisions on her good days. Appellant stated he and other family and
friends were checking on Mary.
{¶11} Appellant stated that, if he was appointed guardian, he would make sure
Mary’s house was safe and hire care for her. Even if he is not appointed guardian,
appellant wishes to assist in Mary’s care.
{¶12} Appellant confirmed he assisted in investing Mary’s funds in physical gold
and silver. Appellant testified it was a joint decision between Mary and himself, and both
of them knew his father (Mary’s husband) previously did very well investing in gold. The
gold was kept at Mary’s house, except for a shipment of approximately $20,000 that was
lost in transit.
Delaware County, Case No. 22 CAF 06 0045 6
{¶13} Randall was Mary’s estate planning attorney for approximately the last five-
and-a-half years. He assisted Mary in preparing the revocations of the 2018 powers of
attorney. Mary was concerned about appellant due to his divorce and had concerns about
his ability to manage finances since he was no longer working. Appellant stated Randall
“tricked” Mary into signing the revocations. Randall denied “tricking” Mary into revoking
the documents, and stated Mary called him and the revocations were her idea.
{¶14} Carey is an investigator with DCDJFS Adult Protective Services. The
agency originally received a report about Mary on October 23, 2020, alleging Mary’s son
Scott stole $900,000 from her home. There were also concerns reported about Mary’s
cognition and her keeping large amounts of money in her home. Carey obtained the
police report on the theft incident, and discovered it was actually $98,000 allegedly stolen
from Mary’s home. Carey attempted to visit Mary’s home. She spoke with Mary’s son
Steve, who had concerns about Mary’s declining memory. Carey spoke with appellant,
who expressed concerns about Mary, such as her inability to use a phone or write a
check. Appellant had extreme concerns about people taking advantage of Mary. Carey
had concerns during her interactions with Mary, because Mary would jump from topic to
topic, could not follow a conversation, and was not oriented to the date, month, year, or
her age. Carey obtained multiple calls Mary made to the police in the prior year, including
calls where Mary stated she didn’t know how to use the stove, and a call while she was
at the vet with her pet and she was confused. Carey spoke with Dr. Tornik, Mary’s
personal physician. Tornik was long-time friends of the Pond family and appellant. Tornik
had concerns for Mary’s capacity and the potential for financial exploitation.
Delaware County, Case No. 22 CAF 06 0045 7
{¶15} Mary wanted Carey to leave when she visited in December and January,
but then began talking to Carey. Mary did not allow Carey into the home, so she spoke
to Carey through the window or outside. Carey described Mary as appearing disheveled
with cognition issues. Appellant was initially cooperative with Carey, but then took Mary
and left prior to the competency evaluation because the physician would not back-date
the competency evaluation to July of 2020 when Mary changed her trust and power of
attorney. Carey again saw Mary on February 25, 2021 on her porch. Carey described
Mary as “a lot worse than [she] had seen any other time.” Mary was unable to articulate
a sentence, and thought her deceased husband was alive.
{¶16} Carey does not believe appellant would be a good legal representative to
represent Mary’s best interest because appellant was not protecting Mary or making sure
all her basic needs were being met prior to DCDJFS’ involvement. Carey believes a
guardianship is appropriate under the circumstances in order to ensure Mary’s health and
safety.
{¶17} McCoy is an attorney who was appointed emergency guardian of Mary.
When McCoy first met Mary at her home after obtaining emergency guardianship, she
answered the door clutching a stuffed animal and she was filthy. Mary let McCoy into the
house and was “very confused,” using “word salad,” or a jumble of words that has no
cohesion. McCoy called an ambulance to transport her to the hospital. McCoy returned
to the residence the next day, and found nothing in the refrigerator except condiments.
When he went to take Mary’s purse to her at the hospital, he discovered she had
$7,162.76 in cash in her purse. From his observations and discussions with multiple
individuals, including family members and the doctors taking care of Mary, McCoy
Delaware County, Case No. 22 CAF 06 0045 8
concluded that Mary has needed twenty-four-hour care for some time. McCoy knows
Mary wants to remain in her home, so it is his goal to return her to her home with the
twenty-four-hour supervision she needs, including a working alarm and security system,
which she did not have.
{¶18} McCoy believes Mary needs a guardian. He does not believe a healthcare
power of attorney and financial power of attorney are adequate to provide the authority
and protection Mary needs. Based on everything he has seen so far, up until the time he
got involved, the individuals taking care of Mary were not doing the job adequately.
{¶19} From McCoy’s investigation of Mary’s financial records, Mary wrote a check
to appellant for $96,000 in May of 2020. Mary wrote approximately $3.1 million in checks
to Hartford Gold Group in January and February of 2021. McCoy described appellant as
being unreasonable and uncooperative with him, even though McCoy does not have a
“dog in the fight” and simply is trying to be an effective guardian for Mary.
{¶20} The magistrate issued a decision on March 22, 2021. First, the magistrate
stated, “all of the applicants through counsel agreed that the issue of incompetence at
this hearing was not in dispute, and they agreed that Mrs. Pond is incompetent to make
decisions.” The magistrate found, by clear and convincing evidence, that: less restrictive
alternatives to guardianship are not working and are operationally inappropriate; Mary is
mentally impaired and is not capable of taking care of herself or her property due to
dementia; the condition manifests itself through impairment of Mary’s orientation, speech,
motor behavior, thought process, memory, concentration and comprehension
disorientation, and confusion; notice of the hearing was properly made; it is in the best
interest of Mary to have a guardian for her person and estate; and Adrian McGee is
Delaware County, Case No. 22 CAF 06 0045 9
suitable to assume the duties of guardian of the estate. The magistrate requested McCoy,
as emergency guardian of Mary’s person, apply for guardianship of the person.
{¶21} As to appellant’s argument that there were lesser restrictive alternatives to
guardianship since there are powers of attorney, the magistrate found the mere existence
of these documents is not enough to preclude a guardianship, and the court must take
into consideration whether the planning documents for a lesser restrictive alternative are
actually working. The magistrate concluded the powers of attorney were not working to
protect the interests of Mary, and Exhibit 3, dated February 11, 2021 was signed at a time
when Mary was incompetent. The magistrate found appellant assisted and encouraged
Mary to send two checks from trust accounts for approximately three million dollars to a
firm in California to buy gold and silver to be physically delivered to Mary’s house.
{¶22} McCoy filed an application for guardian of the person of Mary. The
magistrate then terminated the emergency guardianship of Mary, revoked the emergency
guardianship, and appointed McCoy as guardian of the person on March 26, 2021.
{¶23} Appellant filed objections to the magistrate’s decision on April 5, 2021. He
included the following objections: the financial power of attorney executed by Mary Pond
on February 11, 2021 is valid, and it should be given a reasonable opportunity to
demonstrate that it is a viable less restrictive alternative to a guardianship of the estate;
and a guardian of the person is not the least restrictive alternative for Mary Pond.
Appellant requested a hearing on his objections to the magistrate’s decision “in order to
provide evidence on relevant events that have occurred since the hearing before the
magistrate.”
Delaware County, Case No. 22 CAF 06 0045 10
{¶24} The trial court held ruling on the objections while the parties participated in
mediation. However, after mediation was unsuccessful, the trial court issued a detailed
judgment entry on May 16, 2022, overruling appellant’s objections to the magistrate’s
decision. The trial court found appellant is not suitable to be guardian or attorney-in-fact
for Mary, stating: appellant’s opinion of Mary’s competency seems to shift based on which
opinion would give him the most say in her financial affairs; appellant has not
demonstrated sufficient financial sophistication to oversee a multi-million dollar estate, as
evidenced by his conversion of Mary’s $3.1 million liquid cash bank accounts into physical
gold and silver coins which were kept in an insecure manner; appellant is involved in
allegations of possible financial abuse of Mary, either as the accuser or the accused, so
he is not a disinterested party; during the time when appellant was allegedly Mary’s health
care and financial agent, she was physically dirty, had almost no food in her refrigerator,
and was completely incapable of carrying on even a brief conversation; during that time,
appellant did little to improve Mary’s condition apart from dropping off a meal at least once
a day; the fact that appellant could not identify how to remedy Mary’s situation in the
condition that she was in is sufficient to disqualify him from the guardian of her person;
and appellant demonstrated his unwillingness to comply with the recommendations of
others when he removed Mary from the Gerlach center before she could evaluated and
when he instructed Mary not to cooperate with the court’s investigator.
{¶25} Next, the trial court found the power of attorney purportedly executed by
Mary on February 11, 2021 is insufficient to serve as a less restrictive alternative to
guardianship, and found appellant’s unsuitability renders the power of attorney an
unfeasible less restrictive alternative. As to appellant’s argument that he should be given
Delaware County, Case No. 22 CAF 06 0045 11
a reasonable opportunity to demonstrate the power of attorney constitutes a less
restrictive alternative, the court noted appellant was unaware that his prior powers of
attorney were revoked until only recently, and when appellant believed he had the power
to take the same sort of actions he could take under the February 11, 2021 power of
attorney for many months, he did nothing to improve Mary’s care. The trial court also
cited the language of the February 11th power of attorney that “this document does not
authorize anyone to make medical or other health care decisions,” and stated that since
Mary is incompetent and has no valid health care power of attorney, without the
guardianship, no one would be authorized to make medical decisions for her. The trial
court concluded the February 11, 2021 power of attorney is an unfeasible less restrictive
alternative because it fails to create a mechanism for making Mary’s medical decisions.
{¶26} As to appellant’s argument that Mary sometimes has good days and bad
days, and good hours and bad hours, the court found, “the fact that Ms. Pond may
sometimes have the capacity to make her own financial decisions is simply not sufficient
to protect her property and economic security all the time * * * an agent acting pursuant
to a power of attorney cannot maintain the constant vigilance that would be necessary to
ensure that no one takes advantage of Ms. Pond given her advanced dementia, therefore
the severe restrictions of a full guardianship are necessary.” The trial court determined a
full guardianship was necessary to protect Mary and is in her best interest.
{¶27} The trial court overruled appellant’s objection to McCoy as the guardian,
finding the Rules of Superintendence were met in the appointment of him as guardian,
and noted the basis for appellant’s objection is largely based on events that occurred
subsequent to the hearing.
Delaware County, Case No. 22 CAF 06 0045 12
{¶28} Appellant appeals the May 16, 2022, judgment entry of the Delaware
County Court of Common Pleas, Probate Division, and assigns the following as error:
{¶29} “I. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT HELD THREE EMERGENCY HEARINGS ON [THE] COMPETENCY OF
MARY ANN POND WITHOUT NOTIFYING HER OR HER FAMILY. ESPECIALLY
WHEN DR. DAVID POND REQUESTED TO BE PRESENT TO THE APS WORKER
WELL IN ADVANCE OF ANY HEARING.
{¶30} “II. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT IGNORED MARY ANN POND’S FOURTH CONSTITUTIONAL AMENDMENT
RIGHT AND SENT A COURT INVESTIGATOR TO HER HOUSE IN THE MIDDLE OF
THE EVENING WITHOUT NOTICE, AND WITHOUT GIVING HER THE CHANCE TO
HAVE FAMILY OR HER ATTORNEY PRESENT, ESPECIALLY WHEN THERE WAS NO
RISK OF DANGER TO MARY ANN POND BY OTHERS, AND SHE WAS NOT A
DANGER TO HERSELF. MARY ANN POND WAS NOT IN ANY EMERGENCY
SITUATION AT THE TIME OF THE INVESTIGATION. THERE WAS NO EMERGENCY.
{¶31} “III. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT TOOK VERBAL EVIDENCE FROM NICHOLAS MCCOY AS A COURT
INVESTIGATOR THAT WAS OBTAINED AGAINST THE FOURTH AMENDMENT OF
THE CONSTITUTION AND AGAINST THE WILL OF MARY ANN POND WHEN HE
CAME TO HER HOUSE IN THE MIDDLE OF THE EVENING AND BARGED INTO HER
HOUSE WITHOUT HER PERMISSION TO PERFORM AN INVESTIGATION. IN FACT,
MARY ANN POND HAD TOLD THE APS WORKER ON SEVERAL OCCASIONS SHE
DID NOT WANT HER AROUND AND TOLD ANY AND ALL PROBATE COURT
Delaware County, Case No. 22 CAF 06 0045 13
INDIVIDUALS THE SAME. MARY ANN POND DID EVERYTHING IN HER POWER TO
AVOID ANY PROBATE INVOLVEMENT IN HER LIFE, AS EVIDENCED BY HER AND
HER HUSBAND’S TRUSTS. THE EVIDENCE OBTAINED ILLEGALLY BY ATTORNEY
MCCOY NOT ONLY WAS FACTUALLY ERRONEOUS, IT SHOULD HAVE BEEN
EXCLUDED FROM EVIDENCE AS IT WAS AN ILLEGAL SEARCH AND SEIZURE OF
PERSON AND PROPERTY. MR. MCCOY DID NOT SHOW EVIDENCE OF ANY OF
HIS ALLEGATIONS TO PROVE THAT THE INFORMATION HE PROVIDED WAS TRUE
AND WITHOUT ERROR. THERE WAS NO TRUE EMERGENCY, SHE WAS NOT A
DANGER TO HERSELF, AND SHE WAS NOT IN DANGER FROM OTHERS. SHE WAS
NOT MALNOURISHED AS EVIDENCED BY MEDICAL REPORTS FROM HER
PRIMARY CARE PHYSICIAN OFFICE ONE WEEK PRIOR TO HER BEING TAKEN.
{¶32} “IV. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT IGNORED MEDICAL TESTIMONY FROM DR. DAVID POND, A LICENSED
PHYSICIAN IN THE STATE OF OHIO WITH OVER 20 YEARS EXPERIENCE, OVER
THAT OF ATTORNEY NICHOLAS MCCOY AND BETH CAREY WHO BOTH HAVE NO
KNOWN MEDICAL CREDENTIALS, LICENSURE, SKILLS, OR TRAINING ON BEING
ABLE TO DETERMINE MEDICAL CONDITIONS IN INDIVIDUALS.
{¶33} “V. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT WENT AGAINST THE TESTIMONY OF DR. DAVID POND WHEN HE
STATED HIS MOTHER WAS NOT INCOMPETENT AND HE COULD HAVE
COMMUNICATIONS WITH HER AND COMPLETELY UNDERSTAND WHAT SHE
WANTED AND NEEDED.
Delaware County, Case No. 22 CAF 06 0045 14
{¶34} “VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT WENT AGAINST THE TESTIMONY OF DR. DAVID POND WHEN HE STATED HE
HAD NOT TAKEN OVER HIS MOTHER’S FINANCES, NOR INVOKED HIS CONTROL
OVER HER PERSON OR HER TRUSTS. DR. DAVID POND WAS STILL
COMMUNICATING WITH HIS MOTHER AND HELPING HER WITH MEALS, BUT
MARY ANN POND WAS STILL PERFORMING HER ACTIVITIES OF DAILY LIVING,
SHE WAS NOT WANDERING, AND SHE WAS STILL [IN CHARGE OF] HER CARE.
SHE WAS STILL VERY MUCH IN CONTROL OF HER FINANCES. TO THE EXTENT
THAT SHE NEEDED HELP, SHE HAD HIRED MICHELLE SHERMAN TO FURTHER
HELP WITH HER FINANCES. AT THE TIME OF THE INVESTIGATION, MARY ANN
POND WAS IN SOUND MIND TO MAKE DECISIONS FOR HERSELF, ACCORDING
TO MYSELF AND AN EXPERT WITNESS IN HEALTHCARE.
{¶35} “VII. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT IGNORED OHIO LAW AND DID NOT ALLOW FOR THE LESSER
RESTRICTIVE ALTERNATIVE TO GUARDIANSHIP.
{¶36} “VIII. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT IGNORED THAT THE TRUSTS OF MARY ANN POND AND ROBERT J.
POND HAD [BEEN] SET UP TO AVOID PROBATE COURT, AND WERE IN AND OF
THEMSELVES A LESSER RESTRICTIVE ALTERNATIVE TO GUARDIANSHIP.
{¶37} “IX. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT IGNORED A MEDICAL POWER OF ATTORNEY AND A GENERAL POWER
OF ATTORNEY SIGNED BY MARY ANN POND SEVERAL MONTHS PRIOR TO BEING
DECLARED INCOMPETENT, ESPECIALLY WHEN DR. DAVID POND HELD THE
Delaware County, Case No. 22 CAF 06 0045 15
CONFIDENCE OF HIS MOTHER MARY ANN POND SINCE EARLY 2000 WHEN HE
WAS HER MEDICAL POWER OF ATTORNEY SINCE HE BECAME A PHYSICIAN.
{¶38} “X. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT REFUSED TO HOLD A HEARING ON THE OBJECTION TO THE
MAGISTRATE’S DECISION, EFFECTIVELY BARRING US FROM OFFERING UP THE
PREVIOUS OBJECTIONS, AND PRESENTING EVIDENCE.
{¶39} “XI. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT ALLOWED A GUARDIAN TO REPRESENT THEIR OWN SELF-INTERESTS
AND ARGUE IN COURT AGAINST MOTIONS AND EVEN THIS APPEAL WHEN THE
WARD, MARY ANN POND, HAD BEEN APPOINTED A COURT-APPOINTED
ATTORNEY.
{¶40} “XII. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
WHEN IT REMOVED DR. DAVID POND FROM GUARDIANSHIP OF MARY ANN POND
BASED ON FINANCIAL ADVICE GIVEN TO MARY ANN POND ABOUT BUYING
PHYSICAL GOLD AND SILVER DURING TIMES OF ECONOMIC TURMOIL AND
HYPERINFLATION.
{¶41} “XIII. THE PROBATE COURT ERRED AND ABUSED ITS DISCRETION
BY MAKING DECISIONS BASED ON HEARSAY THAT TURNED OUT TO BE FALSE
WHEN ACCEPTING EVIDENCE AND ARGUMENTS WOULD HAVE PROVEN THE
TRUTH OF THE MATTER.”
Failure to Object & Plain Error
{¶42} We initially note that appellant failed to object to many of the issues he
raises on appeal at either the hearing before the magistrate or in his objections to the
Delaware County, Case No. 22 CAF 06 0045 16
magistrate’s decision. On those issues, appellant has therefore waived all but plain error.
The plain error doctrine is applicable in civil cases only where the error “seriously affects
the basic fairness, integrity, or public reputation of the judicial process.” Lowder v.
Domingo, 5th Dist. Stark No. 2016CA00043, 2017-Ohio-1241.
I.
{¶43} In his first assignment of error, appellant argues the probate court erred and
abused its discretion when it held three emergency hearings on competency of Mary
without notifying her or her family.
{¶44} Appellant did not raise this argument at the hearing or in his objections to
the magistrate’s decision. Accordingly, a plain error review applies. It is unclear whether
appellant is referencing the emergency guardianship hearing, or the full guardianship
hearing starting on March 9, 2021.
{¶45} As to the emergency guardianship hearing, appellant did not appeal the
appointment of the emergency guardian. Additionally, pursuant to R.C. 2111.02 and R.C.
2111.04, an emergency guardianship hearing is an ex parte hearing, and no notice is
required until after the emergency guardian is appointed.
{¶46} With regard to the March 9th hearing, proper notice of the hearing was
provided. The deputy clerk served appellant with notice of the hearing by personal service
on February 26, 2021. The notices of hearing to Mary’s other living next of kin, sons
Robert Pond and Scott Pond, were sent via certified mail. Mary was served personally
by the probate court investigator. Additionally, appellant and his brothers all actually
attended the March 9th hearing, and each had the opportunity to present evidence and
be heard.
Delaware County, Case No. 22 CAF 06 0045 17
{¶47} Appellant’s first assignment of error is overruled.
II.
{¶48} In his second assignment of error, appellant contends the trial court erred
and abused its discretion by admitting “illegal evidence” that Carey obtained in violation
of Mary’s Fourth Amendment constitutional right against unreasonable search and
seizure when Carey went to Mary’s house without consent and without her family present.
{¶49} Appellant did not raise this argument in his objections to the magistrate’s
decision. Accordingly, a plain error review applies. We find no plain error in this case.
Carey testified that when she visited Mary’s home, she did not go into the house. Rather,
Carey spoke to Mary through a window or outside and, after initially stating she did not
want to talk to her, Mary voluntarily spoke to Carey through the window or outside the
home. Appellant’s second assignment of error is overruled.
III.
{¶50} In his third assignment of error, appellant argues the trial court abused its
discretion when it admitted McCoy’s testimony because the information McCoy related in
his testimony was obtained in violation of Mary’s Fourth Amendment constitutional right
against unreasonable search and seizure because McCoy entered Mary’s home without
her permission.
{¶51} Appellant did not raise this argument in his objections to the magistrate’s
decision. Accordingly, a plain error review applies. We find no plain error in this case.
McCoy went to Mary’s house after being appointed her emergency guardian, and entered
the home with consent because Mary let him into the home. Any “search” McCoy made
was for financial documents, a key to lock the home, and to collect Mary’s personal effects
Delaware County, Case No. 22 CAF 06 0045 18
to deliver to her at the hospital. These actions were all taken pursuant to his duties and
powers as Mary’s guardian. Further, McCoy is a private party, not a state actor subject
to Fourth Amendment scrutiny. The “Fourth Amendment’s proscription on searches and
seizures are inapplicable to private action.” United States v. Jacobsen, 466 U.S. 109,
104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); Village of Granville v. Eastman, 5th Dist. Licking
No. 2006CA00050, 2006-Ohio-6237.
{¶52} Appellant’s third assignment of error is overruled.
IV., V., VI.
{¶53} In his fourth, fifth, and sixth assignments of error, appellant contends the
trial court abused its discretion when it “ignored” his testimony that Mary was not
incompetent, as appellant testified that Mary was performing her activities of daily living,
was in control of her finances, and was in sound mind to make decisions herself.
{¶54} During the emergency guardianship hearing, the magistrate found Mary
incompetent. This finding was adopted and approved by the trial court. Appellant did not
appeal the emergency guardianship entry or incompetency finding. At the beginning of
the full guardianship hearing, the magistrate inquired of each party and their counsel
whether they or their client wanted to challenge the finding of incompetency by the trial
court. Each party or counsel responded, “no,” including counsel for appellant. The
magistrate stated, “everyone is in agreement that Mary Ann Pond is an incompetent
person pursuant to Chapter 2111 of the Ohio Revised Code * * * so that issue does not
need to be re-litigated.” Further, counsel for DCDJFS inquired of appellant, “at the
beginning of the hearing today, you did, through your attorney, agree to the Court’s finding
of incompetence, correct?” Appellant responded, “yes.”
Delaware County, Case No. 22 CAF 06 0045 19
{¶55} Thus, Mary’s competency was not at issue during the hearing. A stipulation
is a voluntary agreement, admission, or concession made by the parties or their attorneys
concerning disposition of some relevant point in order to eliminate the need for proof or
to narrow the range of issues to be litigated. State v. Small, 162 Ohio App.3d 375, 2005-
Ohio-3813, 833 N.E.2d 774 (10th Dist. Franklin); Baum v. Baum, 9th Dist. Wayne No.
97CA0022, 1997 WL 775770 (Nov. 26, 1997). When parties “choose to stipulate facts in
lieu of presenting evidence, they [waive] any error that may have occurred with respect
to the fact that the trial court decided * * *.” State v. Miller, 3rd Dist. Seneca No. 13-20-
14, 2021-Ohio-4472; Crow v. Nationwide Mut. Ins. Co., 159 Ohio App.3d 417, 2004-Ohio-
7117, 824 N.E.2d 127 (5th Dist.).
{¶56} Further, as to appellant’s contention that the trial court “ignored” his
testimony, it is clear the trial court did take his testimony into consideration, but did not
find it credible given the testimony of the other witnesses, and because appellant’s
testimony was inconsistent. We defer to the trial court on the issue of credibility because
the trial court is “best able to view the witnesses and observe their demeanor, gestures,
and voice inflections, and use these observations in weighing the credibility of the
proferred testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273
(1984).
{¶57} Appellants, fourth, fifth, and sixth assignments of error are overruled.
VII., VIII., IX.
{¶58} In his seventh, eighth, and ninth assignments of error, appellant argues the
trial court abused its discretion when it found the trust documents and power of attorney
Delaware County, Case No. 22 CAF 06 0045 20
were not appropriate less restrictive alternatives available in lieu of an independent
guardian.
{¶59} A probate court’s decision to appoint a guardian is generally within the
sound discretion of the trial court and will not be reversed absent an abuse of discretion.
In re Guardianship of Borland, 5th Dist. Stark No. 2002CA00410, 2003-Ohio-6870. An
abuse of discretion indicates the trial court was unreasonable, arbitrary, or
unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140
(1983). “A reviewing court will not reverse a judgment appointing a guardian as an abuse
of discretion if it is supported by competent and credible evidence.” In re Guardianship
of Waller, 1st Dist. Hamilton No. C-100131, 2011-Ohio-313
{¶60} R.C. 2111.02(C) provides that evidence of a less restrictive alternative to
guardianship may be introduced, and, if introduced, shall be considered by the court. A
probate court may deny a guardianship if it finds a less restrictive alternative to
guardianship exists. R.C. 2111.02(C)(6). However, while the statute requires the trial
court to consider the existence of a less restrictive alternative to guardianship, it does not
require a probate court to deny an application for guardianship simply because evidence
of less restrictive alternatives is produced. In re Guardianship of Collins, 12th Dist.
Warren No. CA2013-08—0072, 2014-Ohio-5750. In matters relating to guardianship, the
probate court is required to act in the best interest of the ward. Id.
{¶61} We find the trial court did not abuse its discretion in finding that a
guardianship was necessary and that a less restrictive alternative in the form of the power
of attorney or trust would not sufficiently protect Mary. Although appellant argues the
power of attorney was sufficient to provide for the care and safety of Mary because she
Delaware County, Case No. 22 CAF 06 0045 21
was capable of making decisions, during the hearing, appellant stipulated that Mary was
incompetent.
{¶62} The trial court found the power of attorney executed in February of 2021
was not a viable alternative to appointment of a guardian. The trial court noted that, when
appellant thought he held a valid durable and health care power of attorney, he did nothing
to improve Mary’s care. The trial court also found it concerning that the February 2021
power of attorney specifically and intentionally does not authorize anyone to make
medical or health care decisions; since Mary is incompetent and has no other valid health
care power of attorney, no one would be authorized to make medical decisions absent a
guardianship. Though appellant argues the health care power of attorney Mary executed
in 2018 protects her, there was undisputed and unrebutted evidence that Mary revoked
the health care power of attorney. The trial court further found that even if Mary had “good
hours,” as testified to by appellant, that is not sufficient to protect her property because a
power of attorney cannot maintain the constant vigilance needed to ensure no one takes
advance of Mary due to her advanced dementia. The trial court concluded it was in Mary’s
best interest to establish a guardianship.
{¶63} Upon review, we conclude the trial court could have reasonably determined
that the terms of the preexisting trust and power of attorney were insufficient to provide
the type of protection of Mary’s assets that the appointment of a guardian would provide.
Similarly, the trial court could have reasonably determined that the power of attorney was
insufficient to provide the type of safety and security needed, and insufficient to provide
for Mary’s medical decisions. McCoy and Carey both testified that Mary needs a
guardian.
Delaware County, Case No. 22 CAF 06 0045 22
{¶64} Appellant’s seventh, eighth, and ninth assignments of error are overruled.
X.
{¶65} In his tenth assignment of error, appellant contends the trial court abused
its discretion in not holding a hearing on appellant’s objections to the magistrate’s
decision.
{¶66} Pursuant to Civil Rule 53(D)(4)(d), “* * *In ruling on objections, the court
shall undertake an independent review as to the objected matters to ascertain that the
magistrate has properly determined the factual issues and appropriately applied the law.
Before so ruling, the court may hear additional evidence but may refuse to do so unless
the objecting party demonstrates that the party could not, with reasonable diligence, have
produced that evidence for consideration by the magistrate.” Civil Rule 53(D)(4)(d) does
not require the trial court to hold a hearing prior to ruling on a party’s objections to a
magistrate’s decision.
{¶67} In his request for hearing, appellant stated he wished to present “additional
evidence” to the trial court. Rule 53(D)(4)(d) does not require courts to take additional
evidence. Rather, the rule permits courts to take or preclude additional evidence if they
wish to do so. Donofrio v. Whitman, 191 Ohio App.3d 727, 2010-Ohio-6406, 947 N.E.2d
715 (7th Dist.). The trial court has discretion to decide whether to hear additional
evidence after the parties submit objections to the magistrate’s report. In re J.W., 5th
Dist. Richland No. 2021 CA 0007, 2021-Ohio-2917. Accordingly, when a trial court hears
or does not hear additional evidence, we review this decision under an abuse of discretion
standard. Parrish v. Parrish, 5th Dist. Knox No. 15CA4, 2015-Ohio-4560.
Delaware County, Case No. 22 CAF 06 0045 23
{¶68} Upon our review of the record, we find the trial court did not abuse its
discretion in denying appellant’s motion to hear additional evidence. In his request for
hearing, appellant did not state what additional evidence he sought to present, or
demonstrate how he could not, with reasonable diligence, have presented the evidence
to the magistrate. Appellant’s tenth assignment of error is overruled.
XI.
{¶69} In his eleventh assignment of error, appellant argues the probate court erred
and abused its discretion when it permitted the guardian to argue in court “against motions
and even this appeal.”
{¶70} Appellant did not raise this argument in his objections to the magistrate’s
decision. Accordingly, a plain error review applies.
{¶71} We find no plain error in this case. Appellant provides no legal support, and
this Court can find no legal authority, for his contention that an applicant for guardianship
and/or his or her counsel cannot argue or respond to certain motions or appeals.
{¶72} Appellant’s eleventh assignment of error is overruled.
XII.
{¶73} In his twelfth assignment of error, appellant contends the trial court abused
its discretion when it “removed him from guardianship” based on financial advice given to
Mary about buying physical gold and silver.
{¶74} We first note that appellant was not “removed” from being Mary’s guardian,
as he was never appointed Mary’s guardian. Further, the trial court did not deny
appellant’s application for guardianship based upon the financial advice about buying
physical gold and silver. The trial court specifically stated, “to be clear, the Court does
Delaware County, Case No. 22 CAF 06 0045 24
not question investment in gold as an asset class, but the investment in physical gold to
be kept in an insecure manner demonstrates poor financial judgment.” The trial court
was concerned that appellant told Carey that Mary could not even write a check, but then
testified at the guardianship hearing that Mary was capable of handling her own finances.
The trial court additionally found appellant’s opinion about Mary’s capabilities
inconsistent, and found appellant’s opinions were closely linked to what gave appellant
the greatest control over Mary’s finances. Because of these issues, the trial court
determined appellant was ineligible to serve as Mary’s financial agent. Additionally, the
trial court found appointing appellant as guardian of Mary’s estate would create an
impermissible conflict pursuant to Superintendence Rule 66 because he was previously
involved in reporting a theft and was accused by others of financially taking advantage of
Mary.
{¶75} Appellant also contends McCoy is an unsuitable guardian, and appellant
himself should have been appointed guardian. When considering an application for
appointment of a guardian, a probate court must determine whether a guardian is required
and also determine who shall be appointed guardian. In re Guardianship of Collins, 12th
Dist. Warren No. CA2013-08-0072, 2014-Ohio-5750. A probate court has broad
discretion in appointing guardians, and decisions regarding the appointment of a guardian
will not be reversed on appeal absent an abuse of discretion. Id. The probate court is
required to act in the best interest of the ward. Id.
{¶76} We find there is competent and credible evidence to support the trial court’s
decision to appoint McCoy rather than appellant. When appellant was purportedly acting
under a health care and financial power of attorney for Mary, Mary was physically dirty,
Delaware County, Case No. 22 CAF 06 0045 25
had almost no food in her refrigerator, and was incapable of carrying on a brief
conversation. During this time, appellant did little to improve her condition. Additionally,
appellant testified inconsistently about Mary’s competency when discussing her ability to
maintain her finances, and appellant was both the accuser and the accused in the alleged
mishandling of Mary’s financial affairs.
{¶77} The trial court believed the testimony of Carey and McCoy, and the
statement of expert evaluation of Black, rather than the testimony of appellant. As an
appellate court, we do not function as fact-finders; we neither weigh the evidence nor
judge the credibility of the witnesses. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77,
461 N.E.2d 1273 (1984). Our role is to determine whether there is relevant, competent,
and credible evidence upon which the fact-finder could base his or her judgment. Id. The
trial court is “best able to view the witness and observe their demeanor, gestures, and
voice inflictions, and use these observations in weighing the credibility of the proffered
testimony.” Id.
{¶78} Appellant’s twelfth assignment of error is overruled.
XIII.
{¶79} In his final assignment of error, appellant contends the trial court abused its
discretion by making decisions based on hearsay that “turned out to be false.”
{¶80} Appellant did not object to any testimony at the hearing on the basis of
hearsay. Further, appellant did not raise this argument in his objections to the
magistrate’s decision. Accordingly, a plain error review applies.
Delaware County, Case No. 22 CAF 06 0045 26
{¶81} We find no plain error in this case. Appellant fails to specifically identify
what statements he alleges were improper hearsay, or how the trial court relied on the
statements in its judgment entry.
{¶82} Appellant mentions what he believes are “glaring errors” of Carey and
McCoy about the amount mentioned in a police report and the amount of cash Mary
carried in her purse. Carey testified that DCDJFS was initially notified by law enforcement
of an allegation by Mary that her son Scott stole $900,000 from her home. However,
when Carey actually obtained the police report, it stated that Mary and appellant together
reported that Scott stole $98,000. There was no “error” by Carey, and instead she was
testifying about the amount reported versus the amount contained in the police report.
Appellant also states Carey “inflated” the amount of cash in Mary’s purse “from $7,100 to
$500,000.” Carey stated there was approximately $7,100 in Mary’s purse, but did not
testify there was $500,000 in Mary’s purse. Rather, Carey reported there was $500,000
in Mary’s house. McCoy testified during the hearing that there was $7,162.76 in Mary’s
purse.
{¶83} Appellant’s thirteenth assignment of error is overruled.
{¶84} Based on the foregoing, appellant’s assignments of error are overruled.
Delaware County, Case No. 22 CAF 06 0045 27
{¶85} The May 16, 2022 judgment entry of the Delaware County Court of
Common Pleas, Probate Division, is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483064/ | Filed 11/10/22 P. v. Bloxton CA2/2
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 TWO
THE PEOPLE, B307556
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA018339)
v.
OPINION ON REMAND
DANTE LAVELL BLOXTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Gary J. Ferrari. Reversed and remanded.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Rob Bonta,
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Wyatt Bloomfield and Nicholas J. Webster, Deputy Attorneys
General, for Plaintiff and Respondent.
******
Dante Lavell Bloxton (defendant) appeals the trial court’s
denial of his petition for relief under Penal Code1 section 1172.6
(former section 1170.95).2
We previously affirmed the court’s order in an unpublished
opinion, People v. Bloxton (July 29, 2021, B307556), concluding
the record established defendant was ineligible for resentencing
as a matter of law based on the true finding on the special
circumstance allegation by the jury at trial. Upon review, the
California Supreme Court transferred this case back to us to
reconsider in light of People v. Strong (2022) 13 Cal.5th
698 (Strong). We now reverse the court’s order and remand the
matter for the court to conduct an evidentiary hearing under
section 1172.6.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its
new numbering only.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts3
A. The underlying crimes
On a Sunday night in August 1993, defendant, Efren
Bullard (Bullard) and others approached two men who were
using a gas station pay phone in Long Beach, California.
Defendant and Bullard had firearms. With guns drawn,
defendant and his companions demanded that the men hand over
their valuables. Defendant and his group soon realized that the
two men had driven separate cars—namely, a Bronco and a
Camaro. From the Bronco, the group pulled out one man’s wife
by her hair and demanded her jewelry and money; they then
proceeded to ransack the Bronco. After a third man got out of the
Camaro, defendant and his group lined up all four victims by the
Bronco and demanded that they turn out their pockets. One
member of the group commented that he was “going to kill all of
the victims because they were Mexican.” When the robbers went
to ransack the Camaro, they discovered David Hoppes (Hoppes)
inside the car. Defendant and Bullard pulled Hoppes from the
Camaro and started to beat him and to go through his pockets.
When Bullard announced his intention to kill Hoppes because
Hoppes “was White,” defendant responded, “I don’t care.”
Moments later, Bullard shot Hoppes in the leg and, after Hoppes
collapsed and started to crawl away, defendant and Bullard
walked up to him in tandem. While standing over Hoppes,
Bullard shot him repeatedly. The multiple gunshot wounds were
fatal. The robbers then ran off.
3 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Bloxton (July
23, 1998, B113892).)
3
B. Prosecution, conviction and appeal
The People charged defendant with (1) the murder of
Hoppes (§ 187, subd. (a)), and (2) five counts of second degree
robbery (§ 211). As to the murder, the People alleged a special
circumstance—namely, that it was committed in the course of a
robbery (§ 190.2, subd. (a)(17)(A)), which could be found true only
if defendant was a major participant in the robbery and acted
with reckless indifference to human life. The People further
alleged that defendant and Bullard “personally use[d] a firearm”
(§ 12022.5, subd. (a)), and that a principal was “armed with a
firearm” (§ 12022, subd. (a)(1)).
A jury convicted defendant of murder and four counts of
second degree robbery, and found true all of the allegations.
The trial court sentenced defendant to prison for life
without the possibility of parole (LWOP) plus 15 years.
Specifically, the court sentenced defendant to LWOP plus five
years (for the firearm enhancement) on the murder count, and a
consecutive 10 years for one of the second degree robbery counts
(comprised of base sentence of five years plus five years for the
firearm enhancement). The court stayed or concurrently ran the
remaining sentences.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On December 24, 2018, defendant filed a petition seeking
resentencing for the murder conviction under section 1172.6.4
4 The petition for section 1172.6 relief was included within a
petition for a writ of habeas corpus that sought to vacate his
murder conviction under People v. Chiu (2014) 59 Cal.4th 155.
Defendant filed a second petition for a writ of habeas corpus on
4
The court appointed counsel for defendant, and ordered the
parties to submit further briefing. Following a hearing, the trial
court “summarily denied” defendant’s petition. The court found
that defendant had not “establish[ed] a prima facie case for relief”
under section 1172.6 because one of the elements of that prima
facie case—namely, that defendant could not be convicted of first
degree murder under the amended murder statute—was
foreclosed by “the jury[’s finding] beyond a reasonable doubt [that
defendant] was a major participant in the underlying felony
[who] acted with reckless indifference to human life.”
As noted above, we affirmed, but our Supreme Court
vacated our prior opinion and has remanded the matter for us to
reconsider in light of Strong.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1172.6 petition on the ground that the jury’s
prior special circumstance finding rendered him ineligible for
relief under section 1172.6. Because this argument turns on
questions of statutory construction and the application of law to
undisputed facts, our review is de novo. (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
Section 1172.6 authorizes a defendant “convicted of felony
murder or murder under the natural and probable consequences
doctrine” to vacate his murder conviction if, as a threshold
matter, he makes a “prima facie showing” of entitlement to relief.
January 28, 2020, seeking a hearing to preserve evidence for a
future juvenile offender parole hearing under People v. Franklin
(2016) 63 Cal.4th 261. Neither petition was before us in that
appeal.
5
(§ 1172.6, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, he “could not presently be convicted of
murder” under the amendments to the murder statutes that
became effective on January 1, 2019. (Id., subd. (a)(3).) These
statutes, even as amended, still authorize a murder conviction
based on murder committed by someone else in the course of a
jointly committed felony as long as the defendant “was a major
participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e)(3).)
In Strong, supra, 13 Cal.5th 698, our Supreme Court
confronted the same basic facts present in this case. There, as
here, the defendant’s jury found true the special circumstance
that he was a “major participant” who acted with “reckless
indifference” to human life. There, as here, the jury’s finding was
made prior to the issuance of Banks, supra, 61 Cal.4th 788
(Banks) and Clark, supra, 63 Cal.4th 522 (Clark). There, as here,
the defendant was seeking relief under section 1172.6 and the
trial court had summarily denied him that relief on the ground
that jury’s pre-Banks and pre-Clark finding was binding. Strong
held that this was wrong. Strong reasoned that Banks and Clark
“substantially clarified”—and narrowed—the meaning of the
terms “major participant” and “reckless indifference.” (Strong, at
p. 721.) As a result, Strong concluded, “[f]indings issued by a jury
before Banks and Clark” are not preclusive and, more to the point
“do not preclude a defendant from making out a prima facie case
for relief.” (Id. at pp. 710, 716-717.) Strong went on to hold that
it was inappropriate for any court—trial or appellate—to
evaluate whether substantial evidence supports the jury’s pre-
Banks and pre-Clark finding if that evidence is viewed through
the narrowed Banks and Clark prisms. (Id. at pp. 719-720.) In
6
sum, Strong held that a pre-Banks and pre-Clark special
circumstance finding does not warrant summary denial of
a section 1172.6 petition; instead, the matter must proceed to an
evidentiary hearing. (Id. at p. 720.)
Strong disposes of this appeal. Defendant’s special
circumstance finding was made prior to Banks and Clark, and
thus cannot provide the basis for the summary denial of his
petition. He is entitled to an evidentiary hearing. Because we
have concluded that he has not received such a hearing,
we remand for one.
DISPOSITION
The court’s order denying defendant’s petition for
resentencing is reversed, and the matter is remanded for an
evidentiary hearing under section 1172.6.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483067/ | Filed 11/10/22 Liang v. Li 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
KAI HOU LIANG, B305549, B307349
Plaintiff, Cross-defendant, (Los Angeles County
and Appellant, Super. Ct. No. BC710478)
v.
JI LI,
Defendant,
Cross-complainant, and
Appellant;
BCP, INC.,
Cross-defendant and
Respondent.
APPEALS from judgments of the Superior Court of Los
Angeles County, Michael Linfield, Judge. Affirmed in part;
reversed in part.
Fernald Law Group and Brandon C. Fernald for Plaintiff,
Cross-defendant, and Appellant.
Park & Lim, S. Young Lim, Dennis McPhillips, and Jessie
Y. Kim for Defendant, Cross-complainant, and Appellant.
Steinbrecher & Span, Geoffrey T. Stover, and Andrew
Huang for Cross-defendant and Respondent.
_________________________
These appeals arise from litigation between Kai Hou Liang,
who lives in China, and Ji Li, who lives in the United States. In
2016, Li approached Liang about investing in a venture that
would acquire and then develop a parcel of land in Hollywood,
located at 6140 Hollywood Boulevard (6140 Property). The 6140
Property had been the subject of a purchase contract executed by
Li in 2014. Despite several extensions of the escrow, Li had been
unable to accumulate the funds necessary to complete the
purchase at the contractual price of $9.5 million. In March 2016,
Li, Liang and a third investor named Yong Bai1 reached
agreement on the terms under which an entity named Hollywood
Garden LLC (Hollywood Garden) would be formed to acquire and
develop the 6140 Property. They executed an agreement which
provided for the three investors to make prescribed contributions
of invested capital and made Li the managing shareholder.
Liang agreed to and did invest an initial $5.48 million into the
1 Yong Bai is not involved in this litigation. However, an
unrelated individual named Betty Bai was a witness at trial and
there are issues raised in this appeal by Li regarding evidentiary
rulings pertaining to her testimony. See section A.4. of the
Discussion, post. To avoid confusion, we shall refer to these two
individuals by their full names.
2
project. Based on Li’s written representations, Liang believed
that Li had already invested $1.3 million in the project and would
invest an initial $3.53 million, which, combined with Liang’s
investment, would be sufficient to consummate the purchase of
the 6140 Property. In derogation of the investors’ agreement, Li
failed to contribute his funds, proceeded to use Liang’s
contributed capital of $5.48 million to place substantial non-
refundable deposits on the 6140 Property and ultimately obtained
a $4 million loan in Hollywood Garden’s name (secured by the
6140 Property) in order to finance the purchase. The loan had a
term of only one year, with an option to extend for a second year.
Li also caused Hollywood Garden to expend substantial sums
paying fees and points associated with the loan, interest on the
loan, and later to extend the term of the loan to two years. In
addition, Li withdrew money from Hollywood Garden’s account
for his own purposes. As a result, Hollywood Garden’s finances
were depleted and its only substantial asset was the 6140
Property, burdened by a short-term $4 million loan.
In 2018, BCP, Inc., a California corporation, acquired the
promissory note for Hollywood Garden’s loan and declined to
extend the loan term. Hollywood Garden defaulted on the loan.
Liang filed suit against Li alleging fraud and various other
causes of action. Li cross-complained against Liang and BCP,
alleging the existence of an oral contract that he could finance his
equity in the venture through a loan secured by the property, and
alleging that Liang and another Chinese national, Ying Wei Lu,
wrongfully colluded to form BCP to acquire the $4 million
promissory note and trigger its default.
The trial court granted Liang’s and BCP’s motions for
judgment on Li’s cross-complaint under Code of Civil Procedure
3
section 631.8. A jury returned a verdict for Liang on his
complaint against Li and awarded Liang $2 million in
compensatory damages for his lost profits up to the time of trial
on the $5.48 million he had invested and also awarded $200,000
in punitive damages. Through various posttrial briefing, Liang
sought imposition of a constructive trust over Li’s 40.3 percent
interest in Hollywood Garden as a remedy for Li’s unjust
enrichment. The trial court entered judgment for Liang and BCP
against Li on the cross-complaint, and entered a judgment for
Liang on the complaint, which included $200,000 (the punitive
damages component of the jury award) and a constructive trust
on all of Li’s interest in Hollywood Garden. The judgment also
included attorney fees and costs to both Liang and BCP.
However, the court denied Liang’s request to include the jury’s $2
million compensatory damages award in the final judgment.
Li contends that the trial court erred by imposing a
constructive trust on his interest in Hollywood Garden, and that
we should reverse the judgment because of erroneous rulings the
trial court made leading to and during trial. On cross-appeal,
Liang contends that the trial court erred when it declined to both
impose a constructive trust on Li’s interest in Hollywood Garden
and award a $2 million monetary judgment.
We find no error in the court’s judgment against Li on his
cross-complaint and in the court’s decision to award a
constructive trust. However, we reverse the court’s judgment
denying Liang the $2 million compensatory damages award
rendered by the jury in its verdict.
4
BACKGROUND
A. Hollywood Garden
Liang and Li met in 2014, when Liang made his first trip to
the United States. The two were introduced by a mutual friend,
who recommended Li to Liang as a potential investment partner
for real estate in the United States. After their meeting, Liang
invested with Li in property in Yorba Linda in 2015. Li first
contacted Liang about the Hollywood Garden project in March
2016.
Liang testified that Li called him “urgently,” asking for a
favor—to “invest in [the Hollywood Garden] project by sending
money in quickly, because [another] investor was not reliable.”
Liang flew to Los Angeles the next day to meet with Li about the
project. Over the following three days, Liang, Li, and Yong Bai
negotiated the terms of the parties’ investment in the Hollywood
Garden project.
Liang and Li signed a document on March 25, 2016, that
outlined the terms of their agreement, which was to be funded in
three parts. It represented that Yong Bai and Li had already
jointly invested $2.6 million ($1.3 million apiece) in the project.
The agreement referred to the $2.6 million as “the first phase” of
the project, and represented that “[t]he funding for this phase is
complete.”
“Funding for the second phase,” the agreement stated, was
to total $12 million, and was to be provided by Liang and Li.
Liang was to fund $7.3 million, and Li was to provide $4.7
million. Each was to provide their share of funds “in two
separate transactions each.” Liang was to contribute in
transactions of $5.48 million and $1.82 million, and Li was to
contribute $3.53 million and $1.17 million. “After the second
5
phase of funding is complete,” the agreement said, “[Liang] will
have invested [$7.3 million] in total, [Li] will have invested [$6
million] in total, and [Yong Bai] will have invested [$1.3 million]
in total. So [Liang] will have 51 [percent] equity, [Li] will have
40.3 [percent] equity, and [Yong Bai] will have 8.7 [percent]
equity in the project.” “Should one party fail to contribute,” the
agreement provided, “the corresponding shares are to be adjusted
in accordance with the actual invested amount.”
Liang wired $5.48 million to Hollywood Garden’s bank
account on March 28, 2016. Li never contributed any of the funds
to Hollywood Garden that he had agreed to contribute.
In March and April 2016, Li wired $4.8 million of Liang’s
$5.48 million to an escrow company as non-refundable deposits
for the purchase of the 6140 Property.
B. Li’s Loan
Liang’s contribution, without any of the additional
promised capital from Li, was not sufficient to close escrow on the
6140 Property. In May 2016, Li inserted Liang’s electronic
signature on a Hollywood Garden corporate resolution allowing
Hollywood Garden (through Li) to acquire a $4 million loan
secured by the 6140 Property.2 The loan was for a term of one
year with the option to extend for another year for $50,000.
2 The loan that Li acquired for Hollywood Garden is
referred to throughout the reporter’s transcript as a “hard
money” loan. According to one of the expert witnesses who
testified at trial, “[y]ou only use a hard money loan if you know
you can get out of a project within 12 months. Hard money
lenders are focused on gaining the asset rather than being part of
the project.”
6
Escrow closed on the 6140 Property on May 13, 2016,
funded almost entirely by Liang’s investment and the $4 million
loan. Hollywood Garden made the required payments on the loan
each month.
Liang became suspicious about the Hollywood Garden
project when he requested capital statements for the project and
Li never provided them. In December 2016, one of Li’s friends
visiting China told Liang about a loan that “Li had successfully
obtained” on the Hollywood Garden project. Liang contacted
others who had invested in the earlier Yorba Linda project, and
together they invited Li to Beijing for a meeting in March 2017 to
discuss the projects. Li admitted to the assembled group that he
had taken out the loan, but told the group that the loan was a
personal guarantee loan. Liang “requested strongly” that Li pay
back the loan, and Li promised to do so. Li never paid back any
of the money.
Rather than making any personal payment on the loan,
however, in May 2017, Li paid $50,000 from a Hollywood Garden
account to exercise the option to extend the term of the $4 million
loan to May 2018.
In July 2017, the Hollywood Garden investors met in
California and voted to remove Li as manager of Hollywood
Garden and to remove him from all of the entity’s bank accounts.
BCP bought the loan at some point between July 2017 and
its maturity in May 2018. Hollywood Garden defaulted on the
loan in May 2018.
C. The Litigation
Liang filed a complaint in the trial court on June 15, 2018,
and a first amended complaint on June 26, 2018, alleging fraud,
negligent misrepresentation, unfair business practices (Bus. &
7
Prof. Code, § 17200 et seq.), breach of contract, breach of the
covenant of good faith and fair dealing, and breach of fiduciary
duty. At trial, Liang dismissed his causes of action for breach of
the implied covenant of good faith and fair dealing, negligent
misrepresentation, and unfair business practices.
Li filed a cross-complaint in December 2018. Li alleged the
existence of an oral agreement between himself and Liang with
terms different than the parties’ written agreement—specifically
that, despite the written agreement, he was permitted to fund his
investment through a loan secured by the 6140 Property. He also
alleged that Liang had essentially engineered the creation of BCP
to take over the $4 million Hollywood Garden loan and foreclose
on the 6140 Property, thereby securing the property for himself.
Li’s complaint alleged four causes of action: specific performance
of the alleged oral agreement, unfair business practices (Bus. &
Prof. Code, § 17200 et seq.) against Liang and BCP, a derivative
claim on behalf of Hollywood Garden against Liang and BCP for
breach of fiduciary duty, and declaratory relief against Liang and
BCP.
Shortly before the August 2019 trial, Liang moved the trial
court for an order adding a constructive trust remedy to the first
amended complaint. The trial court granted the motion.3
Among other pretrial motions, Liang also filed a motion for
a determination that Betty Bai, who had worked for Hollywood
3 Li’s contention that the court granted the motion after the
close of trial is contrary to the record. A minute order dated
August 23, 2019, corrected an August 12, 2019, minute order
nunc pro tunc to indicate the court granted the motion for leave
to amend the first amended complaint to add a constructive trust
remedy.
8
Garden as a bookkeeper, was unavailable to testify at trial.
There is nothing in the record, however, to indicate that the trial
court ever ruled on this motion. Instead, at trial, when Liang
sought to introduce Betty Bai’s deposition testimony, the trial
court had an exchange with counsel regarding whether Betty Bai
was subpoenaed to testify. The exchange concluded with the trial
court allowing the deposition testimony to be read as Betty Bai’s
testimony. “I don’t think there’s any real question that [Betty
Bai] was subpoenaed,” the trial court said, “and there’s a proof of
service on that. . . . I’ll allow the deposition because she is not
here.” During the discussion, the trial court highlighted and
reiterated that Li’s motion in limine was based entirely on
unavailability, and not based on whether Liang’s counsel had
unsuccessfully sought to secure the witness’s presence at trial.
Li had also served on BCP a notice to attend trial and
produce documents to the person most qualified of BCP, Inc.,
Ying Wei Lu. BCP filed a motion to quash the notice on the
ground that Lu is not a resident of California. BCP also filed a
motion in limine to exclude trial testimony regarding Lu’s “past
career as a government official in China and to preclude from
evidence any and all references to Lu’s purported financial
condition.” The trial court granted both of BCP’s motions. The
trial court concluded based on the evidence before it that Lu was
a resident of China and could not be compelled to appear at the
trial. “[A] [n]otice to [a]ttend may only compel the attendance of
individuals who are California residents at the time the notice is
served,” the trial court explained. The trial court continued,
“although Lu is a managing agent of BCP, Inc. as he is the
principal and shareholder of BCP, Inc. . . . , he was not a resident
of California at the time the notice to attend the trial and produce
9
documents was served. . . . Because he was a nonresident at the
time the notice to attend trial and produce documents was
served, Lu cannot be compelled to attend trial, nor produce the
documents sought in the notice, pursuant to Code of Civil
Procedure section 1989.” The trial court also granted BCP’s
motion in limine regarding Lu’s career and financial condition.
During the trial, Liang also objected to the introduction of
emails between a gentleman named Terence Lai and other
individuals who were also not trial witnesses. Lai appears at
some point to have been employed by Li and was also described
in the reporter’s transcript as the purchasing agent for BCP when
it purchased the Hollywood Garden loan. The trial court
sustained Liang’s hearsay objection, but informed Li’s counsel
that if they wanted the documents admitted, they would have to
bring in a witness or witnesses or testify about them.
After the parties rested, Liang and BCP moved the trial
court for judgment on Li’s cross-complaint under Code of Civil
Procedure section 631.8. The trial court granted both motions—
BCP’s before the jury began deliberating and Liang’s after the
jury began deliberating.
The jury found in favor of Liang and against Li on the three
remaining causes of action in Liang’s complaint (fraud, breach of
fiduciary duty, and breach of contract) and found that he had
been damaged in the amount of $2 million. The jury also found
that Li had acted with “malice, oppression[,] or fraud,” and
awarded Liang $200,000 in punitive damages.
After trial, the parties submitted briefs on the imposition of
a constructive trust as a remedy. Although the record contains
no reporter’s transcript or settled statement of any posttrial
hearing, the parties’ briefs suggest that the trial court heard
10
argument regarding the imposition of a constructive trust at a
status conference on December 10, 2019. After the hearing,
Liang submitted a brief in which he noted the court had
expressed concerns that awarding both damages and a
constructive trust would result in a “double recovery.” He argued
there would be no double recovery and he was entitled to a
judgment for both the damages awards (including the $2 million
compensatory damages award) and a constructive trust because
“the respective remedies are premised on at least two (2) distinct
harms proven at trial and present two (2) distinct remedies
intended to address those distinct harms.” Liang also submitted
an alternative form of judgment awarding “constructive trust and
punitive damages only.” Li filed a response to Liang’s request for
entry of the judgment awarding both constructive trust and the
compensatory damages.4
The trial court entered judgment on January 28, 2020,
awarding Liang a constructive trust on all of Li’s assets and
4 Although it is impossible to discern from the record
whether and when both documents were submitted, the record
contains copies of documents entitled “[PROPOSED]
JUDGMENT” and “[PROPOSED ALTERNATIVE] JUDGMENT.”
The proposed judgment purports to award Liang $2 million in
compensatory damages, $200,000 in punitive damages, and a
constructive trust on all of Li’s assets and equity in Hollywood
Garden. The proposed alternative judgment awards only
$200,000 and the constructive trust. The trial court’s docket
notes only the filing of a single proposed judgment. It is possible
that both the proposed judgment and proposed alternative
judgment were filed as a single document. The documents in the
appellant’s appendix, however, have no file stamp(s) and no
proof(s) of service.
11
equity in Hollywood Garden and $200,000 in punitive damages
and otherwise disposing of all of the causes of action between
Liang and Li. Li filed a notice of appeal from the judgment,
which initiated appeal No. B305549. Liang filed a notice of cross-
appeal.
On July 17, 2020, the trial court filed a first amended
judgment that also memorialized the trial court’s ruling on BCP’s
motion for judgment, and therefore disposed of all causes of
action among all parties. Li filed a second notice of appeal on
August 21, 2020, initiating appeal No. B307349.
The parties moved this court for an order consolidating the
two appeals. We granted the motion and consolidated the
appeals for all purposes.
DISCUSSION
Li argues that the trial court’s judgment should be reversed
on five grounds. First, he contends that the trial court erred
when it imposed a constructive trust over his equity in Hollywood
Garden. Second, he contends that the trial court should not have
granted BCP’s motion in limine regarding Lu’s alleged Chinese
government career and his financial condition. Third, he argues
that the trial court erred when it quashed the notice to Lu to
appear at trial. Fourth, he contends that the trial court erred
when, as Li’s briefing states, it determined that Betty Bai was
unavailable as a witness. And fifth, Li contends that the trial
court’s exclusion of Terence Lai’s emails was error.
On his cross appeal, Liang contends that the trial court
erred by not awarding him both a constructive trust and the $2
million in lost profits that the jury had awarded.
12
A. Li’s Appeal
1. Imposition of Constructive Trust
Li contends that the trial court erred when it imposed a
constructive trust over his equity in Hollywood Garden. Citing
Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980,
Li contends that our standard of review is de novo because, he
explains, “[t]he issue of imposition of a constructive trust is a
matter of law.” Liang, on the other hand, quoting Hicks v.
Clayton (1977) 67 Cal.App.3d 251, 265, argues that “the propriety
of granting equitable relief in a particular case by way of . . . a
constructive trust[ ] generally rests upon the sound discretion of
the trial court exercised in accord with the facts and
circumstances of the case.”
Li’s reliance on Communist Party v. 522 Valencia, Inc.,
supra, 35 Cal.App.4th 980 is misplaced. That case did not
articulate a standard of review, but rather determined that
imposition of a constructive trust in the case was improper as a
matter of law because the evidence in that case did not support
any set of circumstances that would sustain the imposition of a
constructive trust. (Id. at pp. 993, 995.)
Contrary to Li’s assertion, “[t]he propriety of granting
equitable relief of imposition of a constructive trust rests within
the sound discretion of the trial court.” (GHK Associates v. Mayer
Group, Inc. (1990) 224 Cal.App.3d 856, 877-878.)
Regardless of the standard of review, Li has not
demonstrated trial court error.
The primary thrust of Li’s argument is that because Li’s
equity is essentially shares of a corporation, only the corporation
itself has standing to pursue any remedy that involves transfer of
the equity. Li cites several cases that stand for the proposition
13
that a shareholder does not have standing (outside of a derivative
action) to bring an action for injury to a corporation. (See, e.g.,
Parmar v. Board of Equalization (2011) 196 Cal.App.4th 705,
717; PacLink Communications Internat., Inc. v. Superior Court
(2001) 90 Cal.App.4th 958, 964.)
However, Liang never sought in this action to assert a
cause of action on behalf of Hollywood Garden. An action is
derivative, “ ‘i.e., in the corporate right, if the gravamen of the
complaint is injury to the corporation, or to the whole body of its
stock and property without any severance or distribution among
individual holders, or it seeks to recover assets for the
corporation or to prevent the dissipation of its assets.’ ” (PacLink
Communications Internat., Inc. v. Superior Court, supra, 90
Cal.App.4th at p. 964, italics omitted.) Liang’s causes of action
were not derivative; the gravamen of Liang’s complaint was that
Li made a number of misrepresentations to convince Liang to
invest in a project and failed to do any of the things that induced
Liang to invest. He also alleged and proved that Li’s self-dealing
conduct after Liang had invested harmed Liang directly. Liang’s
complaint alleged injury to Liang, not to Hollywood Garden. (See
Meister v. Mensinger (2014) 230 Cal.App.4th 381, 386-387 [direct
claim by preferred shareholders for breach of fiduciary duty by
company’s chief financial officer and chief executive officer
arising from the company’s sale of assets and subsequent
dissolution]; Jara v. Suprema Meats, Inc. (2004) 121 Cal.App.4th
1238, 1258-1259 [concluding claim that two majority
shareholders paid themselves excessive salaries, resulting in a
decreased dividend for the plaintiff shareholder, was not required
to be pursued as a derivative claim].)
14
Li has also argued that Hollywood Garden had already filed
an action against him for corporate injury due to his conduct and
this precluded Liang from obtaining a constructive trust over Li’s
share interest. This contention lacks merit. The derivative
action filed by Hollywood Garden had been filed several months
after Liang had filed his complaint, was deemed related to
Liang’s earlier filed case and thus was pending before the same
trial judge who properly rejected Li’s argument that Liang was
precluded from the constructive trust remedy because it was a
derivative claim.
In section B, post, we conclude that awarding Liang a
constructive trust and the $2 million compensatory damages
award does not overcompensate him. To the extent that the
constructive trust remedy that Liang was awarded in the instant
action (which we are affirming) may potentially impact the
potential remedies available to the corporation in its later filed
action, or create a risk that Liang could be “overcompensated,”
that is a matter Li can raise in the later-filed action, which is now
on appeal, based on whatever showing Li may make based on the
respective records in the two cases and our resolution of issues
relating to the constructive trust in this opinion.
For similar reasons, we disagree with the dissent’s
assertion that affirming imposition of a constructive trust as a
proper remedy in addition to the jury’s $2 million award “may
create even more problems than it purports to solve” because it is
based not on “injury inflicted on Liang at all” but “injury to
Hollywood Garden.” (Dis. opn., p. 6.) Liang made a clear
showing in the trial court that he suffered direct injury by the
conduct of Li that led to the latter’s unjust enrichment. As a
15
consequence, the trial court did not abuse its discretion in
awarding Liang a constructive trust.
Li also argues that Liang is not entitled to a constructive
trust as an equitable remedy because monetary damages could
have completely compensated Liang for his injuries. To support
his argument, Li cites cases that stand for the general
proposition that equitable relief is available absent an adequate
remedy at law. (See, e.g., Morrison v. Land (1915) 169 Cal. 580.)
Li cites no authority supporting that proposition in the specific
context of the imposition of a constructive trust. Indeed, “[i]n
California, as in most jurisdictions, an action in equity to
establish a constructive trust does not depend on the absence of
an adequate legal remedy. [Citation.] A constructive trust is
‘[t]he usual theory’ upon which a plaintiff recovers wrongfully
acquired assets.” (Heckmann v. Ahmanson (1985) 168
Cal.App.3d 119, 134.) Here, when it found for Liang, the jury
concluded that Li had wrongfully acquired his equity in
Hollywood Garden. The imposition of a constructive trust over
those assets was an appropriate remedy to prevent Li’s unjust
enrichment.
The dissent concurs with the conclusion that the trial court
did not err in granting a constructive trust to Liang but
characterizes that decision as “in essence, an equitable lien on
Li’s assets (his shares in Hollywood Garden) in support of (or in
lieu of) the jury’s $2 million money judgment.” (Dis. opn., p. 2.)
We disagree with this characterization of what the trial court did.
There is no reference in the record to the court imposing an
equitable lien to satisfy the compensatory damages awarded by
the jury. Moreover, the case cited by the dissent, County of Los
Angeles v. Construction Laborers Trust Funds for Southern
16
California Admin. Co. (2006) 137 Cal.App.4th 410, 416,
footnote 5, acknowledges the distinction between an equitable
lien and a constructive trust. As we have noted, the remedy that
Liang sought leave to assert in order to redress Li’s unjust
enrichment was a constructive trust; that is also the remedy that
was briefed by the parties after the jury verdict was rendered.
There is nothing in that record, or in the judgment issued by the
trial court, that references an equitable lien.
2. Motion in Limine regarding Ying Wei Lu
Li argues that the trial court erred when it granted BCP’s
motion in limine to exclude evidence regarding Lu’s career and
financial condition. Lu is the principal and manager of BCP,
which purchased the Hollywood Garden loan from the original
lender, and which in May 2018 declined Li’s request to extend the
loan term by another year. In his cross-complaint, Li alleged that
BCP was “a front company, which was organized on behalf of, . . .
controlled by, and beneficially owned by” Liang. Li contended
that Liang was using BCP to foreclose on the 6140 Property and
thereby deprive Li of the value of his equity in Hollywood
Garden.
Li contends that “Lu’s career as a Chinese government
official and his financial condition is relevant because it is simply
too implausible to believe that a former low-level Chinese
government official would have the $4.9 million to purchase the
[Hollywood Garden] loan . . . or the experience and knowledge
necessary to establish a California corporation to do so.” Li’s
brief here, consistent with his opposition to the motion in limine
filed in the trial court, identifies no factual basis for the
assertions.
17
To the contrary, the evidence BCP provided the court in
support of its motion in limine establishes that Li’s contentions
were nothing more than speculation. At his deposition, and
without any supporting factual basis, Li testified that Lu was “a
government officer. I don’t think he has $4 million in China, as a
government officer, bring money to here just try to purchase a
note and register the corporation one month before the note’s
mature.” Li’s speculation persisted: “I don’t have any other
evidence,” he said, “[b]ut it’s a general rule in China, any
government officer cannot—impossible—has such amount of
money, not matter how.” When asked if he had “seen any
documents that show that BCP is a [straw] corporation controlled
by Liang,” Li responded: “I didn’t see any document, but the facts
will be like this. Otherwise, it’s ridiculous. It’s nothing in logic.”
Li argues that we should decide this question using a de
novo standard of review “with all evidence viewed in light most
favorable to Li,” essentially because, he contends, this ruling was
the equivalent of a nonsuit for BCP. We disagree. The
appropriate standard of review under the circumstances is abuse
of discretion. (People v. Nakai (2010) 183 Cal.App.4th 499, 516.)
Under any standard, however, we find no error in the trial
court’s ruling. BCP made its motion in limine under Evidence
Code section 352, on the ground that any testimony offered about
Lu’s career or his financial condition would be unduly prejudicial.
What the record affirmatively establishes, however, is that Li
had no factual basis for the statements he was making about Lu.
Moreover, even if there had been a factual basis for Lu’s
statements, it is entirely unclear how that evidence would have
been relevant to any question the litigation actually presented.
Other than Li’s speculation about Lu’s career and financial
18
condition, he has presented neither argument nor information
that anyone else—much less anyone else with actual personal
knowledge—would have testified about Lu’s career or financial
condition.
Finally, Li has not demonstrated how he was prejudiced in
any way by the trial court’s ruling. (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 573.) The trial court asked Li’s
counsel “how would Mr. Liang suggesting that Lu purchase[ ] the
note be in any way tortious?” Li’s only response was that Lu was
holding the note for Liang. But the trial court had already
concluded as a matter of fact, that “the uncontroverted evidence
is that Liang . . . has no relation to BCP, has no economic interest
in BCP. He has . . . no involvement in the formation of BCP, has
no involvement in the purchase of the promissory note . . . .
Liang has no control over BCP. He does not own shares in BCP.
He has no financial ownership of BCP.”
3. BCP’s Motion to Quash
In his briefing here, Li argues that the trial court abused
its discretion when it granted BCP’s motion to quash the
subpoena directed at “Ying[ W]ei Lu as the person most
qualified.” Li contends that Lu was a California resident and
that BCP’s California articles of incorporation demonstrate that
Lu was a California resident.
In support of his argument, Li provided the trial court with
a copy of a BCP Statement of Information filed with the
Secretary of State on April 6, 2018, that listed Lu as BCP’s
president, chief executive officer, secretary, chief financial officer,
sole director, and agent for service of process, and provided an
address in City of Industry, California. The company’s Articles of
Incorporation filed with the Secretary of State on March 13, 2018,
19
stated that Lu was the company’s “initial agent for service of
process,” and gave the same City of Industry address as his
address and the company’s business and mailing address.
Lu, however, filed a declaration that stated that on July 29,
2019, he was “a citizen and a resident of the People’s Republic of
China,” that he was “not currently a resident of the State of
California and [does] not intend to make California [his] home,”
and that he has “not lived in California in the preceding twelve
months.” His declaration also stated that “BCP was incorporated
in March 2018 and its initial Statement of Information was filed
in April 2018. BCP inadvertently did not yet file an updated
Statement of Information this year, but plans to do so.”
The trial court concluded based on the evidence before it
that Lu was a resident of China.
Code of Civil Procedure section 1989 states that “[a]
witness . . . is not obliged to attend as a witness before any court,
judge, justice or any other officer, unless the witness is a resident
within the state at the time of service.” (Italics added.)
There is no evidence in the record that Lu was a resident of
the State of California on July 10, 2019.5 The trial court did not
err when it granted the motion to quash.
4. Betty Bai’s Availability to Testify
Li next contends that the trial court erred when it
concluded that Betty Bai was unavailable to testify as a witness
at trial.
5 The notice to appear is dated July 10, 2019, but the copy
of the notice in the appellant’s appendix does not include a proof
of service. Presumably, the notice was served on either BCP or
Lu, if at all, at some point in 2019.
20
We observe, however, that the trial court never made a
determination that Betty Bai was unavailable to testify. Rather,
the trial court concluded pursuant to Code of Civil Procedure
section 2025.620 that Betty Bai’s deposition testimony could be
shown to the jury.
Code of Civil Procedure section 2025.620 states that “[a]t
the trial or any other hearing in the action, any part or all of a
deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice
of the deposition and did not serve a valid objection under Section
2025.410, so far as admissible under the rules of evidence applied
as though the deponent were then present and testifying as a
witness . . . .” Subdivision (c)(2)(E) states that “[a]ny party may
use for any purpose the deposition of any person . . . , including
that of any party to the action, if the court finds . . . [¶] . . . [¶] . . .
[that t]he deponent, without the procurement or wrongdoing of
the proponent of the deposition for the purpose of preventing
testimony in open court, is . . . [¶] . . . [¶] . . . [a]bsent from the
trial or other hearing and the proponent of the deposition has
exercised reasonable diligence but has been unable to procure the
deponent’s attendance by the court’s process.”
When Liang sought to have Betty Bai’s deposition
testimony presented to the jury, the trial court inquired whether
Liang had subpoenaed Betty Bai to appear and whether there
was a proof of service. Concluding that Liang had subpoenaed
Betty Bai, that there was a proof of service, and that Betty Bai
had not appeared, the trial court allowed Betty Bai’s deposition
testimony to be presented to the jury in lieu of live testimony.
In his reply brief, Li continues to assert that the trial
court’s decision was based on Betty Bai’s unavailability. If we
21
extend his argument to Code of Civil Procedure section 2025.620,
he essentially contends that we should limit the application of
section 2025.620 to cases where a witness is unavailable to
testify. To do so, however, would require us to ignore that the
Legislature expressly provided for unavailability of a witness in
other subdivisions of section 2025.620. A party may use a
deposition, for example, if the trial court finds that the witness is
“[d]ead or unable to attend or testify because of existing physical
or mental illness or infirmity” (Code Civ. Proc., § 2025.620, subd.
(c)(2)(C)), or “[a]bsent from the trial or other hearing and the
court is unable to compel the deponent’s attendance by its
process” (Code Civ. Proc., § 2025.620, subd. (c)(2)(D)). We decline
Li’s invitation to read language into the statute that does not
appear there, and to read other language in the statute as
surplusage.
More to the point, however, we note that Li’s unavailability
argument and Code of Civil Procedure section 2025.620 are two
independent analyses for a determination of whether to allow a
party to use deposition testimony at trial. (See Berroteran v.
Superior Court (2022) 12 Cal.5th 867, 902 [referring to Code Civ.
Proc., § 2025.620 as “a statutory rule . . . [that] explicitly allows
parties to use depositions as substantive evidence at the
subsequent trial between the same parties, regardless of witness
availability”].)
There were two independent analyses under which the trial
court could have made its determination and Li has not
addressed one of those independent analyses at all. Li’s failure to
address the trial court’s actual analysis and basis for admitting
Betty Bai’s deposition testimony renders any asserted error
22
harmless. (See Chan v. Drexel Burnham Lambert, Inc. (1986)
178 Cal.App.3d 632, 645, fn. 6.)
5. Terence Lai Emails
Li contends that the trial court abused its discretion when
it sustained objections to the introduction of emails between a
gentleman named Terence Lai and several other individuals. Li’s
theory is that Liang “penetrated Li’s offices and caused Terence
Lai to act behind Li’s back.” Although Li’s brief does not clearly
articulate the argument, Li appears to contend that Lai’s actions
were part of Liang’s breach of some fiduciary duty that Liang
purportedly owed to Hollywood Garden as a shareholder. One of
the emails purports to be an introduction to the owner of the
Hollywood Garden loan, identifying Lai as a “manager” who “just
joined [Li’s] group” and wanted to work with the loan’s owner
regarding extending the loan term in April 2017. The remaining
emails appear to have been exchanged in March and April 2018,
and appear to represent communications between Lai and
various individuals facilitating BCP’s purchase of the Hollywood
Garden loan. Other than Li, who does not appear to have sent or
received any of the emails, no person whose name appears
anywhere in any of the emails was a witness.
Liang objected to introduction of the emails as hearsay.
“ ‘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. [¶] . . . Except
as provided by law, hearsay evidence is inadmissible.” (Evid.
Code, § 1200, subds. (a), (b).)
Li argued that the emails were being offered not for the
truth of their contents, but rather to demonstrate the fact that
Liang had “penetrated [Li’s] offices and converted Terence Lai.”
23
Li’s argument is that “Lai, while he was employed by Hollywood
Garden, was coordinating a purchase of the [$4 million loan] by
BCP.” According to Li, the emails were not being offered for the
truth of their contents, but rather to show this act. “A statement
not offered for its truth is, definitionally, not hearsay.” (People v.
Superior Court (Couthren) (2019) 41 Cal.App.5th 1001, 1019.)
We disagree with Li’s contention.
The basic flaw with Li’s argument is that according to Li’s
brief, the documents are expressly being offered for the truth of
their contents. Indeed, if the statements in the emails are not
true, then the emails are not relevant (and therefore inadmissible
as irrelevant).
Li’s argument regarding the emails’ admissibility depends
on Lai being either Li’s employee or Hollywood Garden’s
employee. The first of the emails purports to establish, according
to Li, that Lai “had just joined Li as a manager.” Another
purports to show that “Lai, while he was employed by Hollywood
Garden, was coordinating a purchase of the [$4 million loan] by
BCP.”
The court entertained argument regarding whether the
emails were inadmissible hearsay, and explained to Li that the
basis of the ruling was that the court had “no idea” who the
people were that sent and received the emails, and had “no idea
. . . whether any of it’s true.” The trial court explained that Li
could “bring in someone who can testify” about the contents of the
documents if he wanted the emails admitted: “You’re going to
have to bring in Mr. Lai, and you’re going to have to question him
or these documents don’t come in. . . . Obviously, if you bring in
other witnesses, you’ll be able to question them.”
24
Moreover, and directly to the heart of Li’s argument, the
documents do not independently support Li’s contention
regarding Lai or his employment or participation at any point.
At best, the emails suggest that Li was Lai’s employer (if the
contents of the documents are to be believed) in April 2017 and
that a year later, Lai was involved in the transfer of the
Hollywood Garden loan from the original lender to BCP. But
again, even that basic connection turns on the truth of the contents
of the documents.
B. Liang’s Cross-appeal
On cross-appeal, Liang contends that the trial court erred
when it omitted the $2 million compensatory damages award
from the judgment. Liang contends he was entitled to both the
constructive trust and the compensatory damages. We agree.
We review a trial court’s decision concerning the measure
of damages for abuse of discretion.6 (GHK Associates v. Mayer
Group, Inc., supra, 224 Cal.App.3d at p. 873; see New West
Charter Middle School v. Los Angeles Unified School Dist. (2010)
187 Cal.App.4th 831, 843 [“The trial court’s choice among several
legally permissible measures of damages, under the specific
6 Liang argues that we should review the trial court’s
decision to omit the compensatory damages award de novo,
because “[w]hether a plaintiff ‘is entitled to a particular measure
of damages is a question of law subject to de novo review.’ ”
(Rony v. Costa (2012) 210 Cal.App.4th 746, 753, quoting Toscano
v. Greene Music (2004) 124 Cal.App.4th 685, 691.) The issue,
however, is not whether Liang’s lost profits is a proper measure
of compensatory damages, but whether he is entitled to those
damages and the constructive trust the trial court imposed on
Li’s interest in Hollywood Garden.
25
circumstances of the case, is a matter of discretion”].) “ ‘The
scope of discretion always resides in the particular law being
applied; action that transgresses the confines of the applicable
principles of law is outside the scope of discretion and [the
reviewing court] call[s] such action an abuse of discretion.’
[Citation.]” (Pacific Gas & Electric Co. v. Superior Court (2006)
144 Cal.App.4th 19, 23.)
We have already rejected Li’s evidentiary challenges to the
jury’s verdict, as well as his challenges to the court’s imposition of
a constructive trust. Thus, unless there is some reason why
Liang cannot obtain both the compensatory damages awarded by
the jury and the constructive trust imposed by the court, then the
trial court erred in omitting the compensatory damages award
from the judgment.
We first discuss the arguments Li makes in opposition to
Liang’s appeal. Then we address the trial court’s apparent
concerns about a potential double recovery or need to elect
remedies. We conclude none of these arguments or concerns has
merit, and that the trial court erred in not including the
compensatory damages award in the judgment.
1. Li’s Arguments in Opposition to Liang’s Appeal Are
Unavailing
In his briefing on Liang’s cross-appeal, Li makes three
arguments why Liang is not entitled to the compensatory
damages award and the constructive trust.
First, Li argues that we should reverse the $2 million
compensatory damages award because of the evidentiary issues
he raised in his appeal. In disposing of Li’s appeal, ante, we have
rejected all of Li’s evidentiary challenges.
26
Second, Li contends the trial court granted Liang’s motion
to add the constructive trust remedy after the close of evidence,
which prejudiced him because “the claims against him were
unknown throughout trial.” This argument fails because, as we
noted, ante, the trial court granted the motion to add the
constructive trust remedy on August 12, 2019, a week before trial
commenced. Furthermore, Li was on notice when Liang filed the
motion on August 8, 2019, that Liang would be seeking a
constructive trust remedy. In any event, Li fails to demonstrate
any prejudice, for example, what additional evidence he would
have proffered, or how his strategy would have been different.
Nor does he cite any portions of the record. Indeed, it appears
that Li actually sought to take advantage of the prospect that his
shares would be subjected to a constructive trust, when he
testified in the punitive damages phase of trial that, “I surrender
all my share. Surrender all my share. Get over this case. I just
walk away. Done. Done. I have nothing to do with this case. I
just want to say that.” It is not our job “to comb the record
looking for the evidence or absence of evidence to support [a
party’s] argument.’ ” (Becerra v. McClatchy Co. (2021) 69
Cal.App.5th 913, 953, quoting People ex rel. Reisig v. Acuna
(2010) 182 Cal.App.4th 866, 879.)
Third, Li argues that the constructive trust is improper
because it was imposed on shares of Hollywood Garden and,
therefore, only Hollywood Garden itself has standing to sue. As
set forth earlier in our discussion regarding Li’s appeal, we reject
this argument.
In sum, none of Li’s arguments is availing.
27
2. There Will Be No Double Recovery or Conflicting
Remedies
Although the record is opaque as to why the trial court
ultimately decided to omit the compensatory damages award
from the judgment, it is apparent that the court was concerned
about a double recovery or possibly that Liang had to make an
election of remedies. We conclude that these concerns are not
well-founded.
a. The Damages Award and Constructive Trust
Remedy Address Different Wrongs and Injuries
to Liang and Thus Do Not Constitute Double
Recovery
In Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158-1159
(Tavaglione) our high court set forth the applicable principles:
“Regardless of the nature or number of legal theories advanced
by the plaintiff, he is not entitled to more than a single recovery
for each distinct item of compensable damage supported by the
evidence. [Citation.] Double or duplicative recovery for the same
items of damage amounts to overcompensation and is therefore
prohibited. [Citation.] [¶] . . . [¶] In contrast, where separate
items of compensable damage are shown by distinct and
independent evidence, the plaintiff is entitled to recover the
entire amount of his damages, whether that amount is expressed
by the jury in a single verdict or multiple verdicts referring to
different claims or legal theories.”
Although Tavaglione involved compensatory damage
awards rendered by the jury on two different causes of action, the
basic prohibition against double or duplicative recovery applies
when a plaintiff is seeking compensatory damages and equitable
28
relief.7 (See Spaulding v. Cameron (1952) 38 Cal.2d 265, 269
[holding the plaintiff in a nuisance action could not obtain
compensation for depreciation in the value of her property caused
by the nuisance and also an injunction against the nuisance,
because that would amount to a “double recovery”].)
In contrast, here the jury’s compensatory damages award
and the court’s constructive trust are remedies for separate
injuries and are based on “distinct and independent evidence.”
(Tavaglione, supra, 4 Cal.4th at p. 1159; see Michelson v.
Hamada (1994) 29 Cal.App.4th 1566, 1583-1585 [analyzing
evidence of damages to conclude that a jury’s award of damages
7 The parties are in agreement that, in the instant case, the
constructive trust sought by Liang was an equitable remedy.
Although there are circumstances where a constructive trust is
made statutorily available (Civ. Code, §§ 2223, 2224), a
constructive trust is generally regarded as an equitable remedy
particularly when it is used as a means to address unjust
enrichment. (See Martin v. Kehl (1983) 145 Cal.App.3d 228, 237,
238 [“In order to provide the necessary flexibility to apply an
equitable doctrine to individual cases, [Civ. Code, §§ 2223 &
2224] state general principles for a court’s guidance rather than
restrictive rules”; affirming the imposition of a constructive trust
based on an alleged oral promise]; Calistoga Civic Club v. City of
Calistoga (1983) 143 Cal.App.3d 111, 116 [“All that must be
shown [to justify the imposition of a constructive trust] is that the
acquisition of the property was wrongful and that the keeping of
the property by the defendant would constitute unjust
enrichment”]; Kraus v. Willow Park Public Golf Course (1977) 73
Cal.App.3d 354, 373 [“A constructive trust is a remedial device
primarily created to prevent unjust enrichment; equity compels
the restoration to another of property to which the holder thereof
is not justly entitled”].)
29
for breach of contract was separate from its award of damages for
fraud and breach of fiduciary duty]; Pat Rose Associates v.
Coombe (1990) 225 Cal.App.3d 9, 19-20 [analyzing the
components of separate damage awards to conclude the plaintiff
was properly awarded non-duplicative lost profits and out-of-
pocket losses], disapproved on another ground in Adams v.
Murakami (1991) 54 Cal.3d 105, 116.)
The jury’s $2 million damages award compensated Liang
for his lost return up to the time of trial on the $5.48 million he
invested in the project.8 Liang’s theory was that he would not
have invested in the project had he known that Li had not made,
and was not going to make, the contributions Li promised in the
agreement the parties signed on March 25, 2016.9 Liang’s expert
Luke Goetz calculated Liang’s lost return at $2.1 million from the
date Liang contributed the money in March of 2016 through
August 19, 2019, when trial commenced, assuming a 10 percent
annual return on investment. Goetz also calculated Liang’s lost
return at a 10 percent annual rate of return for two years into the
future to be $1.53 million, for a total loss of approximately $3.6
million from March of 2016 through two years after trial.
Alternatively, assuming an 8 percent return on investment
8
Li acknowledges that the $2 million in compensatory
damages awarded by the jury is for Liang’s lost profits.
9 Liang’s first cause of action for fraud was based on the
allegation Li falsely told Liang that he (Li) had already
contributed money to Hollywood Garden and would contribute
more, and that all that was needed to cover the purchase price of
the 6140 Property was $5.48 million. Liang alleged that, had he
known the true facts, he would not have invested in Hollywood
Garden.
30
(which is the “minimum” return on investment Liang was to
receive under the agreement), Goetz calculated lost profits of $2.7
million for the longer period, i.e., from when Liang made his
contribution in March of 2016 to two years after trial. In his
closing argument, Liang’s counsel told the jury Goetz’s
calculations showed, assuming a 10 percent rate of return, that
Liang had lost $2.1 million up to the start of trial (March 28,
2016, through August 19, 2019) and the loss would increase to
$3,630,181 by adding the two years it would take to be in a
position where the property could be sold. Given that the jury’s
award ($2 million) is very close to the amount that Goetz
calculated was Liang’s lost return on his investment through trial
assuming a 10 percent annual rate of return on investment ($2.1
million), it is evident that the jury’s award was compensation for
Liang’s lost return on his investment through trial.
In contrast, the trial court imposed the constructive trust,
and properly so, to remedy the injury to Liang that persisted with
respect to the parties’ interests in Hollywood Garden after trial.10
More specifically, Liang sought the constructive trust because
despite Li’s misconduct, he would still hold a 40.3 percent stake
in Hollywood Garden were such a trust not imposed. Absent
imposition of a constructive trust on Li’s interest in Hollywood
Garden, Li would be unjustly enriched because his actual
monetary contributions to the venture were, at best, a small
fraction of the amounts he promised in the March 25, 2016,
10The trial court imposed the constructive trust in favor of
Liang and against Li “on all assets and equity in Hollywood
Garden, LLC acquired by [Li]” and indicated that this remedy “is
intended to prevent the unjust enrichment of [Li].”
31
agreement, and he also withdrew money from Hollywood
Garden’s account for expenses unrelated to the venture.
In addition, actions taken by Li after Liang made his $5.48
million contribution had the effect of preventing Liang from
withdrawing his $5.48 million contribution to the purchase of the
6140 Property and to Hollywood Garden, and subjecting Liang’s
investment to terms benefitting only Li and harming Liang. Li’s
actions also conflicted with the parties’ basic understanding that
the purchase would be completed with Li’s and Liang’s respective
capital investment without debt financing.
More specifically, Li used $4.8 million of Liang’s
contribution to pay two non-refundable deposits on the property,
and then obtained a $4 million hard money loan secured solely by
the 6140 Property, with no personal guaranty by Li. As a result
of the non-refundable deposits, most of Liang’s $5.48 million
investment would have been lost if Hollywood Garden had
withdrawn from the transaction. As a result of the loan, which
had to be paid off in, at most, two years and gave the lender a
right to foreclose upon default, and the lack of any substantial
funds in Hollywood Garden’s account to pay off the loan, Liang
would either have to pay off the loan quickly or risk foreclosure,
which would jeopardize at least a portion of the money already
invested in the 6140 Property.
Thus, Li’s fraudulent actions in consummating the
purchase of the 6140 Property made it impossible for Liang to get
out of the project by simply withdrawing his contribution.11 As
11There does not appear to be any dispute that the vast
majority of the money Hollywood Garden used to purchase the
6140 Property came from two sources, namely, Liang’s $5.48
32
Liang argues on appeal, “Liang’s investment remains tied up in
Hollywood Garden. Liang’s only means of avoiding foreclosure
and losing his investment in its entirety is to plow more money
in. He cannot do so, when Li stands to gain 40.3 [percent] of
every additional dollar Liang puts in.” Under these
circumstances, the trial court properly imposed a constructive
trust to remedy Li’s fraud, breaches of fiduciary duty and breach
of contract, and prevent him from being unjustly enriched by
holding a 40.3 percent stake in Hollywood Garden despite the
fact that Liang contributed almost all of the capital used to
obtain the 6140 Property.
In sum, the jury’s award of $2 million in damages
compensated Liang for the loss of his return on investment up
through trial, and the trial court’s constructive trust remedied
the different harm were Li to keep his 40.3 percent stake in
Hollywood Garden. Accordingly, awarding both remedies would
not have resulted in double or duplicative recovery for Liang.
In addition, these different remedies rely on distinct and
independent sets of evidence. Granted, the wrongs addressed by
both remedies are Li’s fraud in misrepresenting that he had
contributed $1.3 million to Hollywood Garden, and in promising
that he would contribute an additional $4.7 million to the
venture. The constructive trust remedy is based on the
additional evidence of the actions Li took in consummating the
purchase of the 6140 Property, which effectively precluded Liang
from seeking to extricate his contribution from Hollywood
Garden. (See Denevi v. LGCC, LLC (2004) 121 Cal.App.4th 1211,
million contribution and the $4 million loan Li obtained in
Hollywood Garden’s name.
33
1219 [noting that had the plaintiff discovered the fraudulent
inducement “immediately, he could have sued immediately, and
would have been entitled at least to rescind the transaction and
recover the rights thus conveyed”].)
Li has not, either below or on appeal, marshalled any
evidence or fact-based argument that would support a finding
that, by awarding Liang a constructive trust over Li’s 40.3
percent interest in Hollywood Garden, in addition to the $2
million award for lost profits, Liang would be receiving a windfall
due to any significant appreciation of the 6140 Property since it
was acquired for $9.5 million. Our own review of the record
persuades us that any such argument, had it been made, would
lack merit.
Li did testify at trial that there was a competing offer of
$11 million when he secured the property for Hollywood Garden.
However, this statement is, at best, inadmissible hearsay (it
implies that someone told him that another offer had been made
or he saw in a document that was not before the court that such
an offer was made). It is also of extremely dubious reliability
given that the seller elected not to accept the purported
competing offer and instead entered into the purchase agreement
with Li to sell the property for $9.5 million. We similarly
disregard the unverified allegation in Li’s December 2018 cross-
complaint that on information and belief the property had a
“current value . . . over $12 million.” Finally, Li did assert in a
loan application to Macoy Capital, submitted in September 2018
(more than a year after he was removed as manager of Hollywood
Garden) that he estimated the value of the 6140 Property to be
$13 million. But this too is hearsay (it is Li’s out-of-court
statement offered for its truth) and there is no indication that the
34
prospective lender ever confirmed the reliability of Li’s estimate.
It also appears that the loan Li was seeking was not approved.
In fact, the credibility of the entire loan application has been
called into question by Li himself during the trial. The loan
application included representations regarding Li’s personal
assets, including that he owned stocks and bonds worth $14
million and notes receivable worth $14,810,000. When Li was
confronted with these statements on cross-examination during
the punitive damages phase of the trial, he said the information
was “not accurate” and that it was prepared by his
bookkeeper/accountant. It was also in the midst of this cross-
examination into whether statements in the application about his
assets were false that Li interjected “I surrender all my share
[sic].” He never did respond to the question of whether his loan
application statements were false.
Thus, the only reliable evidence in the record on the value
of the 6140 Property was the purchase price itself. As a
consequence, the evidence demonstrated that the value of Li’s
40.3 percent interest in Hollywood Garden, given that the sole
asset was a property purchased for $9.5 million subject to a $4
million loan, was (at least on paper) about $2 million.
Considering the $2 million compensatory damage award and the
constructive trust over Li’s shares in Hollywood Garden, Liang
was awarded a total of approximately $4 million, half of which
was for the lost profits up to the time of trial. This is
substantially less than his investment of $5.48 million, and he
was still faced with having to invest additional funds to develop
the property before it could generate any profit. “In measuring
the amount of the defendant’s unjust enrichment, the plaintiff
may present evidence of the total or gross amount of the benefit,
35
or a reasonable approximation thereof, and then the defendant
may present evidence of costs, expenses, and other deductions to
show the actual or net benefit the defendant received. ‘The party
seeking disgorgement “has the burden of producing evidence
permitting at least a reasonable approximation of the amount of
the wrongful gain,” ’ and the ‘ “[r]esidual risk of uncertainty in
calculating net profit is assigned to the wrongdoer.” ’ [Citation.]”
(Meister v. Mensinger, supra, 230 Cal.App.4th at p. 399.)
Application of these principles here supports our conclusion that
Liang met his burden of demonstrating that the constructive
trust over Li’s shares was proper as an additional remedy to the
$2 million jury award, necessary to prevent unjust enrichment,
and also that any uncertainty about the precise economic benefits
flowing to Liang from the two remedies was something Li was
required to demonstrate. He failed to do so.
b. Election of Remedies
The doctrine of election of remedies is related to the concept
of double or duplicative recovery. “Broadly speaking, election of
remedies is the act of choosing between two or more concurrent
but inconsistent remedies based upon the same state of facts.”
(Roam v. Koop (1974) 41 Cal.App.3d 1035, 1039.) “In its
‘conventional form,’ the doctrine of election of remedies ‘is stated
as follows: Where a person has two concurrent remedies to
obtain relief on the same state of facts, and these remedies are
inconsistent, he must choose or elect between them; and if he has
clearly elected to proceed on one, he is bound by this election and
cannot thereafter pursue the other. “Election of remedies has
been defined to be the right to choose or the act of choosing
between different actions or remedies where [the] plaintiff has
suffered one species of wrong from the act complained of. Broadly
36
speaking, an election of remedies is the choice by a plaintiff to an
action of one of two or more coexisting remedial rights, where
several such rights arise out of the same facts, but the term has
been generally limited to a choice by a party between inconsistent
remedial rights, the assertion of one being necessarily repugnant
to or a repudiation of the other.” [Citation.]’ (3 Witkin, Cal.
Procedure[ (4th ed. 1997) Actions], § 174, pp. 243-244; italics
added.)” (Denevi v. LGCC, LLC, supra, 121 Cal.App.4th at
p. 1218.) “One limitation on the doctrine . . . is the requirement
that the plaintiff seek inconsistent remedies in causes of action
based on the same set of facts.” (Baker v. Superior Court (1983)
150 Cal.App.3d 140, 145.) “Courts and commentators have long
recognized the harshness of the election of remedies doctrine and
have for some time looked upon it with disfavor. [Citations.]”
(Ibid.)
To the extent the trial court forced Liang to elect between
two remedies—the jury’s $2 million compensatory damages
award and the constructive trust—it erred. As discussed above,
the jury’s award compensated Liang for the loss of his return on
investment through trial. In contrast, the court’s constructive
trust remedied the unjust enrichment that would occur if Li were
allowed to retain his 40.3 percent stake in Hollywood Garden
given (1) Li contributed only a small fraction of what he promised
to contribute; and (2) Li burdened Liang’s contribution by using it
to make $4.8 million in non-refundable deposits and encumbering
the property with a $4 million loan that essentially has required
Liang to invest more funds to avoid having his existing
investment dissipated. These two remedies are not
“ ‘ “inconsistent,” ’ ” nor would “ ‘ “the assertion of one be[ ]
37
necessarily repugnant to or a repudiation of the other.” ’ ” (Denevi
v. LGCC, LLC, supra, 121 Cal.App.4th at p. 1218.)
In conclusion, the trial court’s omission of the jury’s $2
million compensatory damages award from the judgment to avoid
duplicative damages or to force an election of remedies was error.
The dissent characterizes this conclusion as an improper
“reformation” of the jury verdict. Although the jury did find for
Liang on all the causes of action that were presented to it,
including breach of contract, fraud and breach of fiduciary duty,
and it awarded damages on each of these claims in the same
amount ($2 million), this was a very close approximation of the
amount that Liang’s evidence, including expert testimony,
demonstrated to be his lost investment profits due to Li’s
conduct. The jury was not presented with an opportunity to
make an award for any amount to address Li’s significant unjust
enrichment and properly so; that was an issue for the trial court
to address for all the reasons discussed, ante. For this reason,
the dissent’s argument predicated on Tavaglione, supra, 4
Cal.4th at page 1158, is inapt.
On the record before us, there is no basis to conclude that
the harm remedied by the compensatory damages verdict and
constructive trust were the same, or even overlapped. Nor was
there evidence that would support a finding that granting Liang
both remedies results in a windfall. The dissent does not address
Li’s unjust enrichment at all, even though that was the focus of
Liang’s argument for amending his complaint to assert the
remedy, and also was the centerpiece of his post-verdict
argument for the issuance of the constructive trust. As we
discussed, ante, the possibility that, depending upon the outcome
of the later-filed derivative case, Liang may, in some manner be
38
overcompensated, would only occur if the trial judge in that case,
who is the same trial judge in this case, were to ignore the
outcome here. That speculative possibility does not require us to
disregard the fact that, in the present case, Liang was denied
remedies to which he was entitled.
Although the dissent focuses on a speculative windfall to
Liang, our conclusion in this case avoids, not a speculative
windfall, but a certain one in favor of Li, i.e., the windfall that Li
would enjoy if he could use assets to which he had no right (his
shares in Hollywood Garden) to satisfy the liability to Liang
imposed by the jury in the manner the dissent suggests.
Accordingly, we cannot agree with the dissent’s conclusion that
Liang could not be awarded both remedies.
39
DISPOSITION
The judgment as to all the issues raised in Li’s appeal is
affirmed. The judgment is reversed as to the issues in Liang’s
cross-appeal and the trial court is directed to issue a new
judgment reinstating the jury’s $2 million compensatory damages
award and imposing a constructive trust on Li’s interest in
Hollywood Garden in accordance with the guidance in this
opinion.
NOT TO BE PUBLISHED
KELLEY, J.*
I concur:
BENDIX, Acting P. J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
40
CHANEY, J., Concurring and dissenting.
The trial court acted within its discretion when it imposed
a constructive trust on Ji Li’s shares of Hollywood Garden LLC in
favor of Kai Hou Liang. The trial court did not err when it
granted BCP’s motion in limine to exclude evidence regarding
Ying Wei Lu’s career and financial condition, when it granted
BCP’s motion to quash the subpoena directed at Lu, when it
allowed Betty Bai’s deposition testimony to be presented to the
jury, or when it sustained objections to the introduction of emails
between Terence Lai and others. Because I would find no error
in the bases Li asserts on his appeal, I concur with my colleagues
regarding the issues on Li’s appeal.
I would also affirm the trial court’s judgment as it relates
to Liang’s cross-appeal.
Liang argues on cross-appeal that he was entitled to both
the constructive trust that the trial court imposed and the $2
million in compensatory damages that the jury awarded. I would
conclude that Liang has not met his burden on appeal to
demonstrate that the trial court abused its discretion by refusing
to award him both forms of relief where the jury made a single,
indivisible, $2 million award.
The trial court denied Liang’s motion to bifurcate, and
granted motions to dismiss every equitable cause of action in the
case before every cause of action remaining in the lawsuit—
Liang’s causes of action for fraud, breach of fiduciary duty, and
breach of contract—were presented to the jury. The jury was
presented a binary choice on each of Liang’s three causes of
action: “We find in favor of Kai Hou Liang and against Ji Li;” or
“We find in favor of Ji Li and against Kai Hou Liang.” If the jury
found in favor of Liang on “any” of the three causes of action, it
was to answer the question “What are Kai Hou Liang’s
Damages?” with a single number; the jury concluded that Liang
had been damaged for one or all of the causes of action together in
the amount of $2 million.
Besides concluding that Li “acted with malice, oppression[,]
or fraud,” the jury did not make any other factual findings
related to the causes of action or any theory of recovery any party
presented at trial.
To find that the trial court abused its discretion here would
require us to conclude that Liang had established on this appeal
(and in the trial court) that he was entitled as a matter of law to
both a constructive trust plus $2 million.
The crux of the problem with Liang’s argument, however, is
that there was no cause of action for constructive trust in this
case. The constructive trust here was imposed pursuant to
Liang’s request that a constructive trust be imposed as a remedy
based on the same three causes of action that the jury heard.
It appears that the trial court acted within its discretion
when it imposed a constructive trust as, in essence, an equitable
lien on Li’s assets (his shares in Hollywood Garden) in support of
(or in lieu of) the jury’s $2 million money judgment. (County of
Los Angeles v. Construction Laborers Trust Funds for Southern
California Admin. Co. (2006) 137 Cal.App.4th 410, 416, fn. 5.)
But I find no authority to support a reformation of the jury’s
verdict to award both a $2 million money judgment and to take
an asset worth millions of dollars away from Li and hand it over
to Liang where the jury has made no independent findings that
would support that additional transfer of either money or
property between the parties.
2
Apart from those principles, what Liang actually argued
here is no more helpful for his cause.
Liang contends that the jury found in his favor on three
causes of action—fraud, breach of contract, and breach of
fiduciary duty. Liang explains that the $2 million compensatory
damage award “represented the lost return on his $5.48 million
investment pursuant to the [contract] as a result of Li’s
breach . . . .” Liang contends that he “thereafter also sought
equitable relief from the trial court as a remedy for the breach of
fiduciary [duty] and fraud causes of action on the grounds Li’s
fraudulent activities resulted in his unjust enrichment (in the
form of a 40.3 percent interest in Hollywood Garden . . .).”
Liang accurately points out that “ ‘[r]egardless of the
nature or number of legal theories advanced by the plaintiff, he is
not entitled to more than a single recovery for each distinct item
of compensable damage supported by the evidence.’ ” (Quoting
Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1158 (Billings).)
“Double or duplicative recovery for the same items of damage
amounts to overcompensation and is therefore prohibited.” (Id.
at p. 1159.)
“In contrast, where separate items of compensable damage
are shown by distinct and independent evidence, the plaintiff is
entitled to recover the entire amount of his damages, whether
that amount is expressed by the jury in a single verdict or
multiple verdicts referring to different claims or legal theories.”
(Billings, supra, 4 Cal.4th at p. 1159.)
In Billings, our Supreme Court considered “the interplay
between [a] jury’s responses to special interrogatories, disclosing
the amount of damages attributable to plaintiff’s various theories
of recovery, and the jury’s general verdict, setting forth the total
3
amount of damages awarded to plaintiff. . . . [P]laintiff sued
defendants on several different causes of action, including
defamation. The jury’s general verdict awarded plaintiff
approximately $2.25 million in compensatory damages, but the
jury’s responses to special interrogatories disclosed it found
plaintiff’s damages on the defamation count were only $604,787;
damages on plaintiff’s other theories accounted for the difference.
The jury also awarded plaintiff $2.4 million in punitive damages.”
(Billings, supra, 4 Cal.4th at p. 1152.)
Liang also relies heavily on Michelson v. Hamada (1994) 29
Cal.App.4th 1566 (Michelson). In that case, Michelson “filed a
complaint alleging breach of contract, breach of fiduciary duty,
and fraud, among other causes of action. By special verdict, the
jury found in favor of Michelson. The jury awarded damages of
$140,000 for breach of contract, $500,000 for breach of fiduciary
duty, and $500,000 for fraud. The jury further found that
compound prejudgment interest should be assessed. In a
separate phase of the trial, the jury awarded $1,250,000 in
punitive damages. [¶] After discharging the jury, the trial court
ordered a total of $500,000 in actual damages . . . .” (Id. at pp.
1574-1575.)
In each of those cases, based on special verdicts that
specifically delineated amounts of compensatory damages
attributable to specific causes of action, the reviewing court
determined that an appropriate analysis of compensatory
damages had to account for amounts the jury attributed to each
cause of action so long as those damages were not based on
identical conduct. (Billings, supra, 4 Cal.4th at p. 1157;
Michelson, supra, 29 Cal.App.4th at pp. 1582-1583.)
4
The jury’s verdict here does not establish a distinct amount
of damages attributable to each cause of action—something that
Liang could have requested, but did not. (See English v. Lin
(1994) 26 Cal.App.4th 1358, 1369 [jury verdict affirmed where
plaintiff failed to request a verdict form segregating elements of
damages].) “At bottom, the determination of damages is
essentially a factual matter on which inevitable differences of
opinion do not warrant intervention by the appellate courts.”
(Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 347.)
In contrast to the awards in Billings and Michelson, there
is no way to read the jury’s verdict here as establishing a
compensatory damage award for any specific cause of action as
distinguished from another. Indeed, the jury would have been
empowered to award whatever it decided as a measure of
damages for any one of the three causes of action. It is not,
therefore, a reasonable interpretation of the jury’s verdict that it
intended a $2 million compensatory damage award to
compensate only for breach of contract.
Moreover, it is clear that the trial court viewed a
constructive trust or a compensatory damage award as an
either/or proposition. Although the record contains no reporter’s
transcript from the status conference at which the constructive
trust issue was apparently discussed, the trial court alluded to
the issue during discussions with counsel before the jury
returned its verdict. In a colloquy with counsel regarding
another amendment to the complaint, the trial court noted that it
had spoken with counsel “off the record yesterday that there can’t
be double recovery . . . there may have to be a choice of remedies.”
It appears from the record that the trial court viewed a
constructive trust and a compensatory damage award as
5
duplicative. Consequently, after the status conference at which
those issues appear to have been discussed, Liang submitted a
proposed judgment and an alternative proposed judgment. The
proposed judgment contained both a compensatory damage
award in the amount of $2 million and a constructive trust. The
proposed alternative judgment omitted the compensatory damage
award and opted only to impose a constructive trust.
“The trial court’s choice among several legally-permissible
measures of damages, under the specific circumstances of the
case, is a matter of discretion.” (New West Charter Middle School
v. Los Angeles Unified School Dist. (2010) 187 Cal.App.4th 831,
843.) Here, at Liang’s urging, the trial court imposed a
constructive trust, choosing to satisfy Liang’s compensatory
damage award by placing Li’s substantial equity in Hollywood
Garden in a constructive trust and transferring it to Liang.
I can find no support in either the record or at law for
Liang’s implicit assertion that he has established here that he
was entitled as a matter of law to what appears to me to be a
reformation of the jury’s verdict of millions of dollars in Liang’s
favor.
Finally, I would note that reforming the jury’s verdict may
create even more problems than it purports to solve. The
“separate injury” reformation of the jury verdict and judgment
seeks to remedy is not injury inflicted on Liang at all; it was
injury to Hollywood Garden. The argument is, at base, that the
constructive trust was not to function as essentially an equitable
lien—a means of collecting on a $2 million money judgment—but
rather was intended to separately compensate Liang for Li’s use
of Liang’s investment in Hollywood Garden to acquire a $4
million hard money loan (in Hollywood Garden’s name) secured
6
by the 6140 Property (which was in Hollywood Garden’s name).
The fundamental flaw with the argument, however, is that the
money Li used to acquire the loan no longer belonged to Liang
when Li used it to acquire the loan; it belonged to Hollywood
Garden. Liang had already received shares in Hollywood Garden
in return for his investment. So while Liang could recover
damages for Li’s fraud, breach of contract, and breach of fiduciary
duty against him, he was in no position to recover for injuries Li
caused to Hollywood Garden.
Indeed, in a separate lawsuit against Li that is currently on
appeal, Hollywood Garden sought to recover from Li the amounts
he incurred on Hollywood Garden’s behalf. If Hollywood Garden
is ultimately successful in that lawsuit, Li will owe Hollywood
Garden—almost wholly owned by Liang because of the
constructive trust in this lawsuit—damages for the amounts
Hollywood Garden incurred as a result of Li’s wrongdoing. Liang
will have a judgment against Li for those same damages as a
function of this case. And Li will ultimately have paid directly to
Liang substantially more than he agreed to invest, but will have
no ownership interest in Hollywood Garden moving forward.
Because I agree that Li has not demonstrated error on his
appeal, I concur in the judgment on Li’s appeal. But because I
would conclude that Liang has not demonstrated that he was
entitled as a matter of law to an upward $2 million reformation of
the jury’s verdict and the judgment, I would affirm the trial
court’s judgment in its entirety.
For those reasons, I concur in part and dissent in part.
CHANEY, J.
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483066/ | Filed 11/10/22 P. v. Arenas 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, D079663
Plaintiff and Respondent,
v. (Super. Ct. No. SCS303353)
JEREMY ARENAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Dwayne K. Moring, Judge. Affirmed in part, reversed in part and remanded
for resentencing.
Jill Kent, 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, Arlene A.
Sevidal, James M. Toohey and James H. Flaherty III, Deputy Attorneys
General.
Defendant Jeremy Arenas grabbed a bag of chips from an ice cream
vendor’s pushcart and, when asked to pay, punched the vendor in the face.
As the vendor fled the scene, Arenas threatened to kill him with an assault
rifle. Based on these events, he was charged and convicted of robbery and
making a criminal threat. (Pen. Code1, §§ 211, 422, subd. (a).) He was also
convicted of attempting to dissuade a witness from testifying (§ 136.1, subd.
(a)(2)) based on remarks made to the vendor as he testified at the preliminary
hearing. Initially sentenced to a 22-year, 4-month prison term, Arenas was
resentenced to a 16-year, 4-month term following a prior appeal.
On appeal, Arenas again seeks resentencing, arguing he is entitled to
the retroactive benefit of two legislative amendments to the Determinate
Sentencing Law (DSL). The People concede retroactivity but contend remand
is unnecessary on our record. To the contrary, we agree with Arenas that
amendments to the DSL introduced in Assembly Bill No. 124 (Stats. 2021,
ch. 695, § 5.3) compel resentencing. Arenas is presumptively entitled to
lower term sentencing under section 1170, subdivision (b)(6)(A) based on
childhood physical and psychological trauma contributing to his crimes.
Because there is no indication the trial court would have imposed the same
sentence under the new scheme, remand for a full resentencing hearing is
necessary. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts were discussed in the prior unpublished appeal,
People v. Arenas (Apr. 24, 2020, D075840) (Arenas I), and need not be
repeated in detail. Arenas was convicted of robbery as charged in count 1
based on evidence that he grabbed a bag of chips from a pushcart vendor and
1 Further undesignated statutory references are to the Penal Code.
2
then used force to prevent him from retrieving it. He was convicted of
making a criminal threat as charged in count 2 based on evidence that he
thereafter threatened to obtain an assault rifle and kill the vendor as the
vendor was fleeing from the scene. Based on evidence that he made
threatening remarks while the vendor testified at the preliminary hearing,
the jury convicted Arenas of attempting to dissuade a witness, as charged in
count 3.
At the original sentencing hearing in April 2019, Judge Stephanie
Sontag granted Arenas’s motion to strike two of his three prior strike
convictions based on the nature of the offenses, highlighting recent “changes
in the philosophy of punishment.” (§ 1385; People v. Superior Court (Romero)
(1996) 13 Cal.4th 497, 529−530.) The court imposed an upper term of 5 years
on the robbery count (§ 213, subd. (a)(2)). Explaining that choice, the court
noted that the criminal threat sentence in count 2 imposed was to be served
concurrently, so Arenas was not serving additional time for throwing a rock
and threatening to get a gun and shoot the victim, conduct that aggravated
events beyond the initial robbery. The sentence on count 1 was doubled on
account of the prior strike. (§ 667, subd. (e)(1).)
On count 2, the court selected the two-year middle term (§ 1170, subd.
(h)) for the criminal threat, doubled to four years for the strike. It ran that
sentence concurrently to the 10-year sentence in count 1, reasoning that the
conduct occurred at the same time and place as the robbery and formed part
of the same incident. Running count 3 consecutively (one-third the middle
term pursuant to section 1170.1, subd. (a)), the court imposed an additional
8-month prison term, which it doubled for the strike. Two additional five-
year terms for “nickel” priors (prior serious felony enhancements under
section 667, subd. (a)), a one-year term for a prison prior, and a stayed term
3
on a second prison prior (former section 667.5, subd. (b)) cumulatively
brought the total commitment to 22 years, 4 months.
In Arenas I, this Court concluded that under Senate Bill 136 (Stats.
2019, ch. 590, § 1), Arenas was no longer eligible for a one-year prison prior
under amended section 667.5, subdivision (b). We remanded for a full
resentencing hearing for the court to strike that prison prior and resentence
Arenas. (See People v. Buycks (2018) 5 Cal.5th 857, 893 (Buycks).)
At the resentencing hearing before Judge Moring on September 15,
2021, defense counsel urged the court to exercise its discretion to strike one of
the two nickel priors under Romero, supra, 13 Cal.4th at pages 529 to 530.
Counsel submitted mitigating evidence that Arenas endured physical and
psychological abuse as a child, which led him to rebel and become involved
with crime at an early age. It was this trauma, in counsel’s view, that led
Arenas to escalate a dispute over a bag of chips to an extreme level.
According to counsel, Arenas had completed anger management courses in
custody and begun his path to recovery. The People opposed the Romero
motion, arguing that Arenas was a repeat offender for whom both prior
serious felony enhancements were properly applied.
The court reimposed the same sentences on counts 1, 2, and 3. It
granted the Romero motion as to one nickel prior but not both, deeming a 16-
year, 4-month sentence appropriate based on Arenas’s criminal history and
the conduct at issue.
DISCUSSION
Arenas challenges the upper term imposed on count 1, arguing he is
entitled to the retroactive application of two ameliorative sentencing laws
that went into effect on January 1, 2022, four months after his resentencing.
As to the upper term imposed on count 1, he points to Senate Bill No. 567
4
(Stats. 2021, ch. 731, § 1.3), which generally makes the middle term
presumptive unless aggravating circumstances “justify” imposing a higher
term and have been stipulated to by the defendant or found true beyond a
reasonable doubt by the jury. (§ 1170, subd. (b)(1)−(3).) Assembly Bill No.
124 (Stats. 2021, ch. 695, § 5.3) amended the DSL by making the lower term
presumptive in certain circumstances, including where a defendant “has
experienced psychological, physical, or childhood trauma” and that trauma
“was a contributing factor in the commission of the offense.” (§ 1170, subd.
(b)(6)(A); see Cal. Rules of Court, rule 4.420(e)(1).) Where the presumption
applies, the court must apply the lower term unless it “finds that the
aggravating circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the interests of justice.”
(§ 1170, subd. (b)(6).)
The People appropriately concede that these amendments to the DSL
apply retroactively to Arenas under In re Estrada (1965) 63 Cal.2d 740 at
page 745. (See People v. Lopez (2022) 78 Cal.App.5th 459, 464‒465 [Senate
Bill No. 567]; People v. Gerson (2022) 80 Cal.App.5th 1067, 1095 (Gerson)
[Assembly Bill No. 124].) Nevertheless, they suggest remand for
resentencing is unnecessary on our record because the trial court would have
imposed the same sentence even under the amended DSL. We disagree,
focusing for simplicity’s sake solely on Assembly Bill No. 124.
Based on mitigating evidence presented at both prior sentencing
hearings, Arenas is eligible for presumptive lower term sentences on counts
1, 2, and 3 under section 1170, amended subdivision (b)(6)(A). The statement
in mitigation presented at the original sentencing and attached to his Romero
motion on resentencing explained that Arenas’s father was “extremely
abusive” and his mother “passive”; he suffered memory lapses possibly
5
“related to the many times he was hit on the head and [lost] consciousness.”
As Arenas told the psychological evaluator, his trauma left him searching for
an identity. He gravitated toward a rebellious crowd and was disciplined for
acting out and fighting in school. By middle school, he was a ward of the
state and grew up in custodial settings. In custody, he learned “how to fight
and how to take a beating.” He suffered numerous broken bones and was
stabbed on more than one occasion. These experiences strengthened “his
view of the world as a dangerous place.”
The evaluator remarked that during his interview, Arenas seemed
“alert when others were in proximity, even though the surroundings were
safe.” In his view, Arenas’s past trauma contributed to each of his current
convictions:
“Because of his history, Mr. Arenas likely experiences
significant anxiety in situations where he perceives that his
wellbeing could be threatened (Trauma-Related Disorder).
In these situations he will react defensively and often times
inappropriately. With his instant offense he saw the
alleged victim as the perpetrator and felt a need to protect
himself and those who were with him. His verbal
statements made in the courtroom were influenced by his
belief that he was being attacked with lies that could result
in a life sentence.”
Contrary to the People’s argument, there is no indication, much less a
clear one, that the trial court would have imposed the same sentence had
Assembly Bill No. 124 been in effect at the time of sentencing. (Gerson,
supra, 80 Cal.App.5th at p. 1096.) The record indeed contained the
statement in mitigation describing childhood trauma. Judge Sontag
acknowledged this trauma in striking two of his prior strikes. And Judge
Moring struck a nickel prior based on Arenas’s criminal history and his view
of what would constitute an appropriate sentence. The People suggest that
6
no more leniency would have been shown where the sentencing courts
considered his history but nonetheless selected an upper term on count 1 and
middle terms on counts 2 and 3.
But as Arenas points out, before recent amendments to the DSL, the
court had no reason to make—and Arenas had no reason to seek—a finding
that his past psychological or physical trauma was a contributing factor to
any of his offenses (as the uncontroverted evidence appears to show). There
was no statutory basis to apply a presumptive lower term based on such a
finding. (Gerson, supra, 80 Cal.App.5th at p. 1096.) If anything, the fact that
both sentencing courts demonstrated lenity in other respects suggests that
remanding for resentencing under the amended DSL would not be an idle act.
(See People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Accordingly, we
vacate Arenas’s sentence and again remand the matter for a full resentencing
hearing. (See Buycks, supra, 5 Cal.5th at p. 893.) At that hearing, the court
must also apply any other recent legislative changes now in effect, including
amendments to the DSL introduced in Senate Bill No. 567. (See § 1170,
subd. (b)(1)−(3).)2
2 Arenas seeks correction of two clerical errors in the second amended
abstract of judgment. In addition, he seeks a recalculation of his custody
credits if resentencing is ordered. The People do not oppose these requests.
Because we remand this case for resentencing and direct that a new abstract
of judgment be prepared, these requests (along with correctly listing Arenas’s
date of birth) can be directed to the trial court in the first instance.
7
DISPOSITION
This matter is remanded for resentencing consistent with Penal Code
section 1170, subdivision (b) as amended. Following resentencing, the court
is directed to prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. In all
other respects the judgment is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
8 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483062/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
CHARLES AWUSIN INKO-TARIAH, )
)
Plaintiff, )
)
v. ) Case No. 22-cv-01365 (APM)
)
BUDWEISER BREW HOUSE, et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Pro se Plaintiff Charles Awusin Inko-Tariah asserts claims of disability discrimination
against the Budweiser Brew House, the Washington Nationals, and Events DC after attending a
baseball game in June 2021. Washington Nationals Baseball Club, LLC (“the Nationals”) and
Events DC have moved to dismiss for lack of subject-matter jurisdiction and for failure to state a
claim. For the reasons explained below, the motion will be granted. 1
II. BACKGROUND 2
Plaintiff is deaf and partially blind. On June 18, 2021, after living in the Washington, D.C.
area for nearly 20 years, Plaintiff attended his first major league baseball game at Nationals Park,
where he spent “approximately $18.00” for the entry ticket and a soda. Mot. for Leave to File Am.
Compl., ECF No. 6, Am. Compl., ECF No. 6-1, ¶¶ 6–7. Instead of going to his assigned seat,
Plaintiff proceeded to the Budweiser Brew House located within the Park, which had seven
1
In view of this disposition, Plaintiff’s pending motion for appointment of counsel, ECF No. 3, will be denied as
moot.
2
For current purposes, Plaintiff’s factual allegations are accepted as true.
television screens. Id. ¶¶ 7–8. Plaintiff introduced himself to the bartender “via iPhone text and
explained that he is [a] deaf/partially blind baseball fan in need of TV captioning.” Id. ¶ 7. The
following ensued.
Initially [Plaintiff’s server] Mr. Swisher . . . claimed that there is no
remote control and 30 minutes later he emerged with the remote
control only to show the plaintiff that it was devoid of battery.
Another thirty minutes passed before he could get the battery and
asked Plaintiff which of the three TVs in front of him he wanted the
captioning activated on and Plaintiff pointed to the middle.
Mr. Swisher went on trying to activate it for about 5 minutes in vain
so he gave up and told the plaintiff that there is nothing he can do to
help him. . . . He said that he will find someone to fix it but forgot
about [Plaintiff] for an additional 20 minutes attending to other
patrons until the plaintiff began recording evidence on his Apple
iPhone XR showing all the 7 TVs lacked captioning.
Id. ¶ 8. When Plaintiff asked for the name of the bar owner and “hinted” at contacting a lawyer
specializing in disability discrimination, Swisher took Plaintiff to the corporate office where
Plaintiff was given information about lodging a complaint with “the Washington Nationals
authorities,” which he did. Id. ¶ 9. On June 23, 2021, Director of Guest Experience Elliott Fodera
“apologized to the plaintiff for the humiliation, pain and suffering of being denied the opportunity
to experience the surrounding fanfare and pageantry” and invited him “to attend another game.”
Id. ¶ 10. Plaintiff “declined” the invitation “for several months and hinted at consulting a lawyer
for advice.” Id.
After contacting several legal organizations and the Department of Justice’s Disability
Rights Section and receiving “the same old tired excuses” for declining representation, id. ¶¶ 10–
11, Plaintiff determined that “he is the best pilot of his destiny,” id. ¶ 12. He filed this action on
May 17, 2022, and the operative amended complaint on June 23, 2022. Invoking Section 504 of
the Rehabilitation Act and Title III of the Americans with Disabilities Act, Plaintiff seeks
“$9,999,000 in both compensatory and punitive damages collectively against defendants for
2
humiliation, anguish and intentional infliction of emotional distress” and seemingly a
“nationwide” injunction compelling “sensitivity training” at stadiums, bars, and restaurants and
“mandating TV captioning activated upon request for Deaf, Deaf/Partly-Blind and Hearing-
Impaired fans or customers.” Id. ¶ 24.
III. LEGAL STANDARD
A. Rule 12(b)(1)
Defendants’ motion to dismiss for lack of subject-matter jurisdiction arises under Federal
Rule of Civil Procedure 12(b)(1). Defs.’ Mot. to Dismiss, ECF No. 18 [hereinafter Defs.’ Mot.],
at 1. On a Rule 12(b)(1) motion, the plaintiff bears the burden of establishing that the court has
subject-matter jurisdiction over his claims. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61
(1992). A court must accept all well-pleaded factual allegations in the complaint as true. Jerome
Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253–54 (D.C. Cir. 2005). A court is not limited to
the allegations made in the complaint, however, and “may consider such materials outside the
pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the
case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000) (citing
Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)); see also Jerome Stevens
Pharms., 402 F.3d at 1253. Under Rule 12(h)(3), “[i]f the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. P. 12(h)(3); D.C.
Transit Sys., Inc. v. United States, 717 F.2d 1438, 1440 n.1 (D.C. Cir. 1983).
B. Rule 12(b)(6)
Defendants’ motion to dismiss for failure to state a claim upon which relief can be granted
arises under Rule 12(b)(6). Defs.’ Mot. at 1. To survive such a motion, a complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
3
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556). The factual allegations in the complaint need not be
“detailed”; however, the Federal Rules demand “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). If the facts as alleged fail to establish that a plaintiff has stated
a claim upon which relief can be granted, a court must grant a defendant’s Rule 12(b)(6) motion.
See Am. Chemistry Council, Inc. v. U.S. Dep’t of Health & Hum. Servs., 922 F. Supp. 2d 56, 61
(D.D.C. 2013).
In evaluating a motion to dismiss under Rule 12(b)(6), the court must accept a plaintiff’s
“factual allegations . . . as true,” Harris v. D.C. Water & Sewer Auth., 791 F.3d 65, 67 (D.C. Cir.
2015), and “construe the complaint in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged.” Hettinga v. United States, 677 F.3d 471,
476 (D.C. Cir. 2012) (internal quotation marks omitted). However, the court need not “accept as
true a legal conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286
(1986), or “inferences . . . unsupported by the facts set out in the complaint,” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). When performing the “context-specific
task” of deciding whether a plausible claim has been stated, a court must “draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
4
IV. DISCUSSION
Defendants advance two threshold arguments for dismissal. They argue first that Plaintiff
has stated no claim for money damages, Defs.’ Mot., Defs.’ Mem. in Supp. of Defs.’ Mot., ECF
No. 18-2 [hereinafter Defs.’ Mem.], at 5–6, and second that Plaintiff lacks standing to pursue
injunctive relief, id. at 6–7. Because “a showing of standing is an essential and unchanging
predicate to any exercise of a court’s jurisdiction,” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658,
663 (D.C. Cir. 1996) (cleaned up), the court will address this ground first. See Dominguez v. UAL
Corp., 666 F.3d 1359, 1362 (D.C. Cir. 2012) (“[E]very federal court has a ‘special obligation to
satisfy itself’ of its own jurisdiction before addressing the merits of any dispute.”).
A. Standing
The party invoking standing “bears the burden of showing that he has standing for each
type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). To satisfy the
“irreducible constitutional minimum of standing,” a litigant must demonstrate that (1) he has
suffered an injury in fact—the invasion of a legally protected interest; (2) the injury is fairly
traceable to the defendants’ challenged conduct (a causal connection); and (3) a favorable decision
on the merits likely will redress the injury. Lujan, 504 U.S. at 560–61. The injury must be concrete
and particularized and actual or imminent, not conjectural, hypothetical, or speculative.
See Spokeo, Inc. v. Robins, 578 U.S. 330, 339–40 (2016). “This set of criteria implements Article
III by limiting judicial intervention to only those disputes between adverse parties that are ‘in a
form . . . capable of judicial resolution.’” Fla. Audubon Soc’y, 94 F.3d at 663 (quoting Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 218 (1974)).
When, as here, a plaintiff seeks injunctive relief, “[t]he standing requirement . . . cannot be
met absent a showing of a real or immediate threat that the plaintiff will be wronged again.”
5
Jefferson v. Stinson Morrison Heckler LLP, 249 F. Supp. 3d 76, 81 (D.D.C. 2017) (internal
quotation marks omitted). “[H]arm in the past . . . is not enough to establish a present controversy,
or in terms of standing, an injury in fact.” Am. Soc’y for the Prevention of Cruelty to Animals v.
Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334, 336 (D.C. Cir. 2003). Stated another
way, “[b]ecause injunctions regulate future conduct, a party has standing to seek injunctive relief
only if the party alleges, and ultimately proves, a real and immediate—as opposed to merely
conjectural or hypothetical—threat of future injury.” Nat. Res. Def. Council v. Pena, 147 F.3d
1012, 1022 (D.C. Cir. 1998).
Defendants contend that Plaintiff lacks standing to seek injunctive relief because he alleges
no plans to return to Nationals Park, and “the reasonable inference from his allegations is that he
does not” plan to return there. Defs.’ Mem. at 7. This argument misapprehends Plaintiff’s initial
demand for a sweeping nationwide injunction that he, as a pro se party, cannot pursue.
See 28 U.S.C. § 1654 (in federal court, “parties may plead and conduct their own cases personally
or by [licensed] counsel.”); cf. DeBrew v. Atwood, 792 F.3d 118, 132 (D.C. Cir. 2015) (“[A] pro
se litigant who is not trained as a lawyer is simply not an adequate class representative.”).
Nevertheless, and in view of Plaintiff’s revised narrower demand for relief directed at Defendants,
see Pl.’s Resp. to Defs.’ Mot., ECF No. 20 [hereinafter Pl.’s Resp.], at 6, the court agrees that
Plaintiff’s apparent indifference to returning to Nationals Park for a baseball game fails to establish
“a real and immediate” threat of future harm. Plaintiff declined Defendants’ invitation to attend
another game even when assured that his “ticket(s) would be located in an area of the stadium with
TVs displaying close[d] captioning,” Am. Compl., Exs., ECF No. 6-2, at 16, and he “has
suspended going back to the . . . stadium until after the matter has been resolved,” Pl.’s Resp. at 3.
Recall, moreover, that Plaintiff lived in the D.C. vicinity for nearly 20 years before attending his
6
first game. Therefore, the claim for injunctive relief is dismissed under Rule 12(b)(1) for want of
standing.
B. Failure to State Claims for Monetary Relief
Title III of the ADA provides that “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). It is
established that “[p]rivate parties bringing suit under Title III of the ADA are limited exclusively
to injunctive relief.” Jefferson, 249 F. Supp. 3d at 80; see also Am. Bus Ass’n v. Slater, 231 F.3d
1, 5 (D.C. Cir. 2000) (“The remedies set forth in 42 U.S.C.2000a–3(a) . . . do not include money
damages.”); Reeves v. MV Transp., Inc., 845 F. Supp. 2d 104, 107 (D.D.C. 2012) (“[O]nly
injunctive relief is available for violations of Title III.” (internal quotation marks omitted)).
Section 504 of the Rehabilitation Act provides in relevant part that “[n]o otherwise
qualified individual with a disability in the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C.
§ 794(a) (emphasis added). “Congress limited the scope of § 504 to those who actually ‘receive’
federal financial assistance because it sought to impose § 504 coverage as a form of contractual
cost of the recipient’s agreement to accept the federal funds.” U.S. Dep’t of Transp. v. Paralyzed
Veterans of Am., 477 U.S. 597, 605 (1986). Nothing alleged in the complaint suggests that
Defendants are actual recipients of federal financial assistance, and the allegations acknowledging
technical problems with the closed-captioning system, see supra at 2, belie Plaintiff’s disability as
7
the sole reason for the exclusion. Failure to establish those essential elements provides sufficient
reason to dismiss this claim.
In addition, the Supreme Court has held that neither punitive damages nor damages for
emotional distress are recoverable in private suits under the Rehabilitation Act. See Cummings v.
Premier Rehab Keller, P.L.L.C., 142 S. Ct. 1562, 1576 (2022) (examining Barnes v. Gorman, 536
U.S. 181 (2002)). Therefore, Plaintiff’s claim seeking more than $9 million for “humiliation,
anguish and intentional infliction of emotional distress” is dismissed under Rule 12(b)(6), as is any
separate claim for compensatory damages.
C. Claims Against Budweiser Brew House
The attempt to serve process upon defendant Budweiser Brew House at the address in the
complaint was unsuccessful. See ECF No. 12 (U.S. Marshal’s return). Nevertheless, in in forma
pauperis proceedings such as this, “the court shall dismiss the case at any time” if, as here, the
court determines that the complaint fails to state a claim upon which relief may be granted.
28 U.S.C. § 1915(e)(2)(B)(ii). Accordingly, the complaint against Budweiser Brew House is
dismissed for the reasons stated above.
A separate order of dismissal accompanies this memorandum opinion.
Dated: November 10, 2022 Amit P. Mehta
United States District Judge
8 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483063/ | NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other
formal errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@akcourts.gov
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SARAH ROMINES SKUPA,
Court of Appeals No. A-13346
Appellant, Trial Court No. 3AN-13-06898 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2735 — November 10, 2022
Appeal from the Superior Court, Third Judicial District,
Anchorage, Erin B. Marston, Judge.
Appearances: Megan R. Webb, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge ALLARD.
Sarah Romines Skupa worked as a bookkeeper for an environmental
consulting company for several years. During that time, Skupa stole more than $400,000
from the company through various fraudulent schemes.
A grand jury indicted Skupa on seven counts of scheme to defraud. Skupa
later pleaded guilty, pursuant to a plea agreement, to a single count of first-degree theft.1
Sentencing was open to the discretion of the superior court (within the 0- to 2-year
presumptive range), as was the amount of restitution.
At sentencing, the superior court imposed a sentence of 2 years with 1 year
suspended (1 year to serve) and 5 years’ probation. Following a restitution hearing, the
court ordered Skupa to pay $415,554.61 in restitution.
Skupa now appeals the restitution order, raising two different arguments.
First, Skupa argues that she has a constitutional right to a criminal jury trial on the
amount of restitution, and she claims that it was plain error for the superior court to
award any restitution in the absence of the necessary jury findings. Second, Skupa
argues that there was insufficient evidence presented to support $28,699.88 of the
restitution award.
For the reasons explained here, we find no plain error with regard to the
alleged jury trial right and we find sufficient evidence to support the challenged portion
of the restitution award. Accordingly, we affirm the restitution judgment of the superior
court.
Skupa’s argument that it was plain error for the superior court to fail to
recognize her right to a criminal jury trial on the amount of restitution
Under Alaska law, restitution is determined by the trial court. Alaska
Statute 12.55.045(a) provides, in relevant part, that “[t]he court shall, when presented
with credible evidence, unless the victim or other person expressly declines restitution,
order a defendant convicted of an offense to make restitution as provided in this
1
AS 11.46.120.
–2– 2735
section . . . .” An order of restitution is considered part of a defendant’s sentence and a
condition of any probation or suspended sentence.2 The order is also a civil judgment
for the amount of restitution; this civil judgment remains enforceable after the
defendant’s sentence is complete.3
In the current case, Skupa pleaded guilty to first-degree theft. In doing so,
she admitted that she had stolen at least $25,000 from the environmental consulting
company where she worked.4
The superior court held a restitution hearing to determine the amount of
money that Skupa had stolen. At the hearing, the State presented a report from the
University of Alaska Anchorage’s Justice for Fraud Victims Project, which had
conducted a detailed forensic examination of the company’s financial records. The
report identified $497,293.56 in “potentially fraudulent” financial transactions and
$73,173.87 in transactions “warranting further investigation.” The author of the report
testified at the restitution hearing, as did the owner of the company. The hearing took
three days to complete. The court ultimately imposed $415,554.61 in restitution.
Prior to the restitution hearing, Skupa filed written objections to the
proposed restitution judgment. Her primary objection was that “[t]he criminal restitution
process denies Ms. Skupa the protections of law afforded to all citizens in a civil dispute,
including but not limited to her right to have the claim for damages heard and decided
2
AS 12.55.045(i).
3
AS 12.55.045(l).
4
See AS 11.46.120(a) (“A person commits the crime of theft in the first degree if the
person commits theft as defined in AS 11.46.100 and the value of the property or services
is $25,000 or more.”); see also AS 11.46.100 (“A person commits theft if . . . with intent to
deprive another of property or to appropriate property of another to oneself or a third person,
the person obtains the property of another.”).
–3– 2735
by an impartial jury, her right to the comprehensive discovery process employed in civil
court, and her right to effective counsel.”5 Skupa noted that the company had already
filed a civil action against her, and she argued that to protect her constitutional rights in
civil court, the superior court should impose only a “nominal” amount of restitution in
the criminal case and should allow the rest of the restitution to be determined in the civil
action where her rights were properly protected. Skupa renewed this argument at the
restitution hearing.
Although the superior court gave no reasoning, it overruled Skupa’s
objection and issued the restitution order.
On appeal, Skupa does not renew her argument that the criminal procedures
for determining restitution are insufficiently protective of her constitutional rights in a
civil proceeding.6 Instead, she raises, for the first time, an argument under the Sixth
Amendment. According to Skupa, the Sixth Amendment of the United States
Constitution and Article I, Section 11 of the Alaska Constitution require the State to
prove any facts underlying a restitution award to a jury beyond a reasonable doubt.
Skupa argues that this right to a criminal jury on restitution is based on the United States
5
Skupa also objected that the requested restitution judgment constituted an excessive
fine in violation of her state and federal constitutional rights, and that she had not been given
all of her requested discovery on the company’s finances. She has not renewed these
objections on appeal.
6
Cf. State v. Arnett, 496 P.3d 928, 934 (Kan. 2021), cert. denied, 142 S. Ct. 2868
(2022) (holding restitution statutes violated state constitutional right to civil jury trial and
accordingly severing portions of statutes that converted restitution into civil judgment).
–4– 2735
Supreme Court decisions in Apprendi v. New Jersey,7 Blakely v. Washington,8 Southern
Union Co. v. United States,9 and Alleyne v. United States.10
In Apprendi v. New Jersey, the Supreme Court held that, under the Sixth
Amendment, “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”11 Four years later, in Blakely v.
Washington, the Court extended this rule to findings of aggravating facts, holding that
the phrase “statutory maximum” for purposes of Apprendi is “the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant.”12
Almost a decade later, the Supreme Court issued Southern Union Co. v.
United States in which it applied Apprendi and Blakely to criminal fines.13 Southern
Union Co. involved a corporate defendant that was convicted of a single count of
unlawfully storing liquid mercury. The criminal penalty for the company’s conviction
included “a fine of not more than $50,000 for each day of violation.”14 At sentencing,
the trial court found that the company had unlawfully stored liquid mercury for 762 days,
7
Apprendi v. New Jersey, 530 U.S. 466 (2000).
8
Blakely v. Washington, 542 U.S. 296 (2004).
9
Southern Union Co. v. United States, 567 U.S. 343 (2012).
10
Alleyne v. United States, 570 U.S. 99 (2013).
11
Apprendi, 530 U.S. at 490.
12
Blakely, 542 U.S. at 303 (emphasis omitted).
13
Southern Union Co., 567 U.S. at 346.
14
Id. at 347 (citing 42 U.S.C. § 6928(d)).
–5– 2735
and imposed a fine of $6 million as well as a $12 million “community service
obligation.” The company argued that this judicial factfinding violated its Sixth
Amendment right to a jury trial and it asserted that, because the verdict did not require
the jury to determine the number of days it violated the law, the court was only
authorized to impose the maximum fine for 1 day. The Supreme Court agreed, noting
that “our decisions broadly prohibit judicial factfinding that increases maximum criminal
‘sentence[s],’ ‘penalties,’ or ‘punishment[s]’— terms that each undeniably embrace
fines.”15
A year later, the Supreme Court decided Alleyne v. United States.16 The
defendant in Alleyne was convicted of robbery and using a firearm, but he was subjected
to an enhanced mandatory minimum sentence based on the judge’s finding that he had
“brandished” the firearm.17 The Supreme Court agreed with the defendant that this
judicial factfinding violated the Sixth Amendment, holding that “[f]acts that increase the
mandatory minimum sentence are . . . elements and must be submitted to the jury and
found beyond a reasonable doubt.”18
Relying on the reasoning of these four cases, Skupa argues that restitution
is partially punitive in nature, and she asserts that, as a criminal “penalty,” restitution
must be based on facts that have been found by a jury beyond a reasonable doubt. Skupa
therefore argues that the superior court was only authorized to award $25,000 in
15
Id. at 350 (alterations in original) (citing Blakely, 542 U.S. at 304; Apprendi, 530 U.S.
at 490; Ring v. Arizona, 536 U.S. 584, 589 (2002)).
16
Alleyne v. United States, 570 U.S. 99 (2013).
17
Id. at 103-04.
18
Id. at 108.
–6– 2735
restitution because she had only admitted to stealing “$25,000 or more” when she
pleaded guilty to first-degree theft.19
Skupa acknowledges that she did not make this argument to the superior
court. But she asserts that it was plain error for the superior court to fail to recognize that
its judicial factfinding violated her Sixth Amendment rights. To establish plain error,
Skupa is required to show this failure (1) was not the result of intelligent waiver or a
tactical decision not to object; (2) was obvious; (3) affected substantial rights; and
(4) was prejudicial.20
Skupa faces a difficult task in proving plain error in this case. Every court
to address this legal issue — at least fifteen state courts and eleven federal circuit courts
— has held that the Apprendi line of cases does not apply to indeterminate restitution
statutes.21 A few of these courts have held that restitution does not offend Apprendi
19
See AS 11.46.120(a).
20
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
21
At the state level: See, e.g., State v. Arnett, 496 P.3d 928, 933-34 (Kan. 2021), cert.
denied, 142 S. Ct. 2868 (2022); People v. Chhoun, 480 P.3d 550, 590 (Cal. 2021); People
v. Knapp, 487 P.3d 1243, 1260 (Colo. App. 2020); State v. Foumai, 2018 WL 495679, at *4
(Haw. App. Jan. 22, 2018) (unpublished); State v. Leon, 381 P.3d 286, 289 (Ariz. App.
2016); State v. Deslaurier, 371 P.3d 505, 509 (Or. App. 2016); People v. Corbin, 880
N.W.2d 2, 14 (Mich. App. 2015); Commonwealth v. Denehy, 2 N.E.3d 161, 174-75 (Mass.
2014); Smith v. State, 990 N.E.2d 517, 521-22 (Ind. App. 2013); State v. Clapper, 732
N.W.2d 657, 663-64 (Neb. 2007); State v. Martinez, 920 A.2d 715, 721-22 (N.J. Super. App.
Div. 2007); State v. Field, 116 P.3d 813, 817 (Mont. 2005); State v. Kinneman, 119 P.3d 350,
355 (Wash. 2005); State v. White, 2004 WL 2326708, at *24 (Tenn. Crim. App. Oct. 15,
2004) (unpublished); People v. Horne,767 N.E.2d 132, 139 (N.Y. 2002); see also State v.
Davison, 973 N.W.2d 276, 286-88 (Iowa 2022) (applying Apprendi to a specific provision
of Iowa law that mandates a $150,000 minimum restitution when a defendant’s crime
“caused the death of another” and holding that jury must have found that defendant “caused
the death of another” but distinguishing this statute from Iowa’s general restitution scheme,
(continued...)
–7– 2735
because it is primarily intended to compensate the victim and should therefore not be
considered criminal punishment.22 The majority of courts follow a different analytic
path. These courts reason that, unlike fines or terms of incarceration, indeterminate
restitution statutes do not have statutory maximums — i.e., these laws authorize courts
to impose up to the actual damages resulting from the defendant’s crime based on the
conviction itself. These courts conclude that judicial investigation into the extent of the
victim’s damages therefore does not offend Apprendi because it does not increase the
(...continued)
which is otherwise indeterminate and limited to pecuniary damages); State v. Rey, 905
N.W.2d 490, 497 (Minn. 2018) (concluding that modest mandatory-minimum-restitution
requirement was not an unconstitutional fine, and therefore refusing to reach defendant’s
Alleyne and Blakely argument); Cummings v. State, 58 So.3d 715, 721-22 (Miss. App. 2011)
(finding that defendant’s Sixth Amendment challenge to restitution did not rise to level of
plain error, noting that many federal circuit courts have declined to apply Apprendi to
restitution).
At the federal level: See United States v. Kachkar, 2022 WL 2704358, at *10 (11th
Cir. July 12, 2022) (unpublished) (citing Dohrmann v. United States, 442 F.3d 1279, 1281
(11th Cir. 2006)); United States v. Vega-Martínez, 949 F.3d 43, 54-55 (1st Cir. 2020) (citing
United States v. Milkiewicz, 470 F.3d 390, 403-04 (1st Cir. 2006)); United States v. Churn,
800 F.3d 768, 781-82 (6th Cir. 2015) (citing United States v. Sosebee, 419 F.3d 451, 561 (6th
Cir. 2005)); United States v. Burns, 800 F.3d 1258, 1261-62 (10th Cir. 2015); United States
v. Bengis, 783 F.3d 407, 412-13 (2d Cir. 2015); United States v. Thunderhawk, 799 F.3d
1203, 1209 (8th Cir. 2015) (citing United States v. Carruth, 418 F.3d 900, 904 (8th Cir.
2005)); United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014) (citing United States
v. Read, 710 F.3d 219, 231 (5th Cir. 2012); United States v. Green, 722 F.3d 1146, 1148-51
(9th Cir. 2013); United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012); United States v.
Wolfe, 701 F.3d 1206, 1216-18 (7th Cir. 2012); United States v. Leahy, 438 F.3d 328, 337-38
(3d Cir. 2006).
22
Field, 116 P.3d at 817; Thunderhawk, 799 F.3d at 1209; Wolfe, 701 F.3d at 1216-18;
see also Burns, 800 F.3d at 1261 (explaining that Tenth Circuit precedent treats restitution
as compensatory rather than punitive and therefore forecloses applying Apprendi’s rule of
criminal law).
–8– 2735
statutory maximum or mandatory minimum, it merely determines the appropriate
restitution within the indeterminate range already authorized by the jury’s finding of
guilt.23
Restitution in Alaska utilizes an indeterminate model like the statutes
addressed by other courts. Alaska Statute 12.55.045 mandates that courts order
restitution upon conviction, and our case law makes clear that restitution is limited to the
actual damages directly resulting from the conduct for which the defendant was
convicted.24 We therefore agree with those other courts that defendants are “on notice
23
See Deslaurier, 371 P.3d at 509 (“Restitution in the full amount of the victim’s
economic damages does not exceed the ‘prescribed statutory maximum’ because restitution
for the full amount of the victim’s economic damages is the only ‘restitution outcome that
is consistent with a jury’s verdict.’ The jury found that defendant committed the crime and,
in doing so, found that defendant was liable for the full amount of the victim’s economic
damages.” (quoting State v. Ramos, 340 P.3d 703, 706-07 (Or. App. 2014))); Milkiewicz, 470
F.3d at 404 (“[T]he jury’s finding of guilt leads to only one outcome; in every case in which
such punishment is imposed, ‘the jury’s verdict automatically triggers restitution in the full
amount of each victim’s losses[.]’” (quoting Leahy, 438 F.3d at 338 n.11)); see, e.g., Leon,
381 P.3d at 289-90; Foumai, 2018 WL 495679 at *4; Chhoun, 480 P.3d at 590; Denehy, 2
N.E.3d at 174-75; Smith, 990 N.E.2d at 521-22; Clapper, 732 N.W.2d at 663; Martinez, 920
A.2d at 721-22; Kinneman, 119 P.3d at 355; White, 2004 WL 2326708 at *24; Horne, 767
N.E.2d at 139; Dohrmann, 442 F.3d at 1281; Vega-Martínez, 949 F.3d at 54-55; Churn, 500
F.3d at 781-82; Bengis, 783 F.3d at 412-13; Rosbottom, 763 F.3d at 420; Green, 722 F.3d
at 1148-51; Day, 700 F.3d at 732; see also Burns, 800 F.3d at 1261-62 (rejecting defendant’s
argument that the Apprendi line of cases applied to restitution because sentencing courts
order restitution to compensate victims for their losses and therefore there is no statutory
maximum amount of restitution that a sentencing court can exceed).
24
Grubb v. State, 506 P.3d 791, 795 & n.10 (Alaska App. 2022) (noting that criminal
restitution may not exceed the damages available in a civil suit and cannot go beyond “actual
loss or damages” (citing Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993)));
Peterson v. Anchorage, 500 P.3d 314, 319 (Alaska App. 2021) (“[T]he damages for which
restitution is ordered must be caused by the criminal conduct for which the defendant was
(continued...)
–9– 2735
that their criminal conduct, if proved in a jury trial, could lead to an indeterminate award
of restitution as needed to compensate the victim for pecuniary losses.”25
We have previously grappled with the question of whether the Apprendi
line of cases applies to restitution orders in an unpublished memorandum decision, Her
v. State.26 In that case, we noted that the overwhelming authority was against applying
the Apprendi line of cases to restitution orders, but that there were some legal
commentators and two Supreme Court justices who appeared to believe otherwise.27 In
Her, we ultimately concluded that we did not need to decide this question of law
because, even assuming that the Sixth Amendment right to a jury trial applies to the
determination of the proper amount of restitution, the absence of a jury finding was
harmless beyond a reasonable doubt.28
We likewise conclude that we need not decide this issue in this case, albeit
for different reasons. As already noted, Skupa did not raise a Sixth Amendment
argument in the trial court proceedings. Moreover, Skupa did not go to trial in this case.
24
(...continued)
convicted, not additional uncharged conduct.”).
25
State v. Davison, 973 N.W.2d 276, 286 (Iowa 2022).
26
Her v. State, 2019 WL 3318138, at *3-5 (Alaska App. July 24, 2019) (unpublished).
27
See Hester v. United States, 139 S. Ct. 509, 509-11 (2019) (Gorsuch, J., dissenting);
see also James M. Bertucci, Apprendi-Land Opens its Borders: Will the Supreme Court’s
Decision in Southern Union Co. v. United States Extend Apprendi’s Reach to Restitution?,
58 St. Louis U.L.J. 565, 587-88 (2014). Despite the dissent in Hester, the Supreme Court
has continued rejecting petitions for certiorari in cases addressing Apprendi and restitution.
See, e.g., Arnett v. Kansas, 142 S. Ct. 2868 (2022) (denying certiorari for case in which
Kansas Supreme Court refused to find a Sixth Amendment jury trial right to determine
restitution).
28
Her, 2019 WL 3318138, at *3-5.
– 10 – 2735
Instead, she entered into a plea agreement with the State. As part of this agreement,
Skupa was required to waive her Sixth Amendment right to a jury trial under the state
and federal constitutions. Thus, assuming arguendo that the Sixth Amendment right to
a jury trial applies to the determination of the proper amount of restitution, Skupa waived
that right.
It is true, of course, that a jury trial waiver must be knowing and intelligent,
and it would be difficult to say that Skupa knowingly and intelligently waived a right that
no court has thus far acknowledged. But to the extent Skupa means to argue that her
guilty plea was not knowingly and intelligently made, the proper procedural vehicle is
a motion to withdraw her plea.29 Skupa has never filed such a motion, and she has not
argued on appeal that she should be permitted to withdraw her plea. Instead, she seeks
to maintain the benefits of her plea agreement while forcing the State to try the question
of restitution before a twelve-person jury (and to the standard of beyond a reasonable
doubt). The law does not permit this approach.
Under these circumstances, we conclude that it was not plain error for the
court to hold a restitution hearing, in accordance with accepted law, and to order
restitution based on evidence that showed, by a preponderance of the evidence, that
Skupa stole $415,554.61 from her employer.
Skupa’s argument that there was insufficient evidence to support
$28,699.88 of the restitution award
As already mentioned, the $415,554.61 restitution award in this case was
supported, in part, by the fraud examination conducted by the Justice for Fraud Victims
Project housed and coordinated by the University of Alaska Anchorage. The Project’s
29
See Woodbury v. State, 151 P.3d 528, 532 (Alaska App. 2007); Grasser v. State, 119
P.3d 1016, 1018 (Alaska App. 2005).
– 11 – 2735
report included fifteen different exhibits listing multiple types of fraud allegedly
committed by Skupa — including underpayment of health and dental insurance
premiums, unauthorized change of pay rate, unauthorized wire transfers to different
banks, unauthorized additional payroll, unauthorized airline ticket purchases, and
unauthorized purchases at Office Depot and Home Depot.
On appeal, Skupa challenges the restitution award for the unauthorized
purchases at Home Depot, which totaled $28,699.88. More specifically, she asserts that
there was insufficient evidence to support $14,815.81 of this portion of the restitution
award. We disagree.
Under current Alaska law, the State was required to prove the restitution
amount by a preponderance of the evidence.30 At the restitution hearing, the owner of
the company testified that he had identified multiple Home Depot purchases that were
not authorized and unrelated to the business. The Justice for Fraud Victims Project was
able to identify $28,699.88 in “potentially fraudulent transactions” from Home Depot.
The unauthorized purchases included home construction materials with
delivery receipts showing these items were delivered directly to Skupa’s home. This
included $9,211.60 for wood flooring and $4,672.47 for cedar fencing, totaling
$13,884.07. Skupa admits in her briefing that her home address was linked to these
purchases. As a result, there is clearly a preponderance of evidence connecting Skupa
to these purchases.
Skupa nevertheless challenges the remaining portion of the Home Depot
balance, for $14,815.81. The list of challenged purchases includes a child’s swing, a
pirate ship wheel, a hose, a sprinkler, a ratchet, LED floodlights, utility knives, drywall
30
See Noffsinger v. State, 850 P.2d 647, 650 (Alaska App. 1993) (citing Brakes v. State,
796 P.2d 1368, 1372 n.5 (Alaska App. 1990)).
– 12 – 2735
mud, paint, a gas-powered trimmer, a planter, a stainless-steel refrigerator, and several
other items.
But the record establishes that the State presented several pieces of evidence
linking Skupa to these purchases. Notably, none of the items purchased could be found
on the company’s property. Many of the items were meant for children, and Skupa had
four children. And some of the purchases were made at the Home Depot in Wasilla,
which was close to Skupa’s home. (The company was located in Anchorage.)
The State also relied on the presentence report, which stated that police
officers had executed a search warrant at Skupa’s residence and “[i]n the residence
officers located many items as described on Home Depot invoices that had been
purchased by the defendant without authorization.”
On appeal, Skupa argues that any reliance on the presentence report was
improper because it was not entered into evidence at the restitution hearing. But, as the
State points out, the presentence report was already part of the record and Skupa did not
object to its use at the restitution hearing. Moreover, Skupa had previously been given
an opportunity to object to any language in the report that she disagreed with or believed
to be unsupported by the evidence during her sentencing hearing. Indeed, Skupa did
object to other parts of the presentence report, but she did not object to the assertion that
items from the unauthorized Home Depot invoices were found in her home.
Having reviewed the restitution hearing and the exhibits in support of the
restitution amount, we find no error in the superior court’s decision to order $28,699.88
in restitution for the unauthorized Home Depot purchases.
Conclusion
The restitution judgment of the superior court is AFFIRMED.
– 13 – 2735 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483069/ | [Cite as State v. Paskins, 2022-Ohio-4024.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Earle E. Wise, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2021 CA 00033
TYLER PASKINS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Court of Common Pleas, Case No. 2020
CR 0603
JUDGMENT: Affirmed and Remanded
DATE OF JUDGMENT ENTRY: November 10, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER A. REAMER BRIAN A. SMITH
Fairfield County Prosecutor's Office 123 South Miller Road, Ste. 250
239 West Main Street, Suite 101 Fairlawn, OH 44333
Lancaster, OH 43130
[Cite as State v. Paskins, 2022-Ohio-4024.]
Gwin, J.,
{¶1} Defendant-appellant Tyler Paskins [“Paskins”] appeals his conviction and
sentence after a jury trial in the Fairfield County Court of Common Pleas.
Facts and Procedural History
{¶2} On December 17, 2020, the Fairfield County grand jury issued a two-count
indictment finding probable cause that Paskins committed the offenses of Robbery, in
violation of R.C. 2911.02(A)(2), a felony of the second degree and Felonious Assault,
a violation of R.C. 2903.11(A)(1), a felony of the second degree.
{¶3} Michael Pound was homeless in November 2020 and had stayed multiple
times at a residence located at 220 Washington Avenue in Lancaster, Ohio. The
residence was rented by James Villers and frequented by multiple individuals. Pound
had twenty years of drug addiction as well as criminal convictions attributed to his
ongoing addiction.
{¶4} Sometime during the evening of November 25, 2020, approximately one
hour before the events at Villers’s residence took place, Pound was “dope sick” when he
was approached on the street by Brandon Reed and Chuck Boystel. 2T. at 224; 253. 1
According to Reed, Boystel punched Pound two times in the face, knocking Pound out.
Id. Pound’s head made an audible sound as it hit the concrete sidewalk. 2T. at 254.
Reed and Boystel continued walking away. 2T. at 225. Sometime later, Reed walked
back to check on Pound only to find that Pound was not there. Id. at 226.
{¶5} Later, Reed was working with Paskins on installing a camera system on
the front porch of Villers home. Pound and his girlfriend Cheyenne Randolph were
For clarity, the jury trial transcript will be referred to as, “__T.__,” signifying the volume and the
1
page number.
Fairfield County, Case No. 2021 CA 00033 3
inside the home asleep. Pound woke up "dope sick" and vomited on a table in the
living room area and then went to the bathroom adjacent to the kitchen area. When
Randolph, who was pregnant at that time, went to the bathroom to check on Pound, he
hit her in the stomach. Randolph screamed for help. 2T. at 314. Randolph then returned
to the living room and began cleaning up the vomit, after which she sat down on the
couch. Id. at 314-315. Pound went to the kitchen. Id. at 316; 357. Randolph testified
that she was afraid of Pound. 2T. at 359. She ran into a nearby bedroom to get away
from Pound after Pound came out of the bathroom.
{¶6} Paskins and Reed enter the house and immediately confront Pound. Pound
is waving his hands and backing up when Paskins punched Pound in the face knocking
Pound to the ground. 2T. at 230; 233-234; 260; 317; 3T. at 758. Paskins and Reed
continued to punch and kick Pound as he lay balled up on the floor. 3T. at 452-453; 698-
699; 700. Paskins struck Pound on the right side of Pound’s face. 3T. at 523-525; 699.
{¶7} After Reed and Paskins walked away, Pound ran to a nearby bedroom.
Randolph and another woman, Babette Beatty, were inside that bedroom. Pound did not
accost either woman; rather, he attempted to block the door. Paskins, Reed and a third
male forced their way into the bedroom. 2T. at 236-237; 3T. at 704-705. The trio hit
Pound several times. 2T. at 238-239. Paskins testified that he told Pound to remove his
pants, a pair of Rock Revival jeans belonging to Randolph, and give them back to her.
3T. at 761-762.
{¶8} Paskins described prior events of physical violence between P o u n d and
Randolph in which he had intervened. During those altercations Paskins was always
able to get Pound to stop by simply ordering him to do so. 3T. at 748-752.
Fairfield County, Case No. 2021 CA 00033 4
{¶9} Pound could not remember many of the events that had occurred. Pound
described waking up in Grant Hospital with a feeding tube, a breathing tube
(tracheotomy), and a piece of his skull removed. 2 T . a t 160. Pound continued to
have violent seizures up until the time of trial that he had never experienced before his
stay in Grant Hospital. I d . a t 166. Pound had additional surgeries to replace the
piece of his skull that had been removed in September 2021.
{¶10} Reed testified that he was serving time for Felonious Assault against
Pound a t the time of Paskins trial. 2T. at 206. Reed discussed that he was a drug
addict with a criminal past and was to receive some consideration toward future judicial
release in exchange for his cooperation with the State of Ohio. Id. at 209-213.
{¶11} Randolph testified she was granted immunity prior to her testimony. 2T.
at 293-295.
{¶12} At the conclusion of all evidence and after hearing the arguments of the
parties the trial court agreed to include an instruction on self-defense on the theory that
Paskins acted in defense of Randolph. The Court further included an instruction as to
Complicity.
{¶13} The jury found Paskins not guilty of Robbery, and guilty on the amended
charge of Complicity to Felonious Assault. On September 24, 2021, following a hearing,
the trial court sentenced Paskins to an indefinite sentence of 7 to 10 1/2 years in prison.
Paskins’ sentence was ordered to be served consecutively to a prior conviction of
Felonious Assault that occurred in the Fairfield County jail in Fairfield County Court of
Common Pleas Case. No. 21CR118. See, State v. Paskins, 5th Dist. Fairfield No. 2021
CA 00032, 2022-Ohio-3810.
Fairfield County, Case No. 2021 CA 00033 5
Assignments of Error
{¶14} Paskins raises six Assignments of Error,
{¶15} “I. APPELLANT'S CONVICTION FOR COMPLICITY TO FELONIOUS
ASSAULT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶16} “II. APPELLANT'S CONVICTION FOR COMPLICITY TO FELONIOUS
ASSAULT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶17} “III. THE TRIAL COURT ERRED IN ITS DECISION TO OVERRULE
APPELLANT'S MOTION TO DECLARE A MISTRIAL BASED ON JUROR
MISCONDUCT, IN VIOLATION OF APPELLANT'S RIGHT TO DUE PROCESS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶18} “IV. THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY
TO LAW, BECAUSE IT DID NOT MAKE THE REQUIRED FINDINGS IN ITS
SENTENCING ENTRY TO IMPOSE CONSECUTIVE SENTENCES UNDER R.C.
2929.14(C)(4).
{¶19} “V. THE TRIAL COURT'S SENTENCE OF APPELLANT WAS CONTRARY
TO LAW BECAUSE IT SENTENCED APPELLANT TO A "MANDATORY" SENTENCE
WHERE IT WAS NOT AUTHORIZED UNDER R.C. 2929.13(F).
{¶20} “VI. R.C. 2967.171, ALSO KNOWN AS THE "REAGAN TOKES ACT,"
WHICH ALLOWS THE OHIO DEPARTMENT OF REHABILITATION AND
CORRECTION TO UNILATERALLY EXTEND APPELLANT'S SENTENCE, IS
UNCONSTITUTIONAL UNDER BOTH THE UNITED STATES CONSTITUTION, ARTS.
Fairfield County, Case No. 2021 CA 00033 6
I, II, AND III, AND AMENDS. V, VI AND XIV, AND THE OHIO CONSTITUTION, ART. I,
§ 10, AND ART. IV, §§ I AND 3(B)(2).
I.
{¶21} In his First Assignment of Error, Paskins argues that there is insufficient
evidence to support his conviction for complicity to felonious assault. Specifically,
Paskins contends that the state’s evidence was insufficient to prove beyond a reasonable
doubt that Paskins was complicit in causing serious physical harm to Pound.
Standard of Appellate Review– Sufficiency of the Evidence.
{¶22} The Sixth Amendment provides, “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury....” This right, in
conjunction with the Due Process Clause, requires that each of the material elements of
a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570
U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 577 U.S. 92,
136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence
involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. “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.
{¶23} When reviewing the sufficiency of the evidence, an appellate court does not
ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997); Walker, 150 Ohio St.3d at ¶30. “The relevant inquiry is whether,
Fairfield County, Case No. 2021 CA 00033 7
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 proven beyond a reasonable
doubt.” Jenks at paragraph two of the syllabus. State v. Poutney, 153 Ohio St.3d 474,
2018-Ohio-22, 97 N.E.3d 478, ¶19. Thus, “on review for evidentiary sufficiency we do
not second-guess the jury's credibility determinations; rather, we ask whether, ‘if believed,
[the evidence] would convince the average mind of the defendant's guilt beyond a
reasonable doubt.’” State v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001),
quoting Jenks at paragraph two of the syllabus; Walker 150 Ohio St.3d at ¶31. We will
not “disturb a verdict on appeal on sufficiency grounds unless ‘reasonable minds could
not reach the conclusion reached by the trier-of-fact.’” State v. Ketterer, 111 Ohio St.3d
70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. Dennis, 79 Ohio St.3d 421,
430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶74.
Issue for Appellate Review: Whether, after viewing the evidence in the light most
favorable to the prosecution, the evidence, if believed, would convince the average mind
that Paskins was guilty beyond a reasonable doubt of Complicity in the Commission of
the Offense of Felonious Assault
{¶ 24 } Paskins was convicted of complicity under R.C. 2923.03(A)(1). R. C.
2 9 2 3 . 0 3 , C o m p l ic it y, p ro v id e s,
(A) No person, acting with the kind of culpability required for the
commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
Fairfield County, Case No. 2021 CA 00033 8
(3) Conspire with another to commit the offense in violation of section
2923.01 of the Revised Code;
(4) Cause an innocent or irresponsible person to commit the offense.
{¶25} The elements of felonious assault are set forth in R .C. 2903.11, which
provides in pertinent part:
(A) No person shall knowingly:
(1) Cause serious physical harm to another or to another’s unborn;
(2) Cause or attempt to cause physical harm to another by means of
a deadly weapon or dangerous ordinance, as defined in section 2923.11 of
the Revised Code.
“Serious physical harm to persons” means any of the following:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement
or that involves some temporary, serious disfigurement;
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or
intractable pain.
Fairfield County, Case No. 2021 CA 00033 9
{¶26} It is true that a person's mere association with a principle offender is not
enough to sustain a conviction based on aiding and abetting. State v. Sims, 10 Ohio
App.3d 56, 58, 460 N.E.2d 672, 674-675 (8th Dist. 1983). With respect to the
requirements for a conviction for complicity by aiding and abetting, the Supreme Court of
Ohio has stated,
To support a conviction for complicity by aiding and abetting pursuant
to R.C. 2923.03(A)(2), the evidence must show that the defendant
supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the
criminal intent of the principal. Such intent may be inferred from the
circumstances surrounding the crime.
State v. Johnson, 93 Ohio St.3d 240, 2001–Ohio–187, 749 N.E.2d 749, at syllabus.
{¶27} Aiding and abetting may be shown by both direct and circumstantial
evidence and participation may be inferred from presence, companionship, and conduct
before and after the offense is committed. State v. Cartellone, 3 Ohio App.3d 145, 150,
444 N.E.2d 68, (8th Dist. 1981), citing State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d
884 (4th Dist. 1971); See also, State v. Mendoza, 137 Ohio App.3d 336, 342, 738 N.E.2d
822(3rd Dist. 2000), quoting State v. Stepp, 117 Ohio App.3d 561, 568–569, 690 N.E.2d
1342(4th Dist. 1997).
{¶28} Aiding and abetting may also be established by overt acts of assistance
such as driving a getaway car or serving as a lookout. State v. Cartellone, 3 Ohio App.3d
at 150, 444 N.E.2d 68. See also, State v. Trocodaro, 36 Ohio App.2d 1, 301 N.E.2d 898
(10th Dist. 1973); State v. Lett, 160 Ohio App.3d 46, 52, 2005–Ohio–1308, 825 N.E.2d
Fairfield County, Case No. 2021 CA 00033 10
1158, 1163 (8th Dist.); State v. Polite, 5th Dist. Stark No. 2017 CA 00129, 2018-Ohio-
1372, ¶56.
{¶29} “The court must view the evidence in the light most favorable to the
prosecution and defer to the trier of fact on questions of credibility and the weight assigned
to the evidence. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶
146.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 132; State
v. McFarland, 164 Ohio St.3d 36, 2020-Ohio-3343, 164 N.E.3d 306, ¶29.
{¶30} In the case at bar, Paskins contends that the evidence is insufficient to
prove beyond a reasonable doubt that Paskins participated in causing serious physical
harm to Pound because Pound’s injuries could have been the result of the attack by
Boystel the evening or early morning hours before Paskins hit Pound. Further, Paskins
argues that he only struck Pound one time, while others continued to hit Pound multiple
times as Paskins attempted to stop them.
Pound’s Injuries
{¶31} It is beyond question that Pound suffered serious physical injuries. Paskins
himself admitted to punching Pound in his face knocking Pound to the ground. 3T. at
758; 796. Paskins further admitted that Reed was punching Pound at the same time. 3T.
at 758-759. Reed was convicted of felonious assault for his part in the affray. 2T. at 206.
{¶32} Although Paskins testified that he hit Pound only one time, others
disagreed. Reed testified that Paskins hit Pound in the face knocking him down. 2T. at
234. Once inside the bedroom in which Pound fled, Paskins hit Pound in Pound’s face a
couple more times. Id. at 238-239. Reed continued to hit and kick Pound at the same
time. Id. A third person joined in the attack. 2T. at 239-240.
Fairfield County, Case No. 2021 CA 00033 11
{¶33} Cheyenne Randolph testified that Paskins hit Pound in the face knocking
him to the ground. 2T. at 317. Several individuals participated in hitting Pound. Id.
Paskins hit Pound in the bedroom along with Reed and “Gilliam.” Id. at 322; 371.
{¶34} James Villiers testified Pound, Reed and “Mike” were all involved in hitting
Pound. 3T. at 452- 454. Both Paskins and Reed were striking Pound with their hands
and feet. 3T. at 525-526. Paskins was on the right and Reed on the left. Id. at 526.
Villiers testified that Reed was punching Pound in his head. Id. at 526. Villiers further
testified that Pound’s face looked normal when Pound woke up that morning. 3T. at 448;
521.
{¶35} Babette Beatty testified that Paskins hit Pound a “couple of times” on the
right side of Pound’s face. 3T. at 698-699; 709. Reed was also hitting Pound until
Paskins pulled him off of Pound. Id. at 700; 709. A third individual was also hitting Pound.
Id. at 709-710.
{¶36} Each witness testified that Pound did not attempt to fight back or defend
himself at any time. Each witness testified that after fleeing to the bedroom, Pound did
not threaten or accost Babette Beatty or Cheyenne Randolph; rather, he attempted to
block the door to prevent his attackers from entering.
{¶37} Contrary to Paskins arguments sufficient evidence was presented to prove
beyond a reasonable doubt that Paskins was complicit in causing serious physical harm
to Pound. Paskins admitted that he and at least Reed participated in striking Pound. No
witness testified to seeing injuries to Pound’s face or head prior to the affray at Villiers
residence. Villiers testified that he did not observe any injuries to Pound’s face or head
Fairfield County, Case No. 2021 CA 00033 12
prior to the attack by Paskins and Reed. Reed pled guilty to his participation in the
felonious assault of Pound
{¶38} Under Ohio law, “‘there is no distinction between a defendant convicted of
complicity or as a principal offender.’” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, ¶ 247, quoting [State v.] Alexander [ 6th Dist. Wood No. WD-02-04-047, 2003-Ohio-
6969] at ¶ 70. See also State v. Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974,
¶ 83 (“the legal distinction between principal offender and aider and abettor is not viewed
as significant”). Pursuant to R.C. 2923.03(F), “[a] charge of complicity may be stated in
terms of [that] section, or in terms of the principal offense.”
{¶39} Viewing this evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Paskins did at the very least aid and abet another in the commission of felonious assault.
{¶40} We hold, therefore, there was sufficient evidence to support Paskins’s
conviction for complicity in the commission of the offense of Felonious Assault.
{¶41} Paskins First Assignment of Error is overruled.
II.
{¶42} In his Second Assignment of Error, Paskins maintains that his conviction is
against the manifest weight of the evidence. Specifically, Paskins argues that the
evidence demonstrates that he was acting in defense of Cheyenne Randolph. Further,
Paskins contends that the jury verdict finding him guilty of complicity in the commission
of the offense of felonious assault is inconsistent with the jury verdict finding him not guilty
of felonious assault.
Fairfield County, Case No. 2021 CA 00033 13
Standard of Appellate Review – Manifest Weight.
{¶43} As to the weight of the evidence, the issue is whether the jury created a
manifest miscarriage of justice in resolving conflicting evidence, even though the
evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387,
678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as
stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.
Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).
{¶44} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, supra, 78 Ohio St.3d at 386-387, 678 N.E.2d 541(1997), State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶83. When a court of
appeals reverses a judgment of a trial court on the basis that the verdict is against the
weight of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with
the fact finder’s resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d 541,
citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652(1982) (quotation
marks omitted); State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1244,
¶25, citing Thompkins.
{¶45} Once the reviewing court finishes its examination, an appellate court may
not merely substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist.
1983). Accordingly, reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id.
Fairfield County, Case No. 2021 CA 00033 14
Issue for Appellate Review: Whether the jury clearly lost their way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered.
{¶46} In the case at bar, the trial court instructed the jury on self-defense / defense
of another using deadly and non-deadly force. 4T. at 822-823; 906-14. Further, the trial
court instructed the jury in accordance with the amended version of R.C. 2901.05(B)(2)
that shifted the burden of proof on self-defense from defendant to prosecution. Id. at 823;
908-909.
{¶47} R.C. 2901.05 provides in relevant part,
(A) Every person accused of an offense is presumed innocent until
proven guilty beyond a reasonable doubt, and the burden of proof for all
elements of the offense is upon the prosecution. The burden of going
forward with the evidence of an affirmative defense, and the burden of proof,
by a preponderance of the evidence, for an affirmative defense other than
self-defense, defense of another, or defense of the accused’s residence as
described in division (B)(1) of this section, is upon the accused.
(B)(1) A person is allowed to act in self-defense, defense of another,
or defense of that person’s residence. If, at the trial of a person who is
accused of an offense that involved the person’s use of force against
another, there is evidence presented that tends to support that the accused
person used the force in self-defense, defense of another, or defense of
that person’s residence, the prosecution must prove beyond a reasonable
Fairfield County, Case No. 2021 CA 00033 15
doubt that the accused person did not use the force in self-defense, defense
of another, or defense of that person’s residence, as the case may be.
(2) Subject to division (B)(3) of this section, a person is presumed to
have acted in self-defense or defense of another when using defensive
force that is intended or likely to cause death or great bodily harm to another
if the person against whom the defensive force is used is in the process of
unlawfully and without privilege to do so entering, or has unlawfully and
without privilege to do so entered, the residence or vehicle occupied by the
person using the defensive force.
(3) The presumption set forth in division (B)(2) of this section does
not apply if either of the following is true:
(a) The person against whom the defensive force is used has a right
to be in, or is a lawful resident of, the residence or vehicle.
(b) The person who uses the defensive force uses it while in a
residence or vehicle and the person is unlawfully, and without privilege to
be, in that residence or vehicle.
(4) The presumption set forth in division (B)(2) of this section is a
rebuttable presumption and may be rebutted by a preponderance of the
evidence, provided that the prosecution’s burden of proof remains proof
beyond a reasonable doubt as described in divisions (A) and (B)(1) of this
section.
Emphasis added. Further the trial court instructed the jury in accordance with the so-
called “castle doctrine” most recently amended April 6, 2021 codified under R.C. 2901.09,
Fairfield County, Case No. 2021 CA 00033 16
(A) As used in this section, “residence” has the same meaning as in
section 2901.05 of the Revised Code.
(B) For purposes of any section of the Revised Code that sets forth
a criminal offense, a person has no duty to retreat before using force in self-
defense, defense of another, or defense of that person’s residence if that
person is in a place in which the person lawfully has a right to be.
(C) A trier of fact shall not consider the possibility of retreat as a factor
in determining whether or not a person who used force in self-defense,
defense of another, or defense of that person’s residence reasonably
believed that the force was necessary to prevent injury, loss, or risk to life
or safety.
See, 4T. at 908.
{¶48} Under a theory of self-defense using non-deadly force, the defendant claims
that (1) he was not at fault in creating the situation giving rise to the affray; (2) he had
reasonable grounds to believe or an honest belief that he or she was in imminent danger
of bodily harm, and (3) he did not use more force than was reasonably necessary to
defend against the imminent danger of bodily harm. State v. Staats, 5th Dist. Stark No.
2019CA00181, 2021-Ohio-1325, ¶28.
{¶49} Under R.C. 2901.05(B)(1) there are two burdens. State v. Davidson-Dixon,
8th Dist. Cuyahoga No. 109557, 2021-Ohio-1485, ¶ 18. The defendant has the initial
burden of production, which is the burden of producing evidence “that tends to support”
that the defendant used the force in self-defense. State v. Sturgill, 12th Dist. Clermont
No. CA2020-03-018, 2020-Ohio-6665, ¶ 19. The burden then shifts to the state under its
Fairfield County, Case No. 2021 CA 00033 17
burden of persuasion to prove beyond a reasonable doubt that the defendant did not use
the force in self-defense. Id. at ¶ 17. In other words, if the evidence tends to support that
the defendant acted in self-defense, then the prosecution must prove beyond a
reasonable doubt that the defendant did not act in self-defense. R.C. 2901.05(B)(1);
State v. Gatewood, 1st Dist. Hamilton No. C-190654, 2021-Ohio-3325, ¶ 68. The state
need only disprove one of the elements of self-defense beyond a reasonable doubt at
trial to sustain its burden. State v. Jackson, 22 Ohio St.3d 281, 284, 490 N.E.2d
893(1986). Accord, State v. Carney, 10th Dist. Franklin No. 19AP-402, 2020-Ohio-2691,
¶31; State v. Staats, 5th Dist. Stark No. 2019CA00181, ¶ 28.
{¶50} The second element of self-defense “is a combined subjective and objective
test.” State v. Thomas, 77 Ohio St.3d 323, 330, 673 N.E.2d 1339 (1997). The person’s
belief must be objectively reasonable under the circumstances and he must subjectively
believe he needed to resort to force to defend himself or the other person. Id. at 330–
331, 673 N.E.2d 1339.
“The objective part of the test requires consideration of ‘whether,
considering all of the defendant’s particular characteristics, knowledge, or
lack of knowledge, circumstances, history, and conditions at the time of the
attack,’ a reasonable person would believe that danger was imminent.”
State v. Hendrickson, 4th Dist. No. 08CA12, 2009-Ohio-4416, 2009 WL
2682158, ¶ 30, quoting State v. Keith, 10th Dist. Franklin Nos. 08AP–28,
08AP–29, 2008-Ohio-6122, ¶ 23, citing Thomas, 77 Ohio St.3d at 330, 673
N.E.2d 1339. The subjective part requires consideration of whether the
defendant himself actually believed that he was in imminent danger. Id.
Fairfield County, Case No. 2021 CA 00033 18
State v. Bundy, 4th Dist. Pike No. 11 CA 818, 2012-Ohio-3934, ¶54; Accord, State v.
Wilson, 1st Dist. Hamilton No. C-210535, 2022-Ohio-3801, ¶13.
{¶51} The third element of self-defense requires that the degree of force used by
the defendant in self-defense or defense of another must be “‘warranted under the
circumstances” and “‘proportionate to the perceived threat.’” State v. Bloodworth, 12th
Dist. Warren No. CA2021-08-073, 2022-Ohio-1899, ¶ 43, quoting State v. White, 12th
Dist. Warren No. CA2018-09-106, 2019-Ohio-4312, ¶46; State v. Hendrickson, 4th Dist.
No. 08CA12, 2009-Ohio-4416, ¶ 31, citing State v. Palmer, 80 Ohio St.3d 543, 564, 687
N.E.2d 685 (1997).
{¶52} As we have found in our disposition of Paskins’s First Assignment of Error,
sufficient evidence was presented that Paskins was at the very least complicit in causing
Pound’s serious physical injuries.
{¶53} In the case at bar, Paskins testified that Pound had never been aggressive
toward him in the past when Paskins intervened in Pound and Randolph’s disputes. 3T.
at 755; 4T. at 794. Paskins was able to diffuse those situations by using words alone.
3T. at 752. Paskins testified that he only hit Pound one time and Reed hit Pound multiple
times. Afterward, the pair left Pound laying on his back in a fetal position in the kitchen
unattended. Id. at 762. When he saw Reed attempting to kick down the bedroom door,
Paskins testified that he ran to assist him. 3T. at 763. Paskins testified that Cheyenne
was making a fuss about the Rock Revival jeans and he told Pound to take them off. 3T.
at 761.
{¶54} Although Paskins testified that he only punched Pound one time in the right
side of Pound’s face, evidence was presented to refute this claim.
Fairfield County, Case No. 2021 CA 00033 19
{¶55} Reed testified that Pound was backing away when he and Paskins
confronted Pound in the kitchen area. 2T. at 231; 233. Paskins punch sent Pound to the
floor where he remained balled up in a fetal position. 2T. at 235-236. Reed testified that
Paskins continued to hit Pound while he was on the floor. Id. at 238-239. Reed testified
that Paskins also punched Pound after Pound had retreated to the bedroom. 2T. at 282.
{¶56} Cheyenne Randolph testified that after Pound had hit her in the bathroom,
she returned to the living room and began cleaning after which she sat down on the couch.
2T. at 314-315. Pound was in a fetal position on the kitchen floor asking Reed and
Paskins to stop. Id. at 317; 322. Paskins and Reed walked away and left Pound
unattended on the kitchen floor. 2T. at 391. Randolph testified that Pound ran into the
bedroom and dropped on the floor behind the door. 2T. at 337. Pound did not strike or
threaten Randolph or Beatty while in the bedroom. 3T. at 321.
{¶57} Villiers testified that Pound was balled up on the floor in a fetal position while
Paskins and Reed punched and kicked him. 3T. at 451. Pound was telling them to stop.
Id. at 453. Villers testified that Pound did not chase after Randolph. Id. at 520.
{¶58} Beatty testified that Paskins struck Pound more than once. 3T. at 698-699;
709-710. Paskins told Pound to take the Rock Revival jeans off. 3T. at 701.
{¶59} All the witnesses testified that Pound did not attempt to fight back, and did
not in fact hit, punch or kick anyone after Paskins and Reed entered the home. Pound
was attempting to flee his attackers, rather than attack Randolph by running to the
bedroom. Further, Pound is the only individual who needed medical treatment.
Fairfield County, Case No. 2021 CA 00033 20
{¶60} The evidence does not support Paskins assertion that he was in fear that
Randolph was in imminent danger of bodily harm or that he used no more force than
necessary to repel any attack directed toward Randolph.
{¶61} In the past, Paskins successfully diffused situations by getting between the
parties and using his words. Including Paskins, at least one other person responded to
Randolph’s screams. Paskins, Reed and at least one other person cornered Pound in
the kitchen area while Randolph was in another area of the home. Pound attempted to
back up, he does not shout or attack Paskins or Reed, and Pound made no attempt to
attack Randolph once Reed and Paskins had him cornered.
{¶62} Paskins hit Pound dropping Pond to the floor. Pound was on his back,
balled up in a fetal position, asking the pair to stop. Pound does not attempt to fight. The
pair proceeded to hit and kick Pound. Pound retreats to a bedroom. When Paskins sees
Reed attempting to force his way into the room, Paskins runs to assist him. Evidence
was presented that Paskins hit Pound while Pound lay on the bedroom floor.
{¶63} Upon review of the entire record, weighing the evidence and all reasonable
inferences as a thirteenth juror, including considering the credibility of witnesses, we
cannot reach the conclusion that the trier of facts lost its way and created a manifest
miscarriage of justice. We do not find the jury erred when it found Paskins did not have
a reasonable belief Randolph was in imminent danger of bodily harm, and that Paskins
used more force than was reasonably necessary to defend against any imminent danger
of bodily harm.
Fairfield County, Case No. 2021 CA 00033 21
Inconsistent Verdicts
{¶64} Paskins next argues the finding by the jury that Paskins was not guilty of
Felonious Assault is inconsistent with the jury finding Paskins guilty of Complicity in the
Commission of the Offense of Felonious Assault.
{¶65} R.C. 2923.03(F) states “A charge of complicity may be stated in terms of
this section, or in terms of the principal offense.”
{¶66} “The Supreme Court of Ohio clarified Ohio’s position on the issue of
complicity in State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040(1976), vacated in
part on other grounds sub nom, Perryman v. Ohio, 438 U.S. 911, 98 S.Ct. 3136, 57
L.Ed.2d 1156(1978). The court unequivocally approved of the practice of charging a jury
regarding aiding and abetting even if the defendant was charged in the indictment as a
principal. Id. The court held that the indictment as principal performed the function of
giving legal notice of the charge to the defendant. Id. Therefore, if the facts at trial
reasonably supported the jury instruction on aiding and abetting, it is proper for the trial
judge to give that charge. Perryman, supra at 27, 28.” State v. Payton, 8th Dist. Nos.
58292, 58346, 1990 WL 48952 (April 19, 1990).
{¶67} Thus, it can be said that “complicity” is necessarily included in an indictment.
In other words, since a jury can be instructed on the indicted offense and alternatively
instructed in terms of complicity notwithstanding the fact that the indictment reads in terms
of only the principal offense, the complicity allegation is inherent in the indictment. See,
State v. Christian, 184 Ohio App.3d 1, 2009-Ohio-4811, 919 N.E.2d 271(7th Dist.), ¶31;
34.
{¶68} In State v. Gapen, the Ohio Supreme Court observed,
Fairfield County, Case No. 2021 CA 00033 22
First, “[i]nconsistent verdicts on different counts of a multi-count
indictment do not justify overturning a verdict * * *.” State v. Hicks (1989),
43 Ohio St.3d 72, 78, 538 N.E.2d 1030, citing United States v. Powell
(1984), 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461; see, also, State v.
Mapes (1985), 19 Ohio St.3d 108, 112–113, 19 OBR 318, 484 N.E.2d 140.
As we stated in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393,
374 N.E.2d 137, paragraph two of the syllabus, “The several counts of an
indictment containing more than one count are not interdependent and an
inconsistency in a verdict does not arise out of inconsistent responses to
different counts, but only arises out of inconsistent responses to the same
count.” Thus, inconsistency of sentencing verdicts on the different counts
does not require that Gapen’s death sentence be vacated.
104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138.
{¶69} In the case at bar, the jury’s verdicts are not inconsistent. While the same
underlying conduct resulted in each of the counts, each count had distinct elements
unrelated to the other offense. The Indictment was charged in terms of the principal
offender. The jury was further instructed that they could find Paskins guilty if he was
complicit in the felonious assault. This is the functional equivalent of a multi-count
indictment.
{¶70} Though inconsistency can indicate confusion or doubt on the part of jurors,
it can also indicate compromise or mercy. State v. Trewartha, 165 Ohio App.3d 91, 2005-
Ohio-5697, 844 N.E.2d 1218, ¶ 16 (10th Dist.).
Fairfield County, Case No. 2021 CA 00033 23
{¶71} Accordingly, we reject Paskins argument alleging inconsistent verdicts as it
is based on different counts as well as different elements. At the very least there is
sufficient evidence to establish that Paskins aided and abetted Reed and possibly a third
individual in the infliction of serious physical harm to Pound. Accordingly, the verdicts are
consistent.
{¶72} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386–387, 678
N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated
by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355, quoting Martin, 20
Ohio App.3d at 175, 485 N.E.2d 717. Based upon the foregoing and the entire record in
this matter we find Paskins conviction is not against the sufficiency or the manifest weight
of the evidence. The jury neither lost their way nor created a miscarriage of justice in
convicting Paskins of the offense.
{¶73} Paskins Second Assignment of Error is overruled.
III.
{¶74} In his Third Assignment of Error, Paskins contends that the trial court
violated his substantial rights because the judge did not declare a mistrial based upon
juror misconduct. Specifically, trial counsel reported that, while in the restroom during a
break in the trial, he overheard two jurors discussing the case.
Standard of Appellate Review
{¶75} In State v. Hessler, 90 Ohio St.3d 108, 115-116, 734 N.E.2d 1237,
1247(2000) the Ohio Supreme Court set forth our standard of review when juror
misconduct is alleged:
Fairfield County, Case No. 2021 CA 00033 24
As a reviewing court, we show deference to the trial judge, who sees
and hears the events and thus is in a better position to accurately evaluate
the situation and determine the appropriate scope of inquiry. State v.
Huertas (1990), 51 Ohio St.3d 22, 29, 553 N.E.2d 1058, 1067; United States
v. Ramos (C.A.5, 1995), 71 F.3d 1150, 1153-1154. Therefore, we employ
an abuse-of-discretion standard and will not reverse the trial court unless it
has handled the alleged juror misconduct or ruled upon the post-trial motion
in an 'unreasonable, arbitrary, or unconscionable manner'. State v. Adams
(1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149.
90 Ohio St.3d 115-116, 734 N.E.2d 1237, 1247; State v. McMillen, 5th Dist. Stark No.
2008-CA-0122, 2009-Ohio-210, ¶ 124-125.
Issue for Appellate Review: Whether the trial court abused its discretion by
denying Paskins’s motion for a mistrial.
{¶76} During a break in the trial, defense counsel apparently walked into a public
restroom and overheard what he deemed an inappropriate communication between two
jurors. The court agreed to engage in a voir dire of juror numbers 56 and 58 who were
apparently the two jurors in the restroom.
{¶77} Under examination by the trial court Juror 56 conceded he posed a question
about who else the jury might hear from today to Juror number 58 while inside the
bathroom. 3T. at 479. Juror 56 also related that one time while testimony was being
presented, Juror number 58 asked him a question to clarify something that had been said
during court. 3T. at 480, 481. Juror 56 went on to explain that he had not formed any
opinion on guilt or innocence of the defendant. He assured the court that he would
Fairfield County, Case No. 2021 CA 00033 25
follow the court's instructions not to discuss the case until deliberations began. Finally,
he assured the court that no discussions of substance concerning the case had occurred.
Nor had any discussions concerning the evidence or credibility of witnesses o ccu rre d
amongst jurors. 3T. at 482-491.
{¶78} The court and counsel then questioned Juror number 58. Juror 58
essentially testified that although Juror 56 may have attempted to speak with him in the
restroom, J u r o r 5 8 was washing his hands and really did not hear what was said.
3T. at 492, 493. When asked about additional alleged conversations between jurors,
Juror 58 stated that he took the trial court's admonishment not to discuss the case very
seriously and was not engaged in any type of conversation about the case. He further
related he had not heard other jurors having substantive discussions about the case.
3 T. at 495 .
{¶79} The trial court inquired of the jury array as a group to determine if any juror
had formed an opinion regarding the guilt or innocence of the accused based upon
discussions that should not have taken place. The court further inquired whether any
discussion had occurred that impacted their ability to be fair and impartial. 3T. at 500,
501. No juror raised their hand in response to the trial court's inquiry. 3T. at 501. The
trial court further admonished the jurors that despite their natural curiosity about the
direction of the trial they should not voice their inquiries to any other juror. Id.
{¶80} Paskins’s motion for a mistrial was overruled by the trial court. 3T. at 502.
{¶81} The jury is obligated to decide a case solely on the evidence, and any
communication or contact outside the courtroom or jury room about the matter at trial
between a juror and another person, and any independent inquiry or experiment by a
Fairfield County, Case No. 2021 CA 00033 26
juror concerning the evidence or the law, constitutes juror misconduct. State v. Taylor,
73 Ohio App.3d 827, 831, 598 N.E.2d 818(1991). Further, when a juror refuses to
consider the evidence or forms an opinion as to guilt or innocence before all the evidence
is presented, such activity constitutes misconduct. Id. However, the United States
Supreme Court has recognized:
[D]ue process does not require a new trial every time a juror has
been placed in a potentially compromising situation. Were that the rule, few
trials would be constitutionally acceptable.... [I]t is virtually impossible to
shield jurors from every contact or influence that might theoretically affect
their vote. Due process means a jury capable and willing to decide the case
solely on the evidence before it, and a trial judge ever watchful to prevent
prejudicial occurrences and to determine the effect of such occurrences
when they happen.
Smith v. Phillips, 455 U.S. 209, 217 102 S.Ct. 940, 946, 71 L.Ed.2d 78(1982); United
States v. Olano, 507 U.S. 725, 738, 113 S.Ct. 1770, 1780, 123 L.Ed.2d 508(1993); State
v. McMillen, 5th Dist. Stark No. 2008-CA-00122, 2009-Ohio-210, ¶ 122.
{¶82} The trial court [is] entitled to believe or disbelieve all or part of the [jurors’]
statements * * *” in determining whether there was juror misconduct. State v. Morris, 9th
Dist. Summit No. 25519, 2011-Ohio-6594, 2011 WL 6740752, ¶ 32. See also State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus (“[T]he
credibility of the witnesses are primarily for the trier of the facts.”). Further, the trial judge
is in the best position to ascertain the nature of the alleged jury misconduct and to fashion
Fairfield County, Case No. 2021 CA 00033 27
the appropriate remedy if the conduct did occur. State v. Wharton, 9th Dist. Summit No.
23300, 2007-Ohio-1817, ¶ 25.
{¶83} We find that substantial evidence exists in the record to support a
determination that the jurors committed no misconduct. Looking at the above incidents,
we cannot find the trial court abused its discretion. As required, the court conducted a
hearing to inquire into whether there had been any misconduct on the part of the jurors.
The record does not disclose that any substantive conversation occurred between or
among any of the jurors about the substance of the case. No evidence establishing juror
discussions about the substance of the case, the evidence, credibility of witnesses, o r
t he gu ilt o r inno cen ce o f t he a ccuse d has been cited, or found in our examination
in the record.
{¶84} Paskins Third Assignment of Error is overruled.
IV.
{¶85} In the case at bar, the trial court ordered that Paskins' sentence in this case
be served consecutively to his sentence in Fairfield County Court of Common Pleas,
Case Number 2021 CR 0118. In his Fourth Assignment of Error, Paskins challenges the
imposition of the consecutive terms of imprisonment on the ground that the trial court
failed to make the findings required by R.C. 2929.14(C)(4) in the sentencing entry.
{¶86} Paskins concedes the trial court made the necessary findings on the record
during the sentencing hearing; however, he argues the trial courts failure to select
specifically which of the final three factors under 2929.14 (C)(4)(a) (b) or (c) and
incorporate that factor verbatim into the sentencing entry renders the judgment entry
contrary to law.
Fairfield County, Case No. 2021 CA 00033 28
Standard of Appellate Review
{¶87} A court reviewing a criminal sentence is required by R.C. 2953.08(F) to
review the entire trial court record, including any oral or written statements and
presentence-investigation reports. R.C. 2953.08(F)(1) through (4).
{¶88} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.
R.C. 2929.14 (C)(4) Consecutive Sentences
{¶89} In order for a trial court to impose consecutive sentences the court must find
that consecutive sentences are necessary to protect the public from future crime or to
punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18,
or while under post release control for a prior offense; (b) at least two of the multiple
offenses were committed as part of one or more courses of conduct, and the harm caused
by two or more of the offenses was so great or unusual that no single prison term for any
Fairfield County, Case No. 2021 CA 00033 29
of the offenses committed as part of any of the courses of conduct would adequately
reflect the seriousness of the offender’s conduct; or (c) the offender’s criminal history
demonstrates that consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶90} “In order to impose consecutive terms of imprisonment, a trial 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[.]” State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, ¶37. Otherwise, the imposition of consecutive sentences is
contrary to law. See id. The trial court is not required “to give a talismanic incantation of
the words of the statute, provided that the necessary findings can be found in the record
and are incorporated into the sentencing entry.” Id.
Issue for Appellate Review: Whether the trial court properly imposed consecutive
sentences in Paskins’s case.
{¶91} R.C. 2929.41 provides,
(A) Except as provided in division (B) of this section, division (C) of
section 2929.14, or division (D) or (E) of section 2971.03 of the Revised
Code, a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. Except as provided in division (B)(3) of this section, a jail term or
sentence of imprisonment for misdemeanor shall be served concurrently
with a prison term or sentence of imprisonment for felony served in a state
or federal correctional institution.
Fairfield County, Case No. 2021 CA 00033 30
Emphasis added. The presumption created in R.C. 2929.41 can be overcome.
{¶92} In State v. Bates, the Ohio Supreme Court ruled the trial court may impose
a prison sentence to be served consecutively to a prison sentence imposed on the same
offender by another Ohio court. 118 Ohio St.3d 174, 2008-Ohio-1983, 881 N.E.2d 328,
¶19. To overcome the presumption that sentences run concurrently and impose
consecutive sentences in an unrelated case, the trial court must comply with R.C.
2929.14(C). State v. Harmon, 7th Dist. Columbiana No. 21 CO 0015, 2022-Ohio-3617,
¶7; State v. Irwin-Debraux, 2nd Dist. Montgomery No. 28308, 2019-Ohio-5013, ¶12.
{¶93} In the case at bar, the trial court’s sentencing entry reads as follows,
The sentence imposed in this case is to run consecutive to Fairfield
County Case 21 CR 118.
The Court found that pursuant to R.C. §2929.14(C)(4), consecutive
sentences arc necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses
to the public. The Court further found that one or more of the factors in R.C.
§2929.14(C)(4)(a), (b), or (c) was present and, as such, that consecutive
sentences were appropriate.
Emphasis added.
{¶94} Recently, the Ohio Supreme Court reviewed a case relevant to the one at
bar. In State v. Leegrand, the state appealed asking the Court to hold that a sentencing
entry need not recite the exact statutory language as long as the entry conveys that the
Fairfield County, Case No. 2021 CA 00033 31
trial court imposed the statutorily required sentence. Slip Op. 2022-Ohio-3623(Oct. 13,
2022), ¶4. In that case,
[T]he issue before [the Court] is the portion of the sentencing entry
for Leegrand’s murder conviction, which states that he was sentenced to
“LIFE IN PRISON WITH ELIGIBILITY OF PAROLE AFTER 15 YEARS.”
(Capitalization sic.) Leegrand appealed that sentence, arguing that the
sentence was “improper and incorrect” under R.C. 2929.02(B)(1), which
states that the penalty for murder shall be “an indefinite term of fifteen years
to life.” The Eighth District Court of Appeals affirmed Leegrand’s
convictions. The court of appeals concluded, however, that the trial court’s
sentencing language regarding the murder count was dissimilar enough
from the language of R.C. 2929.02(B)(1) to necessitate vacation of that
sentence and a remand to the trial court for resentencing.
Id. ¶3. The Ohio Supreme Court ruled the trial court’s failure to use the specific language
of the sentencing statute in its sentencing entry is not error when the entry conveys
exactly the same meaning as the statutory language. Of relevance to the case at bar is
the Court’s further observation,
Our decision leaves other aspects of the court of appeals’ judgment
unaffected, including its affirmance of Leegrand’s convictions and its
remand order to the trial court to “correct the portion of its sentencing entry
via nunc pro tunc to include the findings required by R.C. 2929.14(C)(4)
when ordering Leegrand’s sentence in this case to run consecutively to his
sentence in CR-16-608028,” 2020-Ohio-3179, ¶ 90.
Fairfield County, Case No. 2021 CA 00033 32
Slip Op. 2022-Ohio-3623, ¶10. Thus, it does not appear that this Court may correct a trial
court’s error in failing to include the findings required by R.C. 2929.14(C)(4) (a), (b), or (c)
in the sentencing entry.
{¶95} In State v. Bonnell, the Ohio Supreme Court held,
A trial court’s inadvertent failure to incorporate the statutory findings
in the sentencing entry after properly making those findings at the
sentencing hearing does not render the sentence contrary to law; rather,
such a clerical mistake may be corrected by the court through a nunc pro
tunc entry to reflect what actually occurred in open court.
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶30 (emphasis added). Bonnell
does not state that a reviewing court may look to the record to supply the terms missing
from the trial court’s sentencing entry; rather, the trial court must correct the omission by
nunc pro tunc entry.
{¶96} At the sentencing hearing it is clear, and the parties agree, that the trial court
made the findings under R.C. 2929.14(C)(4). In addition, the parties agree that the trial
court made the additional finding pursuant to R.C. 2929.14(C)(4)(c). Sent. T. at 36-37.
Unfortunately, the trial court did not include this additional finding in the sentencing entry.
{¶97} Accordingly, Paskins Fourth Assignment of Error is sustained to the extent
that we remand this case to the trial court for the sole purpose of issuing a nunc pro tunc
entry that includes the additional finding under R.C. 2929.14(C)(4)(a), (b), or (c), in
accordance with the Ohio Supreme Court’s decision in State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶30.
Fairfield County, Case No. 2021 CA 00033 33
V.
{¶98} In his Fifth Assignment of Error, Paskins contends his sentence is contrary
to law because he was sentenced to a "mandatory" sentence where it was not authorized
under R.C. 2929.13(F).
Standard of Appellate Review
{¶99} We review felony sentences using the standard of review set forth in R.C.
2953.08. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶22;
State v. Howell, 5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C.
2953.08(G)(2) provides we may either increase, reduce, modify, or vacate a sentence
and remand for resentencing where we clearly and convincingly find that either the record
does not support the sentencing court’s findings under R.C. 2929.13(B) or (D),
2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.
See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.2d 659, ¶28.
Issue for Appellate Review: Whether the trial court properly imposed a
mandatory sentence
{¶100} R.C. 2929.13(F) provides in relevant part,
Notwithstanding divisions (A) to (E) of this section, the court shall
impose a prison term or terms under sections 2929.02 to 2929.06, section
2929.14, section 2929.142, or section 2971.03 of the Revised Code and …
shall not reduce the term or terms pursuant to section 2929.20, section
2967.19, section 2967.193, or any other provision of Chapter 2967. or
Chapter 5120. of the Revised Code for any of the following offenses:
***
Fairfield County, Case No. 2021 CA 00033 34
(4) A felony violation of section 2903.04, 2903.06, 2903.08, 2903.11,
2903.12, 2903.13, 2905.32, 2907.07, 2921.321, or 2923.132 of the Revised
Code if the section requires the imposition of a prison term;
***
(6) Any offense that is a first or second degree felony and that is not
set forth in division (F)(1), (2), (3), or (4) of this section, if the offender
previously was convicted of or pleaded guilty to aggravated murder, murder,
any first or second degree felony, or an offense under an existing or former
law of this state, another state, or the United States that is or was
substantially equivalent to one of those offenses;
***
Emphasis added.
{¶101} Paskins was convicted of complicity to felonious assault, a felony of the
second degree in violation of R.C. 2903.11. R.C. 2929.13(D)(1) provides that when
sentencing for a first or second-degree felony “it is presumed that a prison sentence is
necessary in order to comply with the purposes and principles of sentencing.”
Nonetheless, R.C. 2929.13(D)(2) provides that “[n]otwithstanding the presumption * * *
the sentencing court may impose a community control sanction,” but only if the sentencing
court finds that a community control sanction would (1) adequately punish the offender
and protect the public from future crime, and (2) not demean the seriousness of the
offense because the statutory less serious sentencing factors outweigh the more serious
factors. (Emphasis added),
Fairfield County, Case No. 2021 CA 00033 35
{¶102} Therefore, although a prison sentence is “presumed” for a felonious assault,
the presumption is rebuttable. Accordingly, a prison sentence is not required for purposes
of R.C. 2929.13(F)(4). Because a prison sentence is not required, a conviction for
felonious assault “is not set forth in division (F)(1), (2), (3), or (4)” of R.C. 2929.13(F) for
purposes of R.C. 2929.13(F)(6).
{¶103} R.C. 2929.13(F)(6) requires a mandatory prison term for any offense that is
a * * * second-degree felony when the defendant has a prior conviction for a * * * second-
degree felony.” State v. Kinney, 1st Dist. Hamilton No. C-160415, 2018-Ohio-404, ¶23.
Accordingly, Paskins sentence in this case would be mandatory under R.C. 2929.13(F)(6)
because Paskins was convicted and sentenced for an unrelated felonious assault on
September 8, 2022, prior to his conviction and sentence in the case at bar. See, State v.
Paskins, 5th Dist. Fairfield No. 2021 CA 00032, 2022-Ohio-3810, ¶1.
{¶104} Therefore, under R.C. 2929.13(F)(6), the trial court was required to
sentence Paskins to a mandatory prison term.
{¶105} Paskins Fifth Assignment of Error is overruled.
VI.
{¶106} In his Sixth Assignment of Error, Paskins contends the Reagan Tokes Act
is unconstitutional. Specifically, he argues the Reagan Tokes Act violates his
constitutional right to trial by jury and due process of law, and further violates the
constitutional requirement of separation of powers.
{¶107} For the reasons stated in my dissenting opinion in State v. Wolfe, 5th Dist.
Licking No. 2020CA00021, 2020-Ohio-5501, we find the Reagan Tokes Law does not
violate an appellant’s constitutional rights to trial by jury and due process of law, and
Fairfield County, Case No. 2021 CA 00033 36
does not violate the constitutional requirement of separation of powers. We hereby adopt
the dissenting opinion in Wolfe as the opinion of this Court. In so holding, we also note
the sentencing law has been found constitutional by the Second, Third, and Twelfth
Districts, and by the Eighth District sitting en banc. See e.g., State v. Ferguson, 2nd
Dist. Montgomery No. 28644, 2020-Ohio-4154; State v. Hacker, 3rd Dist. Logan No. 8-
20-01, 2020-Ohio-5048; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470.
{¶108} Paskins Sixth Assignment of Error is overruled.
{¶109} For the foregoing reasons the judgment of the Fairfield County Court of
Common Pleas is affirmed.
{¶110} In accordance with State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,
16 N.E.3d 659, we remand this case and order the trial court to correct the portion of its
sentencing entry via a nunc pro tunc sentencing entry to include the findings required by
R.C. 2929.14(C)(4) (a), (b), or (c) when ordering Paskins sentence in this case to run
consecutively to his sentence in Fairfield County Court of Common Pleas, Case Number
2021 CR 0118. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483065/ | Filed 11/10/22 P. v. Benavidez 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
(Butte)
----
THE PEOPLE, C095890
Plaintiff and Respondent, (Super. Ct. No. 21CF02505)
v.
JAIME ENRIQUE BENAVIDEZ,
Defendant and Appellant.
In December 2021, defendant Jaime Enrique Benavidez pled no contest to driving
under the influence resulting in injury and admitted he personally caused great bodily
injury as a result of his criminal conduct. The trial court sentenced defendant to an
aggregate term of five years in state prison, including the middle term of two years for his
driving under the influence conviction. Defendant appeals. On appeal, defendant
contends Penal Code section 1170, subdivision (b)(6) required the trial court to impose
1
the low term on his driving under the influence conviction.1 We disagree and affirm the
judgment.
I. BACKGROUND
In June 2021, the People charged defendant with hit-and-run driving resulting in
injury to another person (Veh. Code, § 20001, subd. (b)(2)—count 1), gross vehicular
manslaughter while intoxicated (§ 191.5, subd. (a)—count 2), driving under the influence
of alcohol resulting in injury (Veh. Code, § 23153, subd. (a)—count 3), and driving with
.08 percent blood alcohol content or more causing injury (Veh. Code, § 23153, subd.
(b)—count 4). Relative to counts 3 and 4, the People also alleged defendant personally
inflicted great bodily injury in violation of section 12022.7, subdivision (a).
Defendant subsequently pled no contest to driving under the influence and causing
injury (count 3) and admitted that he personally inflicted great bodily injury as a result of
his criminal conduct. In exchange for his plea, the remaining charges and enhancement
allegations were dismissed with a Harvey2 waiver. At sentencing, defense counsel asked
the court “to consider the changes in [section] 1170 of the Penal Code. [Defendant]’s
under 26 and he’s suffered psychologically and childhood trauma. There is no doubt.”
After hearing from counsel, the court ruled: “I have reviewed California Rules of
Court[, rules] 4.421 and 4.423[,] and I do not find that aggravating circumstances
outweigh the mitigating circumstances. I do recognize that there are two separate prongs
of [section] 1170[, subdivision] (b)(6) that appear to be present. That is that the
Defendant has experienced psychological, physical, or childhood trauma, including, but
not limited to abuse, neglect, exploitation or sexual violence. Also, that the Defendant is
a youth or was a youth as defined under [section] 1016.7[, subdivision ](b) at the time of
1 Further undesignated statutory references are to the Penal Code.
2 People v. Harvey (1979) 25 Cal.3d 754.
2
the commission of the offense and that they were 26 years of age or younger at the time
of the commission of this offense.
“The Court took into account these two factors. And because of the existence of
those two factors, under [section] 1170[, subdivision] (b)(6), I have to consider
imposition of a lower term. However, the Court finds here that its imposition of [the]
lower term would not be in the interest of justice because there are aggravating factors
present that warrant the imposition of a middle term.
“As such, the Court hereby imposes the middle term in custody due to the
following factors:
“In aggravation, Defendant engaged in conduct that indicates a serious danger to
society. In mitigation the Court disagrees that the Defendant resolved this matter at an
early stage as recited by Defense counsel in his moving papers. . . .
“In mitigation, the Court does find that the Defendant has no prior record. And as
such, the middle term is imposed.”
The court further explained: “Defense counsel has requested that I strike that
[section] 12022.7[, subdivision ](a) enhancement and I have considered that.
“It is mandated that . . . the Court shall dismiss an enhancement if it is in the
furtherance of justice to do so. In exercising its discretion, the court shall consider and
afford great weight to evidence of specified mitigating circumstances. Existence of any
of the factors weigh in favor of dismissing unless to do so would endanger public safety
or would be likely to result in physical injury or serious -- other serious danger.
“I will note that the Defendant chose to drive with a blood-alcohol level of .17 and
chose to flee the scene after the accident, causing citizens to have to hold him down until
he was arrested by law enforcement.
“I do not find that the current offense is connected to prior victimization or
childhood trauma. There is no evidence to show that it was substantially contributing to
the involvement in this specific crime. Therefore, the Court declines to strike the
3
[section] 12022.7[, subdivision ](a) enhancement, as to do so would endanger other’s
safety.”
The court sentenced defendant to an aggregate term of five years in state prison:
the middle term of two years for driving under the influence resulting in injury, and three
years for personally inflicting great bodily injury. Defendant appeals from his sentence.
II. DISCUSSION
On appeal, defendant contends the trial court was required to sentence him to the
low term of 16 months for driving under the influence, because the court found he was a
youthful offender and also found the aggravating circumstances did not outweigh those in
mitigation. Defendant misunderstands the trial court’s ruling.
As an initial matter, the People contend defendant forfeited his claim on appeal by
not raising “these same specific objections” at sentencing. We disagree. At sentencing,
defense counsel argued specifically that the court should consider defendant’s young age
and trauma in light of recent amendments to section 1170. This was sufficient to
preserve the claim for appeal. The claim nevertheless fails.
Amended section 1170, subdivision (b)(6) provides in relevant part that “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 . . . [¶] . . . [¶] (B) The person is a youth, or
was a youth as defined under subdivision (b) of [s]ection 1016.7, at the time of the
commission of the offense.”
Here, as relevant to the appeal, the trial court found defendant to be a “youth” at
the time of his offense.3 As a result of his age, the court acknowledged it was required to
3 The court also found defendant suffered childhood trauma but concluded that trauma
did not contribute the crimes committed. Defendant thus does not argue this is a basis for
imposition of the low term.
4
impose the low term unless it would be “contrary to the interests of justice.” (§ 1170,
subd. (b)(6).) After considering the aggravating and mitigating factors, the court
concluded imposition of the low term would be contrary to the interests of justice because
defendant “engaged in conduct that indicates a serious danger to society.” However,
because defendant had no prior record, the court also concluded the middle term was
appropriate, not the aggravated term.
In short, the court considered each of the relevant factors, then exercised its
discretion to impose the middle term. We find no error.
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
MAURO, Acting P. J.
/S/
KRAUSE, J.
5 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483061/ | Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 10, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
BRANDON FRESQUEZ,
Plaintiff - Appellee,
v. No. 21-1118
BNSF RAILWAY CO.,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CV-00844-WJM-SKC)
_________________________________
Bryan P. Neal, Holland & Knight LLP, Dallas, Texas (Keith M. Goman, Hall & Evans,
LLC, Denver, Colorado, with him on the briefs), appearing for Appellant.
Adam W. Hansen, Apollo Law LLC, Minneapolis, Minnesota (Nicholas D. Thompson,
Casey Jones Law, Appleton, Wisconsin, Jonathan L. Stone, Moody Law Firm,
Portsmouth, Virginia, Eleanor E. Frisch, Apollo Law LLC, Minneapolis, Minnesota, and
Colin R. Reeves, Apollo Law LLC, Brooklyn, New York, with him on the brief),
appearing for Appellee.
_________________________________
Before TYMKOVICH, BRISCOE, and PHILLIPS, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 2
Table of Contents
Introduction ......................................................................................................................... 4
I. Factual background ................................................................................................. 5
II. Procedural background .......................................................................................... 17
III. Analysis................................................................................................................... 21
A. Is BNSF entitled to judgment as a matter of law on the merits of Fresquez’s claims
because he failed to prove that he engaged in any actionable protected activity
and/or because BNSF proved its same-decision defense? ..................................... 21
1. Standard of review ............................................................................................ 22
2. The evidentiary burdens in an FRSA case ........................................................ 22
3. Did Fresquez prove he engaged in actionable protected activity? .................. 24
4. BNSF’s remaining arguments ........................................................................... 35
5. BNSF’s same-decision defense ......................................................................... 44
B. Is BNSF entitled to a new trial due to the district court’s admission of character
evidence and/or other allegedly prejudicial evidence?.......................................... 51
1) Standard of review ............................................................................................ 52
2) Procedural history of the issue ......................................................................... 53
3) Analysis ............................................................................................................. 56
C. Did the district court err in denying BNSF’s combined request for a new trial on
the issue of compensatory damages or, in the alternative, a remittitur of
compensatory damages? ........................................................................................ 59
1) Standard of review ............................................................................................ 59
2) Procedural history of the issue ......................................................................... 60
3) Analysis ............................................................................................................. 65
D. Is BNSF entitled to judgment as a matter of law as to punitive damages? ............ 67
1) Standard of review and applicable law ............................................................ 67
2
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 3
2) Procedural history of the issue ......................................................................... 68
3) Analysis ............................................................................................................. 70
E. Did the district court err in awarding Fresquez ten years’ worth of front pay? ... 72
1) Standard of review ............................................................................................ 72
2) Procedural history of the issue ......................................................................... 73
3) Failure to distinguish between front pay and damages for loss of future
earnings capacity .............................................................................................. 76
4) The amount of the front pay award ................................................................... 79
IV. Affirmance of judgment of district court ................................................................ 84
3
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 4
Introduction
Plaintiff Brandon Fresquez filed this action against his former employer,
defendant BNSF Railway Company (BNSF), claiming that BNSF violated the Federal
Railroad Safety Act (FRSA) by terminating his employment in retaliation for him
engaging in certain activities that are expressly protected under the FRSA. The case
proceeded to a jury trial. The jury found in favor of Fresquez on his claim of retaliation
under the FRSA, and it awarded him $800,000 in compensatory damages and $250,000
in punitive damages. Following the trial, Fresquez moved for an award of back and front
pay. The district court granted that motion in part and awarded Fresquez a total of
$696,173 in back and front pay, bringing the total judgment to $1,746,173, plus interest
from the date of entry of judgment.
BNSF now appeals. BNSF argues that it is entitled to judgment as a matter of law
on the merits of Fresquez’s claims, and, alternatively, judgment as a matter of law on the
issue of punitive damages. BNSF further argues that it is entitled to a new trial on the
merits of Fresquez’s claims based on the district court’s admission of character and other
prejudicial evidence. BNSF also argues that it is entitled to a new trial on the issue of
compensatory damages. Lastly, BNSF argues that the district court abused its discretion
by awarding Fresquez ten years’ worth of front pay.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject BNSF’s arguments
and affirm the district court’s judgment.
4
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 5
I. Factual background1
BNSF is a Texas-based freight transportation company that operates an extensive
interstate railroad network. BNSF is designated as a Class I freight railroad by the
federal government.
Fresquez, a Colorado resident, began working for BNSF’s Maintenance of Way
Department in November 2005. Between 2006 and May 2016, Fresquez worked
primarily as a track inspector. The track inspector position requires extensive training,
including a week-long community college class, and regular certification testing.
A track inspector’s job is to identify and report track defects, which are deviations
from BNSF’s or the Federal Railroad Administration’s (FRA) track safety standards.
FRA regulations set forth a specific schedule for track inspections. 49 C.F.R.
§ 213.233(c). Fresquez monitored and inspected the railroad tracks in his assigned
geographic area, which covered in part the Denver metropolitan area, to make sure they
complied with BNSF and FRA standards.
When a track inspector discovers a track defect, he or she must take one of three
remedial actions, depending on the severity and classification of the defect. Some types
of track defects require the inspector to take the track out of service immediately, which
means that the track cannot be used until the defect is repaired. Other types of defects, in
1
Because the jury found in favor of Fresquez on his FRSA claim, we recount the
facts that were presented to the jury in the light most favorable to Fresquez. See Tudor v.
Se. Okla. Univ., 13 F.4th 1019, 1025 n.1 (10th Cir. 2021).
5
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 6
contrast, require only that the maximum speed limit be lowered on the section of track
containing the defect until such time as the defect is repaired. This type of remedial
action applies, in part, to what are known as class-specific defects. A section of track
containing a class-specific defect may also be “reclassified to the next lowest class of
track for which it does meet all of the [regulatory] requirements” and, if so, will
permanently operate at a lower range of speeds unless and until the identified defect is
repaired and the section of track is reclassified into a higher class. See 49 C.F.R.
§ 213.9(b). Lastly, defects that are characterized as non-class specific do not require any
immediate remedial action, but must be repaired within thirty days. If a non-class
specific defect is not repaired within thirty days, the section of track on which it is
located must be taken out of service until the defect is repaired.
During the time that Fresquez worked as a track inspector for BNSF, track defects
were reported by inputting information about the defect into an electronic track
inspection database that BNSF maintained and referred to as the Track Inspection
Management System (TIMS). More specifically, a track inspector would enter an
identified defect into the TIMS system by entering the milepost location of the defect,
selecting the type of defect involved, and then entering information about the type of
repair that was required. Track inspectors and their supervisors accessed and worked
with information in the TIMS system on a daily basis.
Fresquez, in his role as a track inspector, reported directly to a roadmaster named
Michael Paz. Paz in turn reported directly to a division engineer named Mark Carpenter.
6
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 7
BNSF used engineering scorecards to rank its management employees, including
division engineers and roadmasters. One part of the engineering scorecards focused on
velocity, or the speed of trains across a manager’s territory. Speed restrictions that were
imposed on sections of track, such as those imposed due to the existence of track defects,
could negatively affect this part of an engineering scorecard and, in turn, negatively
impact a manager’s ranking. Carpenter viewed the engineering scorecards as important
and emphasized them to the managers who worked under him.
It is essentially undisputed that Carpenter interpreted the FRA’s regulations
regarding non-class specific defects in a manner that was contrary to the FRA’s published
compliance manual. Specifically, Carpenter took the position that tracks containing non-
class specific defects could remain in service even if the defects had not been repaired
within thirty days after identification. Notably, however, Carpenter never asked BNSF’s
in-house attorneys to assist him in interpreting the regulation, nor did Carpenter ever
contact the FRA to verify if his interpretation was correct. Nevertheless, Carpenter
conveyed his interpretation to all of the management employees who worked for him,
including Paz.
Beginning in 2014 or 2015, Fresquez became suspicious that Carpenter and Paz
were treating non-class specific defects in a manner different than required by the FRA
regulations. Specifically, Fresquez began noticing isolated incidents of track defects that
he knew had been identified in the field but did not appear in the TIMS system. This
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Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 8
caused Fresquez to suspect that management employees such as Carpenter and Paz were
removing identified track defects from the TIMS system.
Around this same time, Fresquez identified a defect on a petroleum track in
Denver. Fresquez called Paz and asked him to come out to the location of the defect.
Paz agreed with Fresquez that a defect existed and told Fresquez that he had done a good
job. Paz in turn notified the employee in charge of the track that the defect needed to be
repaired. Shortly thereafter, however, Paz was called to Carpenter’s office. When Paz
returned to the site of the defect, he told Fresquez, “I’m here to tell you from Mark
Carpenter . . . if that defect is in the [TIMS] system tonight, you will be wrote [sic] up for
insubordination.” Aplt. App., Vol. VI at 1434.
Following that incident, Carpenter decided one day to accompany Fresquez on his
route in order to inspect the defects that Fresquez had identified. When Fresquez and
Carpenter arrived at one of the first defects, Carpenter belittled Fresquez and told him to
remove the defect from the TIMS system because Fresquez had marked it 200 feet short
of the actual location. Carpenter subsequently told Fresquez to remove “a couple other
defects” from the TIMS system. Id. at 1436. Although doing so violated federal law,
Fresquez did as Carpenter directed because he was scared of losing his job and the
medical benefits that came with the job. The experience, however, “started a war within”
Fresquez because he believed he was violating federal law by removing the defects from
the TIMS system. Id. at 1438.
8
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On April 29, 2015, Fresquez was at work and notified Ryan Akers, another
roadmaster who worked under Carpenter, that he was going to take Track 533 out of
service because it contained a defect. Track 533 was a track that received regular daily
traffic because it was used to transport grain and automobiles. Akers responded by
telling Fresquez that if he wanted to continue receiving a paycheck, he would inspect the
track again and report that it showed no defects. Fresquez said to Akers, “You know
what you are telling me to do. You are telling me to falsify reports.” Id. at 1440. Akers
responded by kicking Fresquez out of his office. Fresquez contacted his union
representative and informed her of the incident. According to Fresquez, he later checked
the TIMS system and determined that the defect had been removed from the system.
Upon further investigation, Fresquez learned that Akers had instructed BNSF’s
information technology department to remove the defect, as well as approximately
thirty-four other defects, from the TIMS system.
Shortly thereafter, Fresquez confronted Carpenter at a group safety briefing about
the removal of defects from the TIMS system. Carpenter responded by moving Fresquez
from the room where the safety briefing was occurring, taking him to a separate office,
and belittling him. According to Fresquez, Carpenter told him that it was not his job to
take tracks out of service or to find defects, and that his only job was to write reports.
Carpenter also allegedly told Fresquez that he was a bad inspector and that Carpenter
would either fire or disqualify him if he continued to find track defects. Fresquez asked
for union representation several times during the incident with Carpenter, but Carpenter
9
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 10
allegedly told Fresquez to never call the union again. Throughout the incident, Carpenter
repeatedly told Fresquez to not “report defects that are going to stop traffic, that are going
to take a lot of hours to fix.” Id. at 1461.
Following this incident with Carpenter, Fresquez transferred to a foreman flagman
position, which was the first vacant position at BNSF that he could transfer to based on
his seniority.2 The foreman flagman position did not require Fresquez to report defects.
No discipline issue arose while Fresquez worked in this position. In February 2016,
however, another BNSF employee with greater seniority took the foreman flagman job
from Fresquez. This meant that Fresquez had to return to the track inspector position in
Denver that he previously held. Because Fresquez was certified as a track inspector, he
was not, according to BNSF’s own policies, eligible to work in a lower position such as
laborer or trackman.
In March 2016, Fresquez found a defect in a track located by the stockyards in
Denver. Fresquez notified Paz of the defect and Paz immediately traveled to the site of
the defect. Although Fresquez had previously placed an order limiting the speed on the
track to no more than ten miles per hour, Paz removed that order and placed the track
back at the maximum authorized speed. According to Fresquez, Paz’s action violated
federal regulations.
2
Every two weeks BNSF issued a list of vacant jobs and BNSF employees could
“put in” for those positions. Aplt. App., Vol. VI at 1468. The applicant with the most
seniority received the position.
10
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After this incident, Fresquez transferred again to an open foreman flagman
position. Fresquez, however, was only able to work in that foreman flagman position
until May 2, 2016, when another BNSF employee with seniority displaced him. At that
point, Fresquez had to again return to the track inspector position.
On May 2, 2016, which was Fresquez’s first day back working as a track
inspector, Paz told him “not to do anything so [Paz] could get his house in order.” Id. at
1479. Fresquez responded to Paz’s statement by driving around the rest of the day and
not inspecting any tracks.
On May 3, 2016, Fresquez began inspecting tracks and found a severe defect.
Fresquez texted Paz and informed him of the defect. According to Fresquez, this severe
defect had existed for several months and should have been, but was not, repaired in
March or April of 2016. Fresquez determined that Paz had entered information into the
TIMS system falsely indicating that this severe defect had been repaired. Fresquez
confronted Paz about this information in the TIMS system and said “I know what
happened to my defects.” Id. at 1482. Paz allegedly laughed at Fresquez in response.
On May 4, 2016, Fresquez texted Paz and told him that he had taken a section of
track out of service due to the existence of a defect. The section of track was located in
downtown Denver and was considered an important track because it was situated near an
amusement park and an arena. Paz texted Fresquez back and said “that pulling tracks
[out of service] doesn’t make friends.” Id. at1484.
11
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On May 5, 2016, Fresquez discovered a track defect, specifically a broken tie
located on a curved section of track, that he had previously identified in February 2016.
When he first identified this defect in February 2016, Fresquez wanted to place a ten-
mile-per-hour limit on the section of track containing the defect, but Paz decided to treat
it as a non-class specific defect, which meant that trains could continue to run at regular
speed over the track for a period of thirty days. When Fresquez rediscovered the defect
on May 5, 2016, he concluded that the track needed to be taken out of service until it was
repaired. Paz, however, wanted Fresquez to reclassify the defect as a class-specific
defect so that trains could continue to run over the track containing the defect. Fresquez
told Paz he was going to “call [his] friends in high places,” meaning he was going to call
the FRA. Id. at 1489.
After concluding the conversation with Paz, Fresquez called an FRA agent he
knew and described what had occurred regarding the defect. The FRA agent confirmed
that Fresquez was correct regarding how the defect should be handled and that Fresquez
could not reclassify the defect as Paz wanted him to do. After talking to the FRA agent,
Fresquez called Paz and they negotiated to fix the defect at issue. During the
conversation, Fresquez said to Paz, “Admit that you are falsifying reports, the defects.”
Id. at 1491. Paz allegedly admitted to doing so, and then stated, “We’ll work on it,” and
“We have to find a happy meeting place.” Id. Paz also stated that he had Carpenter on
his side and that “they don’t lose.” Id. at 1492. Fresquez interpreted this statement to
mean that Carpenter and Paz were going to continue the practice of handling defects in a
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manner inconsistent with federal regulations. Lastly, Paz told Fresquez during the call,
“I’ll . . . walk behind you and find 8 missing [rail] clips and fire you.” Id. Fresquez
understood this to mean that Paz would follow him while on duty, wait until he observed
Fresquez violating a rule, and then fire him.
On May 5, 2016, Fresquez discovered another defect that he had identified in
February 2016, but had not been repaired and had been removed from the TIMS system.
Under the FRA’s regulations, this defect required Fresquez to reduce the maximum speed
on the section of track containing the defect. Fresquez called the dispatcher and told him
what action he was taking with regard to the track. Approximately twenty minutes after
placing the slow order on the track, Fresquez received a call from Paz directing him to
meet at the site of the defect. Fresquez and Paz then met at the site of the defect. Also
present on-site was Jay Herzog, a BNSF foreman, and Herzog’s repair crew.
Paz stated that he did not see the defect that Fresquez had identified. Fresquez
stated in response that the defect was not the type that could be observed and instead had
to be measured. Paz said to Fresquez, “I do not have to prove . . . the defect’s not there.
It’s your job to prove the defect is there.” Id., Vol. X at 2630–31. According to
Fresquez, Paz then twice stated to him, “Do you want to string-line the defect?”3 Id.,
Vol. VI at 1540. Fresquez interpreted Paz’s statements as questions rather than
3
A string line is a hand tool commonly used in construction to help the user create
a straight line between two reference points.
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directions. Fresquez also believed that Paz was setting him up and intended to falsify
information regarding the existence of the defect. Based upon that belief, and because he
was concerned about being fined by the FRA or held responsible by Carpenter if the
defect resulted in an accident, Fresquez did not measure the defect and instead got into
his truck, drove approximately 200 feet away, and parked next to Herzog’s crew, who
were preparing to fix some other track defects.
Paz called Fresquez on his radio and again asked him if he wanted to string-line
the defect. Fresquez said to Paz, “I don’t see the point. You have already made your
decision.” Id. at 1509. According to Fresquez, this statement meant that he believed that
Paz had already decided to falsify the report regarding the defect. Paz responded by
saying, “I take that as a no.” Id. Fresquez replied, “I didn’t say no.” Id.
Fresquez returned to the site of the defect and observed Paz and Herzog measuring
the defect with a string line. Fresquez asked if the two men needed help. Id. Paz said
“no, we’ll have time to argue the facts later.” Id. at 1510. Fresquez then asked Herzog if
the defect was present and Herzog said yes. Id. at 1511.
Following this incident, information was entered into the TIMS system falsely
indicating that the defect identified by Fresquez and verified by Paz and Herzog’s
measurements had been repaired that same day (May 5, 2016). It is undisputed that
neither Fresquez nor Herzog entered this information and, in fact, lacked the ability to do
so. Carpenter later conceded that the only person who could have entered this
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information was Paz. Repairing the defect would have required shutting down up to
three separate tracks in a high-traffic location.
Paz immediately reported the string-line incident to Carpenter, who instructed Paz
to prepare a written notice of investigation. Paz did so and then messaged Fresquez and
instructed him to report to Paz’s office. When Fresquez arrived at Paz’s office, Paz
handed him the notice of investigation. The notice of investigation effectively alleged
that Fresquez had violated BNSF’s progressive disciplinary policy and was subject to
either discipline or dismissal.
BNSF’s progressive disciplinary policy was called the Policy for Employee
Performance and Accountability (PEPA). PEPA applied to all of BNSF’s scheduled (i.e.,
union) employees, including track inspectors such as Fresquez. PEPA listed three
categories of rules violations: standard, serious, and stand-alone dismissible. The charge
alleged against Fresquez in the notice of investigation, insubordination, was classified
under PEPA as a stand-alone dismissible offense.
Under the collective bargaining agreement between Fresquez’s union and BNSF
that was in place at the time, any employee who had worked for more than sixty days for
BNSF could not be disciplined or dismissed from employment until they were afforded
an investigation hearing. Investigation hearings were conducted by a member of BNSF’s
management. The charged employee was not permitted to be represented at the hearing
by an attorney, but could have a union representative present with them. BNSF paid the
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employees that it selected to testify at the hearing, but it did not pay any employees that
were selected to testify by the charged employee.
In Fresquez’s case, an investigation hearing was held regarding the allegation of
insubordination that Paz made against him. The hearing was conducted by Everett
Percival, a BNSF management employee. Paz was the only witness to testify against
Fresquez. Prior to the hearing, Carpenter sent an email to Paz giving him detailed
instructions on how to testify at the hearing. The email included specific directions on
what to say when the hearing officer asked Paz what happened. For example, Carpenter
instructed Paz to say: “Employee refused to get tools and measure repaired track defect
when instructed to do so.” Id., Vol. VII at 1652. Carpenter also told Paz to “be firm
about your instructions being clear and direct, not light and optional.” Id. During the
hearing, Paz, consistent with the instructions from Carpenter, testified that he told
Fresquez three times to remeasure the defect. Paz also testified during the hearing that he
determined that no defect was present.
The transcript of the investigation hearing was then sent to BNSF’s PEPA team.
The PEPA team was comprised of employees who worked for BNSF’s Labor Relations
Department. A member of the PEPA team, Stephanie Detlefsen, reviewed the hearing
transcript and concluded that the evidence supported a charge of insubordination. Based
upon this conclusion, Detlefsen recommended that Fresquez be terminated from his
employment with BNSF.
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Detlefsen’s recommendation was reviewed by Adam Miller, who at the time
served as the General Director of Line Maintenance for BNSF’s Powder River Division
and, in that role, acted as Carpenter’s direct supervisor. Miller decided to terminate
Fresquez for insubordination because “[h]e refused instruction from his supervisor.”4
Id., Vol. IX at 2377. BNSF, acting on Miller’s decision, formally terminated Fresquez
from his employment on May 27, 2016.
II. Procedural background
On April 5, 2017, Fresquez filed this action against BNSF alleging that BNSF
violated the FRSA by terminating his employment in retaliation for engaging in protected
activities under the FRSA.5 Specifically, Fresquez alleged that BNSF violated 42 U.S.C.
§ 20109(a)(1), (a)(2), and (b)(1)(A). Fresquez’s complaint sought relief in the form of
reinstatement to his position, expungement of any record of his alleged insubordination,
compensatory damages, damages for emotional distress, punitive damages, and costs and
fees.
The case proceeded to a six-day jury trial in February 2019. At the conclusion of
all the evidence, BNSF moved for judgment as a matter of law. The district court granted
4
It is undisputed that a failure to follow a supervisor’s instruction is not
considered by BNSF to be a stand-alone dismissible violation. It is also undisputed that
classifying a particular incident as insubordination or failure to follow a supervisor’s
instruction is often subjective.
5
Before initiating these federal court proceedings, Fresquez filed a complaint with
the Occupational Safety and Health Administration. See 49 U.S.C. § 20109(d)(1).
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in part and denied in part BNSF’s motion. The district court “conclude[d] that the only
protected activity that could be a contributing factor to [Fresquez’s] termination [wa]s the
May 2016 incident,” and it consequently granted judgment as a matter of law in favor of
BNSF with respect to “the 2015 events” cited by Fresquez. Id., Vol. X at 2490. But the
district court also “order[ed] that the jury c[ould] consider the . . . 2015 events as
background” evidence. Id. The district court rejected BNSF’s argument that it had
produced clear and convincing evidence that Fresquez would have been terminated from
his employment absent engaging in protected activity under the FRSA. With respect to
the issue of damages, the district court found that Fresquez “ha[d] introduced sufficient
evidence to submit the issue of emotional damages and punitive damages to the jury.” Id.
at 2492.
The jury, after deliberating for approximately three hours, returned a verdict in
favor of Fresquez. More specifically, the jury found that Fresquez engaged in protected
activity defined by the FRSA, BNSF knew that Fresquez engaged in protected activity,
Fresquez suffered an unfavorable personnel action, and Fresquez’s engagement in
protected activity was a contributing factor to the unfavorable personnel action. The jury
also found that BNSF failed to prove by clear and convincing evidence that it would have
taken the same personnel action against Fresquez even if he had not engaged in any
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protected activity.6 The jury found that Fresquez had proven by a preponderance of the
evidence that he should be awarded compensatory damages for emotional distress, pain,
suffering, inconvenience, or mental anguish, and it found the amount of such damages to
be $800,000. Lastly, the jury found that Fresquez had proven by a preponderance of the
evidence that BNSF acted with reckless or callous disregard of his right to be free from
retaliation for engaging in protected activity, and it awarded Fresquez $250,000 in
punitive damages.
The jury was not asked to determine back pay or front pay because the district
court determined that those were equitable remedies that it would decide. After the jury
returned its verdict, the district court encouraged the parties to attempt to reach an
agreement on the issues of back pay and front pay and, if necessary, to request a hearing
on those issues. The parties were unable to reach an agreement.
Due to the parties’ failure to reach an agreement, Fresquez moved for an award of
back pay and front pay. After holding an evidentiary hearing on the motion, the district
court ultimately granted the motion in part and awarded Fresquez “a total tax-adjusted
6
Due to an error on the original verdict form, the jury originally returned
conflicting responses, finding in particular that BNSF had proven by clear and
convincing evidence that it would have taken the same personnel action against Fresquez
even if he had not engaged in any protected activity. The district court and the parties
agreed that the instructions and verdict form should be corrected and that the jury should
be sent back to deliberate. Upon deliberating the second time, the jury returned the
verdicts described herein. After the jury returned that verdict, BNSF moved for a
mistrial, but the district court denied that motion. BNSF does not challenge that ruling in
its appeal.
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award of back pay, front pay, and prejudgment interest through December 17, 2019 of
$696,173.” Id., Vol. III at 681. The district court in turn directed the clerk of the district
court to “enter judgment in favor of [Fresquez] . . . in the principal amount of
$1,746,173—comprised of $696,173 for back pay, front pay, and prejudgment interest;
$800,000 in compensatory damages; and $250,000 in punitive damages—with
postjudgment interest at the federal statutory rate.” Id.
Final judgment in the case was entered on December 17, 2019.
On January 14, 2020, BNSF filed a renewed motion for judgment as a matter of
law, a motion for new trial, and a motion to alter or amend the judgment. BNSF argued,
in pertinent part, that Fresquez failed to demonstrate that he engaged in protected activity
under the FRSA, that the decisionmakers knew about his alleged protected activity, or
that any protected activity contributed to his termination. BNSF further argued that it
demonstrated by clear and convincing evidence that it would have fired Fresquez absent
any protected activity (the same-decision defense). BNSF also argued that it was entitled
to judgment as a matter of law, or a new trial, on the issue of compensatory and punitive
damages. Finally, in its motion to alter or amend the judgment, BNSF challenged various
aspects of the district court’s award of front pay.
On March 8, 2021, the district court issued separate orders denying BNSF’s
motions. The district court also awarded Fresquez $44,910 in attorneys’ fees and
$1,341.75 in costs. Id. at 901.
BNSF thereafter filed a timely notice of appeal.
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III. Analysis
BNSF asserts six issues on appeal. First, BNSF argues that it is entitled to
judgment as a matter of law because Fresquez failed to prove any actionable protected
activity. Second, BNSF argues that it is entitled to judgment as a matter of law because it
proved its same-decision defense. Third, BNSF argues that it is entitled to a new trial
based on the district court’s erroneous admission of character and other prejudicial
evidence. Fourth, BNSF argues that the district court abused its discretion in denying
BNSF’s request for a new trial or, in the alternative, a substantial remittitur of the
compensatory damages award. Fifth, BNSF argues that it is entitled to judgment as a
matter of law with respect to the issue of punitive damages. Finally, BNSF argues that
the district court abused its discretion by awarding Fresquez ten years’ worth of front
pay. As we shall proceed to explain, we find no merit to any of these issues and therefore
affirm the judgment of the district court.
A. Is BNSF entitled to judgment as a matter of law on the merits of Fresquez’s claims
because he failed to prove that he engaged in any actionable protected activity
and/or because BNSF proved its same-decision defense?
In its first two issues on appeal, BNSF argues that it is entitled to judgment as a
matter of law on the merits of Fresquez’s FRSA claim because Fresquez failed to prove
at trial that he engaged in any actionable protected activity, and, even if Fresquez proved
that he engaged in actionable protected activity, BNSF proved its same-decision defense.
For the reasons that follow, we reject BNSF’s arguments and conclude that BNSF is not
entitled to judgment as a matter of law.
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1. Standard of review
We review de novo a district court’s denial of a motion for judgment as a matter of
law, applying the same standards as the district court. Bimbo Bakeries USA, Inc. v.
Sycamore, 29 F.4th 630, 640 (10th Cir. 2022). A court may enter judgment as a matter of
law only when the nonmovant has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for the nonmovant on that issue.
Id. In reviewing a district court’s denial of a motion for judgment as a matter of law, we
draw all reasonable inferences in favor of the nonmoving party, and we will reverse the
district court only if the evidence points but one way and is susceptible to no reasonable
inferences supporting the nonmovant. Id. at 641.
2. The evidentiary burdens in an FRSA case
Section 20109 of the FRSA, entitled “Employee protections,” provides, in
pertinent part, as follows:
(a) In general.--A railroad carrier . . . may not . . . discriminate against an
employee if such discrimination is due, in whole or in part, to the
employee’s lawful, good faith act done, or perceived by the employer to
have been done or about to be done--
(1) to provide information, directly cause information to be provided, or
otherwise directly assist in any investigation regarding any conduct
which the employee reasonably believes constitutes a violation of any
Federal law, rule, or regulation relating to railroad safety or security
. . . , if the information or assistance is provided to or an investigation
stemming from the provided information is conducted by--
(A) a Federal, State, or local regulatory or law enforcement agency
...,
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(B) any Member of Congress, any committee of Congress, or the
Government Accountability Office; or
(C) a person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct;
(2) to refuse to violate or assist in the violation of any Federal law, rule,
or regulation related to railroad safety or security . . . .
(b) Hazardous safety or security conditions.--(1) A railroad carrier engaged in
interstate or foreign commerce, or an officer or employee of such a railroad
carrier, shall not discharge, demote, suspend, reprimand, or in any other way
discriminate against an employee for--
(A) reporting, in good faith, a hazardous safety or security condition . . . .
49 U.S.C. § 20109(a)(1) and (2), (b)(1)(A).
Section 20109(d) authorizes a railroad “employee who alleges discharge,
discipline, or other discrimination in violation of subsection (a) . . . [or] (b)” of § 20109
to file an enforcement action with the Secretary of Labor. Id. § 20109(d)(1). An
enforcement action that is filed by a railroad employee under § 20109(d)(1) “shall be
governed under the rules and procedures set forth in [49 U.S.C. §] 42121(b), including
. . . the legal burdens of proof.” Id. § 20109(d)(2)(A)(i).
Under the burden-shifting framework outlined in § 42121(b), the employee has
“the initial burden . . . to establish a prima facie case by showing that (1) the employee
engaged in a protected activity [i.e., one of the activities outlined in § 20109(a) or (b)];
(2) the employer knew that the employee engaged in the protected activity; (3) the
employee suffered an unfavorable personnel action; and (4) the protected activity was a
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contributing factor in the unfavorable action.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166,
1212 (10th Cir. 2018) (quotation marks omitted). “The absence of probative evidence as
to any single element necessary to establish a prima facie claim terminates the action.”
Id. (quotation marks omitted). If the employee establishes a prima facie case, “the
burden switches to the employer to demonstrate ‘clear and convincing evidence that the
employer would have taken the same unfavorable personnel action in the absence of [the
employee’s protected activity].’” BNSF Ry. Co. v. U.S. Dep’t of Lab., 816 F.3d 628, 638
(10th Cir. 2016) (quoting 49 U.S.C. § 42121(b)(2)(B)(iv)).
3. Did Fresquez prove he engaged in actionable protected activity?
BNSF argues, in part, that Fresquez’s interactions “on his last day of work . . . do
not support a showing” that he engaged in “any FRSA protected activity that could
support the judgment.” Aplt. Br. at 14. That is because, BNSF asserts, “the conduct was
not protected at all, the decisionmaker was unaware of it, or the conduct was exclusively
governed by a different FRSA section that imposes special requirements that Fresquez
admitted he could not satisfy.” Id.
For us to fully address BNSF’s arguments, it is necessary to briefly revisit the
procedural history of this case in terms of what protected activity Fresquez alleged, what
BNSF alleged in response, and what activity the district court ultimately limited the jury
to consider. Prior to and during the course of the trial, Fresquez alleged that he engaged
in three types of statutorily-protected activity during 2015 and 2016: (1) he lawfully
provided information to the FRA regarding conduct that he reasonably believed
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constituted a violation of federal laws or regulations relating to railroad safety; (2) he
lawfully refused to violate or assist in violating any federal law or regulation relating to
railroad safety (by, for example, refusing to reclassify a defect); and (3) he reported to
BNSF the existence of a hazardous safety condition.
At the summary judgment stage, BNSF did not dispute that refusing to reclassify a
defect was a protected activity. BNSF also did not dispute that Detlefsen and Miller, the
two BNSF employees who decided to terminate Fresquez’s employment following the
investigation hearing, were aware that Fresquez alleged that on May 5, 2016, Paz asked
him to reclassify the defect and Fresquez refused to do so.
In the final pretrial order, which was issued after the district court denied BNSF’s
summary judgment motion, Fresquez alleged that he had “long suspected that” Carpenter
“and some of the supervisors under Carpenter were circumventing federal regulations
regarding when damaged track needed to be taken out of service or have the speed limit
on them reduced.” Aplt. App., Vol. I at 64–65. Fresquez in turn alleged that, after he
began objecting to this “circumvention of the federal regulations regarding rail safety,”
Paz instructed him to appear at the site of a defect that Fresquez had identified, “told
Fresquez that he could not see the damage, and suggested that his inability to see the
damage with his naked eye meant the track did not need to be reported as damaged.” Id.
at 65. “When [he] objected,” Fresquez alleged, “Paz responded by asking [him] whether
he wanted to re-measure the track to see if the damage was still there, as though there was
a chance the rail may have magically fixed itself.” Id.
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BNSF, for its part, alleged in the final pretrial order that Fresquez failed to
“plead[] the correct protected activity.” Id. at 69. Specifically, BNSF alleged that the
provisions of § 20109(b)(1)(B) and (C) applied to the protected activity alleged by
Fresquez, rather than “the more general provisions of [§] 20109(a)(1), (a)(2), and
(b)(1)(A),” but that Fresquez “never pleaded a [§] 20109(b)(1)(B) claim.” Id.
In its renewed motion for judgment as a matter of law filed at the conclusion of all
the evidence, BNSF argued, in part, that Fresquez had failed to provide the jury with “a
legally sufficient evidentiary basis” to find “either that the BNSF decision-makers knew
that he engaged in protected activity under the cited sections of the FRSA, or that BNSF
intentionally retaliated against [Fresquez] by terminating him in whole or in part due to
his protected activity.” Id. at 195. In support, BNSF argued, in relevant part:
Plaintiff next claims that he engaged in protected activity in May of 2016
when he objected to the alleged suggestion of Michael Paz, then his
Roadmaster, that a non-class specific defect be changed to a class-specific
defect so that it did not need to be taken out of service, and when he contacted
the Federal Railroad Administration . . . to confirm that the track should be
taken out of service. Initially, while Plaintiff attempts to re-frame these
activities as an objection to an illegal activity, what he is really asserting is
retaliation for taking a track out of service, which Plaintiff did not plead and
disclaimed any intent to rely on.
Id. at 202.
Finally, it appears that Plaintiff is now arguing that he engaged in protected
activity when he refused to string-line the track during the insubordination
incident. Plaintiff’s latest theory is that he wouldn’t measure the track
because he believed Mr. Paz was going to remove the defect regardless of
whether he measured it, and Mr. Paz “‘could attach his name to the defect’s
dangerous and illegal removal from the system.’” [ECF 137 at p.3]. . . .
[T]his incident does not demonstrate protected activity as it is not disputed
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that it was safe to measure the track, and if Plaintiff really believed Mr. Paz
wanted to illegally remove the defect he would have taken the measurement
in the presence of a third party to prove it was there.
Id. at 202–03 (citation and footnote omitted).
The district court granted in part and denied in part BNSF’s renewed motion for
judgment as a matter of law. Specifically, the district court agreed with BNSF that
Fresquez failed to “demonstrate[] that his alleged protected activity” in 2015 “contributed
to his termination.” Id., Vol. X at 2485. The district court noted in support that “[t]here
[wa]s no evidence that . . . Miller and . . . Detlefsen,” the two decisionmakers, “knew of
any protected activity in May or June of 2015.” Id. at 2487. The district court
“conclude[d] that the only protected activity that could be a contributing factor to
plaintiff’s termination [wa]s the . . . incident that occurred on or about May 5th, 2016.”
Id. at 2490. The district court noted that “[t]he May 2016 incident with Paz occurred on
the same day plaintiff was removed from work, and there [wa]s evidence to support
plaintiff’s claim that the conflict with Paz led to his termination.” Id. The district court
“therefore grant[ed] defendant’s motion for judgment as a matter of law as to the 2015
events not being protected activity, but den[ied] it as to the May 2016 incident.” Id. The
district court also “order[ed] that the jury c[ould] consider the . . . 2015 events as
background.” Id.
The district court, in its instructions to the jury, noted that “Fresquez allege[d] that
BNSF terminated him in retaliation for engaging in activity protected under the Federal
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Railroad Safety Act, 49 U.S.C. § 20109.” Id., Vol. I at 263 (Instruction No. 2). The
district court in turn instructed the jury as follows:
An employee engages in protected activity as defined by the FRSA if
the employee, in good faith, commits an act, or the employer perceives the
employee to have committed an act or to be about to commit an act
1. to lawfully provide information, directly cause information to be
provided, or directly assist in any investigation regarding any conduct
which the employee reasonably believes constitutes a violation of any
Federal law, rule, or regulation relating to railroad safety if the
information is provided to an employee’s supervisor or the FRA; or
2. to lawfully refuse to violate or assist in violating any Federal law,
rule, or regulation relating to railroad safety or security; or
3. to report a hazardous safety or security condition.
Id. at 277.
As noted, the jury returned a verdict in favor of Fresquez. On the verdict form, the
jury found that: Fresquez had proven by a preponderance of the evidence that he engaged
in a protected activity as defined by the FRSA; BNSF knew Fresquez engaged in the
protected activity; Fresquez suffered an unfavorable personnel action; and the protected
activity was a contributing factor in the unfavorable personnel action.
After the district court entered final judgment in favor of Fresquez, BNSF filed a
written post-trial motion for judgment as a matter of law arguing, in pertinent part, that
Fresquez “did not invoke § 20109(b)(1)(B) or (b)(1)(C) . . . because they are subject to
special, more stringent requirements, set out in § 20109(b)(2)” and his “counsel admitted
he would be unable to prove these latter requirements and expressly disclaimed any intent
to invoke these sections of the FRSA as protected activity.” Id., Vol. III at 686 (emphasis
omitted). BNSF in turn argued that the trial court “therefore ruled that [Fresquez’s]
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refusal to work on May 5, 2016” was ‘not a protected activity that [he] [wa]s trying to
prove’” under §§ 20109(b)(1)(B) or (b)(1)(C) and he thus could not “‘argue [that] taking
tracks out of service [wa]s a protected activity’” under those sections of the FRSA. Id.
(quoting Trial Tr., Vol. VI at 1393). Nevertheless, BNSF argued that Fresquez’s “claims
were in fact premised on taking tracks out of service and refusing to work, and the jury
therefore erred in determining [Fresquez] engaged in protected activity within the
meaning of the FRSA provisions that were actually invoked.” Id.
The district court denied BNSF’s post-trial motion for judgment as a matter of
law. In doing so, the district court stated:
[A]s [the court] held on summary judgment, Fresquez alleged several
activities that are protected activities under the subsections of the statute that
he did invoke, including that he “refused to reclassify a defect on May 5.”
(ECF No. 83 at 11 (citing 49 U.S.C. § 20109(a)(2) (protected activity
includes ‘refus[ing] to violate the law or assist in the violation of any Federal
law, rule or regulation.’)).)
The jury heard Fresquez’s testimony that he tried, in his role as a track
inspector, to take a track out of service on May 5, 2016 because a track defect
originally reported in March 2016 had not been repaired within thirty days,
as required by federal regulations. (Trial. Tr. II at 461.) His boss, Michael
Paz, tried to get him to report the defect as a slow-order defect, which would
allow BNSF to keep the track in service with a reduced speed limit. (Id. at
461–63.) Fresquez called the Federal Railroad Administration (“FRA”) to
verify that BNSF cannot change the nature of a reported defect as it sees fit,
which the FRA confirmed. (Id. at 462) Thereafter, Fresquez alluded to the
fact that he had called the FRA in a conversation with Paz. (Id. at 463–64.)
In response, Paz told Fresquez that he had Mark Carpenter (his supervisor)
on his side and that they do not lose. (Id. at 464.) Paz also referenced a
different employee who was fired, stating, “I’ll pull a Ryan Akers, walk
behind you and find 8 missing [rail] clips and fire you.” (Id.) Fresquez
understood this to be a reference to following employees and waiting until
they violate a rule to fire them. (Id. at 465.)
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Shortly thereafter, Paz called Fresquez to a location in south Denver
to measure an alignment defect in the track that was first found in 2014. (Id.
at 472.) When Fresquez arrived at the location, Paz and Jay Herzog were
already there. (Id. at 473.) Paz asked Fresquez to measure the defect, even
though the alignment defect is not the kind of defect that can be seen with
the naked eye. (Id. at 475.) Fresquez believed that Paz was trying to get him
to measure the defect and falsely mark the defect as repaired. (Id. at 476.)
Fresquez believed that the defect was “going to be removed from the system
[no] matter what,” but he did not want to participate in falsifying the defect
because he could be personally fined. (Id. at 476–77.) Not wanting to
participate in Paz’s request, which he believed to be a setup, Fresquez left.
(Id. at 476–78) When Fresquez later went back to the alignment defect and
offered to measure it, he was told it was too late. (Id. at 483.)
BNSF argues that Fresquez has not proven a violation of
§ 20109(a)(2) because “Plaintiff cites no authority for the prospect that
changing a non-class[]specific defect to a class-specific defect violates any
federal law if it was improperly characterized in the first place, which is what
Plaintiff’s supervisor asked him to consider.” (ECF No. 209 at 6 (citing Trial
Tr. III at 696–98).) However, in drawing all reasonable inferences in favor
of Fresquez, a reasonable jury could conclude that: (1) Paz’s request to
Fresquez on May 5, 2016 to report the defect as a slow-order defect rather
than taking the track out of service violated the law; and (2) Fresquez
engaged in protected activity by refusing to reclassify the defect. See
Rookaird v. BNSF Ry. Co., 908 F.3d 451 (9th Cir. 2018) (there was sufficient
evidence supporting finding that railroad conductor refused, in good faith, to
violate railroad safety rule or regulation even though trainmaster did not
explicitly direct conductor to stop performing air-brake test, in light of
evidence that trainmaster questioned air-brake test’s necessity while
conductor and his crew were performing test).
Thus, the Court cannot conclude that the overwhelming weight of the
evidence favors BNSF to such an extent that it can find that Fresquez did not
engage in protected activity. The Court therefore denies this portion of
BNSF’s Rule 50(b) motion.
Aplt. App., Vol. III at 871–73.
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Having outlined the relevant procedural history of BNSF’s motion, we now turn to
the evidence that Fresquez presented at trial that pertains to his engagement in potentially
protected activities. Fresquez presented evidence, much of it by way of his own
testimony, establishing that the following events occurred on May 5, 2016, the day he
was charged with insubordination:
• During the first part of the day, Fresquez discovered a non-class specific
defect, specifically a broken tie, that he had previously identified in
February 2016. Id., Vol. VI at 1486–88. When he first identified the
defect in February 2016, Fresquez wanted to place a ten-mile-per-hour
limit on the portion of track containing this defect, but Paz preferred to
treat it as a class defect, which allowed trains to continue to run at regular
speed over the track for a period of thirty days. Id. at 1487. On May 5,
2016, Fresquez determined that the defect still existed and had not been
repaired, so he concluded that the track needed to be taken out of service.
Id. at 1488–89. Paz, however, wanted Fresquez to reclassify the defect
so that trains could continue to run at full speed over the track containing
the defect. Id. at 1489. Fresquez told Paz he was going to “call [his]
friends in high places,” meaning he was going to call the FRA. Id. That
concluded the conversation regarding the defect. Id.
• After concluding the conversation with Paz, Fresquez called an FRA
agent he knew and described what had occurred regarding the defect. Id.
at 1490. The FRA agent confirmed that Fresquez was correct regarding
how the defect should be handled and that Fresquez could not reclassify
the defect as Paz wanted him to do. Id. After talking to the FRA agent,
Fresquez called Paz and they negotiated to fix the defect at issue. Id. at
1491. During the conversation, Fresquez said to Paz, “Admit that you are
falsifying reports, the defects.” Id. Paz admitted to doing so. Id. Paz in
turn stated, “We’ll work on it,” and “We have to find a happy meeting
place.” Id. Paz also stated that he had Carpenter on his side and that
“they don’t lose.” Id. at 1492. Fresquez interpreted this statement to
mean that Carpenter and Paz were going to continue doing what they had
been doing with regard to defects. Id. Lastly, Paz told Fresquez during
the call, “I’ll pull a Ryan Akers, walk behind you and find 8 missing [rail]
clips and fire you.” Id. Fresquez understood this to mean that Paz would
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follow him while on duty, wait until he observed Fresquez violating a
rule, and then fire him. Id. at 1493.
• Following the incidents described above, Fresquez discovered another
defect that he had identified in February 2016, but had not been repaired
and had been removed from the TIMS system. Id. at 1494. Per the FRA’s
regulations, this defect required Fresquez to slow down the trains
operating over the track containing the defect. Id. Consequently,
Fresquez called the dispatcher and told him what action he was taking
with regard to the track. Id. Approximately twenty minutes after placing
the slow order on the track, Fresquez received a call from Paz directing
him to meet at the site of the defect. Id. at 1498. Fresquez and Paz then
met at the site of the reported defect. Id. at 1501. Also present on-site
was Jay Herzog, a BNSF foreman, and Herzog’s repair crew. Id.
Paz stated that he did not see the defect that Fresquez had identified. Id.
at 1503. Fresquez responded and said that the defect was not the type
that could simply be seen and instead it had to be measured. Id. Paz
asked Fresquez to measure the defect with a string-line. Id. at 1504.
Fresquez believed that Paz was setting him up and intended to falsify
information regarding the defect. Id. at 1503, 1504. Based upon that
belief, and because he was concerned about being fined by the FRA
and/or held responsible by Carpenter if the defect resulted in an accident,
Fresquez did not measure the defect and instead got into his truck, drove
approximately 200 feet away, and parked next to Herzog’s crew who
were preparing to fix some other track defects. Id. at 1504–05. Paz
called Fresquez on his radio and asked him if he wanted to string-line the
defect. Id. at 1506. Fresquez said to Paz, “I don’t see the point. You
have already made your decision.” Id. at 1509. According to Fresquez,
this statement meant that he believed that Paz had already decided to
falsify the report regarding the defect. Id. Fresquez also believed that
federal law afforded him the right to decline because he believed that
what Paz was doing was illegal. Id. at 1510. Paz responded by saying,
“I take that as a no.” Id. at 1509. Fresquez replied, “I didn’t say no.”
Id.
Fresquez returned to the site of the defect and observed Paz and Herzog
measuring the defect with a string line. Id. at 1510. Fresquez asked if
the two men needed help. Id. Paz said “No, we’ll have time to argue the
facts later.” Id. at 1510–11. Fresquez then asked Herzog if the defect
was present and Herzog said yes. Id. at 1511.
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Someone entered information into the TIMS system indicating that the
defect that Fresquez had observed, and that was confirmed by the
measurements of Herzog and Paz, had been repaired that same day (May
5, 2016). Id., Vol. VII at 1702. It is undisputed that neither Fresquez
nor Herzog entered this information and, in fact, could not have done so.
Id. at 1701–02. Carpenter conceded that the only person who could have
entered this information was Paz. Id. at 1703. The information that was
entered into the TIMS system regarding this defect was false.
Specifically, it was untrue that the defect had been repaired. Id. at 1832.
In fact, repairing the defect would have been a major undertaking
because it would have required shutting down possibly three tracks in a
high-traffic location. Id. at 1834. And, to Herzog’s knowledge, the
defect has never been repaired. Id. at 1838.
We conclude, contrary to BNSF’s arguments on appeal, that this evidence would
have allowed the jury to reasonably find that on May 5, 2016, Fresquez engaged in five
distinct protected activities covered by § 20109. First, the jury could have reasonably
found that Fresquez reported to Paz, in good faith, the existence of a continuing
hazardous safety condition, i.e., a non-class specific track defect located in downtown
Denver that had been previously identified but never repaired, and that required a section
of track to be taken out of service. This protected activity would have fallen within the
scope of § 20109(b)(1)(A).
Second, the jury could have reasonably found that during his conversation with
Paz regarding the non-class specific track defect in downtown Denver, Fresquez also
provided Paz, who was his direct supervisor, with information indicating that Fresquez
was aware that Paz was seeking to violate federal law or regulations by reclassifying the
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defect rather than repairing it in a timely fashion. This protected activity would have
fallen within the scope of § 20109(a)(1)(C).7
Third, the jury could have reasonably found that Fresquez’s refusal to reclassify
the non-class specific defect, as requested by Paz, amounted to a “refus[al] to violate or
assist in the violation of any Federal law, rule, or regulation relating to railroad safety or
security,” as outlined by § 20109(a)(2).
Fourth, the jury could have reasonably found that Fresquez provided information
to an FRA agent regarding conduct that Fresquez reasonably believed constituted a
violation of federal law or regulations relating to railroad safety, i.e., that Paz wanted him
to reclassify the non-class specific defect, rather than repairing the defect, so that trains
could continue to run on the track where the defect was located. This protected activity
would have fallen within the scope of § 20109(a)(1)(A).
Fifth, the jury could have reasonably found that Fresquez acted in good faith when
he refused to help Paz measure the second track defect that Fresquez had identified that
day because Fresquez reasonably believed that Paz was attempting to have Fresquez
assist him in covering up, or otherwise falsifying information about, the existence of the
defect. This protected activity would have fallen within the scope of § 20109(a)(2).
7
Nothing in the plain text of § 20109(a)(1)(C) indicates that the provision is not
violated if the employee reports the information to the “person with supervisory authority
over the employee,” and that same person, i.e., the one with supervisory authority over
the reporting employee, is also the one responsible, or potentially responsible, for the
violation of federal law or regulations.
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4. BNSF’s remaining arguments
BNSF makes a host of arguments aimed at attempting to establish that none of the
above-listed activities were in fact protected activities under § 20109. For the reasons
outlined below, we conclude that BNSF’s arguments all lack merit.
a) Refusing to reclassify
BNSF argues that Fresquez’s conduct on May 5, 2016, in “[r]efusing to reclassify
the track” defect as requested by Paz “is not actionable” under § 20109(a)(2) because it
“is exactly the conduct covered by subparagraph (b)(1)(C).” Aplt. Br. at 22. In other
words, BNSF argues that “the district court should have required [Fresquez] to meet . . .
the more stringent requirements of subparagraph (b)(1)(C) and paragraph (b)(2),” rather
than allowing Fresquez to rely on § 20109(a)(2). Id. The district court’s “failure to do
so,” BNSF argues, “was an error of law.” Id.
To resolve BNSF’s arguments, we turn to the statutory text. Section 20109(a)(2),
as we have noted, provides, in relevant part, that a railroad
may not discharge, demote, suspend, reprimand, or in any other way
discriminate against an employee if such discrimination is due, in whole or
in part, to the employee’s lawful, good faith act done . . . to refuse to violate
or assist in the violation of any Federal law, rule, or regulation relating to
railroad safety or security.
49 U.S.C. § 20109(a)(2).
In turn, § 20109(b), which is entitled “Hazardous safety or security conditions,”
provides, in pertinent part, as follows:
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(1) A railroad carrier . . . shall not discharge, demote, suspend, reprimand, or in
any other way discriminate against an employee for--
....
(C) refusing to authorize the use of any safety-related equipment, track, or
structures, if the employee is responsible for the inspection or repair of the
equipment, track, or structure, when the employee believes that the
equipment, track, or structures are in a hazardous safety or security condition,
if the conditions described in paragraph (2) exist.
(2) A refusal is protected under paragraph [(1)(C)] if--
(A) the refusal is made in good faith and no reasonable alternative to the
refusal is available to the employee;
(B) a reasonable individual in the circumstances then confronting the
employee would conclude that--
(i) the hazardous condition presents an imminent danger of
death or serious injury; and
(ii) the urgency of the situation does not allow sufficient time to
eliminate the danger without such refusal; and
(C) the employee, where possible, has notified the railroad carrier of the
existence of the hazardous condition and the intention not to perform
further work, or not to authorize the use of the hazardous equipment,
track, or structures, unless the condition is corrected immediately or
the equipment, track, or structures are repaired properly or replaced.
49 U.S.C. § 20109(b)(1)(C), (b)(2).
Both § 20109(a)(2) and § 20109(b)(1)(C) reflect a general congressional concern
for railroad safety and security. But the purpose of each section is different. Section
20109(a)(2), by its plain text, protects railroad employees who “refuse to violate or assist
in the violation of any Federal law, rule, or regulation relating to railroad safety or
security.” 49 U.S.C. § 20109(a)(2). Section 20109(b)(1)(C), in contrast, protects railroad
employees who refuse to authorize the use of equipment, track, or structures when those
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employees “believe[] that the equipment, track, or structures are in a hazardous safety or
security condition.”8 49 U.S.C. § 20109(b)(1)(C).
Notably, Congress has imposed what the Eighth Circuit has characterized as a
“reasonableness requirement” on railroad employees seeking protection under
§ 20109(b)(1)(C), but not on those railroad employees seeking protection under
§ 20109(a)(2). See Monohon v. BNSF Ry. Co., 17 F.4th 773, 780–81 (8th Cir. 2021)
(discussing § 20109(b)(1)(B)). To be entitled to protection under § 20109(b)(1)(C), a
railroad employee must demonstrate that his or her refusal to authorize the use of
equipment, track, or structures was “made in good faith and no reasonable alternative to
the refusal [wa]s available to the employee,” 49 U.S.C. § 20109(b)(2)(A), and that
a reasonable individual in the circumstances then confronting the employee
would conclude that--
(i) the hazardous condition present[ed] an imminent danger of death or
serious injury; and
(ii) the urgency of the situation d[id] not allow sufficient time to eliminate
the danger without such refusal . . . .
Id. § 20109(b)(2). This “reasonableness requirement” functions to prevent railroad
employees from prevailing on a § 20109(b)(1)(C) claim based purely on their own
subjective opinion that the equipment, track, or structures at issue were in a hazardous
safety or security condition.
8
Section 20109(b)(1)(B) is similar in that it protects railroad employees who
“refus[e] to work when confronted by a hazardous safety or security condition related to
the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(1)(B).
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Presumably, Congress did not impose a similar reasonableness requirement on
railroad employees seeking protection under § 20109(a)(2) because that section already
effectively incorporates an objective standard of proof. Specifically, an employee
seeking protection under § 20109(a)(2) must establish that they were asked or directed to
“violate or assist in the violation of” a specific “Federal law, rule, or regulation relating to
railroad safety or security.” Section 20109(b)(1)(C), in contrast, does not require any
such proof. In other words, an employee seeking protection under § 20109(b)(1)(C) does
not have to establish that the perceived “hazardous safety or security condition”
constitutes or arises out of a violation of any “Federal law, rule, or regulation relating to
railroad safety or security.” Id. § 20109(a)(2). Instead, as noted, they must establish the
objective reasonableness of their safety or security concern.
Although it is easy to imagine circumstances that implicate only one or the other
of these two statutory provisions, BNSF argues that the case at hand presents
circumstances that implicate both statutory provisions. And BNSF in turn argues that, in
circumstances such as this, the railroad employee must proceed only under
§ 20109(b)(1)(C). This is so, BNSF asserts, because § 20109(b)(1)(C) imposes “more
stringent” or “heightened” requirements than does § 20109(a)(2). Aplt. Br. at 22.
We reject BNSF’s arguments. To begin with, we are not persuaded that
§ 20109(b)(1)(C)’s objective reasonableness requirement is “more stringent” than
§ 20109(a)(2)’s requirement that the railroad employee establish that they were asked or
directed to “violate or assist in the violation of any Federal law, rule, or regulation
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relating to railroad safety or security.” Further, even if we were to assume that
§ 20109(b)(1)(C)’s objective reasonableness requirement is more stringent, nothing in
§ 20109 indicates Congress’s intent for § 20109(b)(1)(C) to preempt or override
§ 20109(a)(2) in circumstances where both provisions are implicated. In other words, a
reading of § 20109 leads us to conclude that in circumstances where both provisions are
implicated, the railroad employee is free to pursue an action under either provision or
both provisions.
Here, Fresquez clearly alleged, and ultimately proved at trial, circumstances that
fell within the scope of § 20109(a)(2). Thus, even if those circumstances also fell within
the scope of § 20109(b)(1)(C), it was not error on the part of the district court to refuse to
require Fresquez to allege and prove that BNSF violated § 20109(b)(1)(C).
b) Calling the FRA
BNSF next argues that Fresquez’s conduct in calling the FRA agent on May 5,
2016, should be treated “as part and parcel of” his conduct in refusing to reclassify the
defect. Aplt. Br. at 25. In support, BNSF argues that “[t]he only purpose of the call was
to ask whether Fresquez could issue a slow order on the track so as to authorize its use.”
Id. Although BNSF is essentially correct about the purpose of Fresquez’s call to the FRA
agent, i.e., Fresquez called the FRA agent to confirm his own conclusion that
reclassifying the track would violate federal regulations, BNSF is clearly wrong in
suggesting that the call was indistinct from Fresquez’s action in refusing to reclassify the
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defect. In fact, the two actions were factually distinct and, in turn, fell within the scope
of two different subsections of § 20109(a).
BNSF also argues that calling the FRA agent “does not fit under [§] 20109(a)(2)
because it did not constitute refusing to violate or assist in violating any federal law.” Id.
BNSF’s argument is correct as far as it goes. But it ignores the key point that Fresquez’s
call to the FRA agent actually constitutes a protected activity under § 20109(a)(1), i.e.,
providing information “regarding any conduct which the employee reasonably believes
constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or
security” to “a Federal . . . regulatory . . . agency.” 49 U.S.C. § 20109(a)(1)(A).
Although BNSF points to a portion of Fresquez’s cross-examination where he stated that
he never reported any misconduct by any BNSF manager to the FRA, the fact remains
that, according to Fresquez’s testimony on direct examination, he called the FRA agent,
they “talked about the situation at hand” and the FRA agent “said, Yes, you are correct,
. . . you can’t reclassify a defect.” Aplt. App., Vol. VI at 1490. Based upon this
testimony, the jury could have reasonably inferred that Fresquez informed the FRA agent
that Paz asked him to reclassify the defect and thereby provided the FRA agent with
information regarding “conduct which [Fresquez] reasonably believe[d] constitute[d] a
violation of any Federal law, rule, or regulation relating to railroad safety.” 49 U.S.C.
§ 20109(a)(1).
Finally, BNSF argues that “[t]here is an additional problem” regarding Fresquez’s
call to the FRA agent. Aplt. Br. at 26. BNSF notes that at trial, “Fresquez argued that
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Paz and Carpenter were decisionmakers on the theory that Paz reported the incident that
led to the investigation, Carpenter chose to initiate the investigation with a charge of
insubordination . . . , and Paz lied at the investigation hearing.” Id. at 26–27. BNSF
disagrees with this contention and asserts that it is undisputed that Detlefsen and Miller
were the independent decisionmakers and “[t]hat in fact is what [the district court] ruled
as a matter of law.” Id. at 27. BNSF complains, however, that the district court “then
refused to instruct the jury according to that ruling, which allowed Fresquez’s counsel to
argue that Paz and Carpenter were decisionmakers.” Id. (citation omitted). BNSF argues
that “[t]his Court need not reach that question, however,” because, “[e]ven assuming that
Paz or Carpenter were decisionmakers[,] there is no evidence they had knowledge of the
claimed protected activity of [Fresquez] [c]alling the FRA—and more importantly[,] of
any contents of that call that would place it within the statutory provision.” Id. at 28.
To the extent BNSF is attempting to challenge the district court’s refusal to
instruct the jury regarding his ruling on who the decisionmakers were, BNSF has not
raised that as a distinct issue on appeal, and, as noted, essentially disclaims this issue.
Consequently, we summarily reject it.
As for BNSF’s argument regarding Paz’s and Carpenter’s knowledge of
Fresquez’s phone call to the FRA agent, Fresquez’s testimony on direct examination is
relevant. Fresquez testified that on the morning of May 5, 2016, he initially texted Paz
and told him he was going to “take the track out of service” due to the existence of the
defect, and that he and Paz “ended up talking on the phone” about it. Aplt. App., Vol. VI
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at 1489. Fresquez testified that Paz “want[ed] [him] to change it to a class-specific
defect, which [would have] mean[t] [that Paz could] run the trains at full speed” on the
track. Id. Fresquez then testified: “I t[old]him I was going to call the FRA. Well, I said,
Let me call my friends in high places,” and that they “end[ed] the conversation.” Id.
Based upon this testimony, in combination with the other evidence presented at trial (e.g.,
regarding Fresquez’s history of working with Paz), the jury could have reasonably
inferred that Paz knew who Fresquez intended to call when he referred to “friends in high
places.” The jury also could have reasonably inferred that this action by Fresquez could
have played a role in Paz deciding later that same day to report Fresquez’s conduct to
Carpenter, and in turn could have played a role in Carpenter choosing to charge Fresquez
with insubordination.
c) Refusing to measure
BNSF argues that Fresquez’s refusal to measure the track on May 5, 2016 “is not
actionable protected activity” for two reasons. Aplt. Br. at 30. First, BNSF argues that
this conduct fell within the scope of § 20109(b)(1)(B), which applies when a railroad
employee “refu[ses] to work when confronted by a hazardous safety or security condition
related to the performance of the employee’s duties.” 49 U.S.C. § 20109(b)(1)(B).
Therefore, BNSF argues, Fresquez was precluded from claiming that the conduct fell
within the scope of § 20109(a)(2). We reject BNSF’s argument for the same reasons
discussed above regarding Fresquez’s refusal to reclassify the defect found on the
morning of May 5, 2016. In short, whether or not Fresquez’s refusal to measure the track
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constitutes a violation of § 20109(b)(1)(B), it clearly fell within the scope of
§ 20109(a)(2) and nothing in § 20109 required Fresquez to allege anything beyond or
other than that specific violation.
BNSF in turn argues that “measuring the track would be in no way a violation of
the law” and instead “was the normal expected activity of a track inspector in this
scenario.” Aplt. Br. at 31. We agree with BNSF that, under normal circumstances,
measuring a track is one of the normal duties of a track inspector. But the jury in this
case could reasonably have agreed with Fresquez that “[m]uch of [his] conduct in May
2016,” including his refusal to measure the track on May 5, 2016, amounted to a refusal
to assist Paz in violating federal regulations. Aple. Br. at 42. As Fresquez notes, the
evidence he presented at trial would have allowed the jury to find that he “had been
avoiding participating—and attempting to thwart—his supervisors’ illegal conduct” in
“remov[ing] defects from the TIMS system or falsely mark[ing] them as repaired,
[thereby] violating federal regulations that required these tracks to be taken out of service
after a 30-day repair window.” Id. Indeed, earlier on May 5, 2016, Fresquez had refused
Paz’s request to falsely reclassify a non-class specific defect and in turn had called the
FRA agent to discuss the matter. Later, when Fresquez and Paz met at the site of the
second defect identified by Fresquez, Paz began the encounter by telling Fresquez that he
did not see the defect, even though, according to Fresquez, Paz was aware that the defect
was of a type that could not be observed with the naked eye. We conclude that the jury
could have reasonably agreed with Fresquez that “Paz asked Fresquez to perform a
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useless measurement of an already-known defect” and “that Paz’s . . . request was an
attempt to ensnare Fresquez in Paz’s illegal schemes and would lead to Paz removing the
defect from the system.”9 Id. at 42–43. In other words, although participating in simply
measuring the defect would not have itself been a violation of federal law or regulations,
the jury could have reasonably found that Fresquez believed that such an act would have
amounted to willing and knowing participation in Paz’s goal of removing the defect from
the TIMS system without actually repairing it.
5. BNSF’s same-decision defense
In its second general issue on appeal, BNSF argues that it is also entitled to
judgment as a matter of law on the merits of Fresquez’s FRSA claim because it
demonstrated by clear and convincing evidence that it would have terminated Fresquez’s
employment even in the absence of him engaging in protected activity under the FRSA.
BNSF made this same argument, both at the conclusion of all the evidence, and
again in its post-judgment motion for judgment as a matter of law. At the conclusion of
all the evidence, the district court denied BNSF’s motion for judgment as a matter of law
on this issue, noting that both Miller and Detlefsen “testified that they relied on . . . Paz’s
9
Paz conceded during his testimony at trial that the track defect at issue had been
in existence for some time, and that he did not need to call Fresquez out to the site of the
defect to remeasure it. Aplt. App., Vol. VII at 1742. Herzog, who was a direct witness to
the incident, testified that after Paz asked Fresquez to measure the defect, Fresquez stated
to Paz, “You’re just trying to prove that this defect isn’t here,” and “You’re trying to
measure this and say that there’s no defect here when we know there’s a defect here.” Id.
at 1835.
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testimony to support the insubordination charge, and plaintiff has submitted evidence that
. . . Paz may have slanted his hearing testimony against the plaintiff and may have been
dishonest and outright lied during the hearing.” Aplt. App., Vol. X at 2491. In rejecting
BNSF’s post-judgment motion, the district court stated:
BNSF contends that it is entitled to judgment as a matter of law
because it would have dismissed Fresquez regardless of his claimed
protected activity because “BNSF has a written rule prohibiting
insubordination and making it [a] stand-alone dismissible offense.” (ECF No.
209 at 17.) BNSF argues that it “consistently enforces its rules relating to
insubordination, and has discharged other employees for violating this rule.”
(Id.) It further points out that Fresquez’s “dismissal was decided by a senior
manager and a corporate representative that were far removed from
[Fresquez’s] alleged protected activities.” (Id.)
In response, Fresquez argues that “BNSF did not prove, much less by
clear and convincing evidence, that Fresquez was insubordinate” and that
“[t]he jury could infer from the evidence that Paz did not order Fresquez to
string-line the defect and instead asked Fresquez whether he wanted to
remeasure the defect, a distinction which Miller conceded is dispositive on
the issue of whether Fresquez was insubordinate.” (ECF No. 226 at 25.)
Fresquez likewise contends that BNSF “did not prove that it has terminated
every other similar situated employee who has questioned a similar order in
the manner Fresquez questioned Paz’s order,” whereas Fresquez “offered
evidence of other employees not being fired despite engaging in objectively
more insubordinate conduct.” (Id. at 26–27.)
After reviewing the evidence and drawing all inferences in Fresquez’s
favor, the Court finds that a reasonable jury could conclude that there was
some ambiguity regarding whether Fresquez was truly insubordinate (or
whether Paz was searching for a reason to terminate him) and whether BNSF
would have charged a similarly situated employee with insubordination
instead of a non-dismissible offense like failure to follow orders.
Accordingly, the evidence at trial does not require an unambiguous
conclusion that BNSF has proved its affirmative defense by clear and
convincing evidence. The Court therefore also denies this portion of BNSF’s
Rule 50(b) Motion.
Id., Vol. III at 876–77.
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In challenging the district court’s decision, BNSF begins by citing to other cases in
which courts have “granted judgment as a matter of law to BNSF” on the same-decision
defense. Aplt. Br. at 33–34. We conclude that those cases are largely irrelevant,
however, because they involved different sets of facts than are at issue in this case.
BNSF in turn argues that its PEPA “rules prohibit insubordination” and “treat[] it
as a stand-alone dismissible offense.” Id. at 34. BNSF further argues that it “followed
the procedures in the collective bargaining agreement for Fresquez’s disciplinary
procedure, including through providing a hearing where Fresquez could present witnesses
and question BNSF’s witnesses.” Id. at 34–35. “The dismissal decision,” BNSF notes,
“was made by a senior manager [Miller] and a corporate representative [Detlefsen] that
were far removed from Fresquez’s alleged protected activities.” Id. at 35. BNSF asserts
that it “consistently enforces its rules relating to insubordination, and has discharged
other employees for violating this rule.” Id. Finally, BNSF asserts that “Fresquez’s own
witnesses and experts agree that insubordination is a serious offense at BNSF and in the
railroad industry generally.” Id.
BNSF’s arguments, however, ignore key evidence that was presented at trial. It is
true, to be sure, that BNSF’s PEPA rules expressly prohibit insubordination and treat it as
a stand-alone dismissible offense. But the evidence presented at trial also established that
BNSF’s PEPA rules outline a separate offense entitled “failure to comply with
instructions” that is not a stand-alone dismissible offense. Further, the evidence
established that in practice the distinction between “insubordination” and “failure to
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comply with instructions,” both in their wording and in practice, is unclear and
subjective, and that this lack of distinction has historically been employed by BNSF’s
management employees to the disadvantage of certain BNSF employees. For example,
Staci Moody-Gilbert, the general chairwoman for the Brotherhood of Maintenance Way
Employees Division, testified that, in her experience assisting BNSF employees who are
union members, “if you’re a liked employee, . . . you are going to get the failure to
comply with instruction rule” applied to you, but “[i]f you’re not so well liked” by
management, “you’re going to get the insubordination rule.” Aplt. App., Vol. VI at 1358.
In light of this and the other evidence presented at trial, the jury could reasonably have
found that Paz and Carpenter knowingly chose to charge Fresquez with insubordination,
rather than failure to comply with instructions, because they were unhappy with him
calling into question their practice of removing defects from the TIMS system without
repairing them and therefore knowingly chose to target Fresquez for termination.
As for the disciplinary hearing procedures cited by BNSF, the collective
bargaining agreement that existed between BNSF and the union provided that any
employee who had sixty or more days of service with BNSF could not be disciplined or
discharged until they were afforded a fair and impartial hearing or investigation. Id. at
1330. The evidence presented at trial, however, would have allowed the jury to find that
the hearing process was weighted in favor of BNSF management. To begin with, BNSF
management determined which employees would testify at the hearing in support of the
alleged charge and paid only those selected employees for their time appearing at the
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hearing. Although the charged employee could request to present his or her own
witnesses, those BNSF employees were not paid for their time appearing at the hearing.
A BNSF management employee presided over the hearing and effectively acted as the
hearing officer. In that role, the presiding BNSF management employee questioned the
witnesses, ruled on objections, and ultimately prepared written findings of fact. The
charged BNSF employee could not have legal representation at the hearing, and instead
had to either proceed pro se or have a union representative (non-lawyer) appear on his or
her behalf. The presiding BNSF management employee’s findings of fact were
forwarded to division management employees and BNSF’s Labor Relations Department,
who determined whether to uphold the alleged charge or remove or reduce the charge. In
making that determination, the division management employees and the Labor Relations
Department were limited to the record produced at the hearing.
As those procedures played out in this case, Carpenter charged Fresquez on May
5, 2016, with insubordination for allegedly refusing to measure the track defect.
Carpenter admitted at the trial in this case that he spoke only to Paz before making the
charge, and did not speak with either Fresquez or Herzog. Carpenter also admitted that it
was a subjective decision on the part of management whether to charge an employee with
insubordination or failing to follow instructions. On May 6, 2016, Carpenter sent an
email to Paz directing him what he should do and say at the hearing on the charge. For
example, Carpenter stated in his email: “I would answer [the hearing officer’s] initial
question about what happened by simply saying ‘Employee refused to get tools and
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measure repaired track defect when instructed to do so’.” Aple. App., Vol. V at 1207.
Carpenter further stated: “[B]e firm about your instructions being clear and direct, not
light and optional.” Id. Lastly, Carpenter stated:
Herzog’s statement although not strong does give insight into some potential
reasons [Fresquez] might use as an excuse for his actions. We’ve not listed
Herzog as a witness and are not intending to have him at the Hearing which
is correct but do have the option to call if as things develop, it becomes
apparent his testimony is needed.
Id. At the trial in this case, Carpenter conceded that he could not think of any other
employee who had been discharged for refusing to remeasure a defect, and likewise
conceded that he did nothing in response to Fresquez’s claim that Paz was trying to
remove the defect from the TIMS system.
At the hearing on the insubordination charge, Paz essentially testified as directed
by Carpenter. Notably, Paz testified at the hearing, in direct opposition to the great
weight of the evidence that was presented at the trial in this case, that he and Herzog
could not find any defect and, in turn, that he did not remove the slow order from the
track. Fresquez also testified and provided his side of the story. According to Fresquez,
he was the one who initially “brought up the stringlining” because Paz had “made up his
decision to take the defect off without stringlining it.” Aplt. App., Vol. X at 2630. In
other words, Fresquez testified that Paz “[b]asically stat[ed] that he ha[d] the right just to
take off the defect as he please[d]” and that Fresquez “ha[d] to prove the defect [wa]s
there.” Id. at 2631. Fresquez testified that because of Paz’s statements, he “thought that
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it would be pointless to stringline if [Paz] was already going to remove the defect.” Id. at
2634.
The hearing record was then sent to Detlefsen, who reviewed the transcript and
concluded that Paz was telling the truth and Fresquez was lying. The matter then went to
Miller, who at that time served as the general director for BNSF’s Powder River Division
and was Carpenter’s supervisor. Like Detlefsen, Miller concluded, based upon reading
the hearing transcript, that Paz’s testimony at the hearing was credible. He therefore
decided to discharge Fresquez for insubordination.10
Considering all of this evidence together, the jury could have reasonably found
that Paz and Carpenter were looking for a reason to terminate Fresquez’s employment
because Fresquez refused to go along with their misinterpretation of the applicable
regulations, was aware of and in fact was calling out Paz’s actions in removing
unrepaired defects from the TIMS system, and was willing to call the FRA about those
violations. The jury in turn could have reasonably believed Fresquez’s version of what
transpired on May 5, 2016, regarding the measurement of the defect, and thus could have
reasonably found that Paz and Carpenter knowingly used that incident to charge Fresquez
with the dismissible offense of insubordination. The jury could also have reasonably
10
The jury in this case could have reasonably found that Miller did not make an
objective determination regarding Fresquez’s discipline. Notably, Miller sat through the
entire trial in this case and testified that nothing he heard during the trial caused him to
question his decision to discharge Fresquez. Indeed, Miller testified that he would not
change his decision even if Paz lied during his testimony at the disciplinary hearing.
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found that Carpenter and Paz knowingly took steps to limit what evidence was presented
at the disciplinary hearing, and that Paz actually lied at the hearing when he testified
about what happened on May 5, 2016. Thus, in sum, the jury could have reasonably
found that the two purported decisionmakers, i.e., Miller and Detlefsen, were not in fact
independent at all, and that their decisions were significantly impacted by the actions and
misconduct of Paz and Carpenter. In other words, we agree with Fresquez that the
evidence presented at trial would have allowed the jury to reasonably find “that the
insubordination charge used to justify [his] termination was false, pretextual, and
motivated by discriminatory animus.” Aple. Br. at 59.
For all of these reasons, we conclude that BNSF has failed to demonstrate by clear
and convincing evidence that it would have discharged Fresquez from his position even
absent his involvement in activities that are protected under § 20109.
B. Is BNSF entitled to a new trial due to the district court’s admission of character
evidence and/or other allegedly prejudicial evidence?
In its third issue on appeal, BNSF argues that it is entitled to a new trial because
the district court erroneously admitted improper character evidence and other highly
prejudicial evidence. In support, BNSF asserts that “Fresquez’s [trial] strategy was to
distract the jury with irrelevant allegations of wrongdoing on the part of Carpenter and
Paz,” and he “spent the better part of a week attempting to prove that they intentionally
violated federal regulations, falsified records by removing defects from the system that
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had not been repaired, and pressured subordinates to misreport defects.”11 Aplt. Br. at
37. BNSF in turn asserts that Fresquez “also chose to offer evidence having no
reasonable relationship to the facts in this case in an effort to prejudice the jury against
BNSF.” Id. That evidence, BNSF asserts, related to Paz and included “allegations of
unlawful environmental contamination and forging documents, in both cases 17 months
after Fresquez’s discharge.” Id. at 15. BNSF asserts that this “was improper character
evidence, highly prejudicial, and very likely affected the verdict, thus warranting a new
trial.” Id.
1) Standard of review
“We review for abuse of discretion a district court’s denial of a rule 59(a) motion
for new trial.” Stroup v. United Airlines, Inc., 26 F.4th 1147, 1168 (10th Cir. 2022)
(quotation marks omitted). “Likewise, when the issue of whether to grant a new trial
hinges on the admissibility of evidence,” we review for abuse of discretion the admission
of the challenged evidence. Id. (quotation marks and brackets omitted). It is well
11
We note that the allegations that BNSF now refers to as a “distraction” were
consistently alleged by Fresquez as a central part of his claim of retaliation against
BNSF. For example, in the final pretrial order, Fresquez described his claims, in
pertinent part, as follows: “Fresquez long suspected that his supervisor’s supervisor—
Mark Carpenter—and some of the supervisors under Carpenter were circumventing
federal regulations regarding when damaged track needed to be taken out of service or
have the speed limit on them reduced,” and “Fresquez continued objecting to [their]
circumvention of the federal regulations regarding rail safety, to the point [where]
Carpenter and his right-hand man—Mike Paz—resorted to accusing Fresquez of being
insubordinate and terminate[d] him for it.” Aplt. App., Vol. I at 64–65.
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established that “evidentiary rulings are within the sound discretion of the district court.”
Id. (quotation marks omitted). Consequently, “we will reverse only upon a definite and
firm conviction that the lower court made a clear error of judgment or exceeded the
bounds of permissible choice in the circumstances.” Id. (quotation marks and brackets
omitted).
2) Procedural history of the issue
Prior to trial, BNSF filed a motion in limine to exclude what it asserted was
improper character evidence regarding alleged unrelated misconduct. In the motion,
BNSF alleged that Fresquez “intend[ed] to introduce at trial evidence that his supervisor
[Paz] engaged in misconduct separate and apart from his dismissal, including allegations
that” Paz: (a) “[a]t some point in 2016 . . . was accused of not completing employee
safety interviews but saying that he had”; (b) “surreptitiously recorded a safety briefing”
in August 2016; (c) “improperly filled a ditch or culvert with contaminated soil” in “2016
or 2017”; and (d) allegedly failed to “fully or properly repair track defects” in or around
July 2017. Aplt. App., Vol. I at 108–09. BNSF argued that “[n]one of this alleged
misconduct ha[d] anything to do with [Fresquez’s] allegations in this case,” and that Paz
“denie[d] engaging in the misconduct.” Id. at 109. The district court deferred ruling on
BNSF’s motion in limine until trial.
During the trial, Fresquez presented testimony from David Dunn, a BNSF
employee who worked as a division assistant roadmaster under Carpenter. Dunn thus had
the same title and responsibilities as Paz, knew and was familiar with Paz, and also
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occasionally supervised Fresquez. Dunn testified, in pertinent part, that he twice reported
Paz to BNSF for violating safety rules and regulations. On one of those occasions, Dunn
testified, he reported that Paz was dumping toxic soil into a waterway, which Dunn
believed was a violation of federal law. BNSF objected to Dunn’s testimony on this
point, arguing that it “ha[d] nothing to do with . . . Fresquez.” Id., Vol. VIII at 1926. The
district court overruled the objection, noting that it “s[aw] some tangential relevance” to
the testimony. Id.
Dunn subsequently testified on direct examination that one of his and Paz’s
responsibilities was to conduct annual safety interviews with the union-level employees
they supervised. Dunn testified that he became concerned on one occasion that Paz had
failed to conduct his required safety interviews, but that Paz had nevertheless reported to
BNSF that he had completed those interviews. Dunn testified that he spoke with some of
the employees who Paz was responsible for interviewing and they all “said they had not
had any interaction with . . . Paz about their safety annual interview[s].” Id. at 1936.
According to Dunn, he raised that concern with his manager.
BNSF renewed its objection to this portion of Dunn’s testimony, and the district
court again noted that it saw some relevance to the testimony:
The problem with [BNSF’s] argument is that I think that this
testimony has some relevance to the culture that existed at the railroad. And
I don’t think it’s limited to July of 2017. I think it just shows Mr. Paz’s
conduct in the workplace. And even though it’s some months after Mr.
Fresquez was terminated, it relates to the same kind of work in a similar
environment. And this witness is someone who worked with both Paz and
Fresquez.
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So what I’m going to do is say that under 403 the probative value
outweighs prejudicial effect.
Id. at 1932–33.
BNSF attempted to rebut Dunn’s testimony by presenting testimony from Dane
Freshour, the regional director of human resources for BNSF’s north region. Freshour
testified, in pertinent part, that BNSF’s human resources department had received a
complaint that Paz had not completed his annual safety interviews during 2017.
According to Freshour, his department investigated the complaint by questioning both
Paz and the employees he was supposed to have interviewed, and the department
ultimately concluded that Paz had completed those interviews.
Following the district court’s entry of judgment in favor of Fresquez, BNSF filed a
motion for new trial. In that motion, BNSF argued, in pertinent part, that the district
court’s admission of Dunn’s testimony about the toxic soil and employee safety interview
issues, along with testimony from other witnesses, “permitted [Fresquez] to distract the
jury from his own lack of protected activity and instead base their verdict on the
perceived wrongdoing of . . . Carpenter and . . . Paz.” Id., Vol. III at 714. BNSF argued
that “this evidence was irrelevant,” “unduly prejudicial, “and/or improper character
evidence.” Id. at 716.
The district court denied BNSF’s motion for new trial and concluded, “after
reviewing the challenged . . . evidentiary rulings, . . . that BNSF ha[d] failed to establish
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that the . . . evidentiary rulings substantially and adversely affected its rights such that a
new trial [wa]s necessary.” Id. at 889.
3) Analysis
BNSF argues in its appeal that “[t]he only point of” this challenged “evidence was
to impugn the character of” Paz in order “to suggest that he was a law violator, a rule
violator, and dishonest on matters other than concerning track defects, thus suggesting
that he must have been so with respect to track defect issues as well.” Aplt. Br. at 39.
Consequently, BNSF argues, the “evidence falls squarely within Rule 404’s
prohibitions.” Id. at 40. BNSF in turn argues that “[t]he evidence was . . . highly
prejudicial” because “[t]he result was that the jury heard inflammatory testimony labeling
a key player in the case as having engaged in illegal environmental dumping.” Id. at 40–
41. BNSF also argues that this evidence “improperly bolstered Fresquez’s other attacks
on Paz concerning track defects and painted him as a rogue manager.” Id. at 42. Indeed,
BNSF argues, “[t]hat evidence may well explain the jury’s finding of retaliation
notwithstanding the lack of evidence of cognizable protected activity as well as the
grossly excessive award of compensatory damages.” Id.
Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any other crime,
wrong, or act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” But Rule
404(b)(2) also provides that such evidence “may be admissible for another purpose, such
as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of
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mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “This list of permissible uses is
illustrative, not exhaustive,” and thus “[t]he rule admits all other-act evidence except that
tending to prove only propensity.” United States v. Armajo, 38 F.4th 80, 84 (10th Cir.
2022). “A valid purpose under Rule 404(b) is not the end of the story, however.” Id.
“Even otherwise relevant evidence may be subject to exclusion under Rule 403, which
provides that evidence may be excluded if its probative value is substantially outweighed
by a danger that it will lead to unfair prejudice, confusion of the issues, or wasted time.”
Id. (citing Fed. R. Evid. 403).
We conclude that the district court did not abuse its discretion in determining that
this challenged testimony from Dunn was relevant. To be sure, the testimony concerned
allegedly wrongful conduct by Paz that occurred after Fresquez was terminated from his
position. Nevertheless, as the district court explained on the record in admitting the
evidence, the testimony was relevant because it showed Paz’s general mode of operating
in the BNSF workplace and, in turn, the type of work environment that he created, with
Carpenter’s approval. Although BNSF suggests otherwise, Fresquez presented
significant evidence that Paz, sometimes at Carpenter’s direction and most certainly with
his express or implicit approval, routinely ignored applicable federal safety regulations
relating to track defects. More specifically, that evidence established that Carpenter
openly disputed and defied the well-accepted interpretation of the federal safety
regulations requiring non-class specific track defects to be repaired within thirty days,
and that Paz adopted the same stance by failing to timely require such defects to be
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repaired or, alternatively, by removing those defects from the TIMS system without
repairing them. The evidence presented by Fresquez also established that Paz created an
atmosphere of intimidation among the union-level employees he supervised, specifically
encouraging his supervisees to ignore the applicable safety regulations and effectively
ostracizing or punishing those employees who stood up to him. It was undoubtedly all of
this evidence that led the district court to conclude that Dunn’s testimony regarding Paz’s
potential dumping of toxic soil and failure to conduct annual safety interviews was
relevant for purposes of showing “the culture that existed at the railroad” under his
supervision. Aplt. App., Vol. VIII at 1932.
We further conclude that the district court did not abuse its discretion in balancing
the testimony’s probative value against its prejudicial effect. Indeed, in our view, BNSF
has greatly overstated the potential prejudicial impact of the challenged testimony by
Dunn. Dunn’s testimony on the toxic soil and annual safety review issues was very brief.
Further, the two alleged instances of improper conduct that Dunn testified to were not
more egregious in nature than the wrongful conduct that Fresquez and other witnesses
described when they testified about Paz removing defects from the TIMS system and
otherwise ignoring federal safety regulations regarding track defects.
Because the district court did not err in admitting the challenged testimony by
Dunn, we conclude that the district court did not abuse its discretion in denying BNSF’s
motion for new trial.
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C. Did the district court err in denying BNSF’s combined request for a new trial on the
issue of compensatory damages or, in the alternative, a remittitur of compensatory
damages?
In its fourth issue on appeal, BNSF argues that the district court abused its
discretion in denying BNSF’s combined request for a new trial on the issue of
compensatory damages or, in the alternative, a remittitur of compensatory damages. In
support, BNSF asserts that “[t]he jury awarded Fresquez $800,000 in compensatory
damages based on thin evidence of claimed emotional distress that was no more than
‘garden-variety’ distress.” Aplt. Br. at 154. “That amount,” BNSF asserts, “is grossly
excessive so [this] Court should order a substantial remittitur.” Id.
1) Standard of review
As previously noted, “we review for abuse of discretion a district court’s denial of
a rule 59(a) motion for new trial.” Stroup, 26 F.4th at 1168 (quotation marks omitted).
Likewise, “[w]e review a trial court’s decision to deny remittitur of compensatory
damages for abuse of discretion.” Burke v. Regalado, 935 F.3d 960, 1035 (10th Cir.
2019). “As the reviewing court, we must view the evidence in the light most favorable to
the prevailing party.” Id. (quotation marks omitted).
“To determine whether remittitur is appropriate, courts must evaluate whether the
evidence supports the verdict.” Id. “The jury has wide latitude to choose an award based
on the evidence.” Id. (quotation marks and brackets omitted). “Remittitur is appropriate
only when the jury award is so excessive . . . as to shock the judicial conscience and to
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raise an irresistible inference that passion, prejudice, corruption or another improper
cause invaded the trial.” Id. (quotation marks omitted).
2) Procedural history of the issue
In the final pretrial order, Fresquez alleged, in pertinent part, that he was entitled
“to his wage and benefit loss, in an amount to be determined by the jury,” “front pay in
lieu [of reinstatement] in an amount to be recommended by the jury and decided by the
Court,” and “compensatory damages for garden-variety emotional distress in an amount
to be determined by the jury.” Aplt. App., Vol. I at 68. The district court subsequently
concluded that it would determine the amount of front and back pay.
During the trial, Fresquez testified about his son, who was born shortly after
Fresquez began working for BNSF. Fresquez testified that he is the primary care
provider for his son. Fresquez also testified that his son has various health issues that are
expensive to deal with, and that, as a result, the health insurance plan that was provided
to him by BNSF was important. According to Fresquez, the termination was “extremely
hard” on him and “really stressful.” Id., Vol. VI at 1517. Fresquez testified that it forced
him “to find new jobs,” and that the employee benefits at those new jobs were “not as
good” as those he received from BNSF. Id. Fresquez’s counsel asked him on direct
examination if the termination “[h]a[d] . . . changed who [he] [was] as a person?” Id.
Fresquez testified that it had, and he proceeded to explain: “I don’t sleep no more,” “[m]y
stress levels are out the door,” and “I got fat.” Id. at 1518. Fresquez further testified that
when he worked for BNSF, he coached a youth baseball team, but that the stress of the
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termination caused him to quit coaching. Fresquez also testified that the stress of the
termination had affected his enjoyment of everything in his life.
During cross-examination by BNSF’s counsel, Fresquez conceded that he had not
seen a mental health provider for counseling following the termination of his position at
BNSF. BNSF’s counsel also asked Fresquez about his decision to quit coaching the
youth baseball team and when that occurred. Fresquez admitted that he “[c]oached for
two years” after his termination, but that the stress of the situation “really took a toll on”
him and he “started coaching the way [he] didn’t want to be coaching,” so he “decided
[he] no longer wanted to coach.” Id., Vol. VII at 1622. Lastly, BNSF’s counsel asked
Fresquez about health insurance coverage for his son. Fresquez testified that he was able
to keep the BNSF-provided health insurance for approximately five months following his
termination, and that after that time his son “went on his mother’s health insurance” plan.
Id. at 1624.
During the closing arguments, Fresquez’s counsel reminded the jury: “You heard
that [Fresquez’s] son . . . was born two days” after Fresquez began working for BNSF
“and that because of [his son’s] health conditions, benefits were very important to him.
Not to mention, [Fresquez] is the primary care provider for his son, and so the wages
were also important.” Id., Vol. X at 2525. Later during the closing argument, Fresquez’s
counsel discussed the issue of damages:
So now let’s talk about Fresquez’s damages. [Fresquez] is entitled to
wage loss, emotional distress, and punitive damages. His wage loss and
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benefit loss . . . from the time he was fired until the time he retires is
$1,522,527.
[Defense counsel objected, arguing that evidence of Fresquez’s wage
loss “ha[d] been specifically excluded,” and the district court sustained the
objection]
So you are wondering . . . why are you putting up his wage loss if the
Court’s going to decide that? Here’s why. A good rule of thumb for
emotional distress damages is twice his wage and benefit loss. And here’s
the reason why. The reason lawyers use this is as follows: One-third of your
life, eight hours a day, is spent at work. And you work so that the other two-
thirds of your life is enjoyable. So when you are fired, when you are treated
the way [Fresquez] was treated, when you are deprived of benefits, it bleeds
over into those two-thirds. So a rule of thumb is the emotional distress
damages should be double your wage loss, two-thirds of the time compared
to one-third of the time. But there’s no science to this. Maybe it’s half that
amount. Maybe it’s what his wage loss is. Maybe it’s half that amount.
There’s no real science to this.
You guys know what it’s like to have to all of a sudden worry about
your seniority, whether you are going to have a job, start a new career after
a decade, to worry about your son’s benefits and whether you are going to be
able to afford his treatment, to tell your son you were fired for doing the right
thing, to be so stressed out and unable to sleep at night. You stop liking the
things you used to enjoy, like coaching baseball. You guys know what it’s
like to tell your son, Hey, you need to eat at Grandma’s because I don’t know
the next time I can afford food.
There’s no science to this. So the rule of thumb, double wage loss.
Maybe it’s equal to wage loss. Maybe it’s half that amount. You guys talk
about it. It’s for you to decide.
Id. at 2555–56.
BNSF’s counsel also discussed the issue of damages during his closing argument,
stating as follows:
Ladies and gentlemen, [Fresquez’s counsel] just asked you to award
. . . Fresquez $3 million for this emotional distress, $3 million, for emotional
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distress that has affected him in really one way that he talked about. He can’t
coach baseball, meaning he’s not the head coach for the baseball team.
Hasn’t sought counseling. Hasn’t gone and seen a therapist. The emotional
distress hasn’t been so bad that he’s attempted to do anything about it, but
it’s so bad that you-all should award him $3 million? So that’s the damages
case.
Id. at 2584.
At the conclusion of all the evidence, the district court instructed the jury as
follows regarding its determination of compensation for the losses that Fresquez suffered
as a result of his termination:
If you find in favor of the Plaintiff on his retaliation claim, then you
must determine an amount that is fair compensation for the Plaintiff’s losses.
You may award compensatory damages for injuries that the Plaintiff proved
by a preponderance of the evidence were caused by the Defendant’s wrongful
conduct. The damages that you award must be fair compensation, no more
and no less.
In calculating compensatory damages, you should not consider any
back pay or front pay that the Plaintiff lost. The award of back pay and front
pay, should you find the Defendant liable on the Plaintiff’s claim, will be
calculated and determined by the Court.
The Plaintiff claims damages for any emotional distress, pain,
suffering, inconvenience, or mental anguish that the Plaintiff experienced as
a consequence of his termination by the Defendant. No evidence of monetary
value of such intangible things as pain and suffering has been, or need be,
introduced into evidence. There is no exact standard for setting the
compensation to be awarded for these elements of damages. Any award you
make should be fair in light of the evidence presented at trial.
In determining the amount of any damages you decide to award, you
should be guided by common sense. You must use sound judgment in fixing
an award of damages, drawing reasonable inferences from the facts in
evidence. You may not award damages based on sympathy, speculation, or
guesswork. On the other hand, the law does not require that the Plaintiff
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prove the amount of his losses with mathematical precision, but only with as
much definiteness and accuracy as circumstances permit.
Id., Vol. I at 282 (Instruction No. 21).
The jury, after deliberating, found that Fresquez “prove[d] by a preponderance of
the evidence that he should be awarded compensatory damages for emotional distress,
pain, suffering, inconvenience, or mental anguish,” and it awarded Fresquez $800,000 in
such damages. Id., Vol. I at 295.
In its post-judgment motion for new trial, BNSF argued, in pertinent part, that it
was entitled to a new trial or a remittitur on the issue of compensatory damages. BNSF
argued that “[t]he jury’s award of $800,000 in compensatory damages [wa]s against the
weight of the evidence and excessive.” Id., Vol. III at 720. BNSF noted that “[t]he only
evidence in support of the compensatory damages award [wa]s [Fresquez]’s testimony
that he: (1) is making less money and finding a new job was really hard on him and his
family . . . ; (2) he does not sleep much and has gained a lot of weight . . . ; and (3) he
quit coaching competitive youth baseball after he was dismissed because of the stress.”
Id. at 720–21. BNSF noted, however, that Fresquez admitted on cross-examination “that
he ha[d] not gone to see a mental health provider for counseling for depression” and
“continued to assist with [some baseball] coaching.” Id. at 721.
In a written order denying BNSF’s motion for new trial, the district court
specifically addressed the issue of compensatory damages:
Although BNSF speculates that the jury’s verdict “appears to be based
on improper arguments of counsel and an intent to punish . . . rather than a
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reasoned consideration of the evidence” (ECF No. 210 at 17), BNSF offers
scant evidence that the jury acted out of passion or prejudice against BNSF
instead of based on Fresquez’s testimony regarding his non-economic
damages. While the Court recognizes that Fresquez did not describe his
emotional distress in the most graphic or descriptive terms, he clearly
described that the stress from his termination had affected him in significant
ways. The events giving rise to this litigation changed who he is as a person
by causing him to feel stress about feeding his son, affecting his ability to
sleep, causing him to gain weight, and causing him to quit taking part in
activities that he loved. The Court will not substitute its own judgment for
that of the jury regarding the appropriate amount of compensatory damages,
particularly absent any evidence that the jury acted with passion, prejudice,
or another improper cause. See McInerney v. United Air Lines, Inc., 463 F.
App’x 709, 723 (10th Cir. 2011) (affirming $300,000 award for
compensatory damages where plaintiff testified that her discharge left her
crying for weeks with bouts of depression, caused her to have trouble
sleeping, had an effect on her home life and caused her to lose confidence).
Because the Court cannot conclude that the jury’s award is unsupported by
evidence or contrary to reason, BNSF’s request . . . that the Court grant
judgment as a matter of law or order a new trial as to compensatory damages
is denied.
Id. at 879–80.
3) Analysis
Viewing the evidence presented at trial in the light most favorable to Fresquez, we
conclude that the jury could readily have found that: (a) the termination of Fresquez’s
employment with BNSF caused him severe emotional distress, due both to being
terminated under false pretenses and because it forced him to have to search for other
available work, all of which offered lower pay and lesser benefits than the position he
held with BNSF; (b) the termination of Fresquez’s employment with BNSF resulted in
Fresquez losing his BNSF-provided health insurance benefits, and in turn caused his son
to have to turn to his mother’s health insurance policy for coverage for his health
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conditions; and (c) the stress that resulted from the termination of his employment caused
Fresquez to gain a significant amount of weight and diminished his overall enjoyment in
the daily activities of life, including coaching his son’s baseball team.
To be sure, Fresquez admitted to never having seen a therapist to deal with the
stress caused by his termination, and, in turn, he presented no expert testimony regarding
his emotional distress. Nevertheless, the jury could have decided, consistent with the
closing arguments of Fresquez’s counsel, to award Fresquez an amount of damages for
emotional distress that was approximately half of his estimated wage and benefit loss.12
As Fresquez’s counsel outlined in his closing arguments, this methodology, which BNSF
has never objected to, essentially awarded Fresquez compensatory damages for the
diminishment in the value of his free time that was caused by the stress of his
termination, and the effects of that termination on his income and the well-being of
himself and his son. Ultimately, we cannot say, given all of the evidence that was
presented at trial, that the jury’s award was so excessive as to shock the judicial
conscience.
We therefore conclude that the district court did not abuse its discretion in denying
BNSF’s motion for new trial on this issue, or in denying BNSF’s alternative request for a
12
Although BNSF’s counsel objected to Fresquez’s counsel’s estimate of
Fresquez’s wage and benefit loss, they did not otherwise object to the methodology that
Fresquez’s counsel proposed the jury use to determine the damages for emotional
distress.
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remittitur. See Wooten v. BNSF Ry. Co., 819 F. App’x 483, 487 (9th Cir. 2020)
(affirming jury’s compensatory damages award of $500,000 for emotional distress to
plaintiff in FRSA case who was wrongfully portrayed as liar, and subsequently
terminated, by BNSF). See also Wooten v. BNSF Ry. Co., 387 F. Supp. 1078 (D. Mont.
2019).
D. Is BNSF entitled to judgment as a matter of law as to punitive damages?
In its fifth issue on appeal, BNSF argues that it is entitled to judgment as a matter
of law on the issue of punitive damages. BNSF argues in support that “Fresquez . . . did
not prove that BNSF engaged in conduct sufficient to hold the corporation liable for
punitive damages.” Aplt. Br. at 48. BNSF notes that “[t]here is no dispute that Detlefsen
and Miller were the employees who made the dismissal decision,” and it argues “there
[wa]s no evidence whatsoever that Detlefsen or Miller engaged in conduct warranting
punitive damages.” Id. at 49.
1) Standard of review and applicable law
As we have noted, we review de novo a district court’s denial of a motion for
judgment as a matter of law, applying the same standards as the district court. Bimbo
Bakeries, 29 F.4th at 640. A court may enter judgment as a matter of law only when the
nonmovant has been fully heard on an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for the nonmovant on that issue. Id. In reviewing a
district court’s denial of a motion for judgment as a matter of law, we draw all reasonable
inferences in favor of the nonmoving party, and we will reverse the district court only if
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the evidence points but one way and is susceptible to no reasonable inferences supporting
the nonmovant. Id. at 641.
The “Remedies” provision of § 20109 of the FRSA states, in relevant part, that
“[r]elief . . . may include punitive damages in an amount not to exceed $250,000.”
49 U.S.C. § 20109(e)(3).
2) Procedural history of the issue
In his complaint, and later in the final pretrial order, Fresquez alleged that he was
seeking punitive damages against BNSF under the FRSA. At trial, Fresquez’s counsel
asked the jury, during closing arguments, to award Fresquez $250,000 in punitive
damages. Fresquez’s counsel argued that this amount was “necessary to show BNSF . . .
retaliation is not okay” and “enough to get . . . Miller to finally investigate, to go out and
look at that defect.” Aplt. App., Vol. X at 2556–57. Lastly, Fresquez’s counsel told the
jury: “And I will have you note, even if you added all of the wage loss that we have
requested and the punitive damages, that’s less than 10 hours of BNSF’s profit, less than
they will make today.” Id. at 2557. BNSF’s counsel, in his closing argument, asserted
that BNSF had acted in good faith and “ha[d] all the right policies” in place. Id. at 2584.
The district court gave the jury the following instruction regarding their
determination of punitive damages:
In addition to the damages mentioned in other instructions, the law
permits the jury under certain circumstances to award punitive damages. The
purpose of an award of punitive damages is to punish a wrongdoer for
misconduct, and also to provide a warning to others.
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You may award punitive damages if you find the Plaintiff has proved
by a preponderance of the evidence that the Defendant acted with reckless or
callous disregard of the Plaintiff’s right to be free from retaliation for engaging
in a protected activity. The Defendant acted with reckless or callous disregard
if the Plaintiff proved by a preponderance of the evidence that the Defendant’s
employees who made the decision to terminate the Plaintiff’s employment
knew that the termination was in violation of the law prohibiting retaliation,
or acted with reckless or callous disregard of that law.
In deciding the amount of punitive damages, you may consider the
following:
1. The offensiveness of the conduct;
2. The amount needed, considering the Defendant’s financial condition,
to prevent the conduct from being repeated; and
3. Whether the amount of punitive damages bears a reasonable
relationship to the actual damages awarded.
However, you may not award punitive damages if the Defendant has
proved by a preponderance of the evidence that the retaliatory actions by the
Defendant’s employees were contrary to the Defendant’s good faith efforts to
comply with the FRSA by implementing and enforcing policies and programs
designed to prevent unlawful retaliation.
Id., Vol. I at 284–85 (Instruction No. 23).
The jury, after deliberating, found that Fresquez had proven by a preponderance of
the evidence that BNSF acted with reckless or callous disregard of his right to be free
from retaliation for engaging in a protected activity, and it awarded Fresquez $250,000 in
punitive damages. Id. at 295.
Following the district court’s entry of final judgment, BNSF filed a combined
motion for new trial and judgment as a matter of law that addressed, in pertinent part, the
jury’s award of punitive damages. On March 8, 2021, the district court issued a written
order denying BNSF’s motion. With respect to the issue of punitive damages, the district
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court noted that “BNSF [wa]s implicitly asking the Court to view the evidence in [its]
favor, instead of Fresquez’s favor, . . . notwithstanding certain evidence regarding
BNSF’s efforts to comply with the FRSA.” Id., Vol. III at 881. The district court noted
that “the jury . . . heard testimony that BNSF ha[d] a culture that disregard[ed] railroad
safety rules and employee rights.” Id. The district court also noted that “even though
Detlefsen reviewed the investigatory transcript, which contained Fresquez’s complaint
that he was being retaliated against, she did little to investigate Fresquez’s claim” that
Paz was acting illegally and had retaliated against Fresquez for calling out that conduct.
Id.
3) Analysis
BNSF argues in its appeal “that Detlefsen and Miller were the employees who
made the dismissal decision,” and that “there is no evidence whatsoever that Detlefsen or
Miller engaged in conduct warranting punitive damages.” Aplt. Br. at 49. BNSF also
argues that, even if there was a work culture in place in Denver that disregarded safety
rules and employee rights, “such evidence would not in any event support the punitive
damages award.” Id. at 50.
We reject BNSF’s arguments. Although BNSF repeatedly asserts that Detlefsen
and Miller were the decisionmakers in this case, the jury could have reasonably found, as
we have already explained, that the entire charge and investigatory process was
effectively guided and controlled by Carpenter and Paz. This began with the precise
BNSF policy provision that Carpenter and Paz decided to charge Fresquez with violating,
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i.e., a violation that, if proven, automatically resulted in the termination of Fresquez’s
employment, and in turn the manner in which they presented evidence at the hearing on
the charge. The jury could have reasonably found that Paz repeatedly lied during that
hearing, and that Detlefsen and Miller in turn relied on that false testimony in making
their decision to terminate Fresquez’s employment. Relatedly, the jury could have
reasonably found that Detlefsen has always upheld charges leveled by BNSF
management and never found in favor of a union employee. We also agree with the
district court that the jury could reasonably have found that Carpenter and Paz created
and promoted a workplace culture that encouraged the flouting of federal safety
regulations, and openly discouraged employees, by way of intimidation and fear of
reprisal, from objecting to these practices, all for the purpose of allowing trains to
continue to run on tracks that contained defects. Notably, the evidence presented at trial
by Fresquez also would have allowed the jury to reasonably find that taking tracks out of
service reduces a railroad’s profits, and that, because of that, BNSF’s managers were
effectively motivated to misreport or underreport track defects. Finally, the jury could
have reasonably found, based upon the evidence presented by Fresquez, that in 2016
BNSF earned a profit of approximately $4 billion dollars. In light of all of this evidence,
we have little trouble concluding that there was a legally sufficient evidentiary basis for
the jury in Fresquez’s case to find for Fresquez on the issue of punitive damages, and in
turn to award him the statutory maximum amount of punitive damages.
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E. Did the district court err in awarding Fresquez ten years’ worth of front pay?
In its final issue on appeal, BNSF argues that the district court abused its
discretion by awarding Fresquez ten years’ worth of front pay. In support, BNSF makes
two distinct arguments. First, BNSF argues that the “front pay” that the district court
purported to award Fresquez was “actually a damages judgment for loss of future earning
capacity.” Aplt. Br. at 51. Second, BNSF argues that the district court awarded an
amount of front pay that was larger than the court’s equitable jurisdiction and the record
permitted.
1) Standard of review
Where, as here, a district court awards front pay as an equitable remedy in an
action filed under an applicable federal law, we review the district court’s award for
abuse of discretion. See Tudor, 13 F.4th at 1040 (reviewing front pay award in action
brought by former professor against state university under Title VII); Hayes v. SkyWest
Airlines, Inc., 12 F.4th 1186, 1204 (10th Cir. 2021) (reviewing front pay award in action
brought by former employee against employer under the Family and Medical Leave Act
and Americans with Disabilities Act); Whittington v. Nordam Grp., Inc., 429 F.3d 986,
1001 (10th Cir. 2005) (reviewing front pay award in action brought by former employee
against employer under the Age Discrimination in Employment Act). “The district
court’s discretion encompasses both whether to award front pay and the amount of the
award.” Hayes, 12 F.4th at 1204. “Because determining a front pay award requires the
district court to predict future events and consider many complicated and interlocking
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factors, we review such awards with considerable deference.” Whittington, 429 F.3d at
1001 (quotation marks omitted).
2) Procedural history of the issue
Fresquez, in his complaint, sought “reinstate[ment] . . . to the same position he
held when he was terminated,” as well as “such other relief as the Court deems just and
equitable.” Aplt. App., Vol. I at 30–31. In the final pretrial order, Fresquez modified his
request slightly, stating that he was entitled to “reinstatement with the at-issue discipline
expunged and the seniority he would have had but for the at-issue discipline” or,
alternatively, “if the [district court] determines that reinstatement is impractical, which
Fresquez believes is the case, front pay in lieu in an amount to be recommended by the
jury and decided by the [c]ourt.” Id. at 68.
Prior to trial, the district court determined that the issues of back pay and front pay
were equitable remedies to be decided by the court. Consequently, at trial, the jury was
not asked to determine back pay or front pay. After the jury returned its verdict, the
district court encouraged the parties to attempt to reach an agreement on the issues of
back pay and front pay and, if necessary, to request a hearing on those issues. The
parties, however, were unable to reach an agreement on those issues.
As a result of this impasse, Fresquez moved for an award of back pay and front
pay. Fresquez asked for “an award of backpay in the amount of $183,821, with interest,
and frontpay in the amount of $1,338,706, with interest, for a combined total award for
lost wages and benefits in the amount of $1,522,527, with interest.” Id., Vol. II at 305.
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BNSF responded to Fresquez’s motion and asked that his “wage loss instead be limited to
the difference between what he would have made at BNSF based on his actual wages and
what he could have made with reasonable efforts to mitigate his damages for a reasonable
period following his termination.” Id. at 384.
The district court held a hearing on the issues of back pay and front pay. Fresquez
testified and also presented testimony from his expert witness, Jeffrey Opp, regarding
proposed calculations for the back pay and front pay. BNSF presented testimony from a
vocational expert, Cynthia Bartmann, regarding Fresquez’s employability, estimated
wages, and how long it should have taken Fresquez to find work following the
termination of his employment with BNSF.
On November 4, 2019, the district court issued an order granting in part, denying
in part, and taking under advisement in part, Fresquez’s motion for back pay and front
pay. The district court concluded that “granting front pay until 2045 [when Fresquez
would reach the retirement age of 60] would surely result in a windfall to Fresquez,” but
it also “conclude[d] that granting front pay for only two or three years would result in an
unwarranted and unmerited windfall to BNSF.” Id. at 438. The district court thus
concluded that, “[g]iven [Fresquez’s] intent to stay with the company for the long term,
but also factoring in his youth, his opportunities for a significant, if not comparable, wage
and benefits package as a building inspector, as well as his disciplinary history,” that he
“would likely have remained at BNSF for an additional ten years.” Id. at 438–39. The
district court therefore “f[ound] that Fresquez [wa]s entitled to ten years of front pay from
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the date of the jury verdict.” Id. at 439. The district court rejected BNSF’s argument that
Fresquez failed to make reasonable efforts to mitigate his damages. The district court
also rejected BNSF’s argument that the court was limited to “simply determin[ing] the
length of the front pay period” and lacked authority to “award a specific dollar amount
for front pay.” Id. at 445–46. The district court ordered the parties “to submit
simultaneous supplemental briefing . . . on the issue of the correct amount of back pay
and front pay to be awarded to Fresquez.” Id. at 446. In doing so, the district court
“instructed the parties to not reduce Fresquez’s back pay by the amount Fresquez
received in unemployment benefits,” “to omit any health insurance payments from the
back pay calculation for failure to prove the amount spent due to lack of health
insurance,” “to calculate Fresquez’s estimated but-for wages using the method of expert
witness Jeffrey Opp,” “to calculate the relative loss in health benefits using a multiplier,”
and to “include prejudgment interest using a fixed rate of 5.54%, compounded monthly
and according to a formula approved by the Tenth Circuit.” Id., Vol. III at 666 (footnote
omitted).
On December 17, 2019, the district court issued an order awarding Fresquez “a
total tax-adjusted award of back pay, front pay, and prejudgment interest through
December 17, 2019 of $696,173.” Id. at 681 (emphasis omitted).
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3) Failure to distinguish between front pay and damages for loss of future
earnings capacity
BNSF begins its challenge to the district court’s front pay award by arguing that
the district court committed an error of law when it failed to distinguish between front
pay and damages for loss of future earnings capacity. According to BNSF, the district
court’s award was actually for loss of future earnings capacity rather than front pay in
lieu of reinstatement.
We recently held, in the context of a Title VII case, that damages for lost future
earnings are economic rather than equitable in nature. See Jensen v. West Jordan City,
968 F.3d 1187, 1199–1200 (10th Cir. 2020).13 Notably, however, we have never
addressed the difference between front pay in lieu of reinstatement and damages for loss
of future earnings capacity.
An excellent discussion of this difference is contained in the Seventh Circuit’s
decision in Williams v. Pharmacia, Inc., 137 F.3d 944, 953 (7th Cir. 1998). In that case,
the Seventh Circuit reviewed a district “court’s decision to award both front pay and . . .
lost future earnings as damages” to a plaintiff who had alleged under Title VII and the
Equal Pay Act that defendant, her former employer, had “refused to promote her” “on the
basis of her sex” and subsequently “fired her after she complained that the company paid
13
In Jensen, the plaintiff, a former police officer, effectively claimed reputational
damage caused by defendants wrongfully prosecuting him for criminal activity, and he
asserted that this reputational damage would prevent him from ever obtaining another
position as a police officer.
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men in her position more than it paid women.” Id. at 946. The defendant-employer
argued on appeal “that the front pay award and the lost future earnings award [we]re
duplicative and therefore overcompensatory.” Id. at 953. In addressing and rejecting this
argument, the Seventh Circuit noted that “the two awards compensate the plaintiff for
different injuries.” Id. “Front pay,” the Seventh Circuit noted, “compensated [plaintiff]
for the immediate effects of [defendant’s] unlawful termination of her employment” and
“approximated the benefit [plaintiff] would have received had she been able to return to
her old job.” Id. The Seventh Circuit in turn noted that “[t]he lost future earnings award,
in contrast, compensate[d] [plaintiff] for a lifetime of diminished earnings resulting from
the reputational harms she suffered as a result of [defendant’s] discrimination.” Id.
Thus, the Seventh Circuit noted, “[e]ven if reinstatement had been feasible in this case,
[plaintiff] would still have been entitled to compensation for her lost future earnings.” Id.
The court explained that “[a] reinstated employee whose reputation and future prospects
have been damaged may be effectively locked in to his or her current employer” and
“cannot change jobs readily to pursue higher wages and is more likely to remain
unemployed if the current employer goes out of business or subsequently terminates the
employee for legitimate reasons.” Id. “These effects of discrimination,” the court noted,
“diminish the employee’s lifetime expected earnings.” Id. The Seventh Circuit therefore
held that “there [wa]s no overlap between the lost future earnings award and the front pay
award.” Id.
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Applying these definitions to the facts of our case, it is apparent that Fresquez has
never sought, and the district court did not award him, damages for loss of future
earnings capacity. As previously discussed, Fresquez’s complaint requested
reinstatement to his position with BNSF, and he persisted with that request through the
time of trial. Once it became apparent that reinstatement was not possible, however,
Fresquez then moved for an award of front pay in lieu of reinstatement. Notably,
Fresquez has never alleged nor attempted to prove that BNSF’s retaliatory conduct in
discharging him from his employment damaged his reputation or future prospects of
employment with other employers, as would be necessary for him to obtain a damages
award for loss of future earnings capacity.
Most importantly, the district court’s front pay award is entirely consistent with
the definitions outlined by the Seventh Circuit in Williams. The district court’s award
compensated Fresquez “for the immediate effects of [BNSF’s] unlawful termination of
[his] employment” and “approximated the benefit [Fresquez] would have received had
[he] been able to return to [his] old job.” Id. Although BNSF complains that Opp
referred in his report to “future lost earnings,” Aplt. App., Vol. II at 388, Opp’s
calculations in that regard were based upon the differences between the amounts
Fresquez would have earned had he been reinstated to his position at BNSF and the
amounts that Opp calculated Fresquez could have earned in a non-BNSF position.
Notably, it appears to be undisputed that Fresquez’s earning potential at BNSF was
higher than at any other non-BNSF position he could reasonably obtain. Indeed, because
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BNSF is a unique employer, Fresquez’s BNSF position and the skills he gained while
working in that position cannot be replicated outside of BNSF. Therefore, Fresquez was
left to find analogous positions with non-railroad employers, and he ended up taking
positions as a building inspector.
Thus, in sum, the district court correctly awarded Fresquez front pay in lieu of
reinstatement and did not, as BNSF suggests, actually award him damages for loss of
future earnings capacity.
4) The amount of the front pay award
As part of its challenge to the district court’s award of front pay, BNSF also argues
that the district court abused its discretion by awarding an amount of front pay larger than
the district court’s equitable jurisdiction and the record permitted. Focusing first on what
it describes as the district court’s equitable jurisdiction, BNSF asserts that there is a
traditional limitation on equity practice that prohibits enforcement of what amounts to a
penalty. BNSF in turn argues that “[t]he front pay award here is ‘in the nature of a
penalty.’” Aplt. Br. at 63. BNSF asserts that “[a]n employer makes no ‘profit’ from
discharging an employee, who usually must be replaced, meaning that an award of wages
to the discharged employee requires the employer effectively to pay double for one
employee’s services.” Id. BNSF further argues that “[t]he reasons given by the district
court to justify ten years of front pay instead amount to punishing BNSF for being a good
employer that pays good wages, provides valuable benefits, teaches useful skills, and
offers good working conditions, including comparative job security, providing valued
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employment in communities where equivalent work is hard to come by.” Id. “Those
circumstances,” BNSF argues, “are not ‘individualized’ to Fresquez” and instead
“describe the experiences of the vast majority of BNSF’s over 42,000 employees.” Id. at
64. “Awarding front pay on the basis adopted by the district court,” BNSF argues, i.e.,
“the desirable working conditions . . . BNSF offers[,] thus penalizes the company for
being a good employer, contrary to one of the absolute prohibitions of ‘traditional equity
practice.’” Id. In sum, BNSF argues that “[t]he front pay award to Fresquez was an
‘instrument of punishment’” because “it calibrated the payment amount to the
attractiveness of the economic terms and conditions of employment offered by BNSF.”
Id. at 65.
We reject BNSF’s arguments. The record on appeal makes quite clear that the
district court’s front pay award to Fresquez was not intended to penalize BNSF for its
conduct (the jury’s punitive damages award covered that objective), but rather to
compensate Fresquez for the immediate effects of BNSF’s unlawful termination of his
employment by approximating the salary and benefits Fresquez would have received had
he been reinstated and then worked for BNSF for approximately ten years. Although
BNSF complains that the district court effectively punished it for the “desirable working
conditions” and benefits that it offers to all of its employees, the record refutes that point.
Aplt. Br. at 64. The record, to be sure, confirms that the wages and benefits paid by
BNSF to its employees in the Denver area are higher than analogous non-railroad
positions available to those employees. That higher pay, however, appears to be
80
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 81
attributable, in part, to the fact that BNSF’s non-management employees are union
members who benefit from a collective bargaining agreement between BNSF and their
union. The record on appeal also establishes that BNSF earned a profit of approximately
$4 billion dollars in 2016 and, based at least in part on those profits, made a reasoned and
reasonable decision regarding how much to pay its union employees.
BNSF also fails to mention that the Ninth Circuit recently affirmed a similar, yet
more substantial front pay award to another BNSF employee who was wrongfully
terminated in retaliation for reporting a work-related injury. In that case, the plaintiff,
who like Fresquez presented expert testimony from Opps, was awarded “$1,407,978 for
lost wages and benefits in the future, reduced to present value . . . , for BNSF’s violation
of the FRSA.” Wooten v. BNSF Ry. Co., 387 F. Supp. 3d 1078, 1100 (D. Mont. 2019),
aff’d, 819 F. App’x 483 (9th Cir. 2020). Unlike in Fresquez’s case, the award in Wooten
was intended to cover the remainder of the plaintiff’s career. Id. at 1102 (noting that
Wooten expressed an “intent of working for BNSF until retiring between the ages of 60
and 67”). The district court noted in support of the front pay award that “BNSF is one of
the best-paying jobs available to individuals with limited education in Kalispell,
Montana, and Wooten loved the job and had ambitions within the company.” Id.
Although BNSF argued on appeal that the district court abused its discretion in awarding
the plaintiff front pay, the Ninth Circuit rejected that argument:
Upon careful review, we conclude that the front pay award, although
for an extended period, does not constitute an abuse of discretion based on
the highly unusual, fact specific record before the court. Wooten had a
81
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 82
limited education and was from a small railroad town. He came from a
railroad family—his grandfather retired from the railroad—and worked at
one of the best paying jobs in the area. Notably, Wooten acquired at BNSF
a specific set of skills that were related only to the transportation industry.
After being dismissed in violation of the FRSA, Wooten was faced with an
essentially non-existent job market for comparable paying jobs.
Indeed, BNSF’s own expert confirmed that the job market was highly
unusual. The company’s vocational expert testified that Wooten had a highly
specialized set of skills derived from his work at BNSF; that the most he
could make working at another railroad would be $60,000 (compared to the
approximately $100,000 he had been making at BNSF); that it was unclear
whether another railroad would even be willing to hire him; and that his
insurance job was probably the best-paying job he could otherwise hope to
get. What’s more, it appears that the seniority Wooten had acquired at BNSF
ensured that he would actually get put on jobs with that employer, while his
lack of seniority at any other railroad might have rendered him unable to earn
a full-time salary. BNSF did not show that Wooten would be able to find a
comparable job at any point over his expected working career. Moreover,
given the salary Wooten earned at BNSF and the benefits associated with the
seniority that he enjoyed, Wooten would not have had any economically
rational reason to ever leave BNSF, making it far from speculative to find
that he would have stayed at the company until his retirement.
In the vast majority of cases, a plaintiff will be able to find a
comparable job within a few years, and for that reason, only a few years of
front pay will be sufficient to bridge the gap in earnings. But this is not a
typical situation. The district court’s findings supporting the front pay award
were not clearly erroneous, and the award was not an abuse of discretion.
Wooten, 819 F. App’x at 487. In our view, essentially the same analysis applies to
Fresquez’s case.
BNSF also argues that the district court abused its discretion in setting the end date
for the front pay award because, although the district court correctly “stated the standard
for ending front-pay eligibility as the plaintiff finding a job ‘comparable or superior’ to
the former employment, its analysis shows that in the court’s view only another railroad
82
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 83
job could qualify.” Aplt. Br. at 67 (citation omitted). Further, BNSF argues that the
district court “erred by treating it as established that Fresquez could never work again in
railroading.” Id. BNSF argues, however, that Fresquez’s own actions and testimony
establish that he made no efforts to obtain another railroad job and, instead, “considered
the three building-inspector jobs he obtained ‘substantially equivalent’ to or even
preferable . . . to returning to railroad work.” Id. at 68. Thus, BNSF argues, “[t]he
district court therefore abused its discretion by finding that the proper end date of the
front-pay award to Fresquez extended far beyond the date on which he took what was to
him ‘substantially equivalent’ employment.” Id. at 69.
BNSF failed, however, to present this same argument to the district court. In its
response to Fresquez’s motion for back and front pay, BNSF argued, in pertinent part,
that Fresquez had failed to make sufficient efforts to find other employment and thus
remained unemployed for certain periods of time between May 2016 and October 2017.
According to BNSF, Fresquez “should have been able to find full-time work in his
chosen field of building inspection within one to two months of his termination,” and that
the “median wage for construction and building inspection in the Denver metropolitan
area [was] $66,410.” Aplt. App., Vol. II at 386. But BNSF did not argue in that
response, as it does now in its appeal, that Fresquez considered building inspection
positions to be substantially equivalent employment and, for that reason, that no front pay
should be awarded. We therefore conclude that BNSF has waived this argument. See
83
Appellate Case: 21-1118 Document: 010110766978 Date Filed: 11/10/2022 Page: 84
Little v. Budd Co., 955 F.3d 816, 821 (10th Cir. 2020) (“[A]bsent extraordinary
circumstances, arguments raised for the first time on appeal are waived”).
IV. Affirmance of judgment of district court
The judgment of the district court is AFFIRMED.
84 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483072/ | [Cite as State v. Vanfossen, 2022-Ohio-4022.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
CARROLL COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
BRUCE A. VANFOSSEN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 CA 0953
Criminal Appeal from the
Court of Common Pleas of Carroll County, Ohio
Case No. 2021 CR 06572
BEFORE:
Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Reversed, Vacated, and Remanded
Atty. Steven D. Barnett, Carroll County Prosecutor and Atty. Michael J. Roth, Assistant
Prosecutor, 7 East Main Street, Carrollton, Ohio 44615 for Plaintiff-Appellee and
Atty. Jeffrey Jakmides, Atty. Julie Jakmides Mack, 325 East Main Street, Alliance, Ohio
44601 for Defendant-Appellant.
Dated:
October 27, 2022
–2–
Donofrio, P. J.
{¶1} Defendant-Appellant, Bruce VanFossen, appeals from a Carroll County
Common Pleas Court judgment convicting him of four counts of gross sexual imposition
following a bench trial.
{¶2} On May 25, 2020, a Memorial Day party was held in Carroll County. K.T.,
who was 11 years old at the time, and H.T., who was 15 years old at the time, attended
the party with their sister R.T., their father, their stepmother, and H.T.’s friend J.C. The
partygoers were all friends and their families. Appellant was at the party with his wife and
her children. During the party, people went “mudding” by driving vehicles off-road through
large mud puddles.
{¶3} During one of these mudding runs, K.T. was in the backseat of a vehicle
next to appellant. K.T. alleged that while they were mudding, appellant put his hand inside
of her tank top and sports bra and touched her breast and then touched her thigh. H.T.
alleged that during another of the mudding runs, she was seated in the backseat of a
vehicle next to appellant and he moved his hand from her shoulder and into her shirt.
H.T. then crossed her arms to prevent appellant from putting his hand onto her breast.
Later that night, the girls told each other and their other sister what had happened. They
then told their father and stepmother. An argument ensued among the adults and the
sheriff’s department was called.
{¶4} A.D. is appellant’s stepdaughter. She was also at the Memorial Day party.
A.D. goes to school with H.T. and K.T. She heard about the allegations at the party but
did not witness anything. Later, A.D. disclosed to her counselor that appellant had
touched her inappropriately. Specifically, A.D. alleged that appellant touched her on three
different occasions. A.D. reported that: appellant had put his hand down her pants while
she was alone with him in his truck; appellant put his hand under her shirt and touched
her breast while they were sitting on the couch; and appellant again put his hand under
her shirt and touched her breast when she had fallen asleep watching television.
{¶5} On January 6, 2021, a Carroll County Grand Jury indicted appellant on
four counts of gross sexual imposition, third-degree felonies in violation of R.C.
2907.05(A)(4), and one count of sexual imposition, a third-degree misdemeanor in
violation of R.C. 2907.06(A)(4). Appellant entered a not guilty plea.
Case No. 21 CA 0953
–3–
{¶6} The matter was initially set for a jury trial. But three days before trial was
set to commence, appellant filed a written waiver of jury trial.
{¶7} The matter proceeded to a bench trial on August 16 and 17, 2021. The trial
court found appellant guilty of the four counts of gross sexual imposition but not guilty of
the single count of sexual imposition. It then set the matter for a sentencing hearing.
{¶8} At the August 23, 2021 sentencing hearing, the court sentenced appellant
to 24 months in prison on each of the four counts to be served consecutively for a total
sentence of 96 months. The court also classified appellant as a Tier II Sexually Oriented
Offender.
{¶9} Appellant filed a timely notice of appeal on September 16, 2021. He now
raises three assignments of error.
{¶10} Appellant’s first assignment of error states:
DEFENDANT BRUCE VANFOSSEN WAS DENIED DUE
PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN
AN INVALID WAIVER OF JURY TRIAL WAS ACCEPTED BY THE
COURT.
{¶11} Appellant argues the trial court failed to properly ensure in open court that
he was waiving his right to a jury trial. He points out that the entire conversation regarding
the waiver of his right to a jury trial was between his counsel and the court. He claims the
trial court was required to, and failed to, address him personally to confirm that he in fact
wished to waive his right to a jury trial.
{¶12} The Sixth Amendment to the United States Constitution and Section 10,
Article I, of the Ohio Constitution provide criminal defendants with the right to a jury trial.
Crim.R. 23(A) provides that “[i]n serious offense cases the defendant before
commencement of the trial may knowingly, intelligently and voluntarily waive in writing his
right to trial by jury.”
{¶13} R.C. 2945.05 addresses the manner of the waiver of the right to a jury trial:
Case No. 21 CA 0953
–4–
In all criminal cases pending in courts of record in this state, the
defendant may waive a trial by jury and be tried by the court without a jury.
Such waiver by a defendant, shall be in writing, signed by the defendant,
and filed in said cause and made a part of the record thereof. It shall be
entitled in the court and cause, and in substance as follows: “I __________,
defendant in the above cause, hereby voluntarily waive and relinquish my
right to a trial by jury, and elect to be tried by a Judge of the Court in which
the said cause may be pending. I fully understand that under the laws of
this state, I have a constitutional right to a trial by jury.”
Such waiver of trial by jury must be made in open court after the
defendant has been arraigned and has had opportunity to consult with
counsel. Such waiver may be withdrawn by the defendant at any time before
the commencement of the trial.
{¶14} Thus, pursuant to the statute, the waiver must be made both in writing and
in open court.
{¶15} In addressing what constitutes a valid waiver, the Ohio Supreme Court
has construed R.C. 2945.05 to require that five conditions be met in order for a waiver to
be validly imposed.
The waiver must be (1) in writing, (2) signed by the defendant, (3) filed, (4)
made part of the record, and (5) made in open court. See State v. Lomax,
114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9. Trial courts must
strictly comply with the requirements of R.C. 2945.05. State v. Pless (1996),
74 Ohio St.3d 333, 337, 339, 658 N.E.2d 766; State ex rel. Jackson v.
Dallman (1994), 70 Ohio St.3d 261, 262, 638 N.E.2d 563. “In the absence
of strict compliance with R.C. 2945.05, a trial court lacks jurisdiction to try
the defendant without a jury.” Pless at 337, 658 N.E.2d 766.
(Emphasis added); State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d
905 (10th Dist.), ¶ 11.
Case No. 21 CA 0953
–5–
{¶16} In this case, appellant signed a Notice to the Court stating that he was
waiving his right to a jury trial and wished to proceed to a bench trial. (August 13, 2021
DEFENDANT’S NOTICE TO THE COURT). This notice also provided that appellant was
waiving “his right to a jury trial of his own free will, not under duress, and had had all of
his questions answered regarding this.” (August 13, 2021 DEFENDANT’S NOTICE TO
THE COURT).
{¶17} There is no dispute that appellant signed a written jury waiver and that the
written waiver was made part of the record by filing it in the trial court. Thus, the trial court
strictly complied with the first four conditions of R.C. 2945.05 and Lomax. The dispute
here is whether the trial court complied with the fifth condition.
{¶18} The following colloquy took place between appellant’s counsel and the
court just prior to trial:
THE COURT: * * * Mr. Guinn [defense counsel] you have filed a
Notice of and Intent to the Court, so please tell me about that?
ATTY GUINN: Thank you, Your Honor. In conversation with my
client and we had met last week about doing a bench trial or a jury trial.
After discussion, he’s agreed to waive his right to a jury trial and would
rather have a bench trial in this matter. So, I filed that and he signed it.
THE COURT: Okay. And he’s done that through his own free will?
ATTY GUINN: Yes. Yes, he has.
THE COURT: Not under duress or any other circumstances, it’s just
the type of trial he wants. Correct?
ATTY GUINN: Correct. We discussed it and he agreed. So. . .
THE COURT: Okay. Very good. Then that’s what we will do.
(8/16/21 Tr. 3).
{¶19} This was the extent of the discussion of appellant’s waiver. The trial court
did not once address appellant on the issue.
Case No. 21 CA 0953
–6–
{¶20} The trial court need not engage in a lengthy colloquy with the defendant.
For instance, in Sanders, the Tenth District found that when the trial court stated to the
appellant in open court, “[I]t is my understanding that you have waived your right to a jury
trial and would like to have the court decide this case,” and the appellant replied, “yes”,
this satisfied the minimum requirements of R.C. 2945.05 and Lomax. 188 Ohio App.3d
452, at ¶ 13.
{¶21} But the court must address the defendant, however briefly, in open court
and get a response in return.
{¶22} In State v. Banks, 10th Dist. Franklin No. 18AP-808, 2019-Ohio-5440, ¶
24, the transcript did not reflect any colloquy between the court and the appellant
regarding the waiver of jury trial. The transcript did contain numerous references to the
appellant's waiver of a jury trial, but the record did not show that the trial court personally
addressed appellant about the waiver. Id. Additionally, the transcript did not show that
the appellant orally acknowledged, in open court, that he wished to waive the right to a
jury trial. Id. The Tenth District found, that pursuant to Ohio Supreme Court case law, an
oral acknowledgement by the defendant in open court that he or she wishes to waive the
right to a jury trial is required in order to comply with the requirements of R.C. 2945.05 for
the jury waiver to be valid. Id. at ¶ 25. Because the record in that case did not reveal any
such acknowledgment by appellant, the appellate court found the trial court did not strictly
comply with the requirements of R.C. 2945.05, and the jury waiver was invalid. Id. Thus,
it concluded, the trial court did not have jurisdiction to conduct a bench trial on the charge.
Id.
{¶23} And in State v. Burnside, 186 Ohio App.3d 733, 2010-Ohio-1235, 930
N.E.2d 372 (2d Dist.), the appellate court found that even though the trial court conducted
a colloquy in-chambers with the appellant in which the trial court took care to ensure the
appellant understood his right to a jury trial, understood the risk of having one person
rather than a group of 12 determine the verdict, and made a knowing, intelligent, and
voluntary waiver of his right to a jury trial, this did not satisfy the “in open court”
requirement. The Second District stated:
The right to a jury trial in a felony criminal case is a fundamental right. We
are mindful that a defendant could “sandbag” the court, but the legislature
Case No. 21 CA 0953
–7–
has concluded, and the Ohio Supreme Court has agreed, that a jury waiver
(or at least its acknowledgment) must be in open court. In this particular
case, we have no doubt that Burnside waived a jury and agreed to be tried
by the court, but the “in open court” rule is prophylactic and designed to
protect all defendants, not just this one. Considering that the written waiver
need not be signed in open court and the trial court need not engage in an
extensive discussion with a defendant, it is not difficult for a trial court to
comply with the open-court requirement.
Id. at ¶ 73.
{¶24} In finding the trial court’s brief conversation with the defendant regarding
his waiver of the right to a jury trial to be sufficient, this court stated:
[T]he law simply requires there to be some evidence in the record that the
defendant while in the courtroom and in the presence of counsel, if any,
acknowledged that he wishes to waive the right to a jury trial. Lomax, 114
Ohio St.3d 350 at ¶ 48-49. This does not require a specific reference to the
written waiver. All that is necessary to satisfy the open court requirement of
R.C. 2945.05 is for the defendant to inform the trial judge in open court that
he was waiving his right to a jury trial.
State v. Kelly, 7th Dist. Mahoning No. 14 MA 100, 2015-Ohio-2588, ¶ 24.
{¶25} Finally, it should be noted that the fact that the defendant did not object to
the court proceeding with a bench trial is of no consequence. State v. Grier, 2d Dist.
Montgomery No. 23662, 2010-Ohio-5751, ¶ 15, citing State v. Tate, 59 Ohio St.2d 50, 53,
391 N.E.2d 738 (1979). “‘Silent acquiescence to a bench trial is not sufficient to constitute
a waiver of a defendant's right to a jury trial.’” Id., quoting Tate, 59 Ohio St.2d at 53.
{¶26} Given the above, the trial court here erred in not addressing appellant in
open court regarding his purported jury trial waiver. The court failed to strictly comply
with R.C. 2945.05. In the absence of strict compliance with R.C. 2945.05, the trial court
lacked jurisdiction to try appellant without a jury.
Case No. 21 CA 0953
–8–
{¶27} Accordingly, appellant’s first assignment of error has merit and is
sustained.
{¶28} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL
WHEN COURTROOM SPECTATORS WERE SEEN MAKING COACHING
GESTURES TO THE ALLEGED VICTIM AS SHE WAS TESTIFYING.
{¶29} Appellant’s third assignment of error states:
THE JUDGMENT AND VERDICT OF THE TRIAL COURT ARE
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶30} Given our resolution of appellant’s first assignment of error, his second
and third assignments of error are rendered moot.
{¶31} For the reasons stated above, the trial court’s judgment is hereby
reversed. Appellant’s conviction and sentence are vacated and this matter is remanded
for a new trial.
Robb, J., concurs.
D’Apolito, J., concurs.
Case No. 21 CA 0953
[Cite as State v. Vanfossen, 2022-Ohio-4022.]
For the reasons stated in the Opinion rendered herein, the first assignment of error
is sustained. The second and the third assignments of error are moot. It is the final
judgment and order of this Court that the judgment of the Court of Common Pleas of
Carroll County, Ohio, is reversed and vacated. We hereby remand this matter to the trial
court for further proceedings according to law and consistent with this Court’s Opinion.
Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483083/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0207
DA 22-0207
FILL.L)
HELEN WEEMS AND JANE DOE, NOV 1 0 2022
Bowen GreerAcod
Plaintiffs and Appellees, < of FL rer Court
S,ate o. rvInntarla
v.
ORDER
STATE OF MONTANA, by and through AUSTIN
KNUDSEN, in his official capacity as Attorney
General; and TRAVIS R. AHNER, in his official
capacity as County Attorney for Flathead County,
Defendants and Appellants.
Pursuant to the Internal Operating Rules of this Court, this cause is classified for
oral argument before the Court sitting en banc and is hereby set for argument on
Wednesday, December 14, 2022, at 9:30 a.m. in the courtroom of the Montana Supreme
Court, Joseph P. Mazurek Justice Building, Helena, Montana.
IT IS FURTHER ORDERED that pursuant to M. R. App. P. 17(3), oral argurnent
times in this cause number shall be forty (40) minutes for the Appellants and thirty (30)
minutes for the Appellees.
Counsel should be mindful of the provisions of M. R. App. P. 17(6).
The Court will not entertain any motions to reschedule.
The Clerk is directed to provide a copy hereof to all counsel of record and to the
Honorable Mike Menahan, District Judge.
DATED this/V..‘ day of November, 2022.
For the Court,
Chief Justice | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483076/ | Case: 21-20673 Document: 00516540857 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-20673 November 10, 2022
Summary Calendar Lyle W. Cayce
Clerk
Preston Jerome Taylor,
Plaintiff—Appellant,
versus
Officer Crowe; Cox, Police Officer; State of Texas/Harris
County Jail,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-2870
Before King, Jones, and Smith, Circuit Judges.
Per Curiam:*
While he was incarcerated at the Mobile County Metro Jail, Preston
Jerome Taylor filed a 42 U.S.C. § 1983 complaint in which he alleged that he
was unlawfully arrested and that this resulted in his false imprisonment at the
*
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: 21-20673 Document: 00516540857 Page: 2 Date Filed: 11/10/2022
No. 21-20673
Harris County Jail. He seeks to proceed in forma pauperis (IFP) on appeal
from the dismissal of his complaint for failure to state a claim. By moving to
proceed IFP, he is contesting the district court’s implicit certification that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a).
Taylor asserts that the denial of his request to proceed IFP on appeal
was unjust. He notes that he was granted leave to proceed IFP in the district-
court action and should have been allowed to proceed IFP on appeal without
further authorization. His claim lacks merit. See Fed. R. App. P. 24(a)(3).
He also effectively reiterates his claim that he was falsely arrested and
that this led to his false imprisonment. He asserts that there was no probable
cause to support his arrest and argues that he fled from officers because they
initiated a traffic stop that he felt was illegal and threatening.
Taylor does not dispute that he was arrested and indicted by a grand
jury for an offense pursuant to Texas Penal Code § 38.04. The indictment
establishes probable cause and “breaks the chain of causation for false arrest”
and the decision to hold Taylor in jail. Deville v. Marcantel, 567 F.3d 156, 170
(5th Cir. 2009). The indictment in this case signified that, as a matter of law,
the grand jury found probable cause that each element of an offense pursuant
to Texas Penal Code § 38.04 was met. See Gerstein v. Pugh, 420 U.S. 103, 117
n.19 (1976). It is immaterial that Taylor was not charged with a crime related
to the stop that preceded his flight or that the charge under Texas Penal Code
§ 38.04 ultimately was dismissed. See, e.g., Pierson v. Ray, 386 U.S. 547, 555
(1967); Buehler v. City of Austin/Austin Police Dep’t., 824 F.3d 548, 554 (5th
Cir. 2016). Further, Taylor has not alleged any facts suggesting or supporting
that the grand jury’s decision to indict was tainted by the defendants’ actions.
See Anokwuru v. City of Houston, 990 F.3d 956, 963-64 (5th Cir. 2021).
2
Case: 21-20673 Document: 00516540857 Page: 3 Date Filed: 11/10/2022
No. 21-20673
Finally, Taylor suggests that the district court erred by dismissing his
suit without giving him a chance to bolster his allegations or provide further
information in support of his claims. However, he has failed to set forth any
facts or evidence that he could have presented that would have salvaged his
complaint. He has not indicated how his allegations could pass muster with
further factual development and specificity or detailed the facts that he could
have set forth that would have been sufficient to state a claim if he had been
given the chance. Thus, Taylor has not demonstrated that the district court
improperly dismissed his complaint sua sponte without allowing him to offer
more facts or evidence. See 28 U.S.C. § 1915(e)(2)(B); Brewster v. Dretke,
587 F.3d 764, 768 (5th Cir. 2009).
Given the foregoing, the IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5th Cir. R. 42.2. Taylor’s motions to supplement the record and
to compel the district court to disclose a docket entry are DENIED.
The dismissals of this appeal and of Taylor’s suit in the district court
count as strikes under 28 U.S.C. § 1915(g). See Adepegba v. Hammons,
103 F.3d 383, 387 (5th Cir. 1996), abrogated in part on other grounds by Coleman
v. Tollefson, 575 U.S. 534, 534-41 (2015). Taylor had at least one prior § 1983
suit dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim. See Taylor
v. Oliver, No. 1:17-CV-289 (S.D. Ala. Jan. 8, 2019). He now has three strikes.
See Coleman, 575 U.S. at 537. Thus, he is now BARRED from proceeding
IFP in any civil action or appeal filed while he is incarcerated or detained
unless he is under imminent danger of serious physical injury. See § 1915(g);
Brewster, 587 F.3d at 770. Taylor is WARNED that any pending or future
frivolous or repetitive filings in this court or any court subject to this court’s
jurisdiction may subject him to additional sanctions.
3 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483075/ | Case: 22-20210 Document: 00516540851 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-20210 FILED
Summary Calendar November 10, 2022
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Fazil Masud Imdad,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-639-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
The attorney appointed to represent Fazil Imdad has moved to with-
draw and has filed a brief per Anders v. California, 386 U.S. 738 (1967), and
United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Imdad has not filed a
response.
*
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 circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 22-20210 Document: 00516540851 Page: 2 Date Filed: 11/10/2022
No. 22-20210
We have reviewed counsel’s brief and relevant portions of the record.
We concur with counsel’s assessment that the appeal presents no non-
frivolous issue for appellate review. Accordingly, the motion 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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483074/ | Case: 22-10337 Document: 00516540844 Page: 1 Date Filed: 11/10/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10337
Summary Calendar FILED
November 10, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Markus Dewayne Vine,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-489-1
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
The attorney appointed to represent Markus Vine has moved to with-
draw and has filed a brief per Anders v. California, 386 U.S. 738 (1967), and
United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Vine has not filed a
response.
*
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 circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10337 Document: 00516540844 Page: 2 Date Filed: 11/10/2022
No. 22-10337
We have reviewed counsel’s brief and relevant portions of the record.
We concur with counsel’s assessment that the appeal presents no non-
frivolous issue for appellate review. Accordingly, the motion 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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483097/ | 2022 IL App (1st) 190492-U
No. 1-19-0492
Order filed November 10, 2022
Fourth Division
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 21890
)
EUGENE BOOKER, ) Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge, presiding.
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Lampkin and Justice Martin concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction of first degree murder where the trial court did
not err by admitting evidence of his two prior sexual assaults to show the victim
did not consent during the rape that preceded the instant offense. The prosecutor’s
comments during closing arguments did not constitute reversible error.
¶2 Following a jury trial, defendant Eugene Booker was convicted of first degree murder (Ill.
Rev. Stat., ch. 38, § 9-1(a)(1)) and sentenced to 40 years’ imprisonment. On appeal, defendant
contends that (1) the trial court improperly allowed other-crimes evidence showing he sexually
No. 1-19-0492
assaulted two women in unrelated cases, and (2) the prosecutor repeatedly argued facts not in
evidence during closing arguments. For the following reasons, we affirm.
¶3 On December 15, 2014, defendant was charged with three counts of first degree murder
for the 1981 stabbing death of Carol Novak. The State alleged that defendant killed Novak
intentionally or knowingly (count I), knowing he created a strong probability of death or great
bodily harm (count II), and while committing rape (count III).
¶4 On June 9, 2015, the State filed a pretrial motion to admit evidence of seven crimes
defendant committed between March and November 1986. The State argued the evidence was
admissible to show defendant’s propensity to commit sex offenses pursuant to section 115-7.3 of
the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2014)). Additionally,
the State maintained the evidence was admissible to show intent, identity, modus operandi, motive,
and lack of consent. Six offenses involved defendant’s convictions for aggravated criminal sexual
assault. Each of those victims, women between ages 21 and 42, were attacked in their homes on
the north side of Chicago in the evening. In each instance, defendant gained entry by catching an
open door or concocting a ruse. Defendant strangled several victims, and in five of the incidents,
he held a knife or sharp instrument to the victim’s neck. The seventh conviction was for aggravated
battery, where the female victim managed to escape from defendant. While in the military,
defendant was also convicted of rape and assault and imprisoned from February 1982 to December
1985, a time period between this offense and the occurrence of the other crimes.
¶5 At the hearing on the motion, the State withdrew its request to allow the other-crimes
evidence to show propensity but maintained that the evidence was admissible to show defendant’s
intent, identity, motive, modus operandi, and lack of consent. The court allowed the motion as to
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No. 1-19-0492
three aggravated criminal sexual assault offenses, noting that the trial transcripts from those cases
would aid defense counsel in cross-examining the victims. The trial court denied the motion as to
defendant’s four other convictions because he had pled guilty in those cases and the files had since
“been destroyed.”
¶6 Defendant’s trial began on October 22, 2018. In opening statements, the State informed the
jury that Novak was murdered on October 2, 1981, in her home on the 5800 block of North Paulina
Street in Chicago. She was discovered wearing only a bra and jeans, and had been sexually
assaulted and stabbed. “[T]he case went cold” until 2013, when new forensic testing of the
evidence revealed a match with defendant’s DNA profile.
¶7 In his opening statement, defense counsel acknowledged that defendant had convictions
for rape and had served a prison sentence. Defendant, however, “did not murder Carol Novak,”
and the evidence would not “even prove that he forcibly raped her.” Counsel told the jury that no
witness would testify as to when or where the sexual encounter between defendant and Novak
occurred. Furthermore, the State would not produce “a single eyewitness as to whether or not the
sexual encounter was by force or was consensual.”
¶8 Thomas Loftus testified that Novak was his girlfriend in October 1981. He drove Novak to
work most mornings but when he did not drive, Novak took the CTA Red Line. On October 1,
1981, Loftus spoke with Novak on the phone at 3:30 p.m. while she was at work. Later, he met a
friend for dinner and drinks. After returning home, Loftus called Novak around 8:30 p.m. but she
did not answer.
¶9 When Loftus arrived at Novak’s residence around 6 a.m. the next morning, her back door
was unlocked and the lights were on. He opened the door and saw blood on the floor and broken
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No. 1-19-0492
blinds on the window. Loftus found Novak’s dog in the pantry with blood on the side of its head
and saw Novak on her living room floor covered in blood. After touching her, he knew “she had
been dead for some time.” Loftus called the police, who took his fingerprints, fingernail scrapings,
and a blood sample.
¶ 10 Retired Chicago police detective James Gildea testified that on October 2, 1981, he entered
Novak’s home and observed her body face down on the floor just inside the living room. A trail
of blood led from her body to a bedroom, through the kitchen, and to the enclosed back porch.
There was a large blood stain on the back porch and the blinds from the porch window were on
the floor. In the bedroom, Gildea saw bloodstains “in the shape of hands” on the bedsheets. A blue
blouse was on the bed, and four buttons from the blouse were on the floor. A pair of panties were
also on the floor, “three or four feet from the bed.” When Gildea spoke with Loftus at Novak’s
house, he observed no marks, scratches, or cuts that would indicate Loftus had been in a fight.
¶ 11 Retired Chicago police detectives John Quattrocki and Tom Ginnelly testified that they
photographed the crime scene, lifted fingerprints, and took vials of blood “everywhere [they] found
it.” The detectives recovered a bloody bedsheet from the bedroom, as well as an “oxford-style”
blue shirt “that appeared to have been either torn apart or torn off” so that the buttons “had come
off.” Ginnelly went to the morgue to collect Novak’s blood vial, hair samples, and her oral, vaginal,
and rectal swabs. Retired Chicago police detective J.J. Bittenbinder testified that he recovered a
bloodstained woman’s jacket from Novak’s home and transported it to the crime lab.
¶ 12 Cook County assistant medical examiner Dr. Kirstin Howell testified that she reviewed
Novak’s autopsy report dated October 3, 1981. Novak wore a white bra and blue jeans, but not
underwear. Her body had 105 “sharp force injuries” to the face, neck, right shoulder, and trunk.
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No. 1-19-0492
Injuries to the right upper and lower lobes of the lungs caused the lungs to collapse. On cross-
examination, Dr. Howell stated that the vaginal and cervical exam proved “unremarkable” with no
notation of injury or trauma. Such injuries, however, are not always associated with sexual assault.
Howell opined that the cause of death was “multiple stab wounds” and the manner of death was
homicide.
¶ 13 Christine Kokoconski Sahs, a microanalyst for the Chicago police department crime lab,
testified that in October 1981 she conducted chemical tests on the bloodstains found on the
bedsheets and jacket. She also examined Novak’s oral, rectal, and vaginal swabs for the presence
of semen. The vaginal swab tested positive for semen, but the oral and rectal swabs did not. She
did not perform DNA testing on the samples because such testing did not exist in 1981. Sahs
retained the bedsheet and six cuttings from the jacket for future testing.
¶ 14 Retired Chicago police detective Denise Troche testified that in 2013, she reviewed
Novak’s case for the cold case investigations team. She located evidence including Novak’s
vaginal swab and blood vial, Loftus’s fingernail scrapings, a box of blood extracts from a bedsheet,
and six cuttings from a woman’s jacket.
¶ 15 Chicago police detective Rolando Rodriguez testified that he obtained a warrant to collect
DNA samples from defendant at Hill Correctional Center in February 2014. Rodriguez showed
defendant photographs of Novak, but defendant said he had never seen her. After obtaining a
buccal swab and thumb prints from defendant, Rodriguez sent the material to the crime lab.
¶ 16 Kelli Byrd, a senior forensics DNA analyst at Bode Cellmark, testified that she conducted
DNA analysis in Novak’s case. She tested some “threads” with Novak’s blood, which she used as
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No. 1-19-0492
the standard for Novak’s DNA profile. She also received Loftus’s fingernail clippings containing
his DNA profile.
¶ 17 Byrd then analyzed the sperm found on Novak’s vaginal swab and identified a partial male
DNA profile that did not match Loftus’s profile. She analyzed two cuttings containing blood from
a woman’s jacket and found an unknown partial male DNA profile that appeared to be the same
as the partial profile on the vaginal swab. Another bloodstain from the jacket revealed a mixed
DNA profile, with the major profile originating from a male with the same DNA profile as the
unknown male from the sperm sample. She tested a bloodstain on the bedsheet, which also
contained a mixture of DNA. The major DNA profile was consistent with Novak’s profile and the
minor DNA profile originated from a male with the same DNA profile as the sperm on Novak’s
vaginal swab.
¶ 18 Byrd sent the unknown male DNA profile to the Illinois State Police crime lab. After the
information was run through the FBI’s national database, defendant was linked to the male DNA
profile in Novak’s case.
¶ 19 Byrd received defendant’s DNA standard from the Illinois State Police in 2014. She
concluded that defendant’s DNA profile was consistent with the partial male DNA profile from
the sperm on Novak’s vaginal swab. The chance of a random person matching the DNA profile
found on the swab was 1 in 51.03 trillion black, 1 in 93.67 trillion southwestern Hispanic, 1 in 2.49
trillion southeastern Hispanic, 1 in 1.43 trillion Asian, and 1 in 286.6 trillion white individuals.
Defendant’s DNA profile was also consistent with the partial male DNA profile found in the three
bloodstains from the woman’s jacket and defendant could not be excluded as a contributor to the
mixed profile found on the bedsheet.
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No. 1-19-0492
¶ 20 Greg Didomenic, a biology DNA supervisor at the Illinois State Police, testified that he
used the standard received from defendant and identified a DNA profile suitable for comparison.
Didomenic confirmed that defendant could not be excluded from the partial male DNA profile
obtained from Novak’s vaginal swab.
¶ 21 Before the State called the next two witnesses, the trial court gave the following instruction
to the jury:
“Evidence will be received that defendant was involved in offenses other than
charged in the indictment. This evidence will be received on the issues of defendant’s
identification, intent, *** motive, modis [sic] operandi, common design, and lack of
consent and may be considered by you only for those limited purposes.”
¶ 22 P.M. testified that around 8:30 p.m. on November 6, 1986, she was dropped off near her
building on the 800 block of West Brompton Avenue in Chicago. She entered the vestibule
carrying her briefcase and groceries. P.M. saw a hand catch the entrance door. A black man with
a long beard entered the vestibule. She identified defendant in court as that man.
¶ 23 Defendant told P.M. that he wanted to surprise his friend “Johnny” who lived on the second
floor, and asked P.M. to let him into the building. P.M. told defendant he would need to “buzz”
his friend. Defendant said Johnny was not his friend and would not answer if defendant buzzed his
apartment. P.M. felt “something was wrong” and tried to slip through the locked interior door.
However, defendant stepped inside before P.M. could close the door.
¶ 24 P.M. ran up the stairs, but defendant grabbed her, pulled her close to him, and put a knife
or box cutter to her cheek. Defendant ordered P.M. to unlock the door to her apartment and
threatened to “slash” her face if she disobeyed. Inside the apartment, defendant pushed P.M. into
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No. 1-19-0492
the bedroom, blindfolded and gagged her, and tied her with her pantyhose. When P.M.’s telephone
rang, defendant disconnected her answering machine. He continued to hold the knife to her face.
¶ 25 Defendant told P.M. to remove her clothes. As she fumbled with a pin on her collar,
defendant “reached up and ripped it off” of her blouse. Defendant bent P.M. over her bed and
penetrated her vagina with his penis. He penetrated her again as she lay on her back. After the
assault, defendant took P.M. to the bathroom and turned on the water in the bathtub. He said he
would check on her and if she moved, he would kill her. He checked four or five times. After a
long time without defendant returning, P.M. fled and screamed for help. She later discovered that
defendant stole money, liquor, a clock radio, and jewelry. On January 7, 1987, P.M. identified
defendant in a line-up as the man who attacked her.
¶ 26 S.L. testified that on April 10, 1986, she left work around 8:30 p.m. and took the bus to her
building on the 1200 block of West Loyola Avenue in Chicago. While at her mailbox in the lobby,
she heard a tap on the locked glass front door. A man, whom S.L. identified in court as defendant,
told S.L. that he forgot his keys and asked her to let him in. S.L. opened the door. As she walked
up the stairs to her apartment, defendant closely followed her. He asked if “Debbie Truman” lived
in the building and S.L. became concerned. When defendant asked to use S.L.’s phone, she told
him to use the phone at the nearby CTA Red Line station.
¶ 27 S.L. tried to run but defendant grabbed her and put his hand over her mouth. With his other
hand, he held a knife to her neck and told her not to scream. Defendant ordered S.L. to open the
door to her apartment and pushed her into her bedroom, where he instructed S.L. to remove her
clothing down to her camisole and slip. After she complied, defendant tied and gagged her with
her pantyhose, and blindfolded her with a shirt. He asked where she kept her money, liquor, and
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No. 1-19-0492
jewelry. Defendant ordered S.L. to lie flat on the bed and he penetrated her vagina with his penis.
After the assault, S.L. heard defendant turn on the water in the bathroom. She remained still for
“an eternity” until she realized there was “nothing left for him to do” but kill her. S.L. dressed and
ran to the CTA station to call the police. She later discovered that she was missing money and
jewelry. On January 8, 1987, she identified defendant in a line-up as the person who assaulted her.
¶ 28 The State rested after presenting a total of 15 witnesses. Defendant moved for a directed
verdict, which the trial court denied.
¶ 29 The defense called Fran Langner who testified that she worked with Novak. On October 1,
1981, Novak told Langner that she was taking a personal day on October 2, 1981, to prepare for
company coming to visit her for the weekend.
¶ 30 Pam Mueller testified that shortly after Novak’s murder, Mueller’s friend Rita Burke asked
her to help clean Novak’s home. Burke was also a friend of Novak. While cleaning the home,
Mueller noticed two wine glasses on the coffee table.
¶ 31 Rosa Silva, an investigator, testified that she worked with defendant’s trial attorney to
investigate Novak’s murder. She went to Loftus’s home in March 2017 to interview him, but he
declined.
¶ 32 Prior to closing arguments, the court instructed the jury regarding the elements of the
charged offenses and also defined the term “rape.” In relevant part, the court stated that “when I
use the words force or against her will, I mean that under the circumstances, the female did not
voluntarily consent to sexual intercourse.” The trial court also instructed jurors that “the evidence
you should consider consists only of the testimony of witnesses, the exhibits and the stipulations
which the Court has received.” Further,
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No. 1-19-0492
“Closing arguments *** should be confined to the evidence and to reasonable inferences
to be drawn from the evidence. Neither opening statements nor closing arguments are
evidence, and any statement or argument made by the attorney which is not based on the
evidence should be disregarded.”
¶ 33 The State’s closing argument, comprising approximately 12 pages of the report of
proceedings, primarily focused on evidence showing that defendant’s DNA profile was consistent
with the DNA evidence found at the crime scene. The State urged the jury to consider the DNA
evidence from the semen and blood, which was the “ultimate circumstantial evidence.” Given the
probabilities of a match like defendant’s, “[t]here is no doubt this defendant’s DNA was in Carol
Novak’s vagina.” Her body was discovered face down, with bare feet, wearing only a bra and jeans
with no underwear. The State further argued,
“What happened is that the defendant raped Carol Novak, and then when he was going
through her house or whatever he was doing, she thought she could make a break for it and
she pulled on her jeans and she tried to run out of there. *** There is nothing about this
picture that tells you anything was consensual about what happened in her apartment in
October of 1981.
You also heard about how there was blood throughout the house. There was a
struggle. Carol probably went to this door and tried to get out, and the blinds were knocked
down. *** That evidence tells you this was not consensual.
***
And this, again, is another big problem with the interpretation that the defense offered you
in opening statement, because the person who killed and raped Carol Novak, stabbed her
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No. 1-19-0492
over a hundred times, you better believe that that knife slipped and that person who did
that stabbing cut their hand and left their blood behind, which explains the blood DNA,
and tells you and gives you one reasonable conclusion about what happened in this case.
***
When you put all this evidence together, the DNA, the defendant’s common design
and modus operandi and his motive in these attacks, there is *** only one reasonable
conclusion as to all of this evidence, this defendant came upon [Novak] as she was coming
home that night. He had a knife. He gained access to her house because he approached her
with that knife and he took her to the bedroom, where you saw the panties on the floor,
where you saw the blood streaked on that bed *** and he raped [Novak], and then maybe
he learned his lesson and subsequently tied up the other women.
He went through the house. [Novak] made a break for it, but he was still there and
he attacked. He stabbed [Novak] repeatedly and he cut himself.”
¶ 34 In closing argument, defense counsel argued that Loftus killed Novak after discovering she
had sex with defendant. Stabbing a person over 100 times was an act of passion or jealousy, not
the act of an unknown intruder. Counsel also argued that Novak’s case was different from the
attacks on P.M. and S.L. in that defendant’s method of entering apartment buildings would not
work for a single-family home. Also, P.M. and S.L. were blindfolded, gagged, and tied with
pantyhose, and defendant stole valuables. In the other cases, defendant turned on the water before
leaving the apartment and cut the phone cord. Novak’s case had none of these details.
¶ 35 In rebuttal, the State argued that the other offenses were similar to Novak’s case because
“[s]omehow he got into the house. *** He either struck up a conversation with her. Can I use your
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No. 1-19-0492
phone, my car broke down, or he laid in wait outside of her porch, waited for her to start to open
the door and put a knife to her, just like the other two, modus operandi.” Also, “[o]nce he got into
the house he raped her with the knife. And they’re saying, well, its [sic] not a violent rape. *** He
went as he usually does foraging through the house looking for things to steal.” Defense counsel
objected, arguing that the State’s remark misstated the evidence. The trial court overruled the
objection.
¶ 36 As the jury deliberated, the defense moved for a mistrial based on the prosecutor’s
misstatements and also renewed its motion for a directed verdict. The trial court denied both
motions.
¶ 37 The jury found defendant guilty of first degree murder.
¶ 38 Defendant filed a motion for a new trial, arguing that the admission of other-crimes
evidence and the prosecutor’s comments during closing argument denied him a fair trial. The trial
court denied the motion.
¶ 39 Following a hearing, the trial court sentenced defendant to 40 years’ imprisonment.
Defendant filed a motion to reconsider sentence, which the trial court denied.
¶ 40 On appeal, defendant first contends that the admission of P.M.’s and S.L.’s testimony was
error where (1) the evidence was admitted for no permissible purpose, (2) defendant’s attacks on
P.M. and S.L. were not similar to the attack on Novak, and (3) the trial court’s overbroad
instruction to the jury regarding the other-crimes evidence prejudiced him.
¶ 41 Evidence is admissible if it is relevant. People v. Pikes, 2013 IL 115171, ¶ 21 (citing Ill.
R. Evid. 402 (eff. Jan. 1, 2011)). Relevant evidence tends to make the existence of any fact
consequential to the case’s determination more or less probable than it would be without the
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No. 1-19-0492
evidence. Id. (citing Ill. R. Evid. 401 (eff. Jan. 1, 2011)). Other-crimes evidence, however, is
generally inadmissible not because it is irrelevant, but because it has “too much” probative value.
People v. Manning, 182 Ill. 2d 193, 213 (1998). Such evidence may cause the jury to convict a
defendant for being “a bad person deserving punishment.” People v. Donoho, 204 Ill. 2d 159, 170
(2003). Other-crimes evidence is admissible, however, “to prove intent, modus operandi, identity,
motive, absence of mistake, and any material fact other than propensity that is relevant to the case.”
Id.; see also Ill. R. 404(b) (eff. Jan. 1, 2011)). We review the trial court’s ruling on the admissibility
of other-crimes evidence for abuse of discretion, which occurs when the ruling is arbitrary or
fanciful, or where no reasonable person would take the trial court’s view. Id. at 182.
¶ 42 Prior to trial, the trial court allowed the State’s motion to introduce the other-crimes
testimony of P.M. and S.L. in order to show defendant’s intent, identity, motive, modus operandi,
and lack of consent. Before P.M. and S.L. testified, the court admonished the jury that their
testimony could be considered “only for the those limited purposes.”
¶ 43 The State’s theory of the case was that on October 1, 1981, defendant encountered Novak
as she returned home and gained access to her house. Wielding his knife, defendant took Novak
to the bedroom where he raped her. Afterwards, as defendant went through her house, Novak
pulled on her jeans without her underwear and tried to escape. She struggled with defendant, as
shown by the blinds on the floor and blood throughout the house. According to the State, nothing
“was consensual about what happened in her apartment in October of 1981.” Instead, the evidence
showed that “the person who killed and raped Carol Novak stabbed her over a hundred times ***
and left their blood behind.” Defense counsel, however, argued that defendant had consensual sex
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No. 1-19-0492
with Novak prior to her murder. Counsel claimed that Loftus, Novak’s boyfriend, discovered her
infidelity and stabbed Novak in a fit of rage.
¶ 44 Whether Novak consented to sex with defendant was clearly a material issue in the case.
Defendant, however, argues that other-crimes evidence is not relevant for establishing lack of
consent in sexual assault cases under People v. Barbour, 106 Ill. App. 3d 993 (1982).
¶ 45 In Barbour, the complainant testified that the defendant forcibly raped her, while the
defendant testified that the complainant voluntarily consented to sexual intercourse. Id. at 996-97.
On appeal, the defendant argued that the trial court erroneously admitted evidence of two prior
alleged sexual assaults. Id. at 999. The State contended that the evidence was admissible to show
defendant’s modus operandi of acting without consent. Id. at 1000. The appellate court found the
State’s argument “illogical,” reasoning that the lack of consent of former victims was “wholly
irrelevant to this issue of this complainant’s consent.” Id. The Barbour court did recognize that
other crimes evidence that shows intent may be admissible. People v. Johnson, 239 Ill. App. 3d
1064, 1076 (1992) (citing Barbour, 106 Ill. App. 3d at 1001).
¶ 46 Appellate courts after Barbour have distinguished or disagreed with its holding. In
Johnson, 239 Ill. App. 3d at 1076, the defendant was convicted of aggravated criminal sexual
assault after presenting a defense that the victim had consented. During trial, the trial court
admitted other-crimes evidence as it was relevant to whether the defendant had “acted with an
innocent frame of mind.” Id. at 1075. This court noted that the State in Barbour offered the other-
crimes evidence to demonstrate modus operandi. Because the State in Johnson offered the
evidence to show absence of an innocent frame of mind, Barbour was inapplicable. Id. Other
courts, citing Johnson, have found that trial courts did not err in admitting evidence of prior
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No. 1-19-0492
assaults where the evidence was relevant to prove the defendants’ intent or lack of an innocent
frame of mind when consent was an issue. People v. Boyd, 366 Ill. App. 3d 84, 91-92 (2006); see
also People v. Luczak, 306 Ill. App. 3d 319, 325 (1999) (evidence of defendant’s prior crime was
relevant to show that he intended to sexually assault the victim); People v. Harris, 297 Ill. App.
3d 1073, 1086 (1998) (other-crimes evidence “tends to show that defendant did not act with an
innocent intent”); People v. Brown, 214 Ill. App. 3d 836, 845 (1991) (questioning the
persuasiveness of Barbour because modus operandi evidence is “relevant and admissible on the
distinct issue of whether a crime was committed at all”).
¶ 47 Following Johnson, Boyd, Luczak, and Harris, we find that defendant’s intent when he
encountered P.M. and S.L. was relevant to establish Novak’s lack of consent, a material issue in
this case.
¶ 48 Next, we consider whether general similarities existed between the cases of P.M., S.L., and
Novak to justify the admission of the other-crimes evidence. Johnson, 239 Ill. App. 3d at 1074.
¶ 49 The required extent of similarity depends on the purpose for which the other-crimes
evidence is offered. Johnson, 239 Ill. App. 3d at 1074. If the evidence is used to show modus
operandi or common design, “there must be a high degree of identity between the facts of the
crime charged and the other offense.” People v. Illgen, 145 Ill. 2d 353, 372-73 (1991). In contrast,
“when the evidence is offered to prove criminal intent or the lack of an innocent frame of mind,
general similarities will suffice to justify admission.” Johnson, 239 Ill. App. 3d at 1074. Where
the defendant claims that the complainant consented to sexual activity, prior crimes evidence is
admissible to “allow the jury to determine if he acted with an innocent frame of mind.” Id. at 1075.
Therefore, the less stringent test applies. Id.
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No. 1-19-0492
¶ 50 Here, details of events preceding and during all three assaults are similar. Like Novak, P.M.
and S.L. lived on the north side of Chicago when defendant assaulted them in their residences. The
three attacks occurred in the evening and defendant did not break into the residences. S.L. and
Novak lived near the Red Line. Defendant wielded a knife or sharp instrument and forced the
women into their bedrooms. P.M. testified that defendant ripped the pin off her blouse when she
took too long to unfasten it; in Novak’s bedroom, police found a blouse “that appeared to have
been either torn apart or torn off.” Defendant penetrated the three women vaginally with his penis.
¶ 51 Defendant argues that “certain distinctive features” of the other-crimes evidence were not
present in Novak’s case. Specifically, defendant tied P.M. and S.L. with pantyhose, cut their phone
cords, turned on the water in the bathroom before leaving, and stole jewelry, money, and liquor
from them. No such evidence was found in Novak’s case. As support, defendant cites People v.
Smith, 406 Ill. App. 3d 747 (2010), and People v. Johnson, 406 Ill. App. 3d 805 (2010). These
cases are distinguishable. In Smith, the prior alleged crimes occurred approximately 30 to 40 years
before the charged offense and involved different sexual acts. Smith, 406 Ill. App. 3d at 754. In
Johnson, the prior uncharged offense differed in the number of attackers, whether drugs and
alcohol were involved, and in how the offender penetrated the victim. Johnson, 406 Ill. App. 3d at
811.
¶ 52 Novak’s case did not have a 40-year time gap between the offenses and her attack, and the
method of assault was the same: vaginal penetration. All three cases also had similar details in how
defendant committed the assaults. The existence of some differences does not necessarily defeat
the admissibility of the other-crimes evidence “because no two independent crimes are identical.”
Donoho, 204 Ill. 2d at 185.
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No. 1-19-0492
¶ 53 Moreover, we disagree that the admission of the other-crimes evidence unduly prejudiced
defendant. Other-crimes evidence that is relevant “must not become a focal point of the trial.”
Boyd, 366 Ill. App. 3d at 94. Where the bulk of the State’s case did not consist of other-crimes
testimony, and the trial court admonished the jury to consider the evidence for limited purposes,
“any prejudice from it would not outweigh its probative value.” People v. Novak, 242 Ill. App. 3d
836, 860 (1993).
¶ 54 The trial court in this case carefully considered the evidence of other crimes and its
potential prejudicial effect. The State sought to admit seven prior offenses, but the court allowed
only three because defendant had pled guilty in the other four cases and those files were
“destroyed.” Of the State’s 15 witnesses, only P.M. and S.L. testified about prior offenses. The
State’s closing argument comprised 12 pages of the report of proceedings, but specific references
to the attacks on P.M. and S.L. consisted of only half a page. The State’s theory of the attack on
Novak, based on the other-crimes testimony, comprised approximately one page of the record.
¶ 55 The court also instructed the jury to consider the other-crimes evidence only for
identification, intent, motive, modus operandi, common design, and lack of consent. Although
defendant complains that the instructions were overly broad where the trial court did not limit the
jury’s consideration of the evidence to lack of consent, defendant was not prejudiced by the
instructions. The other-crimes evidence was properly admitted to show lack of consent, and the
trial court’s instruction was not so “confusing that the jury could not properly use the evidence for
that purpose.” People v. Bartall, 98 Ill. 2d 294, 316 (1983). Thus, even if the evidence was
inadmissible to show identity, motive, modus operandi, or common design, as defendant suggests,
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No. 1-19-0492
its admissibility to show lack of consent would remain unaffected. People v. Arze, 2016 IL App
(1st) 131959, ¶ 102.
¶ 56 Furthermore, any error in admitting the other-crimes evidence was harmless if “defendant
would have been convicted regardless of the error.” People v. Dean, 175 Ill. 2d 244, 259 (1997).
Defendant’s DNA profile was consistent with the partial male DNA profile from the sperm on
Novak’s vaginal swab, and consistent with the partial male DNA profile found in the three
bloodstains from the jacket. Defendant also could not be excluded as a contributor to the mixed
DNA profile found in the blood on the bedsheet. A trail of blood throughout Novak’s house led to
her partially clothed body in the living room. The blinds on the back porch window were knocked
down and a large pool of blood was found on the porch floor, indicating a struggle occurred there.
¶ 57 A jury need not disregard inferences that flow normally from the evidence or be satisfied
beyond a reasonable doubt as to each link in the chain of circumstances. People v. Charles, 2018
IL App (1st) 153625, ¶ 25. It is “sufficient if the evidence as a whole satisfies the trier of fact
beyond a reasonable doubt” that defendant committed the offense. Id. The circumstantial evidence
strongly indicated that Novak was sexually assaulted and then killed by defendant. Given the
strength of the State’s evidence against defendant, the outcome of his trial would not have been
different had the trial court excluded the other-crimes evidence.
¶ 58 Defendant next contends that the prosecutor improperly argued facts not in evidence during
closing and rebuttal arguments. Defendant concedes that he did not object to every comment he
now challenges on appeal, but requests that we consider his claim as plain error. Alternatively,
defendant argues that defense counsel was ineffective for not preserving the State’s misstatements
for review.
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No. 1-19-0492
¶ 59 To preserve this issue for review, defendant must have objected to the comments at trial
and raised the issue in a written posttrial motion. People v. Jackson, 391 Ill. App. 3d 11, 37 (2009).
A reviewing court, however, may consider unpreserved claims of error as plain error when a clear
or obvious error occurred and (1) “the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error,” or (2) “that error is so serious that it affected the defendant’s trial and challenged the
integrity of the judicial process, regardless of the closeness of the evidence.” People v. Piatkowski,
225 Ill. 2d 551, 565 (2007). First, we must determine whether any error occurred. People v.
Thompson, 238 Ill. 2d 598, 613 (2010).
¶ 60 Prosecutors have wide latitude during closing arguments and may comment on the
evidence and on any fair and reasonable inferences therefrom. People v. Jackson, 2020 IL 124112,
¶ 82. A prosecutor may “comment upon the evidence presented and upon reasonable inferences
arising therefrom, even if such inferences are unfavorable to the defendant.” People v. Hudson,
157 Ill. 2d 401, 441 (1993). “A reviewing court will find reversible error only if the defendant
demonstrates that the remarks were improper and that they were so prejudicial that real justice was
denied or the verdict resulted from the error.” Id. In making this determination, a reviewing court
considers the closing argument as a whole. People v. Perry, 224 Ill. 2d 312, 347 (2007).
¶ 61 Defendant’s opening brief challenges the State’s “entire narrative theme about how
[defendant] committed this offense,” as expressed in its closing arguments. (Emphasis in the
original.) He contends that these comments were improper where the only evidence presented was
the discovery of Novak’s body and the fact that defendant’s DNA was found at the scene. No one
testified about how defendant entered Novak’s residence or whether he searched her house for
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No. 1-19-0492
valuables, or when the “sex act” occurred or whether it was consensual. Defendant argues that the
prosecutor’s comments therefore amounted to speculation “without any evidentiary basis.”
¶ 62 We disagree that the State’s “entire narrative” was improper. The evidence showed that
Novak’s partially clothed body was found in the living room and a trail of blood led from her body
to the bedroom, through the kitchen and the back porch. The blinds on the porch had been ripped
down. Her damaged blouse and underwear were found in the bedroom. DNA evidence from semen
and blood placed defendant at the scene. It can be reasonably deduced from the evidence that
Novak did not consent to the “sex act,” was raped in her bedroom, and tried to escape from her
assailant.
¶ 63 The State also presented testimony from P.M. and S.L. to show defendant’s intent
regarding Novak. Their testimony revealed that defendant had concocted stories to persuade P.M.
and S.L. to let him into their buildings before he sexually assaulted them. In this case, the back
door of Novak’s house was unlocked when her body was discovered. The prosecutor reasonably
argued from this evidence that defendant either “struck up a conversation” with Novak to enter her
house or forced his way into the house after she opened the door.
¶ 64 We do find some merit to defendant’s contentions that certain comments by the State could
not be reasonably inferred from the evidence. The State argued that defendant went through
Novak’s house looking for items to steal. Although defendant did steal belongings from P.M. and
S.L., there was no evidence that defendant stole or attempted to steal from Novak. Additionally,
the prosecutor maintained that since the assaults on P.M. and S.L. occurred after Novak’s murder,
defendant had “learned his lesson” and he gagged and tied P.M. and S.L. during their assaults.
There was no direct evidence as to why defendant restrained and gagged his later victims.
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No. 1-19-0492
¶ 65 Even if these remarks were improper, when viewed in the context of the closing argument
as a whole, they did not impact the verdict. Further, the trial court instructed the jury that “[n]either
opening statements nor closing arguments are evidence, and any statement or argument made by
the attorney which is not based on the evidence should be disregarded.” Such an instruction cured
any error that may have occurred regarding the prosecutor’s comments. People v. Simms, 192 Ill.
2d 348, 396 (2000). We find that the State committed no reversible error and that defendant was
not deprived of a fair trial. People v. Johnson, 218 Ill. 2d 125, 141-43 (2005).
¶ 66 Since there was no reversible error in the State’s closing arguments, we need not address
defendant’s alternative argument that defense counsel was ineffective for failing to preserve the
issue for review. People v. Jaimes, 2019 IL App (1st) 142736, ¶ 58.
¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 68 Affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/8483094/ | Filed 11/10/22 P. v. Agraz 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, D080089
Plaintiff and Respondent,
v. (Super. Ct. No. SCD290546)
RICHARD LIAS AGRAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Runston G. Maino, Judge. Affirmed.
Arielle Bases, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney
General, Melissa Mandel, and Tami Falkenstein Hennick, Deputy Attorneys
General, for Plaintiff and Respondent.
In this appeal from a judgment of conviction, appellant Ricardo Lias
Agraz challenges only the sentence the trial court imposed. Agraz contends
the trial court abused its discretion in imposing a middle term sentence of
three years instead of the lower term of two years pursuant to Penal Code1
section 1170, subdivision (b)(6).
A jury convicted Agraz of robbery (§ 211) and simple assault as a lesser
offense of assault with a deadly weapon. The jury found the allegation that
Agraz used a knife not true.
The court sentenced Agraz to the middle term of three years in prison
for the robbery conviction.
Agraz filed a timely notice of appeal.
Agraz contends the trial court erred in failing to impose the lower term
of imprisonment pursuant to section 1170, subdivision (b)(6). We reject
Agraz’s contention and find the trial court acted well within its authority in
rejecting Agraz’s arguments and affirm the judgment.
STATEMENT OF FACTS
The facts of the offense are not in dispute. This appeal only addresses
the court’s sentencing choice. We will utilize Agraz’s summary of the facts for
convenience.
On June 13, 2021, Felipe G. was working as a loss prevention officer in
the bike recovery department for Wheels Lab.
At around 7:30 p.m., Felipe saw Agraz in a Lexus parking lot with a
Wheels Lab bike. Felipe received a notification from his boss that someone
was pushing an unpaid-for bike. According to Felipe, he asked Agraz for the
bike, and Agraz refused to relinquish it. Also, according to Felipe, Agraz
tried to fight him, threatened that he would stab him, and had his hands in
fists.
1 All further statutory references are to the Penal Code.
2
Felipe testified that he ran towards the bike, but his work cell phone
fell. According to Felipe, Agraz was two to three feet away from him, when
he pointed a pocket folding knife in Felipe’s direction.
Felipe ran away and notified his supervisor, Reid H., that Agraz had
taken a bike and his cell phone. Reid was able to track the bike with his GPS
and knew the bike was being transported on the trolley.
Reid and Felipe met at the San Ysidro trolley station where they saw
Agraz with the bike. Agraz dropped the bike and ran away.
Reid ran after Agraz and asked for the cell phone. Agraz denied having
Felipe’s cell phone. Reid noticed a cell phone in Agraz’s pocket, but Agraz
said that it was his phone. Reid chased Agraz and told him to return the cell
phone. At that point, Felipe called 9-1-1.
Reid continued chasing Agraz to the trolley tracks, where Agraz threw
six or seven rocks at Reid. Reid was hit on the shoulder by the rocks.
The police arrived and arrested Agraz.
Agraz did not have a knife, or any other weapon, on him. Agraz had his
own smart phone on him; he did not have Felipe’s cell phone on him.
After the police left, Reid found Felipe’s cell phone wedged between a
fence and a bush.
DISCUSSION
Agraz contends the court erred in selecting the middle term for his
sentence. He argues he was suffering from depression when he committed
the current offense, and thus, the court failed to properly exercise its
discretion under section 1170, subdivision (b)(6).
A. Legal Principles
When we review a trial court’s sentencing choice, we ordinarily apply
the abuse of discretion standard of review. (People v. Sandoval (2007) 41
3
Cal.4th 825, 847.) The party challenging the court’s decision bears the
burden to “clearly” show the court’s decision was irrational or arbitrary.
(People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Section 1170 was recently amended to add subdivision (b)(6), which
provides as follows:
“Notwithstanding paragraph (1), and 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 any of the following
was a contributing factor in the commission of the offense:
“(A) The person has experienced psychological, physical, or
childhood trauma, including, but not limited to, abuse,
neglect, exploitation, or sexual violence.
“(B) The 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.
“(C) Prior to the instant offense, or at the time of the
commission of the offense, the person is or was a victim of
intimate partner violence or human trafficking.”
Agraz argues the trial court erred in failing to give appropriate weight
to the statutory mitigating factors in this case. Section 1170,
subdivision (b)(6) requires courts to impose lower term sentences when at
least one of the statutory factors listed in the subdivision contributed to the
crime. In this case, however, the court found there was no independent
evidence that any of the factors contributed to the commission of this crime.
The court explained:
“THE COURT: All right. Thanks. One of the problems is
other than his statement, I don’t have any independent
facts that this [section] 211 was in any way motivated by
drugs. Nobody—I don’t remember the officers testifying he
was under the influence.
4
“As far as rehabilitation, he’s been given opportunities.
Just looking at the probation report in 2000 and 2014 he
had drug charges. 2015 he had drug charges. And he was
placed on probation on these things, violated probation. I
just don’t see it. I mean, I think it’s a mid term case. I
can’t see any mitigating factors at all in this case that are
provable. It’s just his talk.
“[DEFENSE COUNSEL]: Well, I would remind the Court
that the arresting officers found a meth pipe on Mr. Agraz,
that he was begging to keep. He was saying that he didn’t
want it to be taken. He needs it. There was certainly clear
evidence that addiction—that he was lost in his addiction
at the time of this incident.
“THE COURT: Okay. Well, just because you have a meth
pipe doesn’t mean you’re addicted. And most important,
there’s no connection that I saw during the trial between
drugs and this [section] 211. It was simply greed stealing
the bike or the scooter. Whatever it is.”
B. Analysis
The only “evidence” supporting the application of the statutory factors
is in Agraz’s statements, which the court found not to be credible. The only
claimed “independent” evidence was a police report showing Agraz had a
methamphetamine pipe in his possession when he was arrested. The court
could reasonably conclude that fact, without anything else, did not prove
addiction could have contributed to the crime.
The court discussed the statutory factors at length with counsel. The
court clearly understood the subdivision at issue was a limitation on the
court’s ability to impose a sentence above the lower term. The record
demonstrates the court was fully aware of section 1170, subdivision (b)(6) and
carefully evaluated the evidence in applying the new statutory requirements.
Agraz has not met his burden to show an abuse of discretion. A
rational judge could conclude in this case that there was no evidence to
5
support the application of the section 1170, subdivision (b)(6) limitations on
the court’s sentencing discretion. The court acted well within its discretion in
rejecting defense arguments and selecting the middle term for the proper
sentence.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
6 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483088/ | USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 1 of 15
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14352
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
QUENTIN TRULEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00221-TWT-RGV-2
____________________
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 2 of 15
2 Opinion of the Court 21-14352
Before GRANT, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
It is no small matter for a court to remove a criminal
defendant from the courtroom. Quentin Truley was removed
twice: once for six minutes during a hearing on his motion to
withdraw his guilty plea, and then again for thirty-one minutes of
his sentencing hearing. Even so, we conclude that he suffered no
harm from his first removal and that the district court did not
plainly err in removing him a second time. We affirm.
I.
Quentin Truley pleaded guilty to two counts of conspiracy
to commit Hobbs Act robbery and two counts of brandishing a
firearm during a crime of violence. See 18 U.S.C. §§ 1951(a),
924(c)(1)(A)(ii). At his plea hearing, the court explained his trial
rights, reviewed his indictment, and confirmed that no one had
threatened, coerced, or made any promises to him. When asked,
Truley’s appointed attorney stated that he had no doubts as to
Truley’s competence to plea and that the two had sufficient time
to discuss the plea before the hearing.
Truley and his attorney had history. Truley had filed several
pro se motions to dismiss his counsel, raising several complaints.
The attorney, for his part, had also moved to withdraw based on
Truley’s desire to represent himself. The court held a Faretta
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 3 of 15
21-14352 Opinion of the Court 3
hearing,1 at which Truley withdrew his last request to represent
himself. Later that day he pleaded guilty.
One day before sentencing, Truley had a change of heart
about his guilty plea. Through counsel, he moved to withdraw his
plea, asserting that it lacked a factual basis because he had disagreed
on the record with a few facts the government presented at the plea
hearing. The district court held a hearing on Truley’s motion to
withdraw right before his scheduled sentencing hearing. At the
motion-to-withdraw hearing, Truley’s attorney asked him if he
wanted to proceed with the motion. Truley said that he didn’t
understand and then gave a short sovereign-citizen-style speech. 2
1 A Faretta hearing is a hearing at which the court advises a defendant on the
dangers of proceeding pro se and decides whether he has chosen to represent
himself. See Nelson v. Alabama, 292 F.3d 1291, 1295 (11th Cir. 2002); Faretta
v. California, 422 U.S. 806 (1975).
2 Here is what Truley said in full:
For the record, I state I don’t understand. The Defendant party of this
case is not in identification or a representation of me, my present blood
and flesh person or being. This Court does not have jurisdictions over
me or any proclaimed territories, for the lands and territories are my
ancestral estate and national domicile. I’m not corporal or commercial
entity of or in any trust, construct and contracts; wherefore, I deny,
refuse, disagree and reject any and all contracts, debts and liabilities
that arise from any trust, contracts and construct. This Court has no
authority over adjudication, for the subject of the matter has no
accusations of any corpus delicti or any injured parties. Further
prosecution, conviction and confinement for the charges of this case
will be violation of the laws and terms of the executive departments
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 4 of 15
4 Opinion of the Court 21-14352
The court was unimpressed, but allowed Truley to finish his
speech and soon after directed Truley’s attorney to argue the
motion.
The interruptions soon began. During the argument,
Truley interjected that “all those matters were made under
psychological—” before the court cut him off and warned him not
to interrupt his lawyer. Twice, the court warned Truley that it
would remove him if he continued to interrupt. Truley persisted.
The court then excused him from the hearing, stating that he was
being disruptive and not complying with the court’s instructions.
Truley’s attorney objected to the removal. The court noted the
objection and added, “I listened to Mr. Truley’s sovereign citizen
nonsense. I let him finish that. He’s being totally disruptive, and
I’m not going to proceed with him present under these
circumstances.”
For six minutes, Truley was absent from the courtroom
while his attorney argued the motion. When the court brought
him back, it warned Truley that if he continued to disrupt the
proceedings it would have him “removed permanently.” Truley
was present for both the government’s opposition and his
and the Department of Justice and the Department of Health and
Human Services as well as the statutes that govern the courts, and also
the office that must be upheld by the courts. Wherefore, I move in
pursuance to be free and unseized at this very moment.
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 5 of 15
21-14352 Opinion of the Court 5
attorney’s rebuttal. After the rebuttal, the court denied the motion
to withdraw the guilty plea.
Truley decided to speak up again: “excuse me, Your Honor.”
The court responded: “Don’t interrupt me Mr. Truley,” to which
Truley responded, “I thought you were done talking.” At that
point, the court again had him removed and moved on to the
sentencing hearing. This time Truley’s counsel did not object.
During the sentencing hearing, counsel presented several
objections related to the sentencing and then Truley’s father briefly
spoke about the importance of responsibility and his hope to see
his son “free again one day.” After the father’s testimony was
finished, the court informed those present that the court would
recess and that he planned to let Truley exercise his right of
allocution. Truley had been absent for thirty-one minutes.
After the short recess, the hearing resumed. Truley’s
attorney asked for a reduced sentence of fourteen years. Truley
then made his allocution, stating only that his admission of guilt
“was made under psychological duress which caused insufficient
awareness due to discrimination and as well as other forms of abuse
by the discretions [sic] of the courts.” He added: “That’s it.” The
court then sentenced Truley to 231 months, or nearly 20 years.
On appeal, Truley argues that the district court erred in
removing him from both the hearing on his motion to withdraw
his guilty plea and the sentencing hearing. He relies on both the
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 6 of 15
6 Opinion of the Court 21-14352
Due Process Clause of the Fifth Amendment and Rule of Criminal
Procedure 43.
II.
We use a “multistep process” to review a district court’s
decision to continue a trial without a defendant. See United States
v. Sterling, 738 F.3d 228, 234 (11th Cir. 2013). First, we review any
constitutional or statutory interpretation by the district court de
novo. United States v. Curbelo, 726 F.3d 1260, 1271–72, 1276 (11th
Cir. 2013). Next, we review the court’s factual findings about the
voluntariness of a defendant’s absence for clear error and, if
voluntary, the decision that there existed “a controlling public
interest” to proceed for abuse of discretion. United States v.
Bradford, 237 F.3d 1306, 1311 (11th Cir. 2001). Finally, if the court
did err, we consider whether the error was harmless beyond a
reasonable doubt. Id.; United States v. Novaton, 271 F.3d 968, 999
(11th Cir. 2001).
For Truley’s removal from his sentencing hearing, we
review only for plain error because his counsel did not object. See
Fed. R. Crim. P. 52(b); United States v. Mosquera, 886 F.3d 1032,
1043 (11th Cir. 2018); United States v. Phillips, 834 F.3d 1176, 1183
(11th Cir. 2016). Plain error requires a defendant to show: “(1)
error (2) that is plain and (3) affects substantial rights.” Mosquera,
886 F.3d at 1043 (quotation omitted). If those three are shown, we
may grant relief if we conclude that the error had a “serious effect
on the fairness, integrity or public reputation of judicial
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 7 of 15
21-14352 Opinion of the Court 7
proceedings.” Greer v. United States, 141 S. Ct. 2090, 2096–97
(2021) (quotation omitted).
III.
Truley claims that each time he was removed, that absence
violated both his Fifth Amendment due process right and his right
to be present under Rule 43.
Under the Due Process Clause, a defendant has a “right to
be present at any stage of the criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of the
procedure.” Novaton, 271 F.3d at 998 (quotation omitted). Under
Rule 43, a defendant’s right to be present extends to specified
proceedings: the initial appearance and arraignment, the plea,
every trial stage, and sentencing. Id.; Fed. R. Crim. P. 43(a). Rule
43 rights do not extend to “every hearing or conference” that
happens to be relevant. Mosquera, 886 F.3d at 1043 (quotation and
emphasis omitted). 3
A defendant may also voluntarily waive his right to be
present under Rule 43. And Rule 43 rights are considered waived
if a defendant “persists in conduct that justifies removal” after the
court warns of potential removal for “disruptive behavior.” Fed.
R. Crim. P. 43(c)(1)(C). Disruptive behavior includes repeated
interruptions and refusal to cooperate with trial proceedings. See
3 We have declined to determine the exact overlap of Rule 43 and
constitutional sources of the right to be present. See Novaton, 271 F.3d at 998.
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 8 of 15
8 Opinion of the Court 21-14352
Sterling, 738 F.3d at 236–37. If a defendant waives his rights, a court
may continue the proceeding if there is, on balance, a controlling
public interest to continue without the defendant. Id.
A.
We first consider Truley’s partial absence from the hearing
on his motion to withdraw his guilty plea. As we review the court’s
decision to proceed in his absence, we will assume that we use the
same multistep process that applies for an absence from trial. 4
Truley alleges his absence deprived him of an opportunity to argue
that his earlier plea resulted from psychological harm and other
influences. Even assuming that the district court erred, the
government has met its burden to show beyond a reasonable doubt
that any error was harmless.
In evaluating the harmlessness of an error, we examine
whether it had a “prejudicial effect” on the defendant, and an error
is harmless if it has “little, if any, likelihood of having changed the
result.” United States v. Roy, 855 F.3d 1133, 1167 (11th Cir. 2017);
Chapman v. California, 386 U.S. 18, 22 (1967). That standard is met
here. To succeed on his motion, Truley needed to show a “fair and
4 Because our holding here is based on harmless error, we need not decide
whether this multi-step process is always appropriate for an absence from a
motion to withdraw a guilty plea. We do not decide whether a hearing on a
motion to withdraw a guilty plea is a “critical proceeding” under the Due
Process Clause or part of Rule 43(a). Notably, the government agrees that we
should review with the same multistep process we would for a defendant’s
exclusion from trial.
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 9 of 15
21-14352 Opinion of the Court 9
just reason” to withdraw his plea. Fed. R. Crim. P. 11(d)(2)(B).
Considering this requirement, any error by the court was harmless
because it was unlikely to have changed the result of the hearing:
the court’s denial of Truley’s motion.
This hearing was about Truley’s claim that his plea had
lacked factual basis, not about the circumstances surrounding his
plea. His motion claimed that it was “fair and just” to withdraw
his plea because at the plea hearing Truley had stated that the
object that had been brandished “has not been proven to possess
the distinctive characteristics” of a firearm. This was the question
under consideration; the hearing was not an evidentiary hearing
about duress or other influences. To qualify for such an
evidentiary hearing, Truley would have needed to submit “specific
factual allegations, not directly contradicted in the record, of
circumstances undermining his plea.” United States v. Dabdoub-
Diaz, 599 F.2d 96, 99 (5th Cir. 1979). 5 He did not.
As a result, the hearing was not evidentiary—the court
needed only a copy of the plea transcript to evaluate Truley’s claim
that he never admitted to brandishing a firearm. The court
ultimately decided that Truley “did admit to the facts underlying
the charge of brandishing a firearm” and added that the
government “would suffer serious prejudice if it had to retry this
5 In our en banc decision in Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981), we adopted as binding precedent all decisions of the former
Fifth Circuit handed down before October 1, 1981.
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 10 of 15
10 Opinion of the Court 21-14352
case again” because a trial about one of the robberies had already
occurred. Given this reasoning, Truley’s presence could not have
aided the court’s analysis of the plea transcript. And the finding of
serious prejudice to the government from a retrial further reduces
the likelihood that Truley could have shown a “fair and just
reason” to withdraw his plea, even if he had been present during
his counsel’s initial argument.6
Even if the hearing were instead about duress or other
influences, this likely would not have been a “fair and just reason”
under Rule 11(d)(2)(B). Courts adopt a “strong presumption” that
any earlier statements made during a plea colloquy are true.
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). At the
hearing, the court asked Truley whether anyone had “threatened
or forced” him to plead guilty, and he said, “No.” Asking about
threat or force is another—more accessible—way to ask about
duress. See Duress, Black’s Law Dictionary (11th ed. 2019)
(defining duress as “a threat of harm made to compel a person to
do something against his or her will or judgment”). The court did
not stop there. It continued to ask whether the plea was influenced
6 In addition, the fact that Truley had the chance to speak before his
interruptions lessens the likelihood of any prejudice from his removal. At the
beginning of the hearing, Truley’s attorney asked him whether he wanted to
go forward with the motion. Truley used the opportunity to give an almost
two-hundred-word “sovereign citizen” speech without mentioning anything
about duress or attempting to alter the basis for his motion. The court allowed
him to finish. He could have chosen to talk about his plea during this time,
but he did not.
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 11 of 15
21-14352 Opinion of the Court 11
by threats or promises, which Truley also denied. Considering
these earlier representations, the court was unlikely to accept any
bare allegations to the contrary, even if Truley had somehow
amended his motion to add additional reasons to withdraw his
plea. See Dabdoub-Diaz, 599 F.2d at 99 (holding that a defendant’s
“conclusory allegation unsupported by specifics does not justify a
hearing to relitigate representations made by himself, his lawyer,
and the prosecutor in open court”).
Finally, the presence of Truley’s counsel reinforces our
finding of harmless error. We have acknowledged that the
presence of counsel is a relevant factor in evaluating harm,
although not dispositive. See Novaton, 271 F.3d at 1000. When a
defendant’s presence alongside counsel would have been “useless,
or the benefit but a shadow” we have held that his presence is
unlikely to result in a more reliable hearing. United States v. Boyd,
131 F.3d 951, 954 (11th Cir. 1997) (quotation omitted).
Truley and his counsel had ample opportunity to
communicate and develop their arguments. The record reflects
that the two had discussed the motion earlier that morning,
rendering it unlikely that Truley had anything legally relevant to
add. Even if Truley had something new to tell his counsel after he
was removed, he had the opportunity during the government’s
argument or before his counsel’s rebuttal. And although Truley
suggests that his counsel was unable to explain his allegation of
psychological duress, we have seen nothing in the record to suggest
that his attorney was not responsive to Truley’s requests or that he
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 12 of 15
12 Opinion of the Court 21-14352
was incompetent in his representation. See Boyd, 131 F.3d at 954
(finding that the defendant’s presence would have been useless
despite the defendant’s “conclusory statement” that he could have
assisted his counsel).
In short, Truley could not have carried his burden to show
a “fair and just reason” to withdraw. Given the narrow purpose of
this hearing, the court’s analysis of Truley’s motion, and the
presence of counsel, there was little likelihood that Truley’s
presence could have changed the result of the hearing. We
conclude that even if the court erred, Truley’s partial removal was
harmless error.
B.
We now turn to Truley’s second removal, which fell during
his sentencing hearing, but before allocution and sentencing.
Sentencing hearings are critical proceedings for both due process
and Rule 43: defendants must get a chance to challenge the
accuracy of information, to argue about its reliability, and present
mitigating evidence. United States v. Jackson, 923 F.2d 1494, 1496–
97 (11th Cir. 1991); Fed. R. Crim. P. 43(a)(3). Even so, we conclude
that the district court did not plainly err in removing Truley
because he has not shown that any error affected his substantial
rights under the Due Process Clause or Rule 43.
To prove plain error, a defendant must show that the error
affected his substantial rights, which “almost always requires that
the error must have affected the outcome of the district court
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 13 of 15
21-14352 Opinion of the Court 13
proceedings.” United States v. Pena, 684 F.3d 1137, 1151 (11th Cir.
2012) (quotation omitted); see also United States v. De La Garza,
516 F.3d 1266, 1269 (11th Cir. 2008). Here, Truley has the burden
to explain how his presence could have affected his sentence. Pena,
684 F.3d at 1151.
Truley recites several ways that he was allegedly harmed by
his absence from the sentencing hearing: he could not be heard on
any of the objections to his presentence report, he did not get “a
sense” of the district court’s view of the case, and he could not
listen to his father’s remarks. Truley also argues that if he had been
present, he would not have used his allocution time to talk about
his plea hearing. Instead, he implies that he would have said
something, but he claims that “[e]xactly what he could have said is
a matter of pure speculation.”
Plain error requires more than “pure speculation.” Even if
we accept all these as sources of harm, Truley has not shown how
these would have affected the outcome of the hearing: a 231-month
sentence. If Truley was not heard on his objections, we need to
know which ones. If Truley needed a sense of the court’s views,
we need to know how he would have used this information. If
Truley would have changed his strategy in any way based on what
was said in his absence, we need to know how. Because Truley has
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 14 of 15
14 Opinion of the Court 21-14352
not explained how his absence harmed his rights, he has not carried
his burden. 7
Even if Truley had explained how he were harmed, he
would run into a practical problem: he contributed to his
sentencing hearing despite his partial absence. Through his
counsel he made several objections, many of which the two had
discussed in earlier correspondences. Before his allocution, Truley
consulted his attorney during an eleven-minute recess. Through
counsel, he then requested a below guideline sentence of fourteen
years. Right after this request, he was allowed an allocution—
without a specified time restriction—and concluded: “That’s it.”
At any of these moments, Truley could have challenged the
sentencing evidence, reiterated his sentencing objections, or
presented new evidence. He never did.
Because Truley has not explained how his presence could
have possibly changed the outcome of his sentencing hearing, he
has not shown that his substantial rights were affected. The district
court did not plainly err.
* * *
7 Truley also likely forfeited the argument by neglecting to explain how his
rights were affected. See Harner v. Soc. Sec. Admin., Comm’r, 38 F.4th 892,
899 (11th Cir. 2022) (“An appellant forfeits an issue when she raises it in a
perfunctory manner without supporting arguments and authority.”
(quotation omitted)).
USCA11 Case: 21-14352 Date Filed: 11/10/2022 Page: 15 of 15
21-14352 Opinion of the Court 15
Truley has not shown that his second removal was plain
error, and we find that any error in his first would have been
harmless. We AFFIRM Truley’s conviction and sentence. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483098/ | 2022 IL App (1st) 201267-U
SIXTH DIVISION
November 10, 2022
No. 1-20-1267
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).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
FORMAN REAL PROPERTY, LLC, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court of
v. ) Cook County
)
ESB 1836, INC., an Illinois corporation; ERIC DAVIS; ) 13 CH 11831
MARK SEEF; UNKNOWN OWNERS and NON- )
RECORD CLAIMANTS, ) The Honorable
) Joel L. Chupack,
Defendants, ) Judge, presiding.
)
(Eric Davis, Defendant-Appellant). )
JUSTICE TAILOR delivered the judgment of the court.
Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment.
ORDER
¶1 Held: Appeal from an order lifting a stay of execution of judgment, entered four years
after the final judgment, is dismissed for lack of jurisdiction.
¶2 This appeal arises from a mortgage foreclosure action brought by the predecessor-in-
interest to the plaintiff, Forman Real Property, LLC (Forman), against the corporate defendant
ESB 1836, Inc. (ESB), and a breach of guaranty claim brought against the individual defendants,
Mark Seef and Eric Davis. An order approving the report of sale of the subject commercial
No. 1-20-1267
property and entering a deficiency judgment against all defendants was entered in 2016, but
enforcement of the deficiency judgment was stayed until 2020, when the circuit court granted
Forman’s motion to enforce the judgment. Davis now appeals the order granting the motion to
enforce. We dismiss this appeal for lack of jurisdiction.
¶3 I. BACKGROUND
¶4 On May 1, 2013, First Security Trust and Savings Bank (First Security) filed a complaint
for mortgage foreclosure against ESB and breach of personal guaranty against Seef and Davis. On
April 28, 2014, Forman was substituted for First Security as the plaintiff. On March 14, 2016, the
circuit court entered summary judgment on all counts in favor of Forman and against defendants.
The circuit court also entered a judgment of foreclosure and sale, authorizing sale of the property
and a personal deficiency judgment against Davis with the amount of the deficiency judgment to
be determined after the sale of the property.
¶5 Forman subsequently purchased the property at auction for $101,000. On November 15,
2016, the circuit court approved the sale, and entered an in personam deficiency judgment against
each of ESB, Seef, and Davis for $675,705.08, and an in rem deficiency judgment against the
property (the 2016 Order). The 2016 Order provided that (1) “enforcement of the personal
deficiency judgments are [sic] hereby stayed until further order of Court,” and (2) “the
memorandums of judgment shall be executed upon further order of Court.” According to Forman,
the purpose of the stay was to provide defendants with an opportunity to investigate an
indemnification theory based on First Security’s sale of its note to Forman, although there is
nothing in the circuit court’s orders in that regard.
¶6 On November 20, 2016, Seef filed a petition for relief under Chapter 7 of the United States
Bankruptcy Code (11 U.S.C. § 701 et seq. (2012)). On December 15, 2016, all defendants,
2
No. 1-20-1267
including Davis, moved to stay this case on the basis that Forman, by moving to dismiss Seef’s
counterclaim in this case, violated the automatic stay provision of section 362 of the United States
Bankruptcy Code. 11 U.S.C. § 362 (2012). A few days later, the circuit court entered an order
stating that the bankruptcy filing by guarantor Seef “doesn’t effect [sic] Forman Real Property,
LLC’s possession/ownership of the real property” that is the subject of this case. On May 2, 2017,
however, the circuit court stayed the remainder of this matter “due to defendant/guarantor Mark
Seef’s pending bankruptcy,” and further stated that all pending motions should be renoticed and
presented to the circuit court upon disposition of Seef’s bankruptcy.
¶7 In November 2018, Forman settled its claims against Seef, and the bankruptcy court
approved the settlement.
¶8 On December 21, 2018, Forman filed a motion for entry of memorandum of judgment. In
two separate orders issued on January 15, 2019, the circuit court granted Forman’s motion and
separately entered a memorandum of judgment against Davis for $675,705.08 (the 2019 Orders).
¶9 On January 13, 2020, Davis filed a petition to vacate the 2019 Orders pursuant to section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2020)), arguing that the 2019
Orders were void because they were entered without notice to Davis and constituted untimely
modifications of the 2016 Order.
¶ 10 On February 19, 2020, Davis filed a motion for temporary restraining order and preliminary
injunction to prevent Forman from enforcing the judgment until his 2-1401 petition was resolved.
Forman filed a motion to dismiss Davis’s 2-1401 petition. Both motions were briefed.
¶ 11 On August 20, 2020, the circuit court entered an order granting in part and denying in part
Davis’s 2-1401 petition and motion for a temporary restraining order. The circuit court held that
the 2019 Orders were not subject to a section 2-1401 petition, and that the stay provision in the
3
No. 1-20-1267
2016 Order was not lifted by the 2019 Orders. The circuit court stated that the stay would remain
in effect until Forman moved to vacate the stay.
¶ 12 On September 1, 2020, Forman did just that by moving to enforce the deficiency judgment
against Davis, arguing that there was no just reason to stay enforcement. Davis filed a response
and motion to strike Forman’s motion to enforce, arguing that (1) the motion to enforce constituted
a request to modify the 2016 Order and, therefore, was governed by section 2-1401 of the Code;
(2) Forman could not satisfy the requirements of section 2-1401 because, among other reasons, the
motion was filed more than two years after the 2016 Order was entered; and (3) service of the
motion was insufficient.
¶ 13 On October 28, 2020, after hearing argument, the circuit court entered an order granting
Forman’s motion to enforce the judgment (the 2020 Order). The circuit court found that the motion
to enforce did not seek to modify the 2016 Order and, therefore, was not governed by section 2-
1401, including the requirement that it be filed within two years of the entry of the order being
attacked.
¶ 14 On November 23, 2020, Davis filed the instant notice of appeal.
¶ 15 II. ANALYSIS
¶ 16 On appeal, Davis argues that the circuit court erred in granting the motion to enforce
because it should have been construed as a section 2-1401 petition and denied as untimely. For the
following reasons, we find that we lack jurisdiction over this appeal and the 2020 Order lifting the
stay of execution is not reviewable.
¶ 17 This court has an independent duty to ascertain its own jurisdiction, even when such issue
has not been raised by the parties. Heartland Bank & Trust v. Katz, 2020 IL App (1st) 182259, ¶ 11.
4
No. 1-20-1267
¶ 18 Davis urges this court to find jurisdiction over this appeal under Illinois Supreme Court
Rule 301 (eff. Feb. 1, 1994), Rule 303 (eff. July 1, 2017), and Rule 304(b) (eff. Mar. 8, 2016).
¶ 19 Rules 301 and 303 provide for jurisdiction over appeals from final judgments. Ill. S. Ct.
Rs. 301, 303. Under Rule 303, the appellant must file its notice of appeal within 30 days of entry
of a final judgment. Ill. S. Ct. R. 303(a) (eff. July 1, 2017).
¶ 20 It is undisputed that the 2016 Order was the final and appealable judgment in this
foreclosure case. See EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 11 (order confirming sale
entered subsequent to judgment of foreclosure is final and appealable order in foreclosure action).
¶ 21 On appeal, Davis does not seek review of the final judgment contained in the 2016 Order.
Instead, Davis argues only about the propriety of the 2020 Order lifting the stay. But the 2020
Order is not independently reviewable under Rule 303. An order resolving “a post-judgment
motion is not itself a judgment, as that word is used in article VI, section 6, of the 1970 Constitution
or in Supreme Court Rule 303 (73 Ill.2d R. 303), and is not an appealable order.” Sears v. Sears,
85 Ill. 2d 253, 258 (1981). Because the 2020 Order was not itself a final and appealable order
within the meaning of Rules 301 and 303, this court has no jurisdiction under Rules 301 and 303
to review it on appeal.
¶ 22 Davis also asserts that we have jurisdiction over this appeal pursuant to Rule 304(b)
because Forman’s motion to lift the stay of execution and enforce the judgment—filed four years
after the 2016 Order was entered—must be construed as an untimely section 2-1401 petition to
modify the judgment. Rule 304(b)(3) provides for jurisdiction over appeals from orders in the
circuit court granting or denying petitions to vacate brought under section 2-1401. Ill. S. Ct. R.
304(b) (eff. Mar. 8, 2016). Forman responds that its motion invokes the circuit court’s inherent
power to enforce its judgment and was not brought under section 2-1401. Therefore, resolution of
5
No. 1-20-1267
the question of our jurisdiction over this appeal under Rule 304(b) necessarily depends on whether
Forman’s motion to enforce must be considered a section 2-1401 petition. If Forman’s motion to
enforce was in the nature of a section 2-1401 petition, we have jurisdiction under Rule 304(b) to
review the 2020 Order granting the motion.
¶ 23 The question of whether Forman’s motion to enforce needed to comply with section 2-
1401 turns on whether the circuit court had jurisdiction to grant Forman’s motion to enforce the
judgment. “In the absence of a timely filed post-judgment motion, a trial court loses jurisdiction
over a case pending before it 30 days after the entry of a final judgment terminating the litigation.”
Holwell ex rel. Holwell v. Zenith Electronics Corp., 334 Ill. App. 3d 917, 922 (2002). “Whether a
trial court has jurisdiction is a question of law subject to de novo review.” Director of Insurance
ex rel. State v. A & A Midwest Rebuilders, Inc., 383 Ill. App. 3d 721, 722 (2008).
¶ 24 Generally speaking,
“While *** a court of equity has no power to modify, set aside or vacate a final
decree after the expiration of thirty days from the date of its rendition *** it retains
and possesses the power to control the time and manner of the execution of such
decree and has the inherent right to modify, by a subsequent order, the time of its
enforcement or the manner in which it shall be enforced.” Illinois National Bank of
Springfield v. Gwinn, 390 Ill. 345, 352 (1945).
In other words, “[a]lthough the trial court loses jurisdiction to amend a judgment after 30 days
from entry, it retains indefinite jurisdiction to enforce the judgment.” In re Marriage of Allen, 343
Ill. App. 3d 410, 412 (2003). Thus, the expiration of the circuit court’s jurisdiction to modify the
original judgment does not limit the circuit court’s jurisdiction to enforce that judgment. Cities
Service Oil Co. v. Village of Oak Brook, 84 Ill. App. 3d 381, 384 (1980). “A court has inherent
6
No. 1-20-1267
power to enforce its orders and decrees and should see to it that such judgments are enforced when
called upon to do so.” Id.
¶ 25 A request to enforce a judgment is therefore treated differently from a request to modify
the terms of that judgment. A & A Midwest Rebuilders, 383 Ill. App. 3d at 723. In determining
whether an order aims to modify or enforce a judgment, the relevant inquiry is whether the circuit
court’s order imposes new or different obligations on the parties. Id. (citing Allen, 343 Ill. App. 3d
at 412-413).
¶ 26 In its motion to enforce, Forman requested the circuit court lift the stay of execution of the
deficiency judgment. Forman did not move to alter the substantive terms of the underlying
judgment. The circuit court’s orders granting the motion to enforce, entering a memorandum of
judgment, and lifting the stay did not impose new or different obligations on the parties. These
orders simply rendered the deficiency obligations expressed in the 2016 Order effective and
enforceable. Because Forman’s motion to enforce the judgment did not seek to modify the
judgment, we find that the motion was not subject to the requirements of section 2-1401.
Furthermore, because the circuit court did not modify the obligations contained in the 2016 Order
when it lifted the stay and issued the memorandum of judgment, it properly exercised its inherent
power to enforce the judgment.
¶ 27 Because we find that Forman’s motion to enforce the judgment and lift the stay of
execution was not a section 2-1401 petition, we find that the circuit court’s order granting that
motion is not reviewable under Rule 304(b).
¶ 28 This result finds support in our case law. In Anest v. Bailey, 265 Ill. App. 3d 58, 67 (1994),
this court considered whether an order granting a motion to enforce the judgment was final and
appealable. The court found that where the order “resolved nothing of substance” but “merely
7
No. 1-20-1267
directed [a party] to comply with the final judgment previously entered,” it was not a final and
appealable judgment. Id. Therefore, the court held that it had no jurisdiction to review the order
granting the motion to enforce.
¶ 29 Finally, although the parties have not argued this on appeal, we note that jurisdiction over
this appeal does not lie under Rule 307(a)(1) (eff. Nov. 1, 2017). Rule 307(a)(1) provides for
review of interlocutory orders granting or denying an injunction. Id. The stay of execution of the
judgment contained in the 2020 Order was injunctive in nature. See Skolnick v. Altheimer & Gray,
191 Ill. 2d 214, 220 (2000) (“[a]n injunction is a judicial process operating in personam and
requiring [a] person to whom it is directed to do or refrain from doing a particular thing.” (Internal
quotation marks omitted.)). However, the 2020 Order appealed from in this case was not
interlocutory; it was entered nearly four years after final judgment. Rule 307 does not apply to
postjudgment orders granting or denying injunctive relief. Gardner v. Mullins, 234 Ill. 2d 503,
509-10 (2009). Accordingly, we do not have jurisdiction to review the 2020 Order under Rule 307.
¶ 30 III. CONCLUSION
¶ 31 For the foregoing reasons, we find that we lack jurisdiction over this appeal.
¶ 32 Appeal dismissed.
8 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483093/ | Filed 11/10/22 P. v. Martinez 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, D080719
Plaintiff and Respondent,
v. (Super. Ct. No. INF045974)
NOAVA MICHELLE MARTINEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
Samuel Diaz, Jr., Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In 2009, a jury convicted Noava Michelle Martinez of murder (Pen.
Code,1 § 187, subd. (a)); evading police with reckless driving (Veh. Code,
§ 2800.2); and six counts of assault on a peace officer with a firearm (§ 245,
1 All further statutory references are to the Penal Code unless otherwise
specified.
subd. (d)(2)). Martinez admitted three prison priors (§ 667.5, subd. (b)) and
one strike prior (§ 667, subds. (b)-(i)). Martinez was sentenced to a
determinate term of 40 years and four months, to be followed by an
indeterminate term of 30 years to life.
In February 2022, Martinez filed a petition for resentencing under
section 1170.95 (now renumbered section 1172.6). The trial court appointed
counsel, reviewed the record, and held a brief hearing. The court concluded
Martinez was the actual killer who drove the car causing the victim’s death.
The court denied the petition for failure to state a prima facie case for relief
under the statute.
Martinez filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to review the
record for error as mandated by Wende. We offered Martinez the opportunity
to file her own brief on appeal, but she has not responded.
STATEMENT OF FACTS
Appellate counsel has provided a statement of facts from the probation
officer’s report. We think the summary is helpful to provide background for
the trial court’s rather brief explanation of its reasons for concluding
Martinez was the actual killer. We will adopt the statement of facts as it is
set forth in the opening brief.
“On November 21, 2003, at approximately 2:15 p.m., the Sheriff’s
Department Career Criminal Apprehension Team (CCAT) began surveillance
on Michael Sanchez, who was a suspect in a carjacking. Sanchez had been
observed in the passenger seat of a vehicle as it drove past a CCAT member
who was patrolling in the city of Desert Hot Springs. The vehicle was
2
followed to 17900 Manzana Road and members of the CCAT established a
perimeter on the house. Sanchez was seen exiting the vehicle and entering
the house.
“As CCAT members watched, a Ford Escort arrived at the house.
Minutes later, Sanchez was observed exiting the house, getting into the
Escort and lying down in the back seat. A female, later identified as Noava
Martinez, the defendant, also exited the house and got into the Escort in the
driver’s side. She drove the car from in front of the house and headed
southbound on 18th Avenue toward Palm Drive. CCAT members followed
the vehicle at a discrete distance while they called for additional officers.
“After she left the house on Manzana, Martinez, driving in what
appeared to be an aimless manner, proceeded south on Palm Drive to
Interstate 10. She drove west on Interstate 10 until reaching Highway 62
and headed north. She left the highway, using a combination of dirt roads
and paved streets, and eventually ended up on Indian Avenue headed north.
At 2:37 p.m., with additional law enforcement units in place, a Sheriff’s
Deputy attempted a traffic stop. Martinez sped away and a pursuit ensued.
“As Martinez drove east on Dillon Road toward Two Bunch Palms
Road, deputies involved in the chase reported Sanchez was firing a handgun
at them from the back seat of the vehicle. Martinez attempted to turn into a
parking lot of Desert Springs Middle School, located on Two Bunch Palms
Road east of Palm Drive, but was unable to make the turn. Two deputies
stopped their patrol cars directly behind Martinez and attempted to make
contact. Sanchez leaned out of the passenger window of the vehicle with a
handgun pointed in the direction of the deputies. Fearing for their safety, the
deputies’ fired several rounds into the vehicle. Sanchez fired one round,
3
striking one of the deputies’ vehicles. Martinez sped away, headed
westbound on Two Bunch Palms Road with the deputies in pursuit.
“Martinez, traveling at a high rate of speed, turned south on Palm
Drive, east on Camino Idillio, then south on Avenida Manzana. As she
approached the intersection of Manzana and Dillon, a Honda Civic, driven by
Scott [N.], with the victim, Delonn [A.], age 49, as his passenger, entered the
intersection traveling west and was struck broadside by Martinez. The force
of the impact carried both vehicles into a vacant lot on the southwest corner
of Dillon Road and Avenida Manzana.
“Sanchez exited the vehicle and fled on foot. He was eventually
captured and subsequently suffered a cardiac arrest. He was declared dead,
despite receiving treatment from California Department of Forestry
personnel summoned to the scene. Martinez was unconscious and bleeding
from injuries sustained in the accident. She was transported to Desert
Regional Medical Center. An examination of the Escort revealed a handgun
lying on the driver’s side floorboard.
“[Scott] and [Delonn] were removed from the Honda Civic and
transported to Desert Regional Hospital. [Scott]’s injuries were not serious
but [Delonn] was declared dead upon arrival at the emergency room.
According to the Coroner’s report, she suffered massive blunt force trauma.
Her injuries included fractured ribs and lacerations to her lung, liver, spleen
and aorta.
“Sheriff’s Investigator Gary LeClair interviewed Martinez at the
hospital. At first, she misidentified herself as Tanya Benavidez. She
reported having no arrest record and denied she was on parole or probation.
In addition, Martinez informed LeClair she could not recall events leading up
to the accident and refused to admit having a relationship with Sanchez.
4
“Martinez changed her story and reported she had smoked marijuana
and methamphetamine while at the house on Avenida Manzana and left in
her cousin’s vehicle. She would not admit Sanchez was in the vehicle with
her and asked about him repeatedly. When pressured, Martinez
acknowledged Sanchez was in the vehicle with her but claimed she was
frightened because people in SUVs were chasing her. She denied knowing
the police were trying to get her to stop.
“LeClair advised Martinez to be truthful and she finally admitted her
identity. She was able to provide LeClair with her social security number,
her California identification card number and her Department of Corrections
identification numbers without delay. Martinez stated she and Sanchez were
fleeing in an attempt to avoid arrest.
“Martinez reported she was wanted for violating her parole. She
believed the people following them were plain clothes police officers. She
knew Sanchez carried a gun and saw him firing it out the window. Martinez
claimed she heard the sirens but did not see any flashing lights or police
vehicles. When asked if she felt her actions had created a dangerous
situation, Martinez stated she believed everyone involved was endangered.”
DISCUSSION2
As we have noted appellate counsel has filed a Wende brief and asks
the court to review the record for error. To assist the court in its review, and
in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel
has identified the following possible issue that was considered in evaluating
the potential merits of this appeal: Whether the trial court erred in refusing
to resentence Martinez under section 1172.6.
2 Appellant’s request for judicial notice, is granted.
5
We have reviewed the entire record as required by Wende and Anders.
We have not discovered any arguable issues for reversal on appeal.
Competent counsel has represented Martinez on this appeal.
DISPOSITION
The order denying Martinez’s petition for resentencing under
section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
DO, J.
6 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483099/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0243
No. DA 22-0243
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ZECHARIAH JUSTIN DANIEL SMITH,
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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483101/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0273
No. DA 22-0273
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ROBERT KINGSLEY TAYLOR,
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 19, 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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483102/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0455
No. DA 22-0455
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KEITH STACY LEONARD,
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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483103/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0587
No. DA 21-0587
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOSE MARTINEZ JR.,
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 28, 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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483104/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0566
No. DA 21-0566
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JASON DEAN KELLEY,
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 27, 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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489622/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE coming on to be heard upon a Complaint filed herein and the Court having heard the testimony and examined the evidence presented, considered the arguments of counsel and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law.
This Court has jurisdiction of the parties hereto and the subject matter hereof.
The Trustee seeks the turnover of a condominium located in Boston, Massachusetts.
At trial, the parties presented a series of twenty-seven (27) written stipulations of fact to serve as the evidence in this case. The Court finds all twenty-seven (27) stipulations to be relevant and adopts them by reference as its Findings of Fact. Accordingly, the stipulations need not all be repeated here in their entirety.
The facts may be summarized as follows:
In March of 1973, the Defendant/Debtor, DAVID V. ROSENTHAL, purchased the subject condominium with his own funds. Legal title to the condominium was placed in the name of one of the Debtor’s sons, the Defendant, ROBERT L. ROSENTHAL (ROBERT), as Trustee of a trust known as the Everite Trust. Contemporaneously, the Debtor had prepared and recorded a Declaration of Trust relating to the said Trust. The Debtor was the Trust’s original sole beneficiary, and the condominium was and always has been the Trust’s sole asset.
The Declaration of Trust provided, inter alia, that it, “may be terminated at any time by the beneficiaries ... by notice in writing to the Trustee...” It also provided that: “... The trustee shall have no power to deal in or with the trust estate except as directed by all of the beneficiaries.”
Sometime thereafter, a schedule of beneficial interests was prepared naming the remaining Defendants, HELEN I. ROSEN-THAL (HELEN), the Debtor’s wife, and DONALD J. ROSENTHAL (DONALD), the Debtor’s other son, as each holding fifty (50%) percent of the beneficial interest in the Everite Trust. This schedule was executed by ROBERT, as Trustee, but was not executed by the Debtor. The Court has not been provided with any writing executed by the Debtor purporting to transfer his interest in the Trust to HELEN, DONALD, or any other party. HELEN and DONALD paid no consideration for acquiring the Debtor’s interest in the Trust.
Notwithstanding the attempted transfer of his entire interest in the Everite Trust, the Debtor has exercised continuous dominion over the condominium from its acquisition through and subsequent to the filing of his Voluntary Bankruptcy Petition under Chapter 7, Title 11 U.S.C. in May of 1982.
The Debtor, with his wife, has been the only resident of the condominium and presently resides there. The Debtor guaranteed the payment of the existing mortgage on the condominium and has paid all of the mortgage and insurance payments, real estate taxes and condominium assessments on the property with his own funds or with funds borrowed from his wife. As recently as 1979, the Debtor furnished at least one of his creditors with financial statements which represented that he personally owned the condominium. Since he acquired the condominium, the Debtor has deducted the taxes and interest payments on the mortgage on the property from his personal Federal income tax returns.
The Court concludes that under Massachusetts law, the nature of the Debtor’s original interest in the Everite Trust is that of an interest in real property which can be transferred only in accordance with the *35Massachusetts Statute of Frauds. Mass. G.L. c. 259 § 1; Matthews v. Thompson, 186 Mass. 14, 71 N.E. 93 (1904); Tzitzon Realty Co., Inc. v. Mustonen, 352 Mass. 648, 227 N.E.2d 493 (1967); Guarino v. Zyfers, 9 Mass.App. 874, 401 N.E.2d 857 (1980); Bibi v. Courville, 357 Mass. 782, 260 N.E.2d 156 (1970); and, Richards v. Richards, 75 Mass. 313; 9 Gray 313 (1857). See also Mass.G.L. c. 183 § 3, and Bogert On Trusts, 2 Ed., § 190, page 476, Note 23.
As there exists no writing executed by the . Debtor conveying his original interest in the Everite Trust, the Court concludes that no effective conveyance of that interest has ever been made.
The execution by the Everite Trustee of the schedule purporting to convey the Debt- or’s interest to his wife and son is ineffective pursuant to the express language of the Trust’s declaration which prohibits the Trustee from dealing with the Trust property.
The Court concludes that at the time his Bankruptcy Petition was filed, the Debtor continued to own the entire beneficial interest in the Everite Trust. Since the terms of the Everite Trust permit its beneficiary to terminate it at any time, under Massachusetts law the Debtor’s interest can be attached by creditors. New England Merchants National Bank of Boston v. Hoss, 356 Mass. 331, 249 N.E.2d 635 (1969); and, Forbes v. Snow, 239 Mass. 138, 131 N.E. 299 (1921).
Therefore, the Court finds that the condominium is property of the Debtor’s bankruptcy estate, pursuant to 11 U.S.C. § 541(a).
The Court rejects the Debtor’s argument that the relationship between the Debtor and the Everite Trustee is that of principal and agent. Even if that relationship existed, the Defendants have failed to prove any act of ratification by the Debtor of the Everite Trustee’s otherwise expressly prohibited conveyance.
Further, the Court’s findings are strongly supported by the Debtor’s own conduct towards the condominium since its acquisition. The Debtor paid for the condominium and has since used it for his benefit. The Debtor has received a discharge of his debts which were accumulated while his assets were being placed in the condominium by way of mortgage payments and otherwise. Under these circumstances, it would be inequitable to permit the Debtor to retain the condominium under the guise of the Everite Trust. Indeed, equity compels the turnover of the condominium to the Debtor’s bankrupt estate to, at least partially, satisfy the claims of his creditors.
For the foregoing reasons, the condominium should be turned over to the Plaintiff pursuant to 11 U.S.C. §§ 542(a) and 543(b).
As is required by B.R. 921(a), a separate Judgment will be entered compelling the turnover of the condominium.
FINAL JUDGMENT
This Court has jurisdiction of the parties and the property which is the subject of this action. In conformity with the findings of fact and conclusions of law of even date, it is:
ORDERED and ADJUDGED:
That the Defendants, ROBERT L. RO-SENTHAL, Trustee, DAVID V. ROSEN-THAL, HELEN I. ROSENTHAL AND DONALD J. ROSENTHAL, are ORDERED and DIRECTED to surrender, deliver and turnover forthwith to the Plaintiff, pursuant to 11 U.S.C. §§ 542(a) and 543(b), the real property located in Boston, Suffolk County, Massachusetts, which real property is a condominium, more particularly described as follows:
Condominium Unit No. 11-F in the Condominium, organized in accordance with G.L. c. 183A, known as 180 Beacon Condominium, created by a master deed dated November 15, 1971, recorded November 19, 1971, in Book 8492, Page 344, as amended by instrument dated December 1, 1971, recorded in Book 8497, Page 425, all of which documents were recorded in Suffolk County Registry of Deeds, Suffolk County, Massachusetts; the street address of said property being Unit No. *3611-F, 180 Beacon Street, Boston, Massachusetts.
It is further ORDERED and ADJUDGED that the Defendants shall execute and deliver to the Plaintiff such deeds or other instruments as may be required to perfect the Plaintiff’s right, title and interest in and to the real property described above. The Court hereby retains jurisdiction over this matter to enter such further Orders as may be necessary to perfect the Plaintiff’s right, title and interest in and to the real property described above should the Defendants fail to comply with the terms of this Judgment. Costs may be taxed on Motion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489623/ | *45ORDER
ROBERT CLIVE JONES, Bankruptcy Judge.
Background
The debtors filed their joint Chapter 7 petition on 22 October 1982. In the Court’s order of 30 November 1982 all scheduled creditors were notified of the 27 January 1983 deadline for filing complaints to determine the dischargeability of a debt and to object to the debtors’ discharge. The order also included the bar date for the filing of proofs of claims (6 months following the 13 December 1982 first meeting of creditors).
Creditor William Black, who is listed on the debtors’ schedules as holding an unsecured claim for $1.00, received notice of the above order in due course, underlined what he thought to be the pertinent information (including the deadlines), and immediately turned his copy of the order over to his attorney for appropriate action. He instructed his attorney to do all that was necessary to protect his claim against the debtors. Both Black and his attorney are residents of southern California, and neither attended the first meeting of creditors.
Black’s attorney filled out a proof of claim form for $250,000, which was then signed by Black and filed with the clerk of the bankruptcy court on 20 December 1982. The claim is based, in part, on Mr. Atkinson’s alleged fraud and is purportedly non-dischargeable. In reliance on what he assumed to be his counsel’s competence in bankruptcy law (based on the observation that the proof of claim was handled expeditiously), Black personally took no further action to protect his claim until some months later.
The January deadline for filing complaints relating to discharge passed without Black’s counsel taking any action, and it was not until sometime in May 1983 that Black discovered the omission and contacted local counsel here in Reno, Nevada. Black’s local counsel then filed on 1 June 1983 a motion to extend both the time for filing a dischargeability complaint and the time within which to object to the debtors’ general discharge. The Court set 1 July 1983 for the evidentiary hearing.*
Discussion
Although Fed.R.Bankr.P. 404(c) and 409(a) provide that the Court may “for cause” extend the time for filing a dis-chargeability complaint or a complaint objection to a general discharge, when enlargement of the time is sought the Court is bound by Fed.R.Bank.P. 906(b). Rule 906(b) as applicable here reads:
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion ... upon application made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect ....
The operative words, then, for the purposes of this motion are “excusable neglect.” As expressed by one court:
The significance of the excusable neglect standard expressed in Rule 906(b) as applied to Rule 409 is that it serves as a guideline for the court in the rather murky waters involving the determination of whether a party’s failure to file a complaint objection to the dischargeability of its debt within the time prescribed should be forgiven in light of the competing concerns of the parties and the objectives of the bankruptcy laws.
Matter of Heyward, 15 B.R. 629, 635 (Bkrtcy.E.D.N.Y.1981). That the court’s discretion to extend the time must be exercised consistently with the “excusable neglect” standard was recognized by the Ninth Circuit Court of Appeals in In re Magouirk, 693 F.2d 948 (9th Cir.1982). The Magouirk court also recognized, in agreement with the bankruptcy judge and the bankruptcy appellate panel below, that “ ‘excusable neglect’ is subject to differing interpretations, depending upon the proce*46dural context in which it appears.” Id. at 950.
Magouirk held that in a context such as our present motion “excusable neglect” is to be “liberally construed,” id. at 951, because it is one of “those instances where the order or judgment forecloses trial on the merits of a claim.” Id. The court likened a Rules 404 or 409 and 906(b) matter to Fed.R. Civ.P. 60(b) motions (excusable neglect as a basis for relieving a party from the effect of a final judgment or order). The court noted approvingly some factors bankruptcy courts have considered in judging whether “excusable neglect” exists:
(1) whether granting the delay will prejudice the debtor, (2) the length of the delay and its impact on efficient court administration, (3) whether the delay was beyond the reasonable control of the person whose duty it was to perform, (4) whether the creditor acted in good faith, and (5) whether clients should be penalized for their counsel’s mistake or neglect.
Id.
During oral argument on this motion, movant’s counsel concentrated on that part of his client’s motion that seeks an extension of the time to file a complaint to determine the dischargeability of a debt, and appeared to abandon that portion of the motion that seeks enlargement of the time to file a complaint objecting to the debtors’ general discharge. Even assuming there was no implied waiver, this Court is concerned with the length of time that has lapsed since the filing of debtors’ petition and of the consequent prejudice to the debtors in further delaying the “fresh start” provided by the general discharge of 11 U.S.C. § 727. Also, the Court is mindful that the efficient administration of bankruptcy cases in this district can only be preserved through adherence to the established deadlines, which should be modified only in rare circumstances. In light of these considerations, the Court believes an extension of the time to file a complaint objecting to the debtors’ general discharge is unwarranted, notwithstanding movant’s apparent good faith and reasonable and pardonable reliance on his attorney.
For some of the same reasons expressed above, the Court believes, on balance, that Black should not be penalized for his attorney’s negligence and the merits of his fraud complaint should be heard in spite of the elapsed time since the bar date. The administration of this case will not be unduly hindered by such a trial, there is no evidence that Black’s delay was the product of bad faith, and there is evidence that the delay was beyond the reasonable control of the movant, a layman who reasonably relied on his counsel. Under these circumstances, the Court feels justice will be best served by allowing an extension of time.
Accordingly, it is hereby
ORDERED that Black’s motion for an extension of time to file a complaint objecting to the debtors’ discharge is denied and that his motion for an extension of time to file a complaint to determine the discharge-ability of a debt is granted.
IT IS FURTHER ORDERED that Black shall have 10 days from the service of this order to file such a complaint.
These bare facts were gleaned from the debtors’ case file and from evidence presented at the evidentiary hearing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490299/ | ORDER RE MOTION FOR RELIEF FROM STAY
TIMOTHY J. MAHONEY, Bankruptcy Judge.
The Crete State Bank filed a Motion for Relief from Stay on February 10, 1986. Preliminary hearing was held on March 6, 1986, and final evidentiary hearing was held on March 18, 1986. Appearing on behalf of the Crete State Bank was Matthew Hanson of Steinacher, Vosoba & Hanson of Crete, Nebraska. Appearing on behalf of the debtor was Alan Kirshen of Omaha, Nebraska.
In summary, the evidence presented by the moving party was that in July of 1981 the debtors executed a promissory note in the amount of $254,500 and, to secure said note, executed a second real estate mortgage in favor of the moving party. Payments on the note were not timely made and the Bank filed a petition for foreclosure of the real estate mortgage and obtained a decree of foreclosure in April of 1985. Debtors exercised their State law rights to stay the sheriff’s sale for nine months and in January of 1986, when the nine-month stay was about to expire, the debtors filed a Chapter 11 bankruptcy.
The evidence of the Bank is that the land has declined significantly in value since the note went into default and since the date of the foreclosure decree. Further, the land values have continued to decline even since the filing of the bankruptcy in January of 1986. The mortgage, which is now merged into the State Court judgment, required the debtors to keep the buildings on the real estate insured in the amount of $25,000 with a loss payable clause naming the Bank. The evidence is in conflict as to whether or not insurance coverage was obtained, but there is no disagreement that a new insurance policy obtained by the debtors in January of 1986 did not provide coverage for the benefit of the Bank.
The debtors do not dispute that they have no equity in the property. They argue, however, that the property is necessary for an effective reorganization of their farming business, that the land values have stopped declining and, therefore, the Bank has no right to an adequate protection payment and further, since they have paid the taxes and obtained an insurance policy, there is no cause for lifting the automatic stay.
The foreclosure decree found that the amount of the- debt on April 12, 1985, was $224,249.58 plus interest. As of the trial date the accrued interest is $105,419.77. *697The Bank presented value of the collateral at $135,000. The Bank’s expert anticipated future decline in value of less than 2% per month.
The debtors’ evidence of value included the testimony of a qualified appraiser who had completed his appraisal on the day of the hearing. His opinion was that the total value of the property as of the date the bankruptcy was filed, January 17, 1986, was $103,000. He believed that the decline since January has been at the maximum rate of seven/tenths of 1% per month and he believed that the rate of decline would be less in the future.
The debtors also presented the appraisal testimony of an appraiser who had given an estimate of value in 1984 and updated his appraisal as of March of 1986. His opinion was that the current value of the property is $87,200.
Pursuant to the State Court foreclosure decree, the principal amount of the debt is $224,249.58 with interest accrued as of April 11, 1985, in the sum of $67,708.92. Interest has accrued thereafter at a daily rate of $110.5888. The decree also added an additional sum of $5.50 for filing of the Notice of Lis Pendens. Interest accrues in the amount of $110.5888 from April 12, 1985, until the date the petition in bankruptcy was filed, January 17, 1986. For bankruptcy purposes, since the creditor was undersecured on the date of filing of the petition, interest does not accrue on the claim thereafter.
The value of the real property on the date the petition was filed was $103,000. The property has declined in value seven/tenths of 1% per month since that date, or approximately $700 per month.
The debtors have no equity in the property.
Concerning necessity for reorganization, the debtors presented evidence that Mr. Kraus works and has worked off the farm for many years. His annual off-farm income is approximately $20,000. Mrs. Kraus testified that she has a beauty parlor on the premises and needs the premises to operate her business. Her annual income from the beauty parlor is approximately $500.
The evidence of all three appraisers and Mrs. Kraus concerning the land is that it is poor crop land and probably best used for pasture. Historically, the debtors have not made a significant amount of their net income from the operation of the farm. The original note and mortgage were executed as a benefit for their son, and not for the purpose of an operating loan for the farm business. The farm business has never been the means of support for this family and the farm business did not provide sufficient income to enable the debtors to make timely interest and principal payments on the note and mortgage.
In most cases this Court would not consider a motion for relief two months into a Chapter 11 case. However, the evidence is clear that these debtors were unable to generate sufficient income from their business operation to make the necessary interest and principal payments prepetition. They were unable to redeem the property from a State Court foreclosure proceeding. They had nine months after the State Court foreclosure decree to create some plan concerning their reorganization possibility. They have now had two months since they filed their bankruptcy petition to present some evidence of the possibility or probability of an effective reorganization.
The evidence is clear to this Court that the farm business has not in the past and does not now provide sufficient income to the debtors to enable them to satisfy this debt obligation. Further, the evidence is clear that the allowed secured claim of the Bank is approximately $100,000 and the allowed unsecured claim is well over $200,-000. Based on all of the evidence, this Court must consider the feasibility of an effective reorganization by these debtors.
The conclusion of the Court is this property is not necessary to an effective reorganization because no effective reorganization is possible.
Even if the Court determined that an effective reorganization were possible, the *698offer of adequate protection made by debtors is insufficient. First, they have failed to comply with the minimum requirements of the mortgage document which included keeping the property insured for the benefit of the creditor. Although this is a simple enough procedure and the debtors can easily obtain the appropriate supplemental policy, they have not done so as of the date of the hearing.
Secondly, the debtors have offered a monthly adequate protection payment of $550 and tendered a money order in the amount of $550. Such offer is inadequate. The minimum monthly payment required to protect the interest of the creditor is $700 per month and the debtor would be required to make a lump sum payment of $1,400 to make up for the decline in value of the collateral since the filing of the petition plus a prospective payment of $700 for the assumed decline in value during the next month.
No evidence was presented that the debtors were capable of making the immediate payment of $2,100 and $700 per month thereafter.
The Court concludes that the creditor has met its burden under § 362(d)(2) in that the evidence shows the debtors have no equity in the property. The debtors have failed to meet their burden concerning the necessity of the property for an effective reorganization and have failed to meet their burden of showing their capability of making adequate protection payments.
Therefore, the motion of the Bank is sustained and the automatic stay if hereby lifted.
Separate journal entry shall follow. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483105/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0381
No. DA 22-0381
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JORDAN KYLE KEEFE,
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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483106/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0627
No. DA 21-0627
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JESSICA ELAINE HURT,
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 21, 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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350175/ | People v Saccone (2022 NY Slip Op 07337)
People v Saccone
2022 NY Slip Op 07337
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
781 KA 21-00589
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vANTHONY SACCONE, DEFENDANT-APPELLANT.
ANTHONY BELLETIER, SYRACUSE, FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), rendered November 19, 2018. The judgment convicted defendant, upon a plea of guilty, of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, aggravated vehicular homicide, and leaving the scene of an incident without reporting.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of, inter alia, aggravated vehicular homicide (Penal Law § 125.14 [4]) and leaving the scene of an incident without reporting (Vehicle and Traffic Law § 600 [2] [a]) in satisfaction of an indictment that included three counts of murder in the second degree (Penal Law § 125.25 [2] [depraved indifference murder]). The charges arose from an early morning collision between a vehicle operated by defendant and a vehicle occupied by two teenagers and their 20-year-old friend, all three of whom died of the resultant injuries. According to the indictment, defendant engaged in reckless driving by traveling at a speed of approximately 86 miles per hour on a road with a speed limit of 35 miles per hour, crossing over a double solid yellow line in the road, and going through a red light at an intersection, where he struck the victims' vehicle broadside. Defendant allegedly was under the combined influence of cocaine and alcohol, with an estimated blood alcohol content of .18% at the time of the accident. Following the collision, defendant fled the scene on foot and did not call for help or check on the victims. The police K—9 unit tracked defendant to his mother's nearby house where he was hiding and placed him under arrest. Pursuant to the plea agreement, County Court sentenced defendant to an aggregate indeterminate term of imprisonment of 10 to 30 years.
Prior to sentencing, defendant moved to withdraw his plea, contending that he was factually innocent and that the plea was involuntarily entered because he did not have enough time to discuss the plea offer with his attorney, who, inter alia, pressured him into pleading guilty and failed to conduct a proper investigation. We reject defendant's contention that the court abused its discretion in denying the motion without a hearing (see People v Rivera, 195 AD3d 1591, 1591-1592 [4th Dept 2021], lv denied 37 NY3d 995 [2021]). "When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances" (People v Brown, 14 NY3d 113, 116 [2010] [internal quotation marks omitted]; see People v Manor, 27 NY3d 1012, 1013-1014 [2016]). Here, although the court did not conduct a hearing, it "allowed defendant to argue his motion to withdraw his plea, thus giving him a reasonable opportunity to advance his claims" (People v Shorter, 179 AD3d 1445, 1446 [4th Dept 2020], lv denied 35 NY3d 974 [2020]). Moreover, the court properly denied the motion. Defendant's claims that his attorney pressured him were belied by his statements during the plea colloquy that he was satisfied with the services provided by his attorney and that no one had coerced or threatened him into pleading guilty (see People v Rodgers, 162 AD3d 1500, 1501-1502 [4th Dept 2018], lv denied 32 NY3d 940 [2018]). Similarly, "defendant was not entitled to [*2]a hearing on his uncorroborated assertion that his . . . attorney misadvised him regarding the minimum time he would have to serve" before he would be released on parole inasmuch as defendant stated that his plea was not influenced by any off-the-record promises or representations (People v Avery, 18 AD3d 244, 244 [1st Dept 2005], lv denied 5 NY3d 825 [2005]; see People v Ramos, 63 NY2d 640, 643 [1984]). Defendant also admitted during the colloquy to all the elements of the crimes to which he pleaded guilty, and his subsequent assertions of innocence were unsubstantiated (see People v Fox, 204 AD3d 1452, 1453 [4th Dept 2022], lv denied 39 NY3d 940 [2022]).
Defendant further contends that his plea was not knowingly, voluntarily, and intelligently entered. Defendant's claims that he was coerced into pleading guilty by a "gross overcharge" in the indictment and because the court rushed him into making a decision are not preserved for our review because he did not raise those particular arguments in his motion to withdraw the plea (see People v Gray, 189 AD3d 2135, 2135 [4th Dept 2020], lv denied 36 NY3d 1120 [2021]). Although preserved, we reject defendant's contention that he was coerced into pleading guilty by "baseless" new misdemeanor charges that were ultimately dismissed. The fact that a possible new prosecution "may have influenced defendant's decision to plead guilty is insufficient to establish that the plea was coerced" (People v Hobby, 83 AD3d 1536, 1536 [4th Dept 2011], lv denied 17 NY3d 859 [2011]; see People v Williams, 170 AD3d 1666, 1667 [4th Dept 2019]; see generally People v Hollman, 197 AD3d 484, 486-487 [2d Dept 2021], lv denied 37 NY3d 1146 [2021]).
To the extent that defendant contends that his plea was involuntary because he showed "reluctance" during the colloquy, we reject that contention. It is true, as defendant points out, that he made several statements during the plea colloquy in which he appeared to dispute some of the facts alleged by the People. The record establishes, however, "that the court conducted the requisite further inquiry and that defendant's responses to the court's subsequent questions removed any doubt about his guilt" (People v Tapia, 158 AD3d 1079, 1080 [4th Dept 2018], lv denied 31 NY3d 1088 [2018]; see People v Lopez, 71 NY2d 662, 666 [1988]).
Defendant contends that his waiver of the right to appeal is invalid and that his negotiated sentence is unduly harsh and severe considering that he has no prior criminal record and received "very close" to the maximum aggregate sentence permitted by law for the two felonies to which he pleaded guilty. Even assuming, arguendo, that defendant's waiver of the right to appeal is unenforceable and thus does not preclude our review of his challenge to the severity of his sentence (see People v Lobdell, 203 AD3d 1573, 1574 [4th Dept 2022], lv denied 38 NY3d 1034 [2022]; People v Martin, 199 AD3d 1402, 1402 [4th Dept 2021], lv denied 37 NY3d 1162 [2022]), we perceive no basis in the record to exercise our power to modify the negotiated sentence as a matter of discretion in the interest of justice (see CPL 470.15 [6] [b]). As noted, defendant's plea satisfied three counts of murder in the second degree, thereby reducing his sentencing exposure (see generally People v Hogan, 269 AD2d 787, 787 [4th Dept 2000], lv denied 95 NY2d 798 [2000]).
Defendant's challenge to the sufficiency of the grand jury evidence with respect to the three counts of murder in the second degree that were dismissed as satisfied by the plea is not properly before us (see People v Pelchat, 62 NY2d 97, 108 [1984]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350177/ | People v Robles (2022 NY Slip Op 07336)
People v Robles
2022 NY Slip Op 07336
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
779 KA 19-02171
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vEDDIE ROBLES, DEFENDANT-APPELLANT.
CAMBARERI & BRENNECK, SYRACUSE (MELISSA K. SWARTZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
EDDIE ROBLES, DEFENDANT-APPELLANT PRO SE.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KAITLYN M. GUPTILL OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered August 16, 2019. The judgment convicted defendant upon his plea of guilty of attempted criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of attempted criminal possession of a weapon in the second degree (Penal Law §§ 110.00, 265.03 [3]). The charges arose after two police officers heard a dispatch reporting gun shots fired near a particular intersection. Based on that information, one of the police officers used his department-issued iPad to review camera footage of the incident. Among other things, the officer observed a black male, thin to medium build, about five feet eight inches tall, dressed in dark clothing, and walking a yellow dog on a pink leash. Approximately two hours later as the officers were patrolling near the area of the intersection, they observed defendant, who partially matched the suspect in the video, walking a few blocks from the incident. The officers approached defendant, detained him and, after a struggle, recovered a gun from his person. Subsequently, in response to a pre-Miranda inquiry from one of the officers, defendant admitted to possessing the firearm. Supreme Court refused to suppress both the statement and the evidence of the firearm.
Defendant contends in his main and pro se supplemental briefs that the court erred in refusing to suppress the handgun found on his person inasmuch as the officers did not have reasonable suspicion to detain and subsequently frisk him (see generally People v De Bour, 40 NY2d 210, 223 [1976]). We reject that contention. The evidence at the suppression hearing established that the officers had an articulable reason for initially approaching defendant "to conduct a common-law inquiry, i.e., they had 'a founded suspicion that criminal activity [was] afoot' " (People v Mack, 49 AD3d 1291, 1292 [4th Dept 2008], lv denied 10 NY3d 866 [2008]). More particularly, the officers encountered defendant within a few blocks of the location identified in the dispatch. Defendant was wearing clothing similar to that worn by the suspect observed in the video and was walking what appeared to be the same yellow dog with a pink leash. Considering the totality of the circumstances, including the information the police had from the video and the testimony from one of the officers that he noticed a bulge in defendant's front waistband, we conclude that the officers thereafter developed reasonable suspicion to detain defendant (see People v Benjamin, 51 NY2d 267, 271 [1980]; see also People v Williams, 136 AD3d 1280, 1283 [4th Dept 2016], lv denied 27 NY3d 1141 [2017], lv denied 29 NY3d 954 [2017]). Contrary to defendant's further contention, despite some inconsistencies, the officers' testimony was not so "incredible or improbable as to warrant disturbing the . . . court's determination of credibility" (People v Addison, 199 AD3d 1321, 1322 [4th Dept 2021] [internal [*2]quotation marks omitted]).
We agree with defendant's contention in his main brief, however, that the court should have suppressed the statement defendant made in response to the officer's questions inasmuch as defendant was in custody at the time but had not waived his Miranda rights. " 'The term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response' " (People v Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]; see People v Clanton, 151 AD3d 1576, 1578 [4th Dept 2017]). "Although the police may ask a suspect preliminary questions at a crime scene in order to find out what is transpiring . . . , where criminal events have been concluded and the situation no longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation" (Clanton, 151 AD3d at 1578 [internal quotation marks omitted]). Here, after defendant had been restrained and handcuffed, an officer asked defendant, "what's going on? Are you all right? Are you okay?" Defendant responded, "you saw what I had on me. I was going to do what I had to do." We conclude that the interaction between defendant and the officer "had traveled far beyond a 'threshold crime scene inquiry' " and, under the circumstances, it was likely that the officer's particular questions " 'would elicit evidence of a crime and, indeed, it did elicit an incriminating response' " (id.; cf. People v Kenyon, 108 AD3d 933, 936 [3d Dept 2013], lv denied 21 NY3d 1075 [2013]).
Although we conclude that the court should have suppressed defendant's statement to police, we further conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant's guilty plea (see Clanton, 151 AD3d at 1579). "[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant's decision, unless at the time of the plea he [or she] states or reveals his [or her] reason for pleading guilty" (People v Grant, 45 NY2d 366, 379-380 [1978]). "The Grant doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no 'reasonable possibility that the error contributed to the plea' " (People v Wells, 21 NY3d 716, 719 [2013]). Here, the court properly refused to suppress the firearm found on defendant's person. Because that evidence would have been admissible at trial, we conclude that there is no reasonable possibility that the court's error in failing to suppress defendant's statement admitting possession of the firearm contributed to his decision to plead guilty (see Clanton, 151 AD3d at 1579; cf. Grant, 45 NY2d at 379-380).
Defendant's contention in his main brief that his plea was not knowingly, intelligently, and voluntarily entered because the court failed to advise him of all the constitutional rights he would be forfeiting upon pleading guilty is unpreserved for our review inasmuch as he failed to move to withdraw the plea or to vacate the judgment of conviction (see People v Williams, 185 AD3d 1535, 1535 [4th Dept 2020], lv denied 35 NY3d 1116 [2020]). In any event, defendant's contention is without merit. Reviewing "the record as a whole and the circumstances of the plea in its totality," we conclude that the plea was knowing, intelligent, and voluntary (People v Tucker, 169 AD3d 1368, 1369 [4th Dept 2019], lv denied 33 NY3d 982 [2019] [internal quotation marks omitted]; see People v Walker, 151 AD3d 569, 569 [1st Dept 2017]).
We have considered the remaining contentions in defendant's pro se supplemental brief and conclude that none warrants modification or reversal of the judgment.
All concur except Lindley, J., who dissents and votes to reverse in accordance with the following memorandum: I agree with the majority that Supreme Court erred in refusing to suppress the statement that defendant made to the police while in custody at the crime scene but before he was advised of the Miranda warnings. Unlike the majority, however, I do not find the error to be "harmless beyond a reasonable doubt" (People v Crimmins, 36 NY2d 230, 237 [1975]). I would therefore reverse the judgment, vacate the plea, grant that part of the omnibus motion seeking to suppress defendant's statement, and remit the matter to Supreme Court for further proceedings on the indictment.
The Court of Appeals has repeatedly advised that harmless error analysis will "rarely, if ever," apply in cases involving guilty pleas "unless at the time of plea [the defendant] states or reveals his [or her] reason for pleading guilty" (People v Grant, 45 NY2d 366, 379-380 [1978]). [*3]"This is especially true when the defendant has unsuccessfully sought to suppress a confession" (id. at 380). Because defendants usually do not say why they are pleading guilty, "an appellate court is rarely in a position to determine whether denial of a suppression motion played any part in a defendant's decision to plead" (People v Lloyd, 66 NY2d 964, 965 [1985]). An erroneous suppression ruling may be deemed harmless, however, "if the defendant articulates a reason for [the plea] that is independent of the incorrect preplea court ruling . . . or an appellate court is satisfied that the decision to accept responsibility was not influenced by the error" (People v Wells, 21 NY3d 716, 719 [2013] [internal quotations marks omitted]).
Here, the People do not argue that harmless error analysis applies, and defendant failed to articulate a reason for his plea that is independent of the erroneous suppression ruling. The majority nevertheless concludes that there is no reasonable possibility that the court's erroneous suppression ruling contributed to defendant's decision to plead guilty. I see no basis in the record to reach that conclusion. Although the majority relies on our 3-2 decision in People v Clanton (151 AD3d 1576 [4th Dept 2017]), in which we found a preplea error to be harmless without identifying anything in the record indicating that defendant would have pleaded guilty regardless of the error, I do not find the reasoning of Clanton to be persuasive.
Again, as a general rule, "an appellate court is rarely in a position to determine whether denial of a suppression motion played any part in a defendant's decision to plead, making harmless error rules generally inapplicable in such situations" (Lloyd, 66 NY2d at 965), and this is not one of those rare cases in which the defendant said something on the record from which we can conclude that he would have pleaded guilty without regard to the error. I therefore respectfully dissent.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350183/ | People v Jones (2022 NY Slip Op 07373)
People v Jones
2022 NY Slip Op 07373
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.
873 KA 21-00117
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vMARTHA JONES, DEFENDANT-APPELLANT.
DAVID R. MORABITO, EAST ROCHESTER, FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Michael L. Dollinger, J.), rendered October 2, 2020. The judgment convicted defendant, upon a jury verdict, of manslaughter in the first degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, upon a jury verdict, of manslaughter in the first degree (Penal Law
§ 125.20 [1]). The conviction arises from an incident in which defendant, following an argument with a neighbor, shot the neighbor in the right leg, damaging his femoral artery and ultimately causing his death.
To the extent that defendant preserved her contention that the conviction is not supported by legally sufficient evidence (see generally People v Gray, 86 NY2d 10, 19 [1995]), that contention lacks merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Moreover, viewing the evidence in light of the elements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is against the weight of the evidence (see generally Bleakley, 69 NY2d at 495). Although a different verdict would not have been unreasonable, it cannot be said that the jury failed to give the evidence the weight it should be accorded (see id.; People v Metales, 171 AD3d 1562, 1564 [4th Dept 2019], lv denied 33 NY3d 1107 [2019]). With respect to defendant's contention that County Court erred in denying without a hearing her motion to set aside the verdict pursuant to CPL 330.30 (1), we note, initially, that certain allegations in support of the motion concerned matters that "were outside the record and for that reason could not be considered in a CPL 330.30 (1) motion" (People v Wolf, 98 NY2d 105, 119 [2002]; see People v Lewis-Bush, 204 AD3d 1424, 1427 [4th Dept 2022], lv denied 38 NY3d 1072 [2022]; see generally People v Harris, 1 AD3d 881, 882 [4th Dept 2003], lv denied 2 NY3d 740 [2004]). To the extent that the motion was based upon matters appearing in the record, we conclude that the court did not err in denying the motion without a hearing (see People v DeCapua, 151 AD3d 1746, 1747 [4th Dept 2017], lv denied 29 NY3d 1125 [2017]).
Defendant's contention that she was denied the right to confront a witness who invoked his Fifth Amendment right against self-incrimination when questioned on cross-examination about a pending criminal charge is unpreserved (see People v Wright, 38 AD3d 1232, 1233 [4th Dept 2007], lv denied 9 NY3d 853 [2007], reconsideration denied 9 NY3d 884 [2007]). In any event, that contention lacks merit (see People v Arroyo, 46 NY2d 928, 930 [1979]; People v Dekenipp, 105 AD3d 1346, 1348 [4th Dept 2013], lv denied 21 NY3d 1041 [2013]). Nor did the court err in limiting defendant's cross-examination of the medical examiner who performed the victim's autopsy. Contrary to defendant's contention, the court did not abuse its discretion in determining that a line of questioning regarding a medical diagnosis that the victim had received and medication that he had been prescribed in connection with that diagnosis was outside the [*2]scope of direct examination (see generally People v Ennis, 107 AD3d 1617, 1619 [4th Dept 2013], lv denied 22 NY3d 1040 [2013], reconsideration denied 23 NY3d 1036 [2014]) and based on medical records that were not admitted in evidence (see People v Laracuente, 21 AD3d 1389, 1391 [4th Dept 2005], lv denied 6 NY3d 777 [2006]; see also People v Jones, 73 NY2d 427, 430 [1989]).
We also reject defendant's contention that she was denied effective assistance of counsel. With respect to defendant's claim that defense counsel was ineffective for failing to argue at the Huntley hearing that defendant invoked her right to counsel during her interrogation, the People did not introduce at trial any of the statements challenged by defendant at the Huntley hearing and, thus, defendant could not have been prejudiced by defense counsel's alleged failure in that respect (see generally People v Hobot, 84 NY2d 1021, 1024 [1995]; People v Lewis, 192 AD3d 1532, 1533 [4th Dept 2021], lv denied 37 NY3d 993 [2021]). Furthermore, defense counsel was not ineffective for failing to object to certain testimony of a firearms examiner concerning the rifle and projectile that were recovered in connection with the incident. Both items were recovered from the area of the shooting, and testimony about their provenance was relevant (see generally People v Scarola, 71 NY2d 769, 777 [1988]). Moreover, the testimony of the firearms examiner that he could not determine whether the projectile was fired from the rifle was, if anything, slightly favorable to defendant. It cannot be said that defense counsel was ineffective for failing to make an objection that had "little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004], rearg denied 3 NY3d 702 [2004]; see People v Faison, 113 AD3d 1135, 1136 [4th Dept 2014], lv denied 23 NY3d 1036 [2014]). To the extent that defendant contends that defense counsel was ineffective for failing to request that an adverse inference instruction concerning missing video evidence be given to the jury, defendant failed to establish that such evidence was destroyed by agents of the government (see CJI2d[NY] Adverse Inference—Destroyed or Lost Evidence; see generally People v Durant, 26 NY3d 341, 348-350 [2015]; People v Handy, 20 NY3d 663, 665, 669 [2013]). Although defendant further contends that defense counsel was ineffective for failing to call defendant's father as a witness, defendant failed to "demonstrate the absence of strategic or other legitimate explanations" for that alleged deficiency (People v Baker, 14 NY3d 266, 270-271 [2010] [internal quotation marks omitted]; see People v Botting, 8 AD3d 1064, 1066 [4th Dept 2004], lv denied 3 NY3d 671 [2004]; cf. People v Borcyk, 184 AD3d 1183, 1183-1188 [4th Dept 2020]). In addition, because the court "did not erroneously instruct the jury regarding justification, defense counsel was not ineffective for failing to object to that charge" (People v Ford, 114 AD3d 1221, 1221 [4th Dept 2014], lv denied 23 NY3d 962 [2014]).
We reject defendant's contention that the sentence is unduly harsh and severe.
Finally, we have considered defendant's remaining contentions and
conclude that none warrants modification or reversal of the judgment.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350179/ | People v Reedy (2022 NY Slip Op 07397)
People v Reedy
2022 NY Slip Op 07397
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, AND MONTOUR, JJ.
1001 KA 21-01032
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vJOSHUA L. REEDY, DEFENDANT-APPELLANT.
CRAIG M. CORDES, SYRACUSE, FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Steuben County Court (Patrick F. McAllister, A.J.), rendered June 21, 2021. The judgment convicted defendant upon his plea of guilty of aggravated driving while intoxicated.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the plea is vacated, those parts of the omnibus motion seeking to suppress physical evidence and statements are granted, the indictment is dismissed, and the matter is remitted to Steuben County Court for proceedings pursuant to CPL 470.45.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of aggravated driving while intoxicated as a class E felony (Vehicle and Traffic Law §§ 1192 [2-a] [b]; 1193 [1] [c] [i] [B]), defendant contends that County Court erred in refusing to suppress physical evidence and statements that he made to the police. We agree.
Specifically, defendant contends that the stop of defendant's vehicle was unlawful because the evidence before the suppression court is insufficient to establish that the arresting police officer had probable cause to believe that defendant had committed a traffic violation. At the suppression hearing, the officer testified that he stopped the vehicle after he visually estimated defendant's speed at 82 miles per hour in a 65 mph zone, and there was no testimony that the officer used a radar gun to establish defendant's speed. While it is well-settled that a qualified police officer's testimony that he or she visually estimated the speed of a defendant's vehicle may be sufficient to establish that a defendant exceeded the speed limit (see People v Olsen, 22 NY2d 230, 232 [1968]), here, the People failed to establish the officer's training and qualifications to support the officer's visual estimate of the speed of defendant's vehicle (see generally People v Smith, 162 AD2d 999, 999 [4th Dept 1990], lv denied 76 NY2d 896 [1990]). Thus, inasmuch as the People failed to meet their burden of showing the legality of the police conduct in stopping defendant's vehicle in the first instance, we conclude that the court erred in refusing to suppress the physical evidence and defendant's statements obtained as a result of the traffic stop. Because our determination results in the suppression of all evidence supporting the crime charged, the indictment must be dismissed (see People v Dortch, 186 AD3d 1114, 1116 [4th Dept 2020]).
In light of our determination, we need not reach defendant's remaining contention.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350180/ | People v Pietrocarlo (2022 NY Slip Op 07323)
People v Pietrocarlo
2022 NY Slip Op 07323
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
758 KA 19-01824
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vANNABEL PIETROCARLO, DEFENDANT-APPELLANT.
ANDREW D. FISKE, BUFFALO, FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIEL J. PUNCH OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), rendered July 16, 2019. The judgment convicted defendant, upon a nonjury verdict, of assault in the second degree and petit larceny.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting her, after a nonjury trial, of assault in the second degree as an accessory (Penal Law §§ 20.00, 120.05 [12]), and petit larceny (§ 155.25), in connection with an incident where she and three other members of her family (codefendants) allegedly acted in concert to attack and cause physical injury to the victim, i.e., defendant's father. We affirm.
Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we reject defendant's contention that the evidence is legally insufficient to support her conviction of assault in the second degree as an accessory. As relevant here, a person is guilty of assault in the second degree when, "[w]ith intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than" the victim (Penal Law § 120.05 [12]). To establish defendant's guilt as an accessory under Penal Law § 20.00, the People were required to prove that defendant had "a shared intent, or community of purpose with the principal [actor] . . . , and that [s]he intentionally aided the principal in bringing forth [the] result" (People v Nelson, 178 AD3d 1395, 1396 [4th Dept 2019], lv denied 35 NY3d 972 [2020] [internal quotation marks omitted]; see People v Allah, 71 NY2d 830, 832 [1988]; People v McDonald, 172 AD3d 1900, 1901 [4th Dept 2019]).
Contrary to defendant's contention, this is not a case where she was convicted based solely on her presence at the scene of the crime (cf. People v Tucker, 72 NY2d 849, 850 [1988]; see generally Matter of Tatiana N., 73 AD3d 186, 190-191 [1st Dept 2010]). The victim specifically identified defendant as the instigator of the physical altercation, testifying that defendant reached for some money that was in the victim's right pants pocket and placed her arm around his throat, whereupon he stumbled to the ground. Further, in our view, the victim's testimony at trial is legally sufficient to establish that defendant acted in concert with the codefendants to cause physical injury to the victim. It is immaterial that the victim could not conclusively state whether defendant actually kicked him during the attack or whether she caused him injury (see People v Hill, 251 AD2d 129, 129 [1st Dept 1998], lv denied 92 NY2d 899 [1998]) because the victim's testimony that he was surrounded by defendant and the codefendants and was kicked on all sides following a confrontation about money allows for the reasonable inference that defendant and the codefendants collectively delivered the blows that caused the victim's injuries and that they shared the common purpose of injuring him (see People v Staples, 19 AD3d 1096, 1097 [4th Dept 2005], lv denied 5 NY3d 810 [2005]; People v Rosario, 199 AD2d 92, 93 [1st Dept 1993], lv denied 82 NY2d 930 [1994]).
Defendant also contends that the evidence is legally insufficient to support her conviction of petit larceny because there is no evidence that she possessed or spent the money that was taken from the victim during the incident. We reject that contention. "A person is guilty of petit larceny when he [or she] steals property" (Penal Law § 155.25). " 'A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself [or herself] or a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof' " (People v Jensen, 86 NY2d 248, 252 [1995], quoting § 155.05 [1]). "Property" includes, inter alia, any amount of money (§ 155.00 [1]), and an owner is "any person who has a right to possession thereof superior to that of the taker, obtainer or withholder" (§ 155.00 [5]; see People v Hightower, 18 NY3d 249, 254 [2011]). "The offense of larceny is complete when there has been 'a taking or severance of the goods from the possession of the owner' and even momentary possession of another's property by the accused is sufficient" (People v Smith, 140 AD2d 259, 260-261 [1st Dept 1988], lv denied 72 NY2d 924 [1988], quoting Harrison v People, 50 NY 518, 523 [1872]).
Viewed in the light most favorable to the People (see Contes, 60 NY2d at 621), the evidence established that, during the incident, defendant reached into the victim's right pants pocket and removed the money contained there, thereby taking property from an individual with a superior right thereto (see Penal Law § 155.00 [5]; Hightower, 18 NY3d at 254; Smith, 140 AD2d at 260-261). Even assuming, arguendo, that defendant did not ultimately secure the money that she had taken out of the victim's pocket—i.e., that she did not possess or spend the money after taking it from the victim—her responsibility for the petit larceny "is not diminished because [her] act of carrying away the [money] (asportation) is frustrated at an early stage" (People v Robinson, 60 NY2d 982, 983 [1983]). Indeed, a defendant "can be guilty of larceny even though his [or her] removal of the victim's possessions [was] interrupted before completion" (id. at 984). Thus, there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that defendant committed petit larceny, and therefore the evidence is legally sufficient to support the conviction on that count (People v Simpson, 173 AD3d 1617, 1618 [4th Dept 2019], lv denied 34 NY3d 954 [2019] [internal quotation marks omitted]; see generally People v Baldwin, 173 AD3d 1748, 1748-1749 [4th Dept 2019], lv denied 34 NY3d 928 [2019]).
Additionally, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although "an acquittal [of either crime] would not have been unreasonable" based on the conflicting accounts of what occurred during the altercation (Danielson, 9 NY3d at 348; see People v Gibson, 89 AD3d 1514, 1515 [4th Dept 2011], lv denied 18 NY3d 924 [2012]), " 'matters of credibility are for the [factfinder] to resolve' " (People v Pierce, 303 AD2d 966, 966 [4th Dept 2003], lv denied 100 NY2d 565 [2003]), and we cannot conclude on this record that the factfinder "failed to give the evidence the weight it should be accorded" (Bleakley, 69 NY2d at 495; see People v Lankford, 162 AD3d 1583, 1584 [4th Dept 2018], lv denied 32 NY3d 1065 [2018]; People v Zafuto, 72 AD3d 1623, 1624 [4th Dept 2010], lv denied 15 NY3d 758 [2010]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350181/ | People v Parilla (2022 NY Slip Op 07379)
People v Parilla
2022 NY Slip Op 07379
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, NEMOYER, CURRAN, AND BANNISTER, JJ.
895 KA 19-00980
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vMIGUEL A. PARILLA, DEFENDANT-APPELLANT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller, A.J.), rendered June 22, 2018. The judgment convicted defendant upon a jury verdict of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), arising from the discovery of drugs by the police following a traffic stop of a vehicle in which defendant was the passenger. We affirm.
Contrary to defendant's contention, Supreme Court properly refused to suppress physical evidence and statements obtained as a result of the traffic stop (see People v Rodriguez-Rivera, 203 AD3d 1624, 1625-1626 [4th Dept 2022], lv denied 39 NY3d 942 [2022]; People v Swift, 185 AD3d 1442, 1443 [4th Dept 2020], lv denied 36 NY3d 976 [2020]; People v Rosario, 64 AD3d 1217, 1218 [4th Dept 2009], lv denied 13 NY3d 941 [2010]).
We reject defendant's contention that the court erred in ruling, pursuant to People v Molineux (168 NY 264 [1901]), that the People were permitted to introduce evidence of defendant's prior drug sales. The testimony concerning defendant's prior drug sales was admissible with respect to the issue of his intent to sell drugs (see generally Penal Law § 220.16 [1]), and we conclude that the probative value of such evidence outweighed the danger of prejudice and we also note that the court gave an appropriate limiting instruction (see People v Kims, 24 NY3d 422, 439 [2014]; People v Smith, 129 AD3d 1549, 1549 [4th Dept 2015], lv denied 26 NY3d 971 [2015]; People v Whitfield, 115 AD3d 1181, 1182 [4th Dept 2014], lv denied 23 NY3d 1044 [2014]).
Defendant further contends that the People deprived him of a fair trial by improperly introducing, without obtaining an advance ruling and in violation of Molineux, testimony that defendant, who was concerned about two unspecified "strikes on his record," made multiple postarrest attempts to bribe the driver of the vehicle to take responsibility for the drug charges. We reject that contention. Even assuming, arguendo, that the People should have sought an advance ruling with respect to the testimony that defendant attempted to bribe the driver to take responsibility for the drug charges (see generally People v Ventimiglia, 52 NY2d 350, 356, 361-362 [1981]), we conclude that defendant was not deprived of a fair trial because that testimony was plainly admissible as consciousness of guilt evidence (see People v Cotton, 184 AD3d 1145, 1146 [4th Dept 2020], lv denied 35 NY3d 1112 [2020]; People v Wheeler, 159 AD3d 1138, 1142 [3d Dept 2018], lv denied 31 NY3d 1123 [2018]; People v Lumaj, 298 AD2d 335, 335 [1st Dept 2002], lv denied 99 NY2d 616 [2003]; see generally People v Bennett, 79 NY2d 464, 469-470 [*2][1992]), its probative value was not outweighed by its potential for prejudice (see Cotton, 184 AD3d at 1146), and the lack of an advance ruling did not cause defendant any prejudice (see People v McLeod, 279 AD2d 372, 372 [1st Dept 2001], lv denied 96 NY2d 921 [2001]; People v Andrews, 277 AD2d 1009, 1010 [4th Dept 2000], lv denied 96 NY2d 780 [2001]; People v Pugh, 236 AD2d 810, 812 [4th Dept 1997], lv denied 89 NY2d 1099 [1997]). Additionally, even assuming, arguendo, that the People should have sought an advance ruling with respect to the testimony implying that defendant had committed prior crimes and that the court erred in admitting that testimony, we conclude that any error is harmless inasmuch as "[t]he evidence of defendant's guilt is overwhelming . . . and there is no significant probability that the jury would have acquitted defendant if the allegedly improper Molineux evidence had been excluded" (People v Casado, 99 AD3d 1208, 1211-1212 [4th Dept 2012], lv denied 20 NY3d 985 [2012]; see generally People v Frankline, 27 NY3d 1113, 1115 [2016]; People v Crimmins, 36 NY2d 230, 241-242 [1975]).
Defendant failed to preserve for our review his contention that the evidence is legally insufficient to support his conviction of criminal possession of a controlled substance in the third degree. Defendant's general motion for a trial order of dismissal with respect to that count was not " 'specifically directed' at the alleged" shortcomings in the evidence raised on appeal (People v Gray, 86 NY2d 10, 19 [1995]), and defendant's legal sufficiency contention made on appeal is not otherwise preserved for our review because, contrary to defendant's assertion, that contention is not based on a pretrial legal argument that was definitively rejected by the court (cf. People v Finch, 23 NY3d 408, 412 [2014]). Next, even assuming, arguendo, that an acquittal would not have been unreasonable (see People v Danielson, 9 NY3d 342, 348 [2007]), upon acting, in effect, as a second jury by independently reviewing the evidence in light of the elements of the crime of criminal possession of a controlled substance in the third degree as charged to the jury (see People v Kancharla, 23 NY3d 294, 302-303 [2014]; People v Delamota, 18 NY3d 107, 116-117 [2011]; Danielson, 9 NY3d at 348-349), we reject defendant's contention that the verdict with respect to that crime is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Finally, contrary to defendant's contention, the sentence is not unduly harsh or severe.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350178/ | People v Reynolds (2022 NY Slip Op 07326)
People v Reynolds
2022 NY Slip Op 07326
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
762 KA 21-01012
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vTARL REYNOLDS, DEFENDANT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (WILLIAM PIXLEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (BRADLEY W. OASTLER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Onondaga County Court (Matthew J. Doran, J.), rendered March 18, 2021. The judgment convicted defendant after a nonjury trial of criminal sexual act in the third degree, sexual abuse in the third degree (three counts) and endangering the welfare of a child.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trial of three counts of sexual abuse in the third degree (Penal Law § 130.55) and one count each of criminal sexual act in the third degree (§ 130.40 [2]) and endangering the welfare of a child (§ 260.10 [1]). Viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). "In a bench trial, no less than a jury trial, the resolution of credibility issues by the trier of fact and its determination of the weight to be accorded the evidence presented are entitled to great deference" (People v McCoy, 100 AD3d 1422, 1422 [4th Dept 2012] [internal quotation marks omitted]). Determination of the instant case rested on the credibility of the witnesses, and "we cannot say that [County Court] failed to give the evidence the weight that it should be accorded" (People v Britt, 298 AD2d 984, 984 [2002], lv denied 99 NY2d 556 [2002]).
Contrary to defendant's further contention, the court did not err in denying his request for a missing witness charge. As the party requesting the charge, defendant bore the initial burden of establishing " '(1) that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, (2) that such witness can be expected to testify favorably to the opposing party, and (3) that such party had failed to call the witness to testify' " (People v Lewis-Bush, 204 AD3d 1424, 1426 [4th Dept 2022], lv denied 38 NY3d 1072 [2022], quoting People v Smith, 33 NY3d 454, 458-459 [2019]). Defendant failed to meet that initial burden (see generally People v Desius, 188 AD3d 1626, 1629 [4th Dept 2020], lv denied 36 NY3d 1096 [2021]). Defendant contends, with respect to the multifactor missing witness analysis, that this Court is barred from considering any other factor than the specific factor of the missing witness analysis explicitly referenced by the court when it denied defendant's request for a missing witness charge. We reject that contention (see People v Garrett, 23 NY3d 878, 885 n 2 [2014], rearg denied 25 NY3d 1215 [2015]). Significantly, the court, in its denial of defendant's request, did not explicitly reject the arguments advanced by the People to support denial on the basis of the other factors of the multifactor analysis, and therefore we are not precluded from considering those factors (cf. People v Garcia, 192 AD3d 1463, 1467 [4th Dept 2021]).
As defendant correctly concedes, defendant's contention that he was deprived of a fair trial due to instances of prosecutorial misconduct during the prosecutor's summation is unpreserved because defense counsel did not object to any of the purportedly improper comments [*2](see People v Moore, 198 AD3d 1304, 1305 [4th Dept 2021], lv denied 38 NY3d 929 [2022]). In any event, we reject that contention and conclude that no prosecutorial misconduct occurred. Inasmuch as we conclude that there was no prosecutorial misconduct, we reject defendant's related contention that he was denied effective assistance of counsel based on defense counsel's failure to object to certain alleged improprieties during the prosecutor's summation (see People v Cordell, 188 AD3d 1620, 1621-1622 [4th Dept 2020], lv denied 36 NY3d 1056 [2021]).
Finally, we note that the uniform sentence and commitment sheet incorrectly states that defendant was convicted of three counts under Penal Law § 130.22, and thus it must be amended to reflect that these convictions were under Penal Law § 130.55 (see generally People v McLamore, 191 AD3d 1413, 1415 [4th Dept 2021], lv denied 37 NY3d 958 [2021]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483107/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0626
No. DA 21-0626
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JESSICA ELAINE HURT,
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 21, 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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350135/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WADITH NADER,
Plaintiff,
v. Civil Action No. 22-2023 (RDM)
SECRETARY OF THE AIR FORCE,
Defendant.
MEMORANDUM OPINION
Plaintiff Wadith S. Nader is a former Air Force officer who seeks review under the
Administrative Procedure Act of two decisions of the Air Force Board for Correction of Military
Records (“AFBCMR”). Dkt. 1 at 1 (Compl. ¶ 1). The thrust of his claim is that the AFBCMR
improperly denied his requests to reconsider a previous Air Force decision denying him a
continuation of active duty. Id. at 3–4 (Compl. ¶¶ 16–26). Defendant, the Secretary of the Air
Force (the “Secretary”), has moved to transfer this case to the District of Maryland or,
alternatively, to dismiss the case pursuant to Federal Rule of Civil Procedure 12(b)(3) for
improper venue. Dkt. 9 at 1. The Court agrees with the Secretary that venue is not proper in the
District of Columbia. But rather than dismiss the case, it will exercise its discretion to transfer
the case to the District of Maryland.
Federal law requires that plaintiffs bring suit “in the proper venue” to “ensure[ ] that a
district with some interest in the dispute or nexus to the parties adjudicates the plaintiff’s
claims.” Hamilton v. JPMorgan Chase Bank, 118 F. Supp. 3d 328, 333 (D.D.C. 2015). Pursuant
to Federal Rule of Civil Procedure 12(b)(3), “a defendant may, at the lawsuit’s outset, test
whether the plaintiff has brought the case in a venue that the law deems appropriate.” Johns v.
Newsmax Media, Inc., 887 F. Supp. 2d 90, 96 (D.D.C. 2012) (internal quotation marks omitted).
In order to “prevail on a motion to dismiss for improper venue,” a “defendant must present facts
that will defeat the plaintiff’s assertion of venue,” but the “burden . . . remains on the plaintiff to
prove that venue is proper when an objection is raised, since it is the plaintiff’s obligation to
institute the action in a permissible forum.” Roland v. Branch Banking & Trust Corp., 149 F.
Supp. 3d 61, 67 (D.D.C. 2015) (internal quotation marks omitted). “The [C]ourt may resolve [a]
motion [to dismiss for improper venue] on the basis of the complaint alone, or, as necessary, [it
may] examine facts outside the complaint that are presented by the parties, while drawing
reasonable inferences in favor of the plaintiff.” McCain v. Bank of America, 13 F. Supp. 3d 45,
51 (D.D.C. 2014). “The [C]ourt, however, need not accept the plaintiff’s legal conclusions as
true.” Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 277 (D.D.C. 2002) (internal
quotation marks omitted).
“If the Court concludes that venue is improper, it must then decide whether to dismiss the
action or to transfer the case to a district where it could initially have been instituted.” King v.
Caliber Home Loans, Inc., 210 F. Supp. 3d 130, 134 (D.D.C. 2016); see also 28 U.S.C.
§ 1406(a) (“The district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.”). The “standard remedy for improper
venue is to transfer the case to the proper court rather than dismissing it—thus preserving a
[plaintiff’s] ability to obtain review,” Nat’l Wildlife Fed’n v. Browner, 237 F.3d 670, 674 (D.C.
Cir. 2001), but the “decision whether a transfer or a dismissal is in the interest of justice . . . rests
within the sound discretion of the district court,” Naartex Consulting Corp. v. Watt, 722 F.2d
779, 789 (D.C. Cir. 1983).
2
The parties agree that 28 U.S.C. § 1391(e)(1), the general venue statute for official-
capacity claims against federal officers, governs venue in this case. Venue is proper under that
provision in any district where: “(A) a defendant in the action resides, (B) a substantial part of
the events or omissions giving rise to the claim occurred . . . , or (C) the plaintiff resides if no
real property is involved in the action.” 28 U.S.C. § 1391(e). By Nader’s own account he
resides in Nebraska, so he cannot rely on § 1391(e)(1)(C). Dkt. 1 at 2 (Compl. ¶ 4). Nader also
disclaims any reliance on § 1391(e)(1)(B), under which venue is proper where “a substantial part
of the events or omissions giving rise to the claim occurred.” Dkt. 10 at 3; Dkt. 14 at 2.
Reasonably so, since, according to an unrebutted declaration submitted by the Secretary, the
administrative actions that Nader challenges were taken by the AFBCMR at Joint Base Andrews
in Maryland. Dkt. 13-1 at 1–3 (Davidson Decl. ¶¶ 1, 6, 8–10). So the only question is whether
the Secretary resides in the District of Columbia and thus whether venue is proper under
§ 1391(e)(1)(A).
The Court concludes that the Secretary of the Air Force does not reside in the District of
Columbia. Under § 1391(e)(1)(A), “[t]he residence of an official defendant is determined on the
basis of the official residence of the federal officer or agency.” Bourdon v. U.S. Dep’t of
Homeland Sec., 235 F. Supp. 3d 298, 304 (D.D.C. 2017) (internal quotation marks omitted). The
Secretary of the Air Force’s residence is therefore the residence of the Air Force itself. And the
Air Force resides at the Pentagon, which is located in Arlington, Virginia, not the District of
Columbia. Dkt. 13-1 at 1 (Davidson Decl. ¶ 4); see also Dehaemers v. Wynne, 522 F. Supp. 2d
240, 244, 247 (D.D.C. 2007) (noting that the Pentagon “is physically located in Arlington,
Virginia”); Chin-Young v. Esper, No. 18-2072, 2019 WL 4247260, at *5 (D.D.C. Sept. 6, 2019)
(taking judicial notice “that the Pentagon is located in Arlington, Virginia”); Carter v. Wilson,
3
No. 17-2143, 2019 WL 13242563, at *2 (D.D.C. Mar. 25, 2019) (“[T]he residence of the United
States Air Force is the Pentagon in Arlington, Virginia.”).
None of Nader’s allegations in his complaint nor arguments in his opposition to the
Secretary’s motion to transfer dictate a different result. The complaint simply states that venue is
proper under § 1391(e), without any additional supporting factual allegations. Dkt. 1 at 2
(Compl. ¶ 3). That bare assertion is insufficient to carry Nader’s burden of pleading facts that
establish that venue is proper.
Nader nevertheless argues in his opposition that venue is proper in the District of
Columbia as a matter of law. Dkt. 10 at 1–3. He points out that officers of the United States
“can have more than one residence, and venue can properly lie in more than one jurisdiction”
and that “[w]hen an officer [or] agency head performs a significant amount of his or her official
duties in the District of Columbia, the District of Columbia is a proper place for venue.” Id. at 1
(quoting Dehaemers, 522 F. Supp. 3d at 248 (internal quotation marks omitted)). And, he
contends, “the Secretary of the Air Force performs a significant amount of his or her duties in the
District of Columbia.” Id. But that is at bottom a factual assertion, not a legal one. And like
Nader’s averments regarding venue, it is also ipse dixit, free from citation or factual support
regarding the Secretary’s particular duties and where he performs them.
Although Nader cites several cases in support of his argument, none persuades the Court
that the Secretary of the Air Force resides in the District of Columbia because he performs a
significant amount of his duties here. Only one of those cases, Cohen v. United States
Department of the Air Force, 707 F. Supp. 12 (D.D.C. 1989), actually holds that venue is proper
in the District of Columbia in an action against the Air Force, stating broadly that “the District of
Columbia is a proper venue for suits against military defendants based in the Pentagon,” id. at
4
13. The Court agrees with Judge Kollar-Kotelly’s conclusion in Carter v. Wilson that Cohen is
not persuasive authority as to venue against military defendants in general or the Secretary of the
Air Force in particular. See Carter, 2019 WL 13242563, at *3. For one thing, Cohen said
nothing about where the Secretary of the Air Force actually performs his duties. See 707 F.
Supp. at 13. For another, Cohen offers no analysis in support of its sweeping conclusion. See id.
It cites to only one case, Mundy v. Weinberger, 554 F. Supp. 811, 818 (D.D.C. 1982). Mundy,
however, features a fact-intensive venue analysis more in keeping with Carter’s view that venue
is proper in the District of Columbia for suits against the Secretary of the Air Force—or any
military defendant—not as a categorical matter but only “depending on the circumstances of the
case.” Carter, 2019 WL 13242563, at *3. Dehaemers, perhaps Nader’s next best case, merely
notes that venue “might be proper” against the Secretary of the Air Force in the District of
Columbia and does not actually reach the conclusion Nader urges on this Court. 522 F. Supp. 2d
at 248 (emphasis added); see also id. at 247 (noting that “it is unclear whether venue [for
Plaintiff’s claim against the Secretary of the Air Force] properly lies in the District of
Columbia”).
Nader also cites two other buckets of cases, neither availing. The first is a line of
decisions holding that venue is proper in the District of Columbia for actions against the
Secretary of Defense and Secretary of the Navy. Dkt. 10 at 2. Those cases and the cases on
which they rely are inapposite. The cases involving the Secretary of Defense trace back to
Bartman v. Cheney, 827 F. Supp. 1 (D.D.C. 1993), which relied on the fact that the Secretary of
Defense “maintains two offices in the District and is a member of both the National Security
Council and the President’s Cabinet.” Id. at 2 n.2. Nader has made no similarly detailed
allegations (or showing) here regarding the Secretary of the Air Force. As for the cases
5
pertaining to the Secretary of the Navy, such as Smith v. Dalton, 927 F. Supp. 1 (D.D.C. 1996),
the Court agrees with Carter that they “do not provide details or specificity about the type of
duties or number of duties which the Secretary of the Navy performed in the District of
Columbia to make it a proper venue,” Carter, 2019 WL 13242563, at *2. They are therefore of
limited persuasive value and do not compel any particular conclusion with respect to the
Secretary of the Air Force. The next bucket is a set of decisions from this circuit that have
permitted claims against the AFBCMR to proceed without transferring or dismissing for
improper venue. Dkt. 10 at 2. But none of these cases even mentions venue, and since venue is
waivable, the courts had no obligation in those cases to consider sua sponte whether venue was
proper. See 14D Charles A. Wright & Arthur Miller, Federal Practice and Procedure, § 3829
(4th ed. 2022) (“Venue generally is considered a privilege and a form of protection provided to
defendants. Therefore, a defect in venue may be waived under Civil Rule 12(g) and (h) if not
asserted in timely fashion . . . . [A] court should never raise the issue after the defendant has
waived any venue objection.”). Those decisions consequently shed no light on the question at
issue.
As a last resort, Nader protests that absent discovery, he lacks the ability to ascertain the
facts that would support his venue argument. Dkt. 14 at 1–2. He insists that only government
employees have access to information regarding where the Secretary performs his duties. Id.
So, he argues, “[i]f the Court determines that the nature and frequency of the Secretary’s official
duties in the District of Columbia are material to the venue issue,” the Court should afford him
“an opportunity to conduct discovery,” including through “deposing either the Secretary or
someone in his office who can respond to questions either as a percipient witness or by reference
to official records such as the Secretary’s travel records and official diary.” Id. Needless to say,
6
that is an extraordinary request. And it misses the mark. Even if Nader is correct that he might
be able to elicit facts supporting venue in the District of Columbia by deposing the Secretary or
one of his subordinates who has access to his travel records and diary, the inconvenience to the
Secretary would be such that the Court would transfer the case “[f]or the convenience of [the]
parties . . . [and] in the interest of justice” before permitting Nader to engage in such burdensome
discovery. 28 U.S.C. § 1404(a).
Bolstering that conclusion is the complete absence of any allegations in the complaint or
any showing in Nader’s opposition to the pending motion that the Secretary of the Air Force
regularly engages in the business of the Department in the District of Columbia. Although Nader
cannot be expected to know exactly when and where the Secretary performs specific duties, the
official conduct of the business of the Air Force is, at least at times, a matter of public record.
The location of the AFBCMR proceeding at issue in this case offers just one example of that
record.
Although venue is improper (or at least inconvenient) in the District of Columbia, the
Court will exercise its discretion to transfer the case “in the interest of justice,” rather than
dismiss it. 28 U.S.C. § 1406(a). The interest of justice is best served by transferring the case to
the District of Maryland. From the Court’s review of the briefing and the record, venue is proper
at least in the District of Nebraska, where Nader resides, Dkt. 1 at 2 (Compl. ¶ 4), the Eastern
District of Virginia, where the Secretary of the Air Force resides, Dkt. 13-1 at 1 (Davidson Decl.
¶ 4), and the District of Maryland, where most of the events or omissions giving rise to the claim
occurred, id. at 1–3 (Davidson Decl. ¶¶ 1, 6, 8–10). See 28 U.S.C. § 1391(e)(1). Neither party
has expressed any interest in litigating this case in Nebraska or in the Eastern District of
Virginia. The Secretary, however, has registered a strong preference for transfer to the District
7
of Maryland. See Dkt. 9. Absent any argument from Nader regarding any forum besides the
District of Columbia or any obvious reason of convenience or public interest not to transfer the
case to the District of Maryland, the Court agrees with the Secretary that the District of Maryland
is the appropriate destination.
CONCLUSION
For the foregoing reasons, the Court concludes that venue is not proper in the District of
Columbia and this action, accordingly, should be transferred pursuant to 28 U.S.C. § 1406(a) to
the United States District Court for the District of Maryland. The Court will accordingly
GRANT in part and DENY in part Defendant’s motion to transfer or dismiss and for extension
of time, Dkt. 9, and will ORDER that this case be TRANSFERRED to the United States
District Court for the District of Maryland. The Court will further ORDER that Defendant
respond to the complaint within thirty days of the date on which this case is placed on the
electronic docket for the District of Maryland.
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: December 23, 2022
8 | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350210/ | Matter of Zigenfus v Town of Cohocton Town Bd. (2022 NY Slip Op 07423)
Matter of Zigenfus v Town of Cohocton Town Bd.
2022 NY Slip Op 07423
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
PRESENT: SMITH, J.P., LINDLEY, CURRAN, AND WINSLOW, JJ. (Filed Dec. 23, 2022.)
MOTION NO. (644/22) CA 21-01520.
[*1]IN THE MATTER OF CHAD ZIGENFUS, BERTON CANDEE, STEVE TRUDEAND HANS DAATSELAAR, PETITIONERS-APPELLANTS,
vTOWN OF COHOCTON TOWN BOARD AND BARON WINDS, LLC, RESPONDENTS-RESPONDENTS.
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350207/ | Miller v Silvarole Trucking Inc. (2022 NY Slip Op 07348)
Miller v Silvarole Trucking Inc.
2022 NY Slip Op 07348
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
804 CA 21-01770
[*1]ROBERT MILLER, PLAINTIFF-RESPONDENT,
vSILVAROLE TRUCKING INC., JOSHUA DAVIS, DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (ROBERT P. CAHALAN OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
MCMAHON, MARTINE & GALLAGHER, LLP, BROOKLYN (TIMOTHY D. GALLAGHER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Monroe County (Craig J. Doran, J.), entered December 10, 2021. The order granted in part the motion of plaintiff for summary judgment and denied the cross motion of defendants Silvarole Trucking Inc. and Joshua Davis seeking, inter alia, partial summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the cross motion in part and dismissing the claim for punitive damages against defendant Silvarole Trucking Inc., and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he was struck by a tractor-trailer driven by defendant Joshua Davis in the course of his employment with defendant Silvarole Trucking Inc. (Silvarole) (collectively, defendants). Plaintiff moved for summary judgment on the issue of negligence and gross negligence, and defendants cross-moved for, inter alia, summary judgment on the issue of plaintiff's alleged comparative negligence and dismissing the complaint to the extent that it alleged gross negligence and sought punitive damages. Supreme Court granted the motion insofar as it sought summary judgment on the issue of ordinary negligence and denied the cross motion. Defendants appeal.
We conclude that the court properly granted the motion with respect to the issue of negligence. Plaintiff met his initial burden on the motion of establishing as a matter of law that Davis was negligent in his operation of the tractor-trailer inasmuch as Davis drifted out of the lane of travel and struck plaintiff while he was walking along the side of the road (see generally Strassburg v Merchants Auto. Group, Inc., 203 AD3d 1735, 1736 [4th Dept 2022]; Bush v Kovacevic, 140 AD3d 1651, 1652-1653 [4th Dept 2016]). Contrary to defendants' contention, they failed to raise an issue of fact whether the emergency doctrine applies here (see Watson v Peschel, 188 AD3d 1693, 1694-1695 [4th Dept 2020]; Aldridge v Rumsey, 275 AD2d 897, 897 [4th Dept 2000]). The emergency doctrine "recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" (Rivera v New York City Tr. Auth., 77 NY2d 322, 327 [1991], rearg denied 77 NY2d 990 [1991]; see Dalton v Lucas, 96 AD3d 1648, 1648 [4th Dept 2012]). However, "[t]he emergency doctrine is only applicable when a party is confronted by [a] sudden, unforeseeable occurrence not of their own making" (Watson, 188 AD3d at 1695 [internal quotation marks omitted]). The "emergency doctrine has no application where . . . the party seeking to invoke it has created or contributed to the [*2]emergency" (id. [internal quotation marks omitted]). Here, Davis averred that he placed a drink bottle in the center console cup holder and that, through no action on his part, the bottle fell from the cup holder to the floor of the cab, where it became lodged underneath the accelerator pedal. Nevertheless, the record also establishes that Davis was the only person in the vehicle, and defendants did not submit evidence that any other person was responsible for the alleged emergency (see id. at 1696). Thus, we conclude that defendants failed to demonstrate that the emergency encountered was not of Davis's own making, "i.e., that [Davis] did not create or contribute to it" (id.; see Sweeney v McCormick, 159 AD2d 832, 833 [3d Dept 1990]).
We reject defendants' contention that the court erred in denying that part of their cross motion seeking summary judgment dismissing plaintiff's cause of action for gross negligence and claim for punitive damages against Davis. "Because the standard for punitive damages is a strict one and punitive damages will be awarded only in exceptional cases, the conduct justifying such an award must manifest spite or malice, or a fraudulent or evil motive on the part of the defendant, or such conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton" (Gaines v Brydges, 198 AD3d 1287, 1287 [4th Dept 2021] [internal quotation marks omitted]; see Marinaccio v Town of Clarence, 20 NY3d 506, 511 [2013], rearg denied 21 NY3d 976 [2013]). Punitive damages may be awarded "based on intentional actions or actions which, while not intentional, amount to gross negligence, recklessness, or wantonness . . . or conscious disregard of the rights of others or for conduct so reckless as to amount to such disregard" (Home Ins. Co. v American Home Prods. Corp., 75 NY2d 196, 200 [1990] [internal quotation marks omitted]). Viewing the evidence in the light most favorable to plaintiff, as we must in the context of defendants' cross motion (see Gaines, 198 AD3d at 1288; see generally Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007]), we conclude that defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law. The record does not support defendants' contention that Davis acted instinctively in reaching for the bottle. Davis did not aver in his affidavit that he reacted instinctively, nor did he describe how long the bottle was wedged under the accelerator before he took his eyes off of the roadway, how much time passed between when he first noticed that his accelerator pedal was compromised and when he looked down to determine the cause of the obstruction, or how long it took him to retrieve the bottle. Davis did establish, however, that he had enough time to apply the brake and begin to slow the tractor-trailer before removing his eyes from the roadway. Defendants thus failed to meet their initial burden of establishing that Davis's conduct, specifically his decision to look for and retrieve the obstacle while the tractor-trailer was in motion—despite the fact that his brakes were in working order—did not "amount to gross negligence, recklessness, or wantonness . . . or conscious disregard of the rights of others" (Home Ins. Co., 75 NY2d at 200 [internal quotation marks omitted]; see also DiNiro v Aspen Athletic Club, LLC, 173 AD3d 1789, 1790 [4th Dept 2019]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Where different conclusions can reasonably be drawn from the evidence, the motion should be denied" (Sommer v Federal Signal Corp., 79 NY2d 540, 555 [1992]).
We agree with defendants that the court erred in denying their cross motion with respect to plaintiff's claim against Silvarole for punitive damages, and we therefore modify the order accordingly. Plaintiff seeks to hold Silvarole liable for punitive damages under a theory of vicarious liability. However, punitive damages are unavailable under such a theory absent limited circumstances not present here (see Dischiavi v Calli, 111 AD3d 1258, 1261-1262 [4th Dept 2013]; O'Connor v Kuzmicki, 14 AD3d 498, 499 [2d Dept 2005]).
Finally, we reject defendants' contention that the court erred in denying their cross motion with respect to plaintiff's alleged comparative negligence. "[T]he question of a plaintiff's comparative negligence almost invariably raises a factual issue for resolution by the trier of fact" (Gudenzi-Ruess v Custom Envtl. Sys., 212 AD2d 952, 953 [3d Dept 1995]; see Strassburg, 203 AD3d at 1736). Here, defendants argued that plaintiff was negligent per se because he failed to use the sidewalk that was available on the west side of the road, in violation of Vehicle and Traffic Law § 1156 (a), and failed to walk along the left side of the roadway, in violation of section 1156 (b). Although an unexcused violation of the Vehicle and Traffic Law constitutes negligence per se (see Habir v Wilczak, 191 AD3d 1320, 1321 [4th Dept 2021]; Heffernan v Logue, 40 AD2d 1071, 1071 [4th Dept 1972]), we conclude that defendants failed to establish that plaintiff violated those provisions of the Vehicle and Traffic Law. Section 1156 (a) requires that a pedestrian use an available sidewalk when it "may be used with safety," and [*3]section 1156 (b) requires that a pedestrian walk along the left side of the roadway "when practicable." Here, the evidence submitted by defendants established that plaintiff made a right-hand turn onto the road on which the accident occurred, heading northbound on the east side. The photographs submitted by defendants show that a sidewalk was available along the west side of the road, but they also demonstrate that there was no crosswalk or traffic signal that would have allowed plaintiff to safely cross to the west side before the location of the accident. Inasmuch as defendants failed to meet their initial burden by establishing prima facie that plaintiff was negligent based on his alleged violation of the relevant statutes, the court did not err in denying the cross motion with respect to plaintiff's comparative negligence (see Allen v Illes, 55 AD3d 1312, 1313 [4th Dept 2008]; see generally Zuckerman, 49 NY2d at 562).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350185/ | People v Johnson (2022 NY Slip Op 07407)
People v Johnson
2022 NY Slip Op 07407
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, AND WINSLOW, JJ.
1244/20 KA 17-00529
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vRONALD K. JOHNSON, DEFENDANT-APPELLANT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (BENJAMIN L. NELSON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (KAYLAN PORTER OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), rendered April 7, 2016. The judgment convicted defendant, upon his plea of guilty, of rape in the second degree. The judgment was affirmed by order of this Court entered April 30, 2021 (193 AD3d 1429), and defendant on August 23, 2021 was granted leave to appeal to the Court of Appeals from the order of this Court (37 NY3d 993), and the Court of Appeals on November 17, 2022 reversed the order and remitted the case to this Court for further proceedings (— NY3d — [Nov. 17, 2022]).
Now, upon remittitur from the Court of Appeals,
It is hereby ORDERED that, upon remittitur from the Court of Appeals, the appeal from the judgment insofar as it imposed sentence is unanimously dismissed and the judgment is affirmed.
Memorandum: This case is before us upon remittitur from the Court of Appeals (People v Johnson, — NY3d &mdash, 2022 NY Slip Op 06537 [2022], revg People v Johnson, 193 AD3d 1429 [4th Dept 2021]). We previously dismissed the appeal from the judgment insofar as it imposed sentence, and we otherwise affirmed the judgment convicting defendant, upon his plea of guilty, of rape in the second degree (Penal Law § 130.30 [1]) in full satisfaction of a two-count indictment charging him with rape in the first degree under section 130.35 (2) and rape in the second degree under section 130.30 (1). Defendant contended that County Court erred in denying his motion to dismiss the indictment on the ground that, inter alia, his state constitutional due process rights were violated by extensive preindictment delay, and we concluded that, after review of the factors set forth in People v Taranovich (37 NY2d 442, 445 [1975]), defendant was not denied due process of law by the preindictment delay (Johnson, 193 AD3d at 1430-1431). The Court of Appeals reversed our determination, reasoning that we had "misinterpreted the Taranovich framework" (Johnson, — NY3d at &mdash, 2022 NY Slip Op 06537 at *4), and remitted the matter to this Court for "factual and legal review . . . under the proper framework" (id.).
After review of defendant's contention upon remittitur, we conclude that he was not deprived of due process of law by the preindictment delay. In determining whether defendant was deprived of due process, we must consider the factors set forth in Taranovich, which are: "(1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay" (37 NY2d at 445; see People v Decker, 13 NY3d 12, 14-15 [2009]; People v Stefanovich, 207 AD3d 1047, 1049 [4th Dept 2022], lv denied 38 NY3d 1190 [2022]). "[N]o one factor [is] dispositive of a violation, and [there are] no formalistic precepts by which a deprivation of the right can be assessed" (People v Romeo, 12 NY3d 51, 55 [2009], cert denied 558 US 817 [2009]), but "it is well established that the extent of the delay, standing alone, is not sufficient to warrant a [*2]reversal" (People v McFadden, 148 AD3d 1769, 1771 [4th Dept 2017], lv denied 29 NY3d 1093 [2017]; see Decker, 13 NY3d at 15).
Here, as the People correctly concede, the first Taranovich factor weighs in defendant's favor inasmuch as the period of preindictment delay was extensive, exceeding seven years. The fourth factor, on the other hand, militates against dismissal of the indictment inasmuch as defendant was not incarcerated prior to indictment.
With respect to the second factor, the evidence at a hearing on defendant's motion established that the delay was not caused by any bad faith on the part of the People (see Stefanovich, 207 AD3d at 1050; People v Lewis, 199 AD3d 1441, 1442 [4th Dept 2021], lv denied 38 NY3d 1034 [2022], cert denied — US &mdash, 143 S Ct 262 [2022]). It was attributable, in part, to a backlog in DNA testing at the crime laboratory, the minor victim's inability to identify the rapist, and difficulties law enforcement had in locating and maintaining contact with the victim (see People v McFadden, 148 AD3d 1769, 1771 [4th Dept 2017], lv denied 29 NY3d 1093 [2017]; People v White, 108 AD3d 1236, 1238 [4th Dept 2013], lv denied 22 NY3d 1044 [2013]). To the extent that the delay was attributable to the People's inadvertence or a failure to prioritize the case, however, the second factor favors defendant irrespective of the absence of bad faith (see Stefanovich, 207 AD3d at 1050; People v Wheeler, 289 AD2d 959, 960 [4th Dept 2001]; see generally Taranovich, 37 NY2d at 446).
With respect to the third factor, the charge of rape in the first degree "is quite serious" and the nature of that charge "is directly related to the issues of complexity and may, therefore, account for some of the delay" (Johnson, — NY3d at &mdash, 2022 NY Slip Op 06537 at *3; see Stefanovich, 207 AD3d at 1050; White, 108 AD3d at 1237).
With respect to the fifth factor, the record reflects that the delay may have impaired defendant's ability to defend against the charge of rape in the first degree. Under the particular circumstances of this case, however, the impairment of defendant's ability to defend against that charge did not adversely impact the resulting plea inasmuch as defendant secured a plea to the strict liability crime of rape in the second degree, to which he had no defense, in full satisfaction of the indictment, with the minimum lawful sentence for a second violent felony offender. After balancing all the relevant factors, therefore, we conclude that defendant's right to due process was not violated (see People v Ramlall, 34 NY3d 1154, 1155 [2020]).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483109/ | (C-
.j nnTri i 1 I
i aiiiiiitili 11/10/2022
ii— .
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0495
DA 21-0495
STATE OF MONTANA,
FILED
NOV 0 9 2022
Plaintiff and Appellee, P.r•vv.n Cree: ood
< of ' rer Court
S
v. ORDER
DARIN GUCKEEN,
Defendant and Appellant.
Appellant Darin Guckeen has appealed from the June 16, 2021 Judgment and Order
of the Sixth Judicial District Court, Park County, in its Cause No. DC-21-44. Guckeen
argues that the District Court erred in failing to conform its written judgment to its oral
pronouncement. Specifically, Guckeen argues that the court orally ordered that during his
suspended sentence he would be subject to the same terrns and conditions as had been
irnposed upon him in a recent Cascade County matter, but the written Judgment and Order
additionally irnposed the terms and conditions that had been imposed upon him in two
separate Park County matters.
The State has filed a Notice of Concession that this matter should be remanded to the
District Court for the purpose of striking from the Judgment and Order the reference to the
Park County cases for conditions of probation or parole.
Based on Guckeen's opening brief and the State's concession, and good cause
appearing,
IT IS HEREBY ORDERED that this case is remanded to the Sixth Judicial District
Court, Park County, with instructions for the District Court to amend Section VI of its June
16, 2021 Judgment and Order to strike the reference Park County Cause Nos. DC 19-124 and
DC 19-136 for conditions of supervision.
IT IS FURTHER ORDERED that this appeal is DISMISSED WITH PREJUDICE.
The Clerk is directed to provide copies of this Order to all counsel of record and to
presiding judge Hon4ele Brenda Gilbert.
Dated this c t day of November, 2022.
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483111/ | FILED
November 10, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
No. 22-0351 – Mason County Public Service District v. The Public Service Commission
of West Virginia and Ralph and Carla Huff
WOOTON, Justice, dissenting, joined by Chief Justice Hutchison:
The complainants, Ralph and Carla Huff, had their water service terminated
due to nonpayment and later sought to have that service reconnected. The petitioner,
Mason County Public Service District (“the District), charged the Huffs separate fees for
disconnection of water service ($50.00) and then for reconnection ($50.00). The Huffs
complained to the respondent, The Public Service Commission (“PSC”), that they were
required to pay the arrearage they owed before the District would restore their water
service, raising no specific complaint as to either the disconnect fee or the reconnect fee.
Nonetheless, the PSC exercised jurisdiction over the fee issue, determining that the
disconnect fee was not really a fee, but “the practice” of charging a disconnect fee. The
PSC determined that the District’s “practice” of charging a disconnect fee was an
“unreasonable practice” under the PSC’s jurisdictional authority as set forth in West
Virginia Code section 24-2-7(a) (2018). 1 See also W. Va. Code § 24-2-1(b)(2) & (7) (Supp.
1
West Virginia Code § 24-2-7(a) provides:
(a) Whenever, under the provisions of this chapter, the
commission shall find any regulations, measurements,
practices, acts or service to be unjust, unreasonable,
insufficient or unjustly discriminatory, or otherwise in
violation of any provisions of this chapter, or shall find that any
1
2022). 2 The majority affirms the PSC’s exercise of jurisdiction in this case and, in so
doing, disregards the Legislature’s 2015 transfer of the authority to set rates, fees and
service is inadequate, or that any service which is demanded
cannot be reasonably obtained, the commission shall determine
and declare, and by order fix reasonable measurement,
regulations, acts, practices or services, to be furnished,
imposed, observed and followed in the state in lieu of those
found to be unjust, unreasonable, insufficient, or unjustly
discriminatory, inadequate or otherwise in violation of this
chapter, and shall make such other order respecting the same
as shall be just and reasonable.
2
West Virginia Code section 24-2-1(b)(2) & (7) provides:
(b) The jurisdiction of the commission over political
subdivisions of this state providing separate or combined water
and/or sewer services and having at least 4,500 customers and
annual combined gross revenues of $3 million or more that are
political subdivisions of the state is limited to:
....
(2) Regulation of measurements, practices, acts, or services,
as granted and described in § 24-2-7 of this code;
....
(7) Customers of water and sewer utilities operated by a
political subdivision of the state may bring formal or informal
complaints regarding the commission’s exercise of the powers
enumerated in this section and the commission shall resolve
these complaints: Provided, That any formal complaint filed
under this section that is based on the act or omission of the
political subdivision shall be filed within 30 days of the act or
omission complained of and the commission shall resolve the
complaint within 180 days of filing. The 180-day period for
resolution of the dispute may be tolled by the commission until
the necessary information showing the basis of the matter
complained of is filed by the political subdivision: Provided,
however, That whenever the commission finds any regulations,
2
charges for a Locally Rate Regulated Public Service District (“LLR”), which includes the
District, from the PSC to the county commission which created the PSD. See W. Va. Code
§ 16-13A-9(a)(2)(E) (2021). 3 Therefore, I respectfully dissent.
measurements, practices, acts, or service to be unjust,
unreasonable, insufficient, or unjustly discriminatory, or
otherwise in violation of any provisions of this chapter, or finds
that any service is inadequate, or that any service which is
demanded cannot be reasonably obtained, the commission
shall determine and declare, and by order fix reasonable
measurement, regulations, acts, practices, or services, to be
furnished, imposed, observed, and followed in lieu of those
found to be unjust, unreasonable, insufficient, or unjustly
discriminatory, inadequate, or otherwise in violation of this
chapter, and shall make such other order respecting the same
as shall be just and reasonable: Provided further, That if the
matter complained of would affect rates, fees, and charges so
fixed by the political subdivision providing separate or
combined water and/or sewer services, the rates, fees, or
charges shall remain in full force and effect until set aside,
altered, or amended by the commission in an order to be
followed in the future.
3
West Virginia Code section 16-13A-9(a)(2)(E) provides:
(2) The board of a public service district with at least 4,500
customers and annual combined gross revenue of $3 million
providing water or sewer service separately or in combination
may make, enact, and enforce all needful rules in connection
with the enactment or amendment of rates, fees, and charges
of the district. At a minimum, these rules shall provide for:
....
(E) Rates, fees, and charges approved by resolution of the
board shall be forwarded in writing to the county commission
with the authority to appoint the members of the board. The
county commission shall publish notice of the proposed
revised rates, fees, and charges by a Class I legal
3
This Court recognized the transfer of the authority to set rates, fees and
charges from the PSC to the District, an LLR, in Pool v. Greater Harrison County Public
Service District, 241 W. Va. 233, 821 S.E.2d 14 (2018), as follows:
Prior to 2015, when any public service district wanted
to change the rates it charged for water or sewer service, state
law required the public service district to obtain approval from
the PSC. In 2015, the Legislature adopted deregulation
measures to limit the PSC’s jurisdiction and to exempt larger
public service districts from this requirement. After 2015,
“larger” public service districts are statutorily defined as
having at least 4,500 customers and are only required to obtain
approval of a rate change from a local elected body, such as a
county commission. The Legislature based the 2015
amendments on its finding that larger public service districts
are “most fairly and effectively regulated by the local
governing body with respect to rates, borrowing and capital
projects.” W.Va. Code § 24-1-1(j) [2015].
241 W. Va. at 236, 821 S.E.2d at 17 (emphasis added and footnotes omitted). We also
stated in Pool that
[t]he Legislature plainly intended to limit the PSC’s
jurisdiction when it adopted West Virginia Code §§ 16-13A-
advertisement in compliance with the provisions of § 59-3-1
et seq. of this code. Within 45 days of receipt of the proposed
rates, fees, and charges, the county commission shall take
action to approve, modify, or reject the proposed rates, fees,
and charges, in its sole discretion. If, after 45 days, the county
commission has not taken final action to approve, modify, or
reject the proposed rates, fees, and charges, as presented to the
county commission, shall be effective with no further action
by the board or county commission. In any event, this 45-day
period shall be mandatory unless extended by the official
action of both the board proposing the rates, fees, and charges,
and the appointing county commission.
4
9(a)(2) and 24-2-4a. When the Legislature modified those
statutes in 2015, it perceived that the water and sewer rates
charged by larger public service districts are best regulated by
local elected officials and not the PSC. See W.Va. Code § 24-
1-1(j). These statutes limited the PSC to regulating only the
rates charged by smaller public service districts.
241 W. Va. at 240, 821 S.E.2d at 21 (emphasis added).
Notwithstanding this Court’s acknowledgment of the District’s jurisdiction
to fix its rates and fees it charges and the Legislature’s action in limiting the jurisdiction of
the PSC in this regard, in the instant case the majority simply disregards the legislative
grant of authority to the District. Critically, West Virginia Code section 16-13A-9
expressly allows the District to establish fees in accordance with the provisions of West
Virginia Code sections 16-13A-1 to -25 (2021), entitled “Public Service Districts,” as
follows:
(a)(1) The board may make, enact, and enforce all needful rules
in connection with the acquisition, construction, improvement,
extension, management, maintenance, operation, care,
protection, and the use of any public service properties owned
or controlled by the district. The board shall establish, in
accordance with this article, rates, fees, and charges for the
services and facilities it furnishes, which shall be sufficient at
all times, notwithstanding the provisions of any other law or
laws, to pay the cost of maintenance, operation, and
depreciation of the public service properties and principal of
and interest on all bonds issued, other obligations incurred
under the provisions of this article, and all reserve or other
payments provided for in the proceedings which authorized the
issuance of any bonds under this article. The schedule of the
rates, fees, and charges may be based upon:
5
....
(E) Any other basis or classification which the board may
determine to be fair and reasonable, taking into consideration
the location of the premises served and the nature and extent
of the services and facilities furnished.
Id. § 16-13A-9(a)(1)(E) (emphasis added). Accordingly, the District did exactly that which
the Legislature commanded: it adopted and approved charges for the services and facilities
it furnishes to “pay for the cost of maintenance, operation, and depreciation” of its
“properties and principal of and interest on all bonds issued, other obligations incurred
under the provisions of this article, and all reserve or other payments provided for in the
proceedings which authorized the issuance of any bonds under this article.” Id. The
District represented that it
is the largest physical public service district (“PSD”) in the
state – with 519 miles of main, serving all of the
unincorporated areas of Mason County and reaching into three
other counties. The average round trip from the District’s home
base to terminate water service is 60 miles and takes two hours
of personnel time. On average, the District incurs expenses of
$116.10 per disconnection or reconnection performed. The
disconnect and reconnect fees do not fully recover the
District’s expenses in performing these services; however,
these fees diminish the extent to which the District’s regular
paying customers subsidize those who fail to make
arrangements to continue service.
(Internal citations to appendix record omitted).
Despite the District’s express grant of statutory authority to establish its rates
and fees using a cost-based approach, the PSC undertook its own investigation into whether
6
the disconnect and reconnect fees charged in this case were reasonable. The PSC based its
exercise of its jurisdiction on its conclusion that the “disconnect fee” was not actually a fee
but a “practice of charging the fee.” W. Va. Code § 24-2-1(b)(2) & (7) and § 24-2-7(a);
see supra notes 1 & 2.
In support of its position, the PSC first relied upon its Rules for the
Government of Water Utilities, W. Va. Code R. §§ 150-7-1 to -11.7.6 (2021) (“Water
Rules”). The PSC argued that under the Water Rules, customers can only be charged
reconnect fees, not disconnect fees. See id. § 150-7-6.8.3.a (effective September 14, 2021). 4
The PSC also argues that historically it has disfavored disconnect fees and denied requests
by utilities to charge such fees because “disconnect fees amount to a double-recovery
4
West Virginia Code of State Rules section 150-1-6.8.3.a allows for a charge for
reconnection of water supply as follows: “Whenever the supply of water is turned off for
violation of rules, non-payment of bills, or fraudulent use of water, the utility may make a
charge as set forth in its tariff for reestablishment of service.” Id. (emphasis added).
However, neither party mentioned nor argued the fact that the Water Rules also provide
for a “disconnect fee” under the express subsection heading “Utility discontinuance of
service” as follows:
6.8.2. Once a disconnected customer has paid his delinquency
in full, or the utility has agreed to enter into a deferred payment
agreement with the customer, and all disconnect and/or
reconnect fees have been paid, the utility shall reconnect the
customer’s water service as soon as possible but no later than
twenty-four (24) hours from the time the customer pays all
disconnect and reconnect fees.
Id. (emphasis added). Moreover, a review of the Water Rules reveals no clearly expressed
“disapproval” of disconnect fees.
7
because expenses associated with disconnecting services are part of it operation and
maintenance expenses for which the Commission or the county commission allows
recovery when establishing service rates.” See Jane Lew Pub. Serv. Dist., Case No. 08-
1867-PWD-T-PC-CN, at p.15 (Recommended Decision entered Mar. 13, 2009) (“It is
reasonable to deny the inclusion of a disconnection fee in Jane Lew’s tariff since it is
current Commission policy to only allow a disconnection fee when a water utility is
termination water service for a delinquent sewer bill under contract with a sewer utility.”)
and Fountain Pub. Serv. Dist., Case No. 09-0443-PWD-T-PW, at 2 (Recommended
Decision entered Sept. 8, 2009) (“Allowing a water utility to impose a disconnect fee may
ostensibly result in double recovery by the utility, since normally this cost of service item
is recouped in a utility’s base rates.”).
Despite the PSC’s claim that its Water Rules only allow fees for reconnecting
service, not disconnecting it, and its pronouncement that disconnect fees are disfavored, 5
5
Interestingly, neither party mentions the order entered in Mason County Public
Service District and Point Pleasant Water Works, Case No. 08-1831-PSD-W-PC-T
(Commission Order entered January 28, 2009), wherein the Commission, discussing
certain fees including disconnect, reconnect, and administrative, explains that
[r]egarding approval of the fees, it is established
Commission policy to permit utilities, with the exception of
motor carrier utilities, to institute a charge for disconnecting
and reconnecting customers who are disconnected due to
failure to pay bills, provided the charge is reasonable and is
reflected in the utility’s tariff on file with the Commission.
Arlington & Glen Falls Water Ass’n, Case No. 95-1234-W-T
(Comm’n Order Aug. 7, 1996). The Commission policy is
8
neither of the relevant Water Rules nor the aforementioned recommended decisions
support the PSC’s overarching position in regard to the determinative jurisdictional issue:
that a disconnect fee is not actually a fee but rather a “practice of charging the fee.” Indeed,
the recommended decisions and the Water Rules belie the PSC’s argument, as there is no
mention of a disconnect fee “practice” discussed in either. In short, what is readily gleaned
from an examination of the foregoing is that the PSC created its “practice of charging the
fee” rubric out of whole cloth in order to justify its exercise of jurisdiction under the
auspices of West Virginia Code section 24-2-1(b)(2) & (7) and section 24-2-7(a). See
supra notes 1 & 2.
The PSC’s assertion of jurisdiction – which is, essentially, an argument that
its general grant of jurisdictional authority trumps the specific grant of jurisdictional
authority given to LLRs and the District – is untenable under our well-established rules of
statutory construction. Ordinarily, where two statutes apply to the same subject matter, the
more specific statute prevails over the general statute. “When faced with a choice between
based on reasoning that a utility should be permitted to recover
costs associated with disconnecting and reconnecting a
delinquent customer directly from the customer incurring the
cost in order to directly match the cost causer to the cost, rather
than spreading the cost throughout the entire customer base.
No. 08-1831-PSD-W-PC-T, at p. 2 (emphasis added). However, the existence of any PSC
policy disfavoring the assessment of a disconnect fee is of no moment to the determinative
issue in this case, which is that the PSC lacks jurisdiction over LLR’s in regard to the
establishment of rates and fees. See W. Va. Code § 16-13A-9(a)(1)(E).
9
two statutes, one of which is couched in general terms and the other of which specifically
speaks to the matter at hand, preference generally is accorded to the specific statute.”
Newark Ins. Co. v. Brown, 218 W. Va. 346, 351, 624 S.E.2d 783, 788 (2005) (emphasis
added). We previously have held that “[t]he general rule of statutory construction requires
that a specific statute be given precedence over a general statute relating to the same subject
matter where the two cannot be reconciled.” Syl. Pt. 1, UMWA by Trumka v. Kingdon, 174
W. Va. 330, 325 S.E.2d 120 (1984) (emphasis added). Accordingly, between the general
authority of the Commission to investigate unreasonable acts or practices by a utility, § 24-
2-7, and the specific delegation of authority to LLRs and locally elected county
commissions to enact rates, fees and charges, § 24-1-1 (j) and § 16-13A-9(a), the specific
grant of authority prevails.
To hold otherwise, as the majority has done in this case, invalidates the
District’s statutory jurisdiction to impose a disconnect fee based solely on the PSC’s use
of semantics. The majority’s decision to uphold the PSC’s exercise of jurisdiction over the
disconnect fees herein effectively transfers jurisdiction over any “rates, fees, and charges”
established by an LLR for the services and facilities it furnishes, see W. Va. Code § 16-
13A-9(a)(1)(E), back to the PSC. Stated otherwise, anytime the PSC decides it wants to
exercise jurisdiction in a case, all it has to do in order to circumvent the Legislature’s
transfer of jurisdiction to LLRs is to designate the fees as “measurements, practices, acts,
10
or services.” See id. § 24-2-1(b)(2) & (7). This clearly was not what the Legislature
intended.
Based upon the foregoing, I respectfully dissent. I am authorized to state that
Chief Justice Hutchison joins in this dissenting opinion.
11 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483113/ | IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term FILED
_______________
November 10, 2022
No. 20-1019 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
BERKELEY COUNTY COUNCIL,
Defendant Below,
Petitioner,
v.
GOVERNMENT PROPERTIES INCOME TRUST LLC,
Plaintiff Below,
Respondent.
____________________________________________________________
AND
_______________
No. 20-1022
_______________
BERKELEY COUNTY COUNCIL,
Defendant Below,
Petitioner,
v.
MARTINSBURG IRS OC, LLC,
Plaintiff Below,
Respondent.
____________________________________________________________
Appeal from the Circuit Court of Berkeley County
The Honorable Laura V. Faircloth, Judge
Civil Action Nos. CC-02-2019-AA-7 and CC-02-2019-AA-8
REVERSED AND REMANDED
____________________________________________________________
Submitted: September 27, 2022
Filed: November 10, 2022
Jeffrey T. Mauzy, Esquire Eric Hulett, Esquire
Anthony J. Delligatti, Esquire Christopher M. Hunter, Esquire
Martinsburg, West Virginia Jackson Kelly PLLC
Counsel for Petitioners Charleston, West Virginia
AND
Edward F. Hirshberg, Esquire
Ryan Law Firm, PLLC
Pittsburgh, Pennsylvania
Counsel for Respondent
Joshua A. Cottle, Esquire
Kimberly S. Croyle, Esquire
Howard E. Seufer, Jr.
Bowles Rice LLP
Charleston, West Virginia
Counsel for Amicus Curiae Board of
Education of the County of Berkeley
JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “‘It is a general rule that valuations for taxation purposes fixed by an
assessing officer are presumed to be correct. The burden of showing an assessment to be
erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.’ Syl. Pt.
7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691
(1983).” Syl. Pt. 1, Musick v. University Park at Evansdale, LLC, 241 W. Va. 194, 820
S.E.2d 901 (2018).
2. “Arbitrary or unjust action by an assessor in fixing the value of land
must be shown by clear and cogent proof in order that the complaining taxpayer may be
given relief from an allegedly excessive valuation.” Syl. Pt. 2, Bankers Pocahontas Coal
Co. v. County Court of McDowell County., 135 W. Va. 174, 62 S.E.2d 801
(1950), overruled on other grounds by In re Kanawha Val. Bank, 144 W. Va. 346, 109
S.E.2d 649 (1959).
3. “‘A taxpayer challenging an assessor’s tax assessment must prove by
clear and convincing evidence that such assessment is erroneous.’ Syllabus Point 5, in
part, In re: Tax Assessment of Foster Foundation’s Woodlands Retirement
Community, 223 W.Va. 14, 672 S.E.2d 150 (2008).” Syl. Pt. 10, Mountain America, LLC
v. Huffman, 224 W. Va. 669, 687 S.E.2d 768, 772 (2009).
i
4. A party defending an assessment before a Board of Assessment
Appeals is the appropriate party, and thus a necessary party, to an appeal of such
assessment to the circuit court.
5. “Title 110, Series 1P of the West Virginia Code of State Rules confers
upon the State Tax Commissioner discretion in choosing and applying the most accurate
method of appraising commercial and industrial properties. The exercise of such discretion
will not be disturbed upon judicial review absent a showing of abuse of discretion.” Syl.
Pt. 5, In re Assessment Against American Bituminous Power Partners, L.P., 208 W. Va.
250, 539 S.E.2d 757 (2000).
ii
ARMSTEAD, Justice:
In these two consolidated appeals, The Berkeley County Council
(“Petitioner”) appeals the judgments of the Circuit Court of Berkeley County that reversed
the orders issued by Petitioner while sitting as the Berkeley County Board of Assessment
Appeals (“Board”). 1 These orders arose from appeals of the ad valorem assessments of
properties owned by Government Properties Income Trust LLC (“Government
Properties”) and Martinsburg IRS OC, LLC (“Martinsburg IRS OC”) (collectively,
“Taxpayers”) as determined by the Berkeley County Assessor (“Assessor”) for the 2019
tax year. 2 Petitioner appealed both rulings of the circuit court to this Court, raising six total
issues across both appeals. 3 In our review, we believe these issues encompass two
1
The Legislature has repealed the provisions establishing Boards of
Assessment Appeals. See 2021 W. Va. Acts, c.261, eff. July 1, 2022. We cite to the 2010
version of West Virginia Code § 11-3-24b throughout this opinion as this provision governs
these consolidated appeals.
Under the 2010 version of the statute, county commissions/councils are
statutorily required to sit as Boards of Assessment Appeals. See W. Va. Code § 11-3-
24b(a).
As discussed in more detail below, the Berkeley County Assessor was not
2
named as a party to the appeal from the Board to the circuit court.
3
The specific issues raised in the appeals were, in 20-1019: 1) The Circuit
Court erred in reducing the Berkeley County Assessor’s assessment, because the property
owner failed to join an indispensable party, the Berkeley County Assessor, who assessment
was contested. 2) The Circuit Court erred by reversing the Board of Assessment Appeals,
by finding the Assessment erroneous, when it was not, adopting the taxpayer’s appraisal,
that violated West Virginia law. Likewise, in 20-1022, the issues raised were: 1) The
Circuit Court abused its discretion by reducing the Berkeley County Assessor’s
Assessment without joining the Berkeley County Assessor, whose assessment is contested.
(continued . . .)
1
overarching questions, which are: 1) whether the Assessor was an indispensable party to
the actions and should have been named in the Taxpayers’ appeals to the circuit court; and,
2) whether the circuit court erred in determining the assessments as affirmed by the Board
were invalid. 4 Although these two appeals deal with different pieces of property, owned
by two different entities, the same issues are common to both appeals. Thus, we
consolidated these two matters and placed them on the docket for oral argument under Rule
19 of the West Virginia Rules of Appellate Procedure.
After review of the trial transcript and evidence, the briefs and arguments of
the parties, and all other matters of record, we find that the circuit court erred in reversing
the Board and reverse and remand for further proceedings consistent with this opinion. 5
2) The Circuit Court abused its discretion by a) applying wrong standard of review, b)
applying the wrong standard of proof, and c) by finding that the Board of Assessment
Appeals erred by not finding that the Assessor violated the law for choosing the cost
approach to valuation. 3) The Circuit Court erred when it made the erroneous finding of
fact that the Assessor did not take into account all types of depreciation in its appraisal,
because the property record card indicates that depreciation was applied. 4) The Circuit
Court abused its discretion by adopting the “retrospective leased fee” appraisal conducted
by Martinsburg IRS, O.C. LLC’s hired appraiser that failed to comply with West Virginia
law for valuing commercial property for ad valorem tax purposes.
4
We would note that the Legislature has repealed the provisions of West
Virginia Code § 11-3-25, which contained the process for appeals of Board decisions to
circuit court applicable to this appeal. See 2021 W. Va. Acts, c.261, eff. July 1, 2022. This
repeal has no impact upon this matter. Thus, we cite to the 2014 version of this code section
throughout this opinion.
5
The Court would like to acknowledge the arguments presented in both
appeals by the amicus curiae, The Board of Education of the County of Berkeley.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
Because of differences in the properties at issue, we will separately set out
the facts relating to each.
A. Government Properties Property
The Government Properties property is located at 882 TJ Jackson Drive in
Falling Waters, West Virginia, contains 4.42 acres, and is comprised of a commercial
building containing 37,605 square feet of interior space, which includes a 30,875 square
foot computer room/data center. The Assessor assessed the fair market value of this
property for the 2019 tax year to be $4,212,200.00, with an assessed value of
$2,527,320.00. The Assessor based its valuation upon the cost approach to value, 6 the
methodology of which was explained before the Board by John Streett, commercial
appraiser for the Assessor:
Legislative Rule 110 1P was considered and utilized for the
2019 tax year. The legislative rule enumerates a number of
elements that shall be considered when doing a commercial
appraisal. The majority of those elements are located within
6
There are three approaches to value that may be considered in valuing real
estate – cost, income capitalization, and sales comparison. See The Appraisal Institute,
The Appraisal of Real Estate 36-37 (15th ed. 2020). All of these approaches to value are
contemplated by the regulations adopted by the West Virginia State Tax Department for
appraising commercial and industrial real property. See 110 W. Va. C.S.R. § 1P-3.2.1
(2013). We will discuss these approaches in more detail below. All citations to 110 West
Virginia Code of State Regulations § 1P are to the 2013 version.
3
IAS on a property record card.[ 7] However, some of the
elements are found on the tax map, where others are found on
the Certificate of Transfer and Sales Form received from the
County Clerk’s office.
Additionally, Streett also considered obsolescence in making his appraisal, stating,
“functional obsolescence and external obsolescence … were taken into consideration.
Based upon the definition of functional obsolescence and economic obsolescence, our
office did not believe that any adjustments were needed other than normal depreciation on
improvement.” 8 Thus, after considering the applicability of obsolescence, Streett rejected
its application. Further, due to a lack of available data, Streett was unable to develop either
the income approach or the comparative sales approach in performing his appraisal,
ultimately settling on utilizing the cost approach:
It is the opinion of the Assessor’s Office that there were no
valid sales directly comparable to the subject property. Income
approach was also considered, letters were mailed to those
properties that were coded 353 office buildings asking for
income and expense information. The one office building that
was listed as a valid sale by this office was not returned to this
office. Hence, our office was not able to develop a
calculazation [sic] rate. And since the subject property has a
(inaudible), there would be no income (inaudible) for this
property for the current tax year, so consequently all three
approaches to value were considered. The cost approach was
chosen to be used for the 2019 tax year.
“IAS” is the Integrated Assessment System managed by the Tax
7
Commissioner. It will be discussed in more detail below.
In developing the cost approach to valuation, the Assessor must “consider
8
three (3) types of depreciation: physical depreciation, functional obsolescence, and
economic obsolescence.” 110 W. Va. C.S.R. § 1P-3.2.1.1.
4
Government Properties appealed the assessment to the Board which held a
hearing on the appeal. At that hearing, Government Properties offered an appraisal,
completed by Paul Griffith, which reconciled fair market value for the 2019 tax year at
$900,000.00, with an assessed value of $540,000.00. Griffith’s appraisal was based upon
a reconciliation of the cost and comparative sales approaches to value which used two West
Virginia properties – one in Berkeley County and the other in Monongalia County, and two
out-of-state properties – one in Allentown, Pennsylvania and the other in Baltimore,
Maryland. The Baltimore property was ultimately not considered due to its location in the
Baltimore market. Griffith concluded that there was significant functional obsolescence 9
in this building which reduced the value of the subject property by $2,150,000.00. Based
upon that determination, Griffith maintained that only 6,000 square feet of the 37,605
square foot building had any value because the rest of the building was functionally
obsolete for the purposes of assessment. 10
9
The Appraisal of Real Estate provides that functional obsolescence is
“when ongoing change, caused by technological advances or economic and aesthetic
trends, renders building layouts and features obsolete to the extent that value is impaired.”
The Appraisal Institute, The Appraisal of Real Estate 232. Functional obsolescence is
classified as a depreciation adjustment in the West Virginia State Tax Department’s
regulations that the Assessor must “consider.” See 110 W. Va. C.S.R. §§ 1P-3.2.1.1 and
3.5.
10
It must be noted, however, that the appraisal offered by Government
Properties concurred with the Assessor’s conclusion regarding obsolescence. “[B]ased on
inspection and consideration of this current and/or future use, there does not appear to be
any significant items of functional obsolescence.”
5
The Board found the Assessor’s assessment to be valid. In so doing, the
Board highlighted the discrepancies between the two appraisals:
Part of the differences result from the character of the
two analyses. The Assessor is required to perform a mass
appraisal of properties. Unlike the Taxpayer, it did not perform
an individual bank-type appraisal. Where the Taxpayer
considered only the 3.40 acres, valued at $480,000, the
Assessor correctly assessed the property as 4.42 acres, valued
at $1,095,000. The improvements are valued by the Assessor
at $3,117,200. The Taxpayer, on the other hand, values the
improvements at only $508,635. This surprisingly low
appraisal value results from a $2,790,840 physical depreciation
and a $2,150,000 functional obsolescence. The Taxpayer
argues that of the 37,605 square feet it asserts comprises the
building, only 6,000 square feet is functional, while 31,605
square feet are surplus space which should not be a part of the
assessed property value. In addition, despite the Taxpayer’s
decision not to utilize the Income Approach to value the
property, the appraisal adds $495,407 to the replacement costs
of site and building improvements as “Entrepreneurial Profit”.
Thus, there is a wide disparity between the two
appraisals. On the one hand, the Taxpayer’s appraisal results
in an assessed value for 2019 Tax Year purposes of $593,181,
while the Assessor’s appraisal results in an assessment of
$2,527,320 for purposes of determining the tax liability for Tax
Year 2019.[ 11]
From this discussion, the Board concluded:
While a mere recounting of methodology and results set
forth in the Taxpayer’s appraisal and excellent argument that
such methodology and results are logical and make good sense
are, indeed, helpful in giving the Board an understanding of the
Taxpayer’s position, those things do not meet the high burden
of “clear and convincing” evidence that the Assessor’s
methodology and resulting assessment is erroneous. The
11
The assessed values calculated in the parties’ appraisals are based upon
sixty percent of the fair market value, which percentage is provided for in Article X,
Section 1b of the West Virginia Constitution and West Virginia Code § 11-3-1(a) (2014).
6
Taxpayer’s presentation, especially with regard to the
extraordinary functional obsolescence, was lacking in
evidentiary justification and was more conclusory than
supportive.
On the other hand, the Assessor’s presentation was
cogent, comprehensive and persuasive. The Taxpayer failed to
rebut the Assessor’s findings or make any effective
undermining of the methodology used or the assessment
determination resulting.
Government Properties appealed the Board’s determination to the circuit
court, which reversed the Board. The circuit court’s order adopted Government Properties’
proposed findings of fact and conclusions of law, adopting in total the appraisal offered by
Government Properties and rejecting the cost approach valuation established by the
Assessor. The circuit court found that the Government Properties appraisal was superior
to the Assessor’s appraisal, holding:
Here, the Appraisal and [Government Properties’]
testimony related thereto presents an extremely in-depth and
detailed analysis of the Property, the factors listed in the Rules,
and the market value of the Property as of July 1, 2018[,] by
development of both the cost and comparable sales approach.
The analysis and data presented by the comparable sale
approach is particularly important to the determination of the
true and actual value for the Property in this case and properties
involved in all tax assessment appeal cases, and its substantial
impact on the determination of a Property’s market value is
clearly stated in Rules section 3.1.1. [W. Va. C.S.R.] § 110-1P-
3.1.1 (when determining market value, “primary consideration
shall be given to the trends of price paid for like or similar
property in the area of locality in which the property is
situated[.”])
….
7
As discussed in detail above, the Appraisal and
testimony related thereto are more than adequate to meet the
burden of ‘clear and convincing evidence’ to show that the
Assessor’s methodology and resulting Assessment is
erroneous. The evidence presented to the Board regarding the
Property’s functional obsolesce as considered in the
Appraisal’s cost approach was more than sufficiently
supported by evidence related to the sale of numerous
comparable properties. In fact, it was supported by evidence
which the West Virginia Supreme Court considers to be the
best evidence available in an assessment: the sale price paid for
the Property involved in this case at a sale occurring less than
three months before the Hearing date. This evidence is goes
[sic] far beyond the ‘clear and convincing’ standard, and the
appraisal consideration thereof to develop the Property’s
functional obsolescence factor offering the Board valid,
substantial and more than enough justification for the
Appraisal’s cost approach valuation conclusion. Contrary to
the Board’s creative, albeit misleading and unsupported,
description of the Appraisal’s functional obsolescence
presentation and evidentiary worth, the Appraisal presents a
logical and detailed analysis by clear and convincing evidence
sufficient to meet the burden of proof imposed on [Government
Properties] showing that the Assessor’s methodology and
resulting Assessment are erroneous. Accordingly, the Board’s
determination that [Government Properties] failed to meet its
burden of proof by is erroneous.
B. Martinsburg IRS OC Property
The Martinsburg IRS OC property is located at 295 Murrall Drive in
Kearneysville, West Virginia, has a total acreage of 24.59 acres and contains multiple
buildings encompassing a total of 122,475 square feet. The property includes an on-site
backup power-plant, space to house computer hard drives, and a dedicated chiller plant to
cool the computer room space.
8
Based upon its cost-based appraisal, the Assessor determined fair market
value of this property for the 2019 tax year to be $26,940,000.00, with an assessed value
of $16,164,120.00. 12 Once again, John Streett, the Assessor’s commercial appraiser,
testified before the Board regarding the methodology used to arrive at this valuation. He
stated that the Assessor’s Office attempted to obtain data to develop the income approach
and market capitalization rate but was unsuccessful. Describing this effort, Streett stated,
“we considered the income approach, letters were mailed to valid commercial sales asking
for income expense information. The income expense questionnaire of the one valid sale
of an office building was not returned to this office so that a capitalization rate could be
developed for office field use.” Further, Streett testified that to determine an overall market
capitalization rate, the Legislative Rule requires “dividing the annual net income level by
the current selling price of comparable properties.” Because the requested data was not
returned to the Assessor’s office, it was impossible for Streett to make this calculation.
Streett further testified that the methodology ultimately followed by the Assessor, which
utilized the cost approach, was in compliance with the law:
In regards to the Assessor’s Office values on this
property, Legislative Rule 110 1P was considered and utilized
for the 2019 tax year. That legislative rule enumerates a
number of elements that shall be considered when doing a
commercial appraisal. The majority of those elements are
located within the IAS on a property record card, which is the
Integrated Assessment System on the property record card.
12
The assessed value represents sixty percent of the fair market value, which
percentage is provided for in Article X, Section 1b of the West Virginia Constitution and
West Virginia Code § 11-3-1(a) (2014).
9
….
All three approaches to value were considered by the
Berkeley County Assessor’s Office, West Virginia Legislative
Rule 110 1P 3.2.1 states, in determining an estimate of fair
market value, the tax commissioner shall consider and use
where applicable three accepted approaches of value, the cost,
the income and the market approach. The cost approach was
considered for the 2019 tax year, is was [sic] the interior
functional and economic obsolescence were taken into
consideration. Based upon the definition of functional
obsolescence and economic obsolescence, the Berkeley
County Assessor’s Office does not believe that any
adjustments are needed other than the normal depreciation on
the improvement.
Martinsburg IRS OC appealed this assessment to the Board. At a hearing
before the Board, Martinsburg IRS OC offered its own appraisal, completed by Michael
Miller, which found fair market value of this property for the 2019 tax year to be
$7,240,000.00, with an assessed value of $4,344,000.00. Miller’s appraisal developed a
hybrid income and sales comparison approach to value, in contrast to the Assessor’s
methodology.
The Board found in favor of the Assessor’s methodology and valuation
stating, “[t]he leased fee valuation urged on the Board by the Taxpayer is not the fee simple
valuation required of our Assessor.” 13 Further, the Board found:
Additionally, on its face, the taxpayer’s appraisal says its purpose is to
13
“develop an opinion of the Retrospective Market Value of the subject property’s leased fee
interest.”
10
The major difference in the two assessments, however,
derive from the Assessor’s utilization of the Cost Approach to
value and the Taxpayer’s use of the Income Approach with the
Sales Comparison Approach used as its check for
reconciliation purposes. The testimony of Mr. Streett noted
that the West Virginia Legislature has written into the law a
prescription for determining the selection of a capitalization
rate in utilization of the Income Approach used by the
Taxpayer’s appraisal. Rather than follow W.Va. C.S.R. § 110-
1P-3.2.1.2, which provides, in pertinent part, that, “The
selection of an overall capitalization rate shall be derived from
current available market data by dividing annual net income by
the current selling price of comparable properties. The present
fair market value of the property shall then be determined by
dividing the annual economic rent by the capitalization rate,[”]
the Taxpayer’s appraisal indicates that four different
techniques were used in development of their overall
capitalization rate: (1) Comparable Sales; (2) Competitive
Market; (3) Investor Surveys; and, (4) Band of Investment
Technique. These techniques, certainly, are appropriate for the
more common bank appraisals but, the Assessor is mandated
to follow the Legislative Rule in determining a capitalization
rate to employ in the Income Approach to value. The data
needed to comply with the prescriptive Legislative Rule was
not available to the Assessor, as Mr. Streett testified. Nor, in
the case of the Sales Comparison Approach, also, utilized by
the Taxpayer, were there sufficient comparative sales available
within the Berkeley County jurisdiction as required by the
Rules to make the meaningful sales comparisons for an
appraisal. Lacking such data, the Supreme Court of Appeals of
West Virginia has opined that the Assessor is not required to
spend time and effort developing an approach to value which
does not comply with the Rules.
….
The Taxpayer failed to rebut the Assessor’s findings or
to effectively undermine the Assessor’s use of the Cost
Approach to value the property other than to generally indicate
that the Cost Approach was not an appropriate approach in this
case and to offer the Board the alternative Income Approach.
And, while the Board is troubled that a building valued at $30
million in 2005, the strongest sellers’ market prior to the 2008
11
recession, is, fourteen years later, appraised by the Assessor at
$26,940,200, only $3 million less, without clear and
convincing evidence that the Assessor’s Cost Approach
assessment is erroneous, the Board must affirm such
assessment.
Martinsburg IRS OC appealed the Board’s determination to the circuit court,
which reversed the Board by order dated November 23, 2020. The circuit court fully
adopted Martinsburg IRS OC’s proposed findings of fact and conclusions of law. 14
Importantly, the circuit court order states:
Here, the Appraisal and [Martinsburg IRS OC’s]
testimony related thereto presents an extremely in-depth and
detailed analysis of the Property, the factors listed in the Rules,
and the market value of the Property as of July 1, 2018[,] by
development of both the income and comparable sales
approach. The analysis and data presented by the comparable
sale approach is particularly important to the determination of
the true and actual value for the Property in this case and
properties involved in all tax assessment appeal cases, and its
substantial impact on the determination of a Property’s market
value is clearly stated in section 3.1.1 of the Rules. [W. Va.
C.S.R.] § 110-1P-3.1.1 (when determining market value,
“primary consideration shall be given to the trends of price paid
for like or similar property in the area of locality in which the
property is situated.[”])
….
As discussed in detail above, the Appraisal and testimony
related thereto are more than adequate to prove by clear and
convincing evidence that the Assessment for the Property is not
accurate. This evidence presented to the Board goes far beyond
a general indication “that the Cost Approach was not
appropriate” and develops two approaches to value offering the
Board much more than simply “the alternative Income
The circuit court’s conclusions in both the Government Properties case and
14
the Martinsburg IRS OC case, which are quoted in this opinion, are nearly identical.
12
Approach.” To the contrary, it presents a logical and detailed
analysis by clear and convincing evidence sufficient to show
the Assessment for the Property is not accurate. Accordingly,
the Board’s determination that Petitioner failed to meet its
burden of proof is erroneous.
App. 433.
Based upon the circuit court’s findings in both cases, Petitioner appealed.
We consolidated these matters as they share common issues of law and fact and set them
for argument under Rule 19 of the West Virginia Rules of Appellate Procedure.
II. STANDARD OF REVIEW
We are guided by the following standard of review for proceedings under
West Virginia Code § 11-3-25 (2014):
“‘It is a general rule that valuations for taxation
purposes fixed by an assessing officer are presumed to be
correct. The burden of showing an assessment to be erroneous
is, of course, upon the taxpayer, and proof of such fact must be
clear.’ Syl. Pt. 7, In re Tax Assessments Against
Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691 (1983).”
Syl. Pt. 1, Musick v. Univ. Park at Evansdale, LLC, 241 W. Va. 194, 820 S.E.2d 901 (2018).
“Upon receiving an adverse determination before the county
commission, a taxpayer has a statutory right to judicial review
before the circuit court.” W. Va. Code § 11-3-25 (1967).
Judicial review of a decision of a board of equalization
and review regarding a challenged tax-assessment valuation is
limited to roughly the same scope permitted under the West
Virginia Administrative Procedures Act. As we have
explained, review before the circuit court is confined to
determining whether the challenged property valuation is
supported by substantial evidence, or otherwise in
contravention of any regulation, statute, or constitutional
13
provision. Therefore, “our review of a circuit court’s ruling in
proceedings under § 11-3-25 is de novo.”
Musick, 241 W. Va. at 199, 820 S.E.2d at 906 (internal footnotes omitted). 15 As noted,
the Taxpayer carries a heavy burden in challenging assessments. “Arbitrary or unjust
action by an assessor in fixing the value of land must be shown by clear and cogent proof
in order that the complaining taxpayer may be given relief from an allegedly excessive
valuation.” Syl. Pt. 2, Bankers Pocahontas Coal Co. v. Cnty. Ct. of McDowell Cnty., 135
W. Va. 174, 62 S.E.2d 801 (1950), overruled on other grounds by In re Kanawha Val.
Bank, 144 W. Va. 346, 109 S.E.2d 649 (1959). “‘A taxpayer challenging an assessor’s tax
assessment must prove by clear and convincing evidence that such assessment is
erroneous.’ Syllabus Point 5, in part, In re: Tax Assessment of Foster Foundation’s
Woodlands Retirement Community, 223 W.Va. 14, 672 S.E.2d 150 (2008).” Syl. Pt. 10,
Mountain Am., LLC v. Huffman, 224 W. Va. 669, 687 S.E.2d 768, 772 (2009).
III. ANALYSIS
Mindful of our standard of review, we now discuss the two primary issues
raised in this appeal.
15
As we discuss below, the procedure for appealing from a Board of
Assessment Appeals decision is the same as the procedure for appealing a Board of
Equalization and Review determination. See, W. Va. Code § 11-3-24b & 11-3-25. Many
of the cases discussed in this opinion are from appeals of Board of Equalization and Review
decisions.
14
A. Proper Party to Appeal from Board
Petitioner argues that in its appeal to the circuit court from the Board, both
Taxpayers failed to name the Assessor as a party to their appeals. Specifically, Petitioner
avers that the Assessor is the only entity that can grant relief, that the Board, who was the
only named party to the appeal to circuit court, could not actually change the assessments
at issue, and that the Assessor should have had the opportunity to defend its assessments
in the proceeding.
The Taxpayers respond that no statute requires the Assessor be named as a
party to an appeal from a Board to circuit court. The Taxpayers correctly note this Court
has issued numerous opinions wherein county Assessors were not parties to this type of
proceeding and the county commission/council was named instead. 16 In fact, we note that
16
See, e.g., Bayer MaterialScience, LLC v. State Tax
Commissioner, 223 W.Va. 38, 672 S.E.2d 174 (Kanawha
County Commission appeared as party); In re: Tax Assessment
of Foster Foundation’s Woodlands Retirement
Community, 223 W.Va. 14, 672 S.E.2d 150 (Cabell County
Commission appeared as party); Central Realty Co. v. Board
of Equalization and Review of Cabell County, 110 W.Va. 437,
158 S.E. 537 (1931); Gilbert v. County Court of Wyoming
County, 121 W.Va. 647, 5 S.E.2d 808 (1939); In re
Stonestreet, 147 W.Va. 719, 131 S.E.2d 52 (1963) (defendants
were Commissioners of the County Court of Calhoun
County); Tug Valley Recovery Center, Inc. v. Mingo County
Commission, 164 W.Va. 94, 261 S.E.2d 165 (1979) (“The
respondents are elected members of the Mingo County
Commission, and in this capacity, sat as a Board of
Equalization and Review during the month of February
(continued . . .)
15
1978”); The Great A & P Tea Co., Inc. v. J. Carney Davis,
Assessor of Marion County, West Virginia, and Marion County
Board of Review and Equalization, 167 W.Va. 53, 278 S.E.2d
352 (1981); Allegheny Pittsburgh Coal Co. v. County
Commission of Webster County, West Virginia and East
Kentucky Energy Corp. v. County Commission of Webster
County, West Virginia, 488 U.S. 336, 109 S.Ct. 633, 102
L.Ed.2d 688 (1989); Eastern American Energy Corporation v.
Robert W. Thorn, Assessor of Wirt County, and C. Richard
Boice, Commissioner of the County Commission of Wirt
County, Paul Bumgarner, Commissioner of the County
Commission of Wirt County, and Harry Matheny,
Commissioner of the County Commission of Wirt County, in
their Capacities as County Commissioners and in Their
Capacities as Members of the County Board of Equalization
and Review, 189 W.Va. 75, 428 S.E.2d 56 (1993); Western
Pocahontas Properties, Ltd. v. County Commission of Wetzel
County, 189 W.Va. 322, 431 S.E.2d 661 (1993); In re Elk
Sewell Coal, 189 W.Va. 3, 427 S.E.2d 238 (“Ernest V. Morton,
Jr., Pros. Atty., Webster Springs”, attorney for Webster County
Commission); Rawl Sales & Processing Co. v. County
Commission of Mingo County, 191 W.Va. 127, 443 S.E.2d 595
(1994); In re the Petition of Maple Meadow Mining Company
for Relief from Real Property Assessment for the Tax Year
1992, 191 W.Va. 519, 446 S.E.2d 912 (1994) (“Carl W. Roop,
Canterbury, Poling & Roop, Beckley, for Raleigh County
Commission”); Bookman v. Hampshire County
Commission, 193 W.Va. 255, 455 S.E.2d 814 (1995); In re the
1994 Assessments of the Property of Massimo A. Righini,
Marilou M. Righini, J. David Magistrelli and Diane
Magistrelli, 197 W.Va. 166, 475 S.E.2d 166 (1996) (“Richard
G. Gay, Berkley Springs, for Morgan County
Commission”); In re Tax Assessment Against American
Bituminous Power Partners, L.P., 208 W.Va. 250, 539 S.E.2d
757 (2000) (“Frances C. Whiteman, Esq., Whiteman, Burdette
& Radman, PLLC, Fairmont, West Virginia” is listed as
“Attorney for Appellant Marion County Commission”).
Mountain Am., 224 W. Va. at 684 n.19, 687 S.E.2d at 783 n.19. See also Xenia Hotels &
Resorts, Inc. v. Kanawha Cnty. Bd. of Commissioners, No. 20-0068, 2021 WL 1100388
(continued . . .)
16
we have stated, “County commissions have often been made parties to these types of
appeals. Indeed, County Commissions have made numerous appearances in these types of
appeals before this Court.” Mountain Am., 224 W. Va. at 683, 687 S.E.2d at 782. Even
so, some cases before this Court have named the Assessor as a party. 17 Still others have
named the tax commissioner. 18 Consequently, we have found no case in our research in
(W. Va. Mar. 23, 2021) (memorandum decision); Tabb v. Jefferson Cnty. Comm’n, No.
17-0095, 2018 WL 1444286 (W. Va. Mar. 23, 2018) (memorandum decision); Palley v.
Tucker Cnty. Comm’n, No. 16-0403, 2017 WL 1423166 (W. Va. Apr. 21, 2017)
(memorandum decision); Palley v. Tucker Cnty. Comm’n, No. 14-0686, 2015 WL 3458348
(W. Va. Jan. 30, 2015) (memorandum decision); In re Tax Assessment of Foster Found.’s
Woodlands Ret. Cmty., 223 W. Va. 14, 672 S.E.2d 150 (2008) (Cabell County Commission
sitting as Board appeared).
17
See Musick, 241 W. Va. at 194, 820 S.E.2d at 901 (Musick was
Monongalia County Assessor); Rhoe v. Hess, No. 15-1038, 2016 WL 6819046 (W. Va.
Nov. 18, 2016) (memorandum decision) (Hess was Berkeley County Assessor. The
Berkeley County Council was also named as a party); Univ. Park at Evansdale, LLC v.
Musick, 238 W. Va. 106, 792 S.E.2d 605 (2016) (Musick was Monongalia County
Assessor); United Hosp. Ctr., Inc. v. Romano, 233 W. Va. 313, 758 S.E.2d 240 (2014)
(Romano was Harrison County Assessor); Wright v. Banks, 232 W. Va. 602, 753 S.E.2d
100 (2013) (Banks was Jefferson County Assessor); Pope Properties/Charleston Ltd. Liab.
Co. v. Robinson, 230 W. Va. 382, 738 S.E.2d 546 (2013) (Robinson was Kanawha County
Assessor); Shenandoah Sales & Serv., Inc. v. Assessor of Jefferson Cnty., 228 W. Va. 762,
724 S.E.2d 733 (2012); Stone Brooke Ltd. P’ship v. Sisinni, 224 W. Va. 691, 688 S.E.2d
300 (2009) (multiple Assessors are named as parties); Tax Assessment Against Purple
Turtle, LLC v. Gooden, 223 W. Va. 755, 679 S.E.2d 587, (2009) (Gooden was Berkeley
County Assessor); New Vrindaban Cmty., Inc. v. Rose, 187 W. Va. 410, 419 S.E.2d 478
(1992) (Marshall County Assessor named as party); In re Tax Assessments Against
Pocahontas Land Co., 172 W. Va. 53, 303 S.E.2d 691 (1983) (Assessor appeared in appeal
by counsel); Great A & P Tea Co. v. Davis, 167 W. Va. 53, 278 S.E.2d 352 (1981) (Davis
was Assessor of Marion County).
See Settimi v. Irby, No. 21-0046, 2022 WL 292317 (W. Va. Feb. 1, 2022)
18
(memorandum decision); United Hosp. Ctr., 233 W. Va. 313, 758 S.E.2d 240 (Tax
Commissioner named as party); New Vrindaban, 187 W. Va. 410, 419 S.E.2d 478 (Tax
Commissioner named as party).
17
which a party has squarely placed before this Court the question of whether an Assessor is
a necessary party to an appeal from a Board of Assessment Appeals decision. 19
19
In each county, under the prior enactment, a Board would sit annually to
hear property valuation disputes between taxpayers and the Assessor. See W. Va. Code §
11-3-24b (As noted above, this code section has been repealed. This discussion relates to
the statutory framework applicable to these appeals.). The Berkeley County Council is
statutorily required to sit as the Board. Id. Following a decision of the Board, appeals
may be taken to the circuit court, “[a]ny party to the hearing may appeal the order of the
board in the manner provided in section twenty-five of this article for appealing an order
of the board of equalization and review.” W. Va. Code § 11-3-24b(g) (emphasis added).
Such appeals shall be heard in the circuit court “of the county in which the property books
are made out. . . .” W. Va. Code § 11-3-25(a). Notice of such appeals must be given to
“the prosecuting attorney of the county, whose duty it shall be to attend to the interests of
the state, county and district in the matter, and the prosecuting attorney shall give at least
five days notice of hearing to the Tax Commissioner.” Id. “The right of appeal from any
assessment by the . . . Board of Assessment Appeals as provided in this section may be
taken either by the applicant or by the state, and in the case of the applicant, by his or her
attorney, or in the case of the state, by is prosecuting attorney or other attorney representing
the Tax Commissioner.” W. Va. Code § 11-3-25(b) (emphasis added). “The state or the
aggrieved taxpayer may appeal a question of valuation to the Supreme Court of Appeals if
the assessed value of the property is $50,000 or more, and either party may appeal a
question of classification or taxability.” W. Va. Code § 11-3-25(d) (emphasis added).
Additionally, we have previously held that the provisions of West Virginia
Code § 11-3-25 we are discussing here and those which allow for appeals from county
commission/council determinations contained in West Virginia Code § 58-3-4 (1923) must
be read in pari materia. See In re Stonestreet, 147 W. Va. 719, 726, 131 S.E.2d 52, 56
(1963). Thus, we also look to West Virginia Code § 58-3-4 for guidance as to who must
be named in appeals from county commissions/councils to circuit courts. That code section
provides, in pertinent part:
In any case in which an appeal lies under section one of
this article on behalf of a party to a controversy in a county
court, such party may present to the circuit court of the county
in which the judgment, order or proceeding complained of was
rendered, made or had, or in the vacation of such court, to the
judge of such court, the petition of such party for an appeal.
W. Va. Code § 58-3-4 (1923) (emphasis added).
18
In a similar matter relating to assessments, we have previously held that
county commissions/councils are not proper parties to appeals taken under a prior
enactment regarding assessment appeals:
A county court is not a party to an appeal taken under
section 7, c. 36, Acts 1891, for reassessment of lands by a
landowner, from the decision of a county court refusing to
reduce the valuation of his land made by a commissioner under
said act, and cannot maintain a writ of error from this court to
the decision of a circuit court upon such appeal.
Syl. Pt. 1, Mackin v. Taylor Cnty. Ct., 38 W. Va. 338, 18 S.E. 632 (1893). In Mackin, we
found that “[t]he case before the lower courts was not a suit. The county court was not a
party. The state and the taxpayer were the only parties, in any sense.” Id., 38 W. Va. 338,
350, 18 S.E. 632, 636. Additionally, the text of Chapter 36, section 7 of the Acts of 1891
examined in Mackin provided:
The right of appeal from [an order correcting the assessments]
made by the county court shall lie to the circuit court, and may
be taken either by the applicant or the state . . . the party
desiring to take such appeal shall have the evidence taken at
the hearing of the application certified by the county court.
…
[A]ny order or judgment made upon such application shall
show that the prosecuting attorney was present and defended
the interest of the state.
1891 W. Va. Acts, c. 36 § 7, eff. Feb. 21, 1891.
Based upon the similar language in the 1891 enactment to that contained in
the statutes at issue in this appeal, we conclude that the process for an assessment appeal
to circuit court as it existed when we decided Mackin is substantially similar to the modern
19
process. However, as we also noted above, there is a long history since Mackin of county
commissions/councils being named as parties in these cases. Nonetheless, it is the Assessor
who maintains the land books of a county, initially determines the value of the assessments,
and presumably defends his or her assessments before Board. Therefore, the Assessor
should likewise be named as a party to an appeal regarding the assessments. The Board,
on the other hand, is the deliberative body whose decision is being appealed. Accordingly,
in order to clarify what has developed into an inconsistent practice in such appeals, in which
assessors are named in some appeals and county commissions or councils, serving as the
assessment appeal Board, being named in others, we now hold that a party defending an
assessment before a Board of Assessment Appeals is the appropriate party, and thus a
necessary party, to an appeal of such assessment to the circuit court.
In the case at bar, however, there is no evidence in the record that indicates
that Petitioner raised before the circuit court the issue of whether the Assessor was an
indispensable party to the proceeding filed in circuit court. As we have previously stated:
This Court’s general rule is that nonjurisdictional
questions not raised at the circuit court level will not be
considered to the first time on appeal. Whitlow v. Bd. of Educ.
of Kanawha County, 190 W.Va. 223, 226, 438 S.E.2d 15, 18
(1993).
The rationale behind this rule is that when an issue has
not been raised below, the facts underlying that issue will
not have been developed in such a way so that a
disposition can be made on appeal. Moreover, we
consider the element of fairness. When a case has
proceeded to its ultimate resolution below, it is
manifestly unfair for a party to raise new issues on
20
appeal. Finally, there is also a need to have the issue
refined, developed, and adjudicated by the trial court, so
that we may have the benefit of its wisdom.
Id. at 226, 438 S.E.2d at 18.
State v. Jessie, 225 W. Va. 21, 27, 689 S.E.2d 21, 27 (2009).
During oral argument, counsel for the Petitioner argued that the issue was
jurisdictional and, thus not waived. However, the jurisdictional issue raised for the first
time at oral argument is one of personal jurisdiction, rather than one of subject matter
jurisdiction. There is no question this Court (and the circuit court) had jurisdiction over
the subject matter. In such cases, this Court has said, “‘[j]urisdiction of the person may be
conferred by consent, ... jurisdiction of the subject-matter of litigation must exist as a matter
of law.’ State ex rel. Hammond v. Worrell, 144 W.Va. 83, 90, 106 S.E.2d 521, 525
(1958), overruled on other grounds as stated in Patterson v. Patterson, 167 W.Va. 1, 277
S.E.2d 709 (1981).” Ellithorp v. Ellithorp, 212 W. Va. 484, 490, 575 S.E.2d 94, 100
(2002). Accordingly, by not raising the issue before the circuit court, Petitioner consented
to its jurisdiction, thereby waiving any objection to the Assessor not being named as a party
to this action.
B. Validity of Assessments
Beginning our discussion of the assessments made by the Assessor, we first
state the provisions of our Constitution applicable to ad valorem property taxes provide
that, “taxation shall be equal and uniform throughout the state, and all property, both real
21
and personal, shall be taxed in proportion to its value to be ascertained as directed by
law,” W.Va. CONST. art. X, § 1. However, under Article X, Section 1b of our Constitution,
the assessed value of such property is capped at 60% of its value, less than its true and
actual value. See, W. Va. CONST. art. X, §1b; See also Kline v. McCloud, 174 W. Va.
369, 377, 326 S.E.2d 715, 724 (1984) (“assessed values, which are recognized
under Section 1b of Article X are less than true and actual values.”). Flowing from that
Constitutional mandate, our Legislature has codified the definition of “true and actual
value:”
“Value”, “market value” and “true and actual value” shall have
the same meaning and shall mean the price at or for which a
particular parcel or species of property would sell if it were
sold to a willing buyer by a willing seller in an arm’s length
transaction without either the buyer or the seller being under
any compulsion to buy or sell.
W. Va. Code § 11-1A-3(i) (1986).
Further, to ensure that taxation is “equal and uniform throughout the state,”
our Legislature directs county assessors to “appraise all real and personal property in their
jurisdiction at fair market value … utilize[ing] the procedures and methodologies
established by the Property Valuation Training and Procedures Commission and the
22
valuation system established by the Tax Commissioner.” W. Va. Code § 11-1C-7(a)
(2017). 20
When valuing real property, assessors are directed to “consider and use
where applicable, three (3) generally accepted approaches to value: (A) cost, (B) income,
and (C) market.” 110 W. Va. C.S.R. 1P-3.2.1. Guidance regarding each of these methods
is contained in the regulations:
3.2.1.1. Cost approach. - To determine fair market value under
this approach, replacement cost of the improvements is
reduced by the amount of accrued depreciation and added to an
estimated land value. In applying the cost approach, the Tax
Commissioner shall consider three (3) types of depreciation:
physical depreciation, functional obsolescence, and economic
obsolescence.
3.2.1.2. Income approach. - A property’s present worth is
directly related to its ability to produce an income over the life
20
Assessment data is collected by county assessors and shared with the tax
commissioner. See W. Va. Code § 11-1A-12 (1991). This information is gathered and
placed into a computer database:
All county assessors in West Virginia perform
Computer-Assisted Mass Appraisal (“CAMA”) and input data
collected during their assessment functions into a statewide
Integrated Assessment System (“IAS”) maintained and
administered by the Tax Commissioner. The Tax
Commissioner has access to the information in the IAS (and
therefore the CAMA files) for purposes of supervision,
auditing, and oversight; however, only the county assessors
can input or change the data therein.
Hurlbert v. Matkovich, 233 W. Va. 583, 587, 760 S.E.2d 152, 156 (2014). Thus,
information gathered by assessors through CAMA is inputted into IAS. IAS fulfills the
duty imposed upon the tax commissioner to “devise and cause to be established a statewide
electronic data processing system network, to facilitate administration of the ad valorem
property tax on real and personal property, through the timely sharing of property tax
information among county assessors and the tax commissioner.” W. Va. Code § 11-1A-
21 (1983).
23
of the property. The selection of an overall capitalization rate
shall be derived from current available market data by dividing
annual net income by the current selling price of comparable
properties. The present fair market value of the property shall
then be determined by dividing the annual economic rent by
the capitalization rate.
3.2.1.3. Market approach. - The Tax Commissioner shall apply
the market approach by considering the selling prices of
comparable properties.
110 W. Va. C.S.R. § 1P-3.2.1.1-3.2.1.3. “Where the cost approach to assessments is
concerned, the assessor must ‘consider’ three types of depreciation: physical deterioration,
functional obsolescence, and economic obsolescence.” Lee Trace, LLC v. Berkeley Cnty.
Council, No. 16-0239, 2017 WL 1535075, at *6 (W. Va. Apr. 28, 2017) (memorandum
decision). Interpreting this requirement, we have stated it
[D]oes not require the Tax Commissioner to make any
adjustment to the valuations made regarding property because
of physical deterioration, functional obsolescence and
economic obsolescence. Rather, all that is required of the Tax
Commissioner in applying the cost approach to valuation is
that the Tax Commissioner will think about or contemplate
three types of depreciation: physical deterioration, functional
obsolescence, and economic obsolescence.
Century Aluminum of W. Virginia, Inc. v. Jackson Cnty. Comm’n, 229 W. Va. 215, 224-
25, 728 S.E.2d 99, 108-09 (2012) (citations omitted). This regulation confers broad
discretion to the Assessor:
Title 110, Series 1P of the West Virginia Code of State
Rules confers upon the State Tax Commissioner discretion in
choosing and applying the most accurate method of appraising
commercial and industrial properties. The exercise of such
discretion will not be disturbed upon judicial review absent a
showing of abuse of discretion.
24
Syl. Pt. 5, In re Assessment Against American Bituminous Power Partners, L.P., 208 W.
Va. 250, 539 S.E.2d 757 (2000).
The Assessor ultimately developed the cost approach to determine value of
the Taxpayers’ properties. In preparing the assessments, the Assessor sought and was
unable to obtain necessary data to develop either the income or market approaches. “When
possible, the Tax Commissioner should use the most accurate form of appraisal, but
because of the difficulty in obtaining necessary data from the taxpayer, or due to the lack
of comparable commercial properties or industrial properties, the choice between
alternative appraisal methods may be limited.” 110 W. Va. C.S.R. 1P-3.2.2.a. In such
cases, this Court has previously concluded that “[a]n Assessor need not perform a useless
act of considering an appraisal method where the assessor does not have sufficient data to
perform that appraisal method.” Lee Trace, LLC v. Raynes, 232 W. Va. 183, 193, 751
S.E.2d 703, 713 (2013). In Lee Trace, the Assessor testified “that she could not develop a
capitalization rate to do an income approach” because she did not have the data necessary
to make the calculation. Id., 232 W. Va. at 193, 751 S.E.2d at 713.
In the matter before us, the Assessor’s commercial appraiser testified before
the Board that he did not have enough data to develop either the income approach or the
sales comparison approach. The Assessor then sent out questionnaires to attempt to collect
the necessary data. This effort did not generate the data needed to consider either the
income or the sales comparison approaches. Thus, because of this lack of data, the
25
Assessor developed the only approach available to him – the cost approach to value. In so
doing, he was required to “consider” physical deterioration, functional obsolescence and
economic obsolescence. It is clear from the record that the Assessor, through its
commercial appraiser, Mr. Streett, considered such factors. With regard to the Government
Properties case, Mr. Streett, the Assessor’s commercial appraiser, testified that “functional
obsolescence and external obsolescence … were taken into consideration. Based upon the
definition of functional obsolescence and economic obsolescence, our office did not
believe that any adjustments were needed other than normal depreciation on
improvement.” Similarly, in the Martinsburg IRS OC case, Streett stated, “[b]ased upon
the definition of functional obsolescence and economic obsolescence, the Berkeley County
Assessor’s Office does not believe that any adjustments are needed other than the normal
depreciation on the improvement.” While the Assessor was required to consider
obsolescence, there is no requirement that the Assessor apply such factors in the same
manner that the Taxpayers’ appraisers urge.
Our law demands that assessments are presumed correct and the
Taxpayers clearly did not meet their burden before the circuit court to show their
assessments were erroneous. We have previously found, in Stone Brooke Ltd. P’ship v.
Sisinni, 224 W. Va. 691, 688 S.E.2d 300 (2009), that appraisals developed using the cost
approach, when supported by substantial evidence, should be upheld: “[I]t is clear that the
Assessors’ appraisals, all of which were conducted pursuant to the cost approach, were
supported by substantial evidence and, thus, that the ad valorem tax assessments based
26
upon such appraisals were not plainly wrong.” Id., 224 W. Va. at 701, 688 S.E.2d at 310.
The Taxpayers merely offered an alternative value for the properties in question, using
opposing methodologies not applied by, and perhaps unavailable to the Assessor. While
the Taxpayers certainly had the right to propose their alternative method of assessing the
property, such alternative recommendation is insufficient to prove that the Assessor’s
valuations were not supported by substantial evidence or were otherwise in contravention
of any regulation, statute, or constitutional provision. Thus, the circuit court erred in
reversing the decision of the Board.
IV. CONCLUSION
For the foregoing reasons, we reverse and remand these matters to the circuit
court to issue an order affirming the Board.
Reversed and remanded.
27 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483112/ | IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2022 Term
_______________ November 10, 2022
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 21-0475 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
HARLEE BEASLEY,
Defendant Below, Petitioner
v.
MARK A SORSAIA,
PROSECUTING ATTORNEY
OF PUTNAM COUNTY,
Plaintiff Below, Respondent
____________________________________________________________
Appeal from the Circuit Court of Putnam County
The Honorable Joseph K. Reeder, Judge
Civil Action No. 21-C-50
AFFIRMED
____________________________________________________________
Submitted: October 18, 2022
Filed: November 10, 2022
David O. Moye, Esq. Patrick Morrisey, Esq.
Winfield, West Virginia Attorney General
Counsel for Petitioner William E. Longwell, Esq.
Assistant Attorney General
Charleston, West Virginia
Counsel for Respondent
JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The standard of appellate review of a circuit court’s order granting
relief through the extraordinary writ of prohibition is de novo.” Syl. Pt. 1, Martin v. W. Va.
Div. of Lab. Contractor Licensing Bd., 199 W. Va. 613, 486 S.E.2d 782 (1997).
2. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. West Virginia Code § 61-8-19(f) (eff. 2008) excludes “farm
livestock” from the provisions of § 61-8-19 only if the livestock are “kept and maintained
according to usual and accepted standards of livestock . . . production and management[.]”
i
Armstead, Justice:
Petitioner, Harlee Beasley, is charged with animal cruelty in violation of
West Virginia Code § 61-8-19 (eff. 2008). Petitioner moved to dismiss the charge,
claiming that § 61-8-19 does not apply to “livestock,” like the horses and donkey the State
accuses her of mistreating. The Magistrate Court of Putnam County agreed with Petitioner
and dismissed the charge. After obtaining a stay, the State sought a writ of prohibition in
the Circuit Court of Putnam County to prevent the magistrate court from dismissing the
charge. The circuit court granted the writ, concluding that § 61-8-19 does not apply to
livestock only if such livestock are “kept and maintained according to usual and accepted
standards of livestock[.]”
On appeal, Petitioner asks us to reverse the circuit court. However, based on
the record before us, the arguments of the parties, and the applicable law, we find that the
writ of prohibition was properly granted, and we affirm the circuit court’s order granting
the writ and remand this case to the circuit court for further proceedings consistent with
this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In February 2020, a Putnam County humane officer searched Petitioner’s
premises pursuant to a warrant and seized several horses and a donkey. The animals were
later examined by a veterinarian, who allegedly determined that they had been denied
“basic animal husbandry and adequate nutrition[.]”
1
Petitioner demanded a hearing before the magistrate court in accordance with
West Virginia Code § 7-10-4 (eff. 2009). 1 However, when the case came before the
magistrate, Petitioner argued that the magistrate court lacked jurisdiction to “dispose of the
case” because “[f]arm animals are excluded pursuant to the Code.” 2 The magistrate court
must have agreed with this argument, at some level, because the magistrate court dismissed
the case and directed that the animals be returned to Petitioner. 3
Days later, the humane officer and an assistant prosecuting attorney filed a
criminal complaint charging Petitioner with six counts of animal cruelty. According to the
1
West Virginia Code § 7-10-4 authorizes a humane officer to seize “any
animal . . . known or believed to be abandoned, neglected, deprived of necessary
sustenance, shelter, medical care or reasonable protection from fatal freezing or heat
exhaustion or cruelly treated or used as defined in” West Virginia Code §§ 61-8-19 and -
19a. W. Va. Code § 7-10-4(a). After the seizure of an animal, the animal’s owner or
possessor may demand a magistrate court hearing to determine whether the animal was in
fact mistreated. W. Va. Code § 7-10-4(b). The provisions of § 7-10-4, however,
do not apply to farm livestock, as defined in subsection (d),
section two, article ten-b, chapter nineteen of this code;
poultry, gaming fowl or wildlife kept in private or licensed
game farms if kept and maintained according to usual and
accepted standards of livestock; poultry, gaming fowl, wildlife
or game farm production and management; nor to the humane
use of animals or activities regulated under and in conformity
with the provisions of 7 U.S.C. § 2131, et seq., and the
regulations promulgated thereunder.
W. Va. Code § 7-10-4(h).
2
See W. Va. Code § 7-10-4(h), supra note 2.
3
Because Petitioner’s brief asks to have the animals returned to her, we
assume that this part of the magistrate court’s order was not carried out.
2
complaint, Petitioner intentionally, knowingly, or recklessly withheld sustenance, shelter,
and medical treatment from the animals in violation of West Virginia Code § 61-8-19.
West Virginia Code § 61-8-19(a) provides, in pertinent part, that it is a misdemeanor for
any person to intentionally, knowingly or recklessly withhold “[p]roper sustenance,
including food or water[,] . . . [s]helter that protects from the elements of weather[,] or . . .
[m]edical treatment, necessary to sustain normal health and fitness or to end the suffering
of any animal . . . .” Petitioner responded by moving to dismiss the complaint, arguing that
§ 61-8-19(f) contains a blanket exception for livestock, even if they are not kept according
to the usual and accepted standards for their care. See id. (stating that “[t]he provisions of
this section do not apply to . . . farm livestock, poultry, gaming fowl or wildlife kept in
private or licensed game farms if kept and maintained according to usual and accepted
standards of livestock, poultry, gaming fowl or wildlife or game farm production and
management . . .”). The magistrate court agreed with Petitioner and dismissed the
complaint.
The magistrate court, however, stayed the dismissal on the State’s motion,
and the State filed a writ petition in circuit court, seeking to prohibit the magistrate court
from dismissing the case based on Petitioner’s interpretation of § 61-8-19(f). The State
alleged that § 61-8-19(f) only excludes livestock that are “kept and maintained according
to usual and accepted standards of livestock” and that adopting Petitioner’s view would
leave “no standards . . . to protect livestock from cruel or inhumane treatment.” After
hearing the parties’ arguments, the circuit court agreed with the State’s interpretation of §
3
61-8-19(f) and granted a writ prohibiting the magistrate court from dismissing the criminal
complaint.
Petitioner appeals the circuit court’s May 17, 2021 order granting the writ of
prohibition and remanding the case to the magistrate court for further proceedings. 4
II. STANDARD OF REVIEW
We have held that “[t]he standard of appellate review of a circuit court’s
order granting relief through the extraordinary writ of prohibition is de novo.” Syl. Pt. 1,
Martin v. W. Va. Div. of Lab. Contractor Licensing Bd., 199 W. Va. 613, 486 S.E.2d 782
(1997). We have also held that, “[w]here the issue on an appeal from the circuit court is
clearly a question of law or involving an interpretation of a statute, we apply a de novo
standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d
415 (1995). Because Petitioner appeals from a circuit court order granting a writ of
prohibition, and because the only issue on appeal is the interpretation of a statute, we apply
a de novo standard of review as we consider Petitioner’s appeal.
III. ANALYSIS
This case involves a dispute related to West Virginia Code § 61-8-19(f), so
we begin by reviewing that statutory provision. Subsection (f) provides that
[t]he provisions of this section [i.e., § 61-8-19] do not
apply to lawful acts of hunting, fishing, trapping or animal
training or farm livestock, poultry, gaming fowl or wildlife kept
in private or licensed game farms if kept and maintained
Petitioner has yet to be tried under the criminal complaint, and we take no
4
position on whether the State will be able to carry its burden of proof at trial.
4
according to usual and accepted standards of livestock, poultry,
gaming fowl or wildlife or game farm production and
management, nor to humane use of animals or activities
regulated under and in conformity with the provisions of 7
U.S.C. § 2131, et seq., and the regulations promulgated
thereunder, as both statutes and regulations are in effect on the
effective date of this section.
W. Va. Code § 61-8-19(f) (emphasis added). In this case, no one denies that Petitioner’s
horses and donkey are “livestock” for purposes of subsection (f). The question is whether
subsection (f) excludes the livestock at issue in this case from the protections contained in
§ 61-8-19.
Petitioner claims that subsection (f) unconditionally excludes livestock from
protection under § 61-8-19, regardless of how the animals are cared for. The circuit court
disagreed, concluding that subsection (f) excludes livestock only if they are “kept and
maintained according to usual and accepted standards of livestock.” Petitioner argues that
the circuit court’s conclusion was error, and she ascribes this error to a failure “to apply
the correct principles of statutory construction[.]” According to Petitioner, subsection (f)
is ambiguous and, therefore, must be “interpreted to be clearly understood[.]” She urges
us to resolve this ambiguity by applying a “grammatical construction” to subsection (f)
and, in particular, by “considering [l]egislative intent in the light of the body of law in
which W. Va. Code [§] 61-8-19(f) exists.” In her view, § 61-8-19(f) must be read in pari
materia with § 7-10-4(h). We disagree.
“A statute is open to construction only where the language used requires
interpretation because of ambiguity . . . .” Hereford v. Meek, 132 W. Va. 373, 386, 52
5
S.E.2d 740, 747 (1949). When we encounter a “clear and unambiguous” statute that
“plainly expresses the legislative intent[,]” our role is simply to give the statute “full force
and effect.” Syl. Pt. 2, in part, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). In
such cases, our “duty . . . is not to construe but to apply the statute,” assigning to “its words
. . . their ordinary acceptance and significance and the meaning commonly attributed to
them.” Id. at 884, 65 S.E.2d at 492. Consistent with this duty, we refuse to apply to a
“clear and unambiguous” statute the “rule that statutes which relate to the same subject
should be read and construed together” because that “is a rule of statutory construction and
does not apply . . . .” Id. at 877, 65 S.E.2d at 489, syl. pt. 1, in part.
That is not to say, however, that no interpretation or construction is involved
when we assign statutory words their ordinary significance and meaning. “To ascertain
the meaning and significance of thoughts expressed in words” is to “interpret” a writing.
Interpret, Black’s Law Dictionary (11th ed. 2019). Indeed, “[a]ny meaning derived from
signs involves interpretation, even if the interpreter finds the task straightforward.”
Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 53 (2012)
(footnote omitted). What we refuse to do, however, under the guise of interpretation or
construction, is to “look for or impose another meaning” when the text of the statute, itself,
is “plain and unambiguous and conveys a clear and definite meaning[.]” Hereford, 132 W.
Va. at 386, 52 S.E.2d at 747 (quoting 50 Am. Jur., Statutes, § 225). We “presume that a
legislature says in a statute what it means and means in a statute what it says there.”
Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992).
6
In the present case, we need not read § 61-8-19(f) in pari materia with § 7-
10-4(h), because we find that § 61-8-19(f) is clear and unambiguous. Subsection (f)
excludes three parallel categories of things from the provisions of § 61-8-19:
(a) “lawful acts of hunting, fishing, trapping or animal
training”;
(b) “farm livestock, poultry, gaming fowl or wildlife kept in
private or licensed game farms if kept and maintained
according to usual and accepted standards of livestock,
poultry, gaming fowl or wildlife or game farm production
and management”; and
(c) “humane use of animals or activities regulated under and
in conformity with the provisions of 7 U.S.C. § 2131, et
seq., and the regulations promulgated thereunder, as both
statutes and regulations are in effect on the effective date
of this section.”
W. Va. Code § 61-8-19(f). Within the relevant middle category, subsection (f) refers to
several categories of animals: “farm livestock, poultry, gaming fowl or wildlife kept in
private or licensed game farms[.]” Id. (emphasis added). By the plain terms of the statute,
these categories of animals are not excluded unless they are “kept and maintained
according to” corresponding “standards of . . . production and management,” that is,
“according to usual and accepted standards of livestock, poultry, gaming fowl or wildlife
or game farm production and management[.]” Id. (emphasis added). In context, the words
in the phrase “livestock, poultry, gaming fowl or wildlife or game farm” function as
adjectives that modify the nouns “production” and “management,” and these adjectives
plainly correspond to the immediately preceding categories of excluded animals (i.e., “farm
livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms”). Id.
7
In turn, the larger prepositional phrase, “of livestock, poultry, gaming fowl or wildlife or
game farm production and management,” id., plainly refers back to and modifies the word
“standards,” and the conditional phrase that ends in “standards” (i.e., “if kept and
maintained according to usual and accepted standards”), id., plainly refers back to and
modifies the several parallel and correspondingly ordered categories of animals. Thus, and
as a matter of straightforward semantics and structure, we hold that West Virginia Code §
61-8-19(f) (eff. 2008) excludes “farm livestock” from the provisions of § 61-8-19 only if
the livestock are “kept and maintained according to usual and accepted standards of
livestock . . . production and management[.]”
Furthermore, we disagree with Petitioner’s position that subsection (f)
provides a blanket exclusion for livestock, regardless of how they are kept. To reach her
desired construction, Petitioner questions the need for a livestock exclusion that is
conditioned on proper care and maintenance. She asks, “if the Legislature meant to create
a conditional exception for livestock, why . . . did it need to create an exception at all?”
We find nothing inconsistent about the Legislature’s decision to
conditionally exclude livestock (and certain other animals) from the protections contained
in § 61-8-19. As one commentator has observed, “the majority of states . . . have enacted
laws mandating that prosecutors, humane enforcement agencies, and the judiciary cannot
examine farming practices for cruelty or animal abuse once the particular practice is
demonstrated to be a customary practice of the United States farming community.” David
8
J. Wolfson, Beyond the Law: Agribusiness and the Systemic Abuse of Animals Raised for
Food or Food Production, 2 Animal L. 123, 147 (1996).
In our State, the West Virginia Commissioner of Agriculture has
promulgated a “legislative rule [that] governs the care and well-being of livestock
including, beef cattle, bison, veal, dairy cattle, equine,[5] swine, small ruminant, and
poultry, and captive cervids in the State of West Virginia.” W. Va. Code R. 61-31-1.1 (eff.
2022) (emphasis added). The rule addresses such topics as the watering, feeding, and
housing of animals and specifies both authorized and unauthorized practices. See, e.g., W.
Va. Code R. § 61-31-15 (eff. 2022) (regarding equine standards of care). For instance,
authorized practices for beef cattle include hot branding. W. Va. Code R. § 61-31-13.5.d.4
(eff. 2022). As the State observes, this conventional practice might plausibly qualify as
cruel mistreatment, for purposes of § 61-8-19(a)(1)(A), or mutilation, for purposes of § 61-
8-19(b), were it not excluded under § 61-8-19(f). This rule certainly outlines conditions in
which livestock are “kept and maintained according to the usual and accepted standards of
livestock.”
We are likewise not persuaded by Petitioner’s claim that the phrase “usual
and accepted standards of livestock” in § 61-8-19(f) only modifies the phrase “wildlife kept
in private or licensed game farms” and, thus, that subsection (f) only requires wildlife to be
“kept and maintained according to usual and accepted standards of livestock, poultry,
5
We note, that, under the rule, “equine” refers to “a member of the Equine
genus including horses, ponies, mules, asses, donkeys, and zebras.” W. Va. Code R. § 61-
31-2.14 (emphasis added).
9
gaming fowl or wildlife[.]” Id. Petitioner attempts to reach this result by imposing what
she refers to as a “grammatical construction” on the statute. However, Petitioner’s would-
be construction amounts to misguided application of “the grammatical rule of the last
antecedent, ‘according to which a limiting clause or phrase . . . should ordinarily be read
as modifying only the noun or phrase that it immediately follows.’” Paroline v. United
States, 572 U.S. 434, 447 (2014) (alteration in original) (quoting Barnhart v. Thomas, 540
U.S. 20, 26 (2003)). As Paroline observes, this “rule is ‘not an absolute and can assuredly
be overcome by other indicia of meaning.’” Id. Indeed, the last-antecedent rule is not to
be “applied . . . in a mechanical way” that “require[s] accepting ‘unlikely premises.’”
Paroline, 572 U.S. at 447 (quoting United States v. Hayes, 555 U.S. 415, 425 (2009)). In
this case, both context and common sense require the last-antecedent rule to yield to the
rule that, “[w]hen several words are followed by a clause which is applicable as much to
the first and other words as to the last, the natural construction of the language demands
that the clause be read as applicable to all.” Paroline, 572 U.S. at 447 (quoting Porto Rico
Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)). Thus, the phrase, “if kept and
maintained according to usual and accepted standards of livestock, poultry, gaming fowl
or wildlife or game farm production and management,” refers back to the series, “farm
livestock, poultry, gaming fowl or wildlife kept in private or licensed game farms[.]” W.
Va. Code § 61-8-19(f). This is the most natural construction of subsection (f) and the one
that best accords with the subject matter of the exclusion.
10
Finally, to support her proposed construction, Petitioner urges us to read §
61-8-19(f) in the light of § 7-10-4(h) and, indeed, to revise § 61-8-19(f) by, among other
things, inserting semicolons and the words “nor to” in opportune places. This argument is
not persuasive. We presume “that the legislators who drafted and passed [§ 61-8-19(f)]
were familiar with all existing law, applicable to the subject–matter, . . . and intended the
statute to harmonize completely with the same and aid in the effectuation of the general
purpose and design thereof[.]” Id. However, this presumption only applies if the statute’s
“terms are consistent” with other related statutes, id., and the terms of § 61-8-19(f) and §
7-10-4(h) are not consistent. More importantly, because we assume that the Legislature is
familiar with both statutes, we assume that the differences between them are intended.
At one time, § 7-10-4(h) was virtually the mirror image of § 61-8-19(f). See
1991 W. Va. Acts 458 (amending and reenacting §§ 7-10-4 and 61-8-19). 6 However, in
2003, the Legislature began revising § 7-10-4(h) in ways that caused it to diverge, in
relevant respects, from § 61-8-19(f). First, the Legislature inserted the phrase “as defined
in subsection (d), section two, article ten-b, chapter nineteen of this code,” after the comma
following “farm livestock[.]” 2003 W. Va. Acts 60. 7 Then, the Legislature further revised
6
At that time, however, the counterpart to § 7-10-4(h) was located in
subsection (f); the counterpart to § 61-8-19(f) was located in subsection (e). 1991 W. Va.
Acts 461 and 463.
7
As revised, § 7-10-4(h) provided as follows:
(continued . . .)
11
§ 7-10-4(h) by, among other things, replacing certain commas with semicolons. See 2008
W. Va. Acts 57. 8 As a result, § 7-10-4(h) came to provide as follows:
The provisions of this section do not apply to farm
livestock, as defined in subsection (d), section two, article ten-
b, chapter nineteen of this code; poultry, gaming fowl or
wildlife kept in private or licensed game farms if kept and
maintained according to usual and accepted standards of
livestock; poultry, gaming fowl, wildlife or game farm
production and management; nor to the humane use of animals
or activities regulated under and in conformity with the
provisions of 7 U.S.C. § 2131, et seq., and the regulations
promulgated thereunder.
W. Va. Code § 7-10-4 (eff. 2008) (emphasis added). By contrast, the Legislature amended
§ 61-8-19(f) in 1995 by inserting the phrase, “lawful acts of hunting, fishing, trapping or
animal training or[,]” after “does not apply to” and before “farm livestock[.]” 1995 W. Va.
Acts 426. 9 In all other relevant respects, however, the text of § 61-8-19(f) remains
The provisions of this section do not apply to farm
livestock, as defined in subsection (d), section two, article ten-
b, chapter nineteen of this code, poultry, gaming fowl or
wildlife kept in private or licensed game farms if kept and
maintained according to usual and accepted standards of
livestock, poultry, gaming fowl, wildlife or game farm
production and management, nor to the humane use of animals
or activities regulated under and in conformity with the
provisions of 7 U.S.C. § 2131 et seq. and the regulations
promulgated thereunder.
Id. (eff. 2003) (emphasis added).
8
Although § 7-10-4 was further amended in 2009, those amendments did not
affect subsection (h).
9
At that time, subsection (f)’s counterpart was designated subsection (e).
12
unchanged, and—as noted above—we assume this was by design, especially considering
that fact that § 7-10-4 is a civil statute authorizing the seizure of animals, while § 61-8-19
is a criminal statute authorizing the punishment of humans.
More importantly, it is not our place to “arbitrarily . . . read into a statute that
which it does not say.” Syl. Pt. 11, in part, Brooke B. v. Ray C., 230 W. Va. 355, 738
S.E.2d 21 (2013). “Just as courts are not to eliminate through judicial interpretation words
that were purposely included, we are obliged not to add to statutes something the
Legislature purposely omitted.” Id. Nevertheless, that is what Petitioner invites us to do
when she asks us to construe § 61-8-19(f) as if it were the mirror image of § 7-10-4(h).
We are not a superlegislature, and we refuse to pretend to be one. See Syl. Pt. 2, in part,
Huffman v. Goals Coal Co., 223 W. Va. 724, 679 S.E.2d 323 (2009) (stating that “[t]his
Court does not sit as a superlegislature, commissioned to pass upon the political, social,
economic or scientific merits of statutes pertaining to proper subjects of legislation”).
IV. CONCLUSION
Because we hold that § 61-8-19(f) establishes an exclusion for farm livestock
only when they are “kept and maintained according to usual and accepted standards of
livestock . . . production and management,” and because the circuit court so held, we affirm
the circuit court’s May 17, 2021 order granting the writ of prohibition and remand this case
to the circuit court for further proceedings consistent with this opinion.
Affirmed.
13 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483115/ | FILED
Nov 10, 2022
02:28 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Mina Shalabi, ) Docket No. 2021-06-1493
Employee, )
v. )
Amazon.com Services, LLC, ) State File No. 72776-2021
Employer, )
And )
American Zurich Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
Mina Shalabi requested temporary disability benefits and additional treatment for
injuries to his foot and ankle suffered while working for Amazon.com Services, LLC. The
Court held an expedited hearing on November 3, 2022. For the reasons below, the Court
concludes Mr. Shalabi is entitled to two days of past temporary disability benefits, but he
is not likely to prevail at a hearing on the merits regarding additional treatment.
Claim History
A coworker pushing a cart hit Mr. Shalabi’s left heel on September 14, 2021.
Amazon offered no evidence to suggest that the incident did not happen as Mr. Shalabi
described. Instead, it initially accepted the claim and offered a panel of physicians. Mr.
Shalabi chose Dr. Harold Nevels, whom he saw three times.
At the first two visits, Dr. Nevels assessed a heel contusion and recommended over-
the-counter medications, ice and modified duty. He declined to order x-rays for a “[s]imple
bruise of heel.” At the third and final visit on September 24, Dr. Nevels ordered x-rays,
which were “negative.” He found that Mr. Shalabi was “at functional goal, not at end of
healing,” placed him at maximum medical improvement, and released him to work full-
duty.
1
As to causation, at the second and third visits, Dr. Nevels noted he was “here today
for a recheck workers [sic] comp injury.” Mr. Shalabi testified, without objection, that Dr.
Nevels said the injury was work-related.
Amazon then agreed to allow Mr. Shalabi to obtain a second opinion from
orthopedist Dr. Lucas Ritchie. On October 5, Dr. Ritchie examined the foot and read the
x-rays, which showed only chronic changes. He wrote:
I cannot state with medical certainty that greater than 50% of his current
symptoms are a direct result of an injury that has occurred while he was at
work[.] . . . [H]e has global tenderness that cannot be fully attributed to a
direct impact on his achilles. [T]here is no one true definable pathology and
pain is out of proportion to what I would expect from a direct injury weeks
ago. [W]ith a direct injury I would expect more focal pain at the impact site
with some possible bruising[,] swelling or more specific examination
findings.
(Emphasis added). Dr. Ritchie returned Mr. Shalabi to work with restrictions, “but
causation not established.” He referred Mr. Shalabi to a foot specialist but also wrote that
the workers’ compensation carrier was unlikely to cover it.
A few days later, Amazon denied the claim because “MD indicated that this was a
non-work related injury.”
Mr. Shalabi testified that his heel is still painful. He has seen his private physician,
who prescribed a nonsteroidal anti-inflammatory. Mr. Shalabi did not introduce records
from the visit, however.
As for Mr. Shalabi’s earnings while treating with Dr. Nevels, Amazon was unable
to accommodate his restrictions. Amazon offered a declaration from Ben Woods, its
workers’ compensation manager, to document the times Mr. Shalabi worked after the
injury.
Mr. Woods’s declaration and attachments record that on September 15 and 16—the
first two days after his accident—Mr. Shalabi worked full shifts of approximately ten
hours. Mr. Shalabi was on an approved leave of absence from September 17-28, although
neither party introduced evidence of how much, if anything, he was compensated during
that time.
Mr. Shalabi generally agreed with the declaration’s accuracy. He testified, without
objection, that he had been told not to return to work until September 28. He offered an
email from Amazon, which states, “I have processed your return to work to begin
09/28/21.”
2
Mr. Shalabi requested additional treatment with a foot specialist and past temporary
disability benefits, although he did not specify a requested amount or for which days he
believes he is owed compensation. Amazon countered that, after the second medical
opinion, it properly denied the claim, so it has provided all the benefits to which he is
entitled.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Shalabi must show that he will likely prevail in proving
his entitlement to benefits at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1)
(2022); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *7-8, 9 (Mar. 27, 2015).
Temporary Partial Disability
Turning first to temporary disability benefits, “[w]here the treating physician has
released the injured worker to return to work with restrictions before reaching maximum
recovery, and the employer cannot return the employee to work within the restrictions, the
injured worker may be eligible for temporary partial disability.” Woodard v. Freeman
Expositions, LLC, 2021 TN Wrk. Comp. App. Bd. LEXIS 21, at *8 (July 16, 2021).
Amazon did not dispute that Dr. Nevels placed restrictions, which it was unable to
accommodate.
However, the Workers’ Compensation Law also states: “No compensation shall be
allowed for the first seven (7) days of disability resulting from the injury, excluding the
day of injury, except [medical benefits], but if disability extends beyond that period,
compensation shall commence with the eighth day after the injury.” Tenn. Code Ann. §
50-6-205(a).
Here, Dr. Nevels placed restrictions on September 16 for Mr. Shalabi’s injury on
September 14, which day (September 14) is excluded from the computation. He worked a
full shift on September 15. So, benefits began on September 16, and the benefit period ran
until September 24, when Dr. Nevels assigned maximum medical improvement. This
period is nine days, including September 24. The statute says that no compensation is
owed for the first seven days. But, if the disability extends beyond the first seven days,
excluding the date of injury, compensation shall commence with the eighth day. Therefore,
Mr. Shalabi is owed benefits for days eight and nine. At his daily compensation rate of
$73.65, he is owed $147.30.1
1
Amazon rigorously cross-examined Mr. Shalabi regarding his earnings during the relevant timeframe from
another employer. However, Amazon offered no specific proof on this issue and ultimately did not request
credit for these other earnings. It likewise did not seek credit for sums Mr. Shalabi received from the short-
term disability carrier, if any.
3
Medical Benefits
Next, the Court considers Mr. Shalabi’s entitlement to additional treatment. The
question is whether he satisfied his burden to show that his current condition qualifies as
an “injury” as defined in the Workers’ Compensation Law. Specifically, an “injury” must
arise “primarily out of employment,” meaning that it must be shown “to a reasonable
degree of medical certainty that the injury contributed more than fifty percent” in causing
the need for medical treatment, considering all causes. Tenn. Code Ann. § 50-6-
102(12)(C).
Applying that definition, Mr. Shalabi correctly argued that Dr. Nevels believed his
injury was work-related. However, Dr. Ritchie, a specialist, later reached a contrary
conclusion, noting, “I cannot state with medical certainty that greater than 50% of his
current symptoms are a direct result of an injury that has occurred while he was at work[.]”
(Emphasis added). Dr. Ritchie found Mr. Shalabi’s condition three weeks after the incident
to be non-work-related, using terminology that closely mirrors the statute. Dr. Ritchie also
found chronic changes that he could not attribute to the acute incident, and he said that Mr.
Shalabi’s pain was “out of proportion to what [he] would expect from a direct injury weeks
ago.”
Mr. Shalabi did not offer another medical opinion to contradict Dr. Ritchie’s. He
merely introduced a prescription from his personal physician, which may or may not have
been written for a work-related condition. Moreover, the Court is unpersuaded by Mr.
Shalabi’s contention that Dr. Ritchie referred him to a foot specialist, because that referral
might have been for a non-work-related condition.
In sum, on this record, Mr. Shalabi has not shown entitlement to additional medical
treatment at this time.
IT IS THEREFORE ORDERED AS FOLLOWS:
1. Amazon shall pay Mr. Shalabi past temporary disability benefits totaling $147.30.
2. Mr. Shalabi’s request for additional treatment is denied.
3. The Court sets a status hearing on January 17, 2023, at 9:00 a.m. Central Time.
You must call 615-532-9552 or 866-943-0025 to participate.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
Insurer or Self-Insured Employer must submit confirmation of compliance with this
Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the
4
seventh business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty assessment for
non-compliance. For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit via email WCCompliance.Program@tn.gov.
ENTERED November 10, 2022.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
Appendix
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice and Employer’s Additional Information
3. Order Setting Status Hearing
4. Order Resetting Status Hearing
5. Hearing Request
6. Employer’s Response to Employee’s Request for Expedited Benefits
7. Employer’s Witness List
Evidence:
1. Declaration of Mr. Shalabi
2. Employer’s Exhibits
2a. Employee’s excerpt from Dr. Ritchie
2b. Medical records: Dr. Nevel, 9/16/21-9/24/21; Dr. Ritchie’s records, 10/5/21
2c. Choice of Physician
2d. Wage statement
2e. Notice of Denial
2f. Declaration of Ben Woods
3. Mobic prescription
4. September 27, 2021 email from Amazon to Mr. Shalabi
5. October 4, 2021 letter from Amazon to Mr. Shalabi: Disability & Leave Services
6. September 22, 2021 email from Amazon to Mr. Shalabi
5
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 10, 2022.
Name Certified Regular Email Sent to
Mail mail
Mina Shalabi, X X X 276 White Bridge Pike #75
employee Nashville TN 37209
Anim2000_2000@yahoo.com
Terri Bernal, X Terri.Bernal@mgclaw.com
Stephen Morton, Stephen.Morton@mgclaw.com
employer’s attorneys Amber.Dennis@mgclaw.com
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
6
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483114/ | FILED
Nov 04, 2022
07:14 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
PAUL GOOKENBARGER, ) Docket No. 2021-03-0696
Employee, )
v. )
THE KROGER COMPANY )
Employer, ) State File No. 59262-2018
and )
TROY HALEY, )
Administrator of the Bureau of )
Workers’ Compensation, Subsequent ) Judge Brian K. Addington
Injury Fund. )
COMPENSATION ORDER GRANTING SUMMARY JUDGMENT
The Court heard Kroger’s Motion for Summary Judgment on November 1, 2022.
Kroger contends summary judgment is warranted because more than a year lapsed between
its final payment and the date Mr. Gookenbarger filed a Petition for Benefit Determination.
Mr. Gookenbarger did not respond to the motion. The undisputed proof is that he did not
file his petition within one year of Kroger’s last payment. Therefore, Kroger is entitled to
summary judgment.
History of Claim
Mr. Gookenbarger alleged a low-back injury while lifting boxes and pallets at
Kroger on July 13, 2018. Kroger provided medical treatment including surgery. On
September 11, 2019, Dr. Patrick Bolt placed Mr. Gookenbarger at maximum medical
improvement and assigned a nine-percent impairment.
On October 9, Kroger mailed an offer to settle Mr. Gookenbarger’s claim. The next
day, it issued payment for Dr. Bolt’s September office visit. Kroger sent another letter
attempting to settle his claim on April 6, 2020. Mr. Gookenbarger did not respond. Once a
year passed after the last payment, Kroger closed its file.
1
However, Mr. Gookenbarger later asked for additional treatment. Kroger denied his
request, and Mr. Gookenbarger filed the present petition on July 9, 2021.
After the Scheduling Order, Kroger moved for summary judgment arguing Mr.
Gookenbarger’s case was barred by the statute of limitations. In support of its motion,
Kroger filed the following statement of undisputed facts.
1. Paul Gookenbarger reportedly suffered an injury on or around July 18, 2018.
2. On September 11, 2019, Dr. Bolt placed the employee at maximum medical
improvement with 9% permanent partial impairment to the body as a whole.
3. The employee has not treated with Dr. Bolt since the September 11, 2019
appointment.
4. Kroger’s last indemnity payment to the employee was March 29, 2019.
5. Kroger’s last payment for medical benefits was made on October 10, 2019, to
Dr. Bolt’s office for the employee’s September 11, 2019 appointment.
6. On July 9, 2021, the employee filed a Petition.
Kroger contends these facts entitle it to summary judgment because they show no
genuine issue of material fact exists regarding Mr. Gookenbarger’s failure to file a petition
within one year of Kroger’s last payment on the claim.
Mr. Gookenbarger neither responded to Kroger’s motion nor did he file affidavits
or depositions to support his claim. He explained at the summary judgment hearing that he
thought he would always have open medical benefits because he suffered an on-the-job
injury.
Law and Analysis
Under Tennessee Rules of Civil Procedure 56.04 (2021), summary judgment is
appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.”
To prevail as the party requesting summary judgment, Kroger must do one of two
things: (1) submit affirmative evidence that negates an essential element of Mr.
Gookenbarger’s claim; or (2) demonstrate that Mr. Gookenbarger’s evidence is insufficient
to establish an essential element of his claim. Tenn. Code Ann. § 20-16-101(2022); Rye v.
Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Kroger
does so, Mr. Gookenbarger must then establish that the record contains specific facts upon
which the Court could base a decision in his favor. Rye, at 265.
Turning to the merits of the motion, the Court finds that Kroger proved Mr.
Gookenbarger did not timely file a petition under Tennessee Code Annotated section 50-
2
6-203(b)(2), which requires the filing of a petition within one year after the work accident
or within one year after the employer “ceased to make payments of compensation to or on
behalf of the employee.” So, Kroger negated an essential element of Mr. Gookenbarger’s
claim – that he must file his petition within one year of Kroger’s last payment of benefits.
Mr. Gookenbarger offered no evidence on which the Court could rely to find that he did
file his petition within the one-year period.
Therefore, the Court holds no genuine issue of material fact exists as to whether Mr.
Gookenbarger timely filed his petition. Kroger’s motion is granted.
IT IS ORDERED as follows:
1. Mr. Gookenbarger’s claim for workers’ compensation benefits is dismissed with
prejudice to its refiling.
2. Unless appealed, this order shall become final thirty days after entry.
3. The Court taxes a $150.00 filing fee to Kroger under Tennessee Compilation Rules
and Regulations 0800-02-21-.06, payable to the Clerk within five days of this order
becoming final.
4. Kroger shall prepare and submit the SD-2 to the Clerk within ten days of the date of
judgment.
IT IS ORDERED.
ENTERED November 4, 2022.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
3
CERTIFICATE OF SERVICE
I certify that a copy of the order was sent on November 4, 2022.
Name Certified Fax Email Service sent to:
Mail
Paul Gookenbarger, X X 305 Ashley Dr.
Self-Represented Seymour, TN 37865
Employee paul2401@sbcglobal.net
Heather Douglas, X hdouglas@manierherod.com
Jenna MacNair jmacnair@manierherod.com
Employer’s Attorneys
Lindsay Hall, X lindsay.n.hall@tn.gov
Subsequent Injury Fund
Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
4
Compensation Order Right to Appeal:
If you disagree with this Compensation Order, you may appeal to the Workers’
Compensation Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims within thirty calendar days of the date the
Compensation Order was filed. When filing the Notice of Appeal, you must serve a copy
upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office
or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an
Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)
seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency
within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing
fee or file the Affidavit of Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. The Court Clerk
will prepare the technical record and exhibits for submission to the Appeals Board, and you
will receive notice once it has been submitted. If no court reporter was present at the hearing,
you may request from the Court Clerk the audio recording of the hearing for a $25.00 fee.
A licensed court reporter must prepare a transcript, and you must file it with the Court Clerk
within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a
statement of the evidence prepared jointly by both parties within fifteen calendar days of
filing the Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of the testimony presented at the hearing. The Workers’ Compensation
Judge must approve the statement of the evidence before the record is submitted to the
Appeals Board. If the Appeals Board must review testimony or other proof concerning
factual matters, the absence of a transcript or statement of the evidence can be a significant
obstacle to meaningful appellate review.
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. You have fifteen
calendar days after the date of that notice to file a brief to the Appeals Board. See the Rules
governing the Workers’ Compensation Appeals Board on the Bureau’s website
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. Tenn. Code Ann. § 50-6-
239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483116/ | USCA4 Appeal: 21-7417 Doc: 8 Filed: 11/09/2022 Pg: 1 of 2
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7417
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NAEEM LATEEF ODUMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:17-cr-00046-AWA-LRL-1; 2:20-cv-
00033-AWA)
Submitted: October 3, 2022 Decided: November 9, 2022
Before WYNN and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Naeem Lateef Odums, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-7417 Doc: 8 Filed: 11/09/2022 Pg: 2 of 2
PER CURIAM:
Naeem Lateef Odums seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2255 motion. The order is not appealable unless a circuit justice or judge
issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of
appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that reasonable jurists could find the
district court’s assessment of the constitutional claims debatable or wrong. See Buck v.
Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies relief on procedural
grounds, the prisoner must demonstrate both that the dispositive procedural ruling is
debatable and that the motion states a debatable claim of the denial of a constitutional right.
Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)).
Limiting our review of the record to the issues raised in Odums’ informal brief, we
conclude that Odums has not made the requisite showing. See 4th Cir. R. 34(b); see also
Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important
document; under Fourth Circuit rules, our review is limited to issues preserved in that
brief.”). Accordingly, we deny a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483121/ | USCA4 Appeal: 21-7571 Doc: 9 Filed: 11/09/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7571
LODISE WADLEY,
Petitioner - Appellant,
v.
WARDEN R. HUDGINS,
Respondent - Appellee.
Appeal from the United States District Court for the Northern District of West Virginia, at
Clarksburg. John Preston Bailey, District Judge. (1:20-cv-00020-JPB-JPM)
Submitted: October 28, 2022 Decided: November 9, 2022
Before NIEMEYER, AGEE, and HEYTENS, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
Lodise Wadley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-7571 Doc: 9 Filed: 11/09/2022 Pg: 2 of 3
PER CURIAM:
Lodise Wadley seeks to appeal the district court’s order dismissing his 28 U.S.C.
§ 2241 petition in which he sought to challenge his felon-in-possession convictions and his
sentence by way of the savings clause in 28 U.S.C. § 2255(e). This court may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291, and certain interlocutory and
collateral orders, 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545-46 (1949). “Ordinarily, a district court order is not final until it
has resolved all claims as to all parties.” Porter v. Zook, 803 F.3d 694, 696 (4th Cir. 2015)
(internal quotation marks omitted).
Our review of the record reveals that the district court did not adjudicate all of the
claims raised in the petition. See id. at 696-97. Although the district court addressed
Wadley’s challenge to his convictions through the savings clause, the court did not address
Wadley’s challenge to his sentence through the same. See United States v. Wheeler, 886
F.3d 415, 426-29 (4th Cir. 2018) (distinguishing between challenge to conviction and
challenge to sentence through savings clause and establishing four-part test to determine
whether § 2241 petitioner may challenge sentence). We therefore conclude that the order
Wadley seeks to appeal is neither a final order nor an appealable interlocutory or collateral
order. Accordingly, we dismiss the appeal for lack of jurisdiction and remand to the district
court for consideration of the unresolved claim. * Porter, 803 F.3d at 699.
*
We express no opinion as to the merits of Wadley’s claims.
2
USCA4 Appeal: 21-7571 Doc: 9 Filed: 11/09/2022 Pg: 3 of 3
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED AND REMANDED
3 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483118/ | USCA4 Appeal: 19-7602 Doc: 20 Filed: 11/09/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7602
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GREGORY ALLEN OAKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Asheville. Martin K. Reidinger, Chief District Judge. (1:02-cr-00089-MR-1; 1:16-cv-
00151-MR)
Submitted: October 31, 2022 Decided: November 9, 2022
Before AGEE, and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Ann Loraine Hester, Assistant Federal Public Defender, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 19-7602 Doc: 20 Filed: 11/09/2022 Pg: 2 of 3
PER CURIAM:
Gregory Allen Oaks seeks to appeal the district court’s order denying relief on his
28 U.S.C. § 2255 motion. On appeal, Oaks challenges the district court’s finding that his
Tennessee aggravated assault conviction qualifies as a violent felony under the Armed
Career Criminal Act (ACCA), 18 U.S.C § 924(e).
The district court’s order is not appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability
will not issue absent “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies
this standard by demonstrating that reasonable jurists could find the district court’s
assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct.
759, 773-74 (2017). When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the motion states a debatable claim of the denial of a constitutional right. Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Oaks has not made
the requisite showing because Oaks’ aggravated assault conviction, which at minimum can
be committed with a mens rea of extreme recklessness, satisfies the mens rea of a “violent
felony” under 18 U.S.C. § 924(e). See United States v. Manley, __ F.4th __, __, No. 20-
6812, 2022 WL 14725226, at *1, *5 (4th Cir. Oct. 26, 2022) (concluding that offense with
mens rea of extreme recklessness satisfies mens rea of a “crime of violence” under 18
U.S.C. § 924(c), a term “materially similar” to “violent felony” under 18 U.S.C. § 924(e)).
2
USCA4 Appeal: 19-7602 Doc: 20 Filed: 11/09/2022 Pg: 3 of 3
Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
DISMISSED
3 | 01-04-2023 | 11-10-2022 |
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1249
JOSE ISRRAEL GONZALEZ VEGA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: October 31, 2022 Decided: November 9, 2022
Before WYNN and RICHARDSON, Circuit Judges, and KEENAN, Senior Circuit Judge.
Petition dismissed by unpublished per curiam opinion.
ON BRIEF: Sandra Greene, GREENEFITZGERALD ADVOCATES AND
CONSULTANTS, York, Pennsylvania, for Petitioner. Brian Boynton, Principal Deputy
Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Ilana J. Snyder,
Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 22-1249 Doc: 23 Filed: 11/09/2022 Pg: 2 of 3
PER CURIAM:
Jose Isrrael Gonzalez Vega, a native and citizen of Mexico, petitions for review of
an order of the Board of Immigration Appeals (Board) dismissing his appeal from the
immigration judge’s decision denying his application for cancellation of removal as a
matter of discretion. We dismiss the petition for review.
The Attorney General ‘“may cancel removal’” of an applicant who meets four
statutory criteria: 1) at least 10 years of continuous physical presence in the United States,
2) good moral character during that 10-year period, 3) no convictions for certain offenses,
and 4) removal would result in an exceptional and extremely unusual hardship to the
applicant’s qualifying relative. Gonzalez Galvan v. Garland, 6 F.4th 552, 557
(4th Cir. 2021); see also 8 U.S.C. § 1229b(b)(1). “However, even if the applicant satisfies
these four statutory requirements, the Attorney General still retains the discretion to deny
an application for cancellation of removal.” Id. (footnote omitted).
Under 8 U.S.C. § 1252(a)(2)(B)(i), entitled “Denials of discretionary relief,” we
lack “jurisdiction to review any judgment regarding the granting of relief
under . . . [§] 1229b,” which is the provision governing cancellation of removal at issue in
this petition. Notwithstanding, we retain jurisdiction to decide a challenge to the
discretionary denial of cancellation of removal if that challenge presents a colorable
constitutional claim or question of law that satisfies the exception in 8 U.S.C.
§ 1252(a)(2)(D) (stating that no provision limiting judicial review “shall be construed as
precluding review of constitutional claims or questions of law raised upon a petition for
2
USCA4 Appeal: 22-1249 Doc: 23 Filed: 11/09/2022 Pg: 3 of 3
review filed with an appropriate court of appeals”). See Gonzalez Galvan, 6 F.4th at 558
(discussing § 1252(a)(2)(D)).
With respect to the discretionary determination, we reiterated that “when an
applicant meets the statutory eligibility requirements for cancellation of removal, we
plainly lack jurisdiction to review the ultimate discretionary action taken on his
application,” except as authorized by § 1252(a)(2)(D). Id. Here, the Board agreed with
the IJ that Gonzalez Vega’s application for cancellation of removal failed as a matter of
discretion. We lack jurisdiction to review the discretionary denial of relief unless Gonzalez
Vega’s challenge to that discretionary denial is in the form of a colorable constitutional
claim or question of law.
Gonzalez Vega does not assert a reviewable constitutional claim or question of law
relating to the discretionary denial of relief. We thus lack jurisdiction to review the Board’s
decision agreeing with the IJ that Gonzalez Vega was not entitled to cancellation of
removal as a matter of discretion. And because that discretionary determination is
dispositive as to Gonzalez Vega’s petition for review, we dismiss the petition. We dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
PETITION DISMISSED
3 | 01-04-2023 | 11-10-2022 |
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-7696
MARVIN EDUARDO LUNA GOMEZ,
Plaintiff - Appellant,
v.
NINETEENTH JUDICIAL CIRCUIT OF VIRGINIA, Fairfax County Circuit Court,
Criminal Division; BLAKE WOLOSON, Court Appointed Attorney at Law;
KIMBERLY PHILLIPS, Garretson Phillips, PC, Attorney at Law; M.J. UNDNER;
ROBERT J. SMITH; MARCUS GREEN; RAISSA WILBUR; KATHELEEN M.
BILTON; LAUREN E. HAHN,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:20-cv-00817-MHL-EWH)
Submitted: September 30, 2022 Decided: November 9, 2022
Before RICHARDSON and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Marvin Eduardo Luna Gomez, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-7696 Doc: 16 Filed: 11/09/2022 Pg: 2 of 2
PER CURIAM:
Marvin Eduardo Luna Gomez appeals the district court’s order dismissing his 42
U.S.C. § 1983 action. We have reviewed the record and find no reversible error.
Accordingly, we affirm. Gomez v. Nineteenth Jud. Cir. of Va., No. 3:20-cv-00817-MHL-
EWH (E.D. Va. Nov. 23, 2021). We further deny Gomez’s motions to amend the case
caption and for additional photocopying loans. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-6212
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GABRIEL ATEH OPATA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Catherine C. Eagles, District Judge. (1:16-cr-00177-CCE-1; 1:18-cv-00689-
CCE-JEP)
Submitted: September 30, 2022 Decided: November 9, 2022
Before AGEE and RICHARDSON, Circuit Judges, and MOTZ, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gabriel Ateh Opata, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 22-6212 Doc: 7 Filed: 11/09/2022 Pg: 2 of 2
PER CURIAM:
Gabriel Ateh Opata seeks to appeal the district court’s order accepting the
recommendation of the magistrate judge and denying relief on Opata’s 28 U.S.C. § 2255
motion, as amended. The order is not appealable unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability
will not issue absent “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner
satisfies this standard by demonstrating that reasonable jurists could find the district court’s
assessment of the constitutional claims debatable or wrong. See Buck v. Davis, 137 S. Ct.
759, 773-74 (2017). When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural ruling is debatable and that
the motion states a debatable claim of the denial of a constitutional right. Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Opata has not made
the requisite showing. Accordingly, we deny Opata’s motion for a certificate of
appealability and for appointment of counsel and dismiss the appeal. We dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the decisional process.
DISMISSED
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https://www.courtlistener.com/api/rest/v3/opinions/8483128/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0449n.06
Case No. 22-1146
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Nov 08, 2022
THYSSENKRUPP MATERIALS LLC, DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellee, )
)
v. ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
)
TRIUMPH GROUP INC.; TRIUMPH EASTERN DISTRICT OF MICHIGAN
)
AEROSTRUCTURES LLC, )
OPINION
Defendants - Appellants. )
)
Before: GIBBONS, GRIFFIN, and STRANCH, Circuit Judges.
GIBBONS, Circuit Judge. This appeal is from the district court’s order confirming an
arbitration award in favor of thyssenkrupp Materials LLC (“thyssenkrupp”) against Triumph
Group Inc. (“Triumph Group”) and Triumph Aerostructures LLC (“Triumph Aerostructures,”
together the “Triumph Entities”).
Thyssenkrupp and Triumph Aerostructures were the successors to the original parties to a
long-term agreement that set forth a general framework under which Triumph Aerostructures
purchased aluminum from thyssenkrupp. Under the terms of the long-term agreement, Triumph
Aerostructures (and, according to thyssenkrupp, Triumph Group as well) had an obligation to
purchase inventories of obsolete items from thyssenkrupp if thyssenkrupp was unable to sell those
items after making reasonable efforts to do so. Thyssenkrupp says that in 2019, the Triumph
Entities breached their contractual duties by failing to purchase certain obsolete aluminum.
No. 22-1146, thyssenkrupp Materials LLC v. Triumph Group Inc., et al.
Thyssenkrupp filed suit in the Eastern District of Michigan, asserting a claim for breach of
contract against both Triumph Entities. Shortly thereafter, the parties agreed to arbitrate.
After discovery and a hearing, the arbitrator issued an unreasoned award of $2.9 million in
damages in favor of thyssenkrupp, holding both Triumph Aerostructures and Triumph Group
jointly and severally liable for this amount.
Thyssenkrupp moved the district court to confirm the arbitrator’s award, and the Triumph
Entities moved to vacate. As relevant on appeal, the Triumph Entities argued that the arbitrator
manifestly disregarded the law in holding Triumph Group jointly and severally liable with
Triumph Aerostructures for thyssenkrupp’s damages. The district court granted thyssenkrupp’s
motion to confirm and denied the Triumph Entities’ motion to vacate. The Triumph Entities timely
appealed.
Having studied the record on appeal and the briefs of the parties, we are not persuaded that
the district court erred in confirming the award. Because the reasons why judgment should be
entered for thyssenkrupp have been fully articulated by the district court, the issuance of a detailed
opinion by this court would be duplicative and would serve no useful purpose. Accordingly, we
affirm the judgment of the district court upon the reasoning set out by that court in its memorandum
opinion filed on January 26, 2022.
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No. 2-21-0328
Order filed November 10, 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)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-1499
)
JOSE BARON, a/k/a Jose Barron, ) Honorable
) Alice C. Tracy,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRENNAN delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: Sufficient evidence supported defendant’s convictions of various sex offenses
against his niece. Although the victim described defendant abusing her in situations
where there was a risk of discovery by third persons, we will not disturb the trial
court’s findings that the victim’s accounts were credible and defendant’s denials
were not credible.
¶2 After a bench trial, defendant, Jose Baron, a/k/a Jose Barron, was convicted of three counts
of criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2016)) and one count of aggravated
criminal sexual abuse (id. § 11-1.60(b)) and sentenced to a total of 15 years in prison. On appeal,
2022 IL App (2d) 210328-U
he contends that he was not proven guilty beyond a reasonable doubt of any of these offenses. We
affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with by indictment nine offenses, all allegedly committed
between October 12, 2015, and March 22, 2018, against his niece, Y.M., who was then under 18
years old. Specifically,
a) counts I and II alleged that defendant committed separate acts of criminal sexual assault by
placing his mouth on the sex organ of Y.M.
b) count III alleged that he committed criminal sexual assault by placing his fingers into the
sex organ of Y.M.
c) count IV alleged that he committed aggravated criminal sexual abuse by placing his fingers
on the sex organ of Y.M.
d) counts V and VI alleged that he committed separate acts of criminal sexual assault by
placing his sex organ into the mouth of Y.M.
e) counts VII, VII, and IX alleged that he committed separate acts of criminal sexual assault
by touching the breast of Y.M.
All counts alleged that defendant committed the acts for his sexual arousal or gratification.
¶5 Defendant’s trial began January 4, 2020. We recount the trial evidence. Y.M. testified on
direct examination as follows. She was 18 years old and had resided on Southfield Avenue in
Aurora for three years with her mother, Elia M., her stepfather, Gustavo Echeverria, and her sister,
Y.S. Previously, her family had resided on Winterfield Drive in Aurora.
¶6 In March 2018, Y.M. spoke with her mother and sister. They then went to the Aurora
police station and the Kane County Child Advocacy Center (Child Advocacy Center) in Geneva.
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At that time, defendant resided on Benton Street in Aurora with his wife, Maria, his stepdaughters,
Perla and Gabriella, and his son Jonathan. Maria was Elia’s sister.
¶7 Every weekend in 2015, Y.M. and Y.S. stayed over at defendant’s house on Second
Avenue in Aurora because Elia worked late. She also went there on weekdays to be with her
cousins and on other occasions. At times, Y.M. would get out of school and take a short walk to
defendant’s house, which was across from her house. Asked whether she was ever there when the
only other person present was defendant, Y.M. could not recall any such occasion. At times,
however, other people were in the house, but she and defendant were alone in a room.
¶8 Y.M. further testified that the police were contacted because defendant had been molesting
Y.M. since she was 12 years old. The first time was when she and Y.S. stayed overnight and slept
on a couch in defendant’s living room. At one point, Y.M. woke up and felt something on her
vagina. She looked and saw defendant’s mouth on the outside of her vagina. Y.S. was still asleep,
and no one else was around. Y.M. noticed that her jeans and underwear had been pulled down to
her ankles. Defendant told her to be quiet and go back to sleep, and he left.
¶9 The second incident occurred when Y.M. was 12 or 13 years old. She, family members,
and numerous relatives were attending a barbecue at her Uncle Luis’s house on Benton Street in
Aurora. Y.M. was on or near the front porch. Nobody else was on the front porch then. Defendant
came up to Y.M. and pulled her aside. He then led her to behind one of the vehicles parked in the
driveway to the right of the house. Though she knew there were people sitting at tables set up in
the backyard, she could not see anyone else from the area where he led her. Defendant told her to
be quiet and kissed her on the mouth. Next, he rubbed her pants over her vagina. After a few
minutes, Y.M. heard her sister calling, and she ran off. Defendant told her to go back and not tell
anyone.
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¶ 10 The third incident occurred shortly before Halloween, probably when Y.M. was 14. Her
family was living on Winterfield Drive. Y.M., Y.S., and their friend Anai were outside defendant’s
house. From inside the house, defendant called out to Y.M. to come inside. After she complied,
defendant pulled her into the bathroom and started kissing her. Next, he touched her jeans outside
her vagina and started to unbutton them. Y.S. started calling Y.M., so she removed defendant’s
hand and ran outside. Inside the house, she had seen only defendant.
¶ 11 The next incident occurred when Y.M. was 14. She and Y.S. were in defendant’s living
room, waiting for Elia to pick them up. From upstairs, defendant called for Y.M. to help him read
an English-language newspaper. Y.M. ran upstairs and entered defendant’s bedroom. When
defendant entered the bedroom, he walked past her and closed the door. He kissed her, removed
her jeans and underwear, rubbed the outside of her vagina, and started to unbuckle his jeans. Y.S.
called out to Y.M. that Elia was waiting for them. The girls left.
¶ 12 When Y.M. was 14, defendant drove to her home on Winterfield Drive to take her and Y.S.
to his home so they could play with their cousins. As Y.M. and Y.S. waited inside, defendant
entered and told Y.S. to sit in his truck. She left. Defendant closed the door and started kissing
Y.M., then put his hand under her underwear and rubbed her vagina on the outside. He said not to
tell anyone.
¶ 13 It was unusual for defendant to pick up Y.M. and Y.S. from Winterfield Drive. Once,
defendant repeatedly texted her that he was coming over if she was home alone. She was home
alone, but she texted back that she was not at home. He came over and repeatedly knocked on the
front door. She called Y.S. Maria and Y.S. arrived in about 10 minutes. Y.M. heard defendant
arguing with someone outside. Defendant never entered her house.
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¶ 14 Another incident happened when Y.M. was 13. She was in Perla’s bedroom in the
basement of defendant’s Second Avenue home. Feeling hungry, she left the room and saw
defendant doing laundry. She saw nobody else. Defendant motioned for her to approach him,
which she did. He started to kiss her and touch her clothing around her vagina. She moved away
from him and went upstairs.
¶ 15 Five times, defendant exposed parts of his body to Y.M. When she was 14, she was
downstairs at his house. He called for her to come upstairs to his bedroom. When she did, he
lowered his pants and underwear and told her to touch his exposed penis. He then pushed her
down onto her knees, put his penis into her mouth, and started thrusting. After about a minute, he
put her onto the bed face down. He lifted her shirt, and she felt something cold touch her back.
Defendant wiped off the cold substance and told her to leave the room. Asked whether anyone
else was in the house at the time, Y.M. testified, “I think they were all upstairs and I think [Y.S.]
was downstairs.”
¶ 16 When Y.M. was 14, she was home alone on Winterfield Drive. Defendant was scheduled
to pick her up and drop her off at his house, where Y.S. was. When he arrived, Y.M. opened the
door. Defendant entered and started to kiss her. She went to her room, but he followed her. Y.M.
got a Facetime call from Y.S., who wanted to know whether defendant had picked her up. Y.M.
responded that he was there already. While Y.M. spoke on the phone, defendant started to remove
her pants and underwear. He told her to turn off the phone and pushed her face down onto her
bed. Soon, the phone’s battery died, and the conversation ended. Y.M. heard defendant undo his
pants and felt something entering her “butt area.”
¶ 17 On a third occasion, when Y.M. was 14, she was in the first-floor bathroom of defendant’s
house. Y.S. was in the house with Jonathan. Gabriella was in her room upstairs. Maria was at
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2022 IL App (2d) 210328-U
work and Perla was not home. After Y.M. washed her hands and opened the door, defendant
entered. He closed the door, took off his pants, and gestured to her to suck his penis. She complied.
After a few seconds, there were sounds of people walking in the house. Defendant buckled his
pants, left the bathroom, and locked the door.
¶ 18 On a fourth occasion, when Y.M. was 14, she was in defendant’s living room with Perla,
Y.S., and defendant. Perla and Y.S. went out to walk the dog. Defendant started to touch Y.M.
on her clothing over her vagina. A few minutes later, the door opened, and defendant pushed her
back. Perla and Y.S. reentered through the front door.
¶ 19 On a fifth occasion, when Y.M. was 14, Maria told defendant to pick up Y.M. and drive
her to his house, where Y.S. was already. Defendant picked up Y.M. in his truck but then went in
the opposite direction of his house. He stopped the truck in an open space. He turned to Y.M.,
sitting in the front seat, and pulled down his pants and underwear. Y.M. saw his exposed penis.
He said nothing but gestured for her to make contact. She put his penis into her mouth for a few
minutes. Defendant started driving. Y.M. was about to pull away, but he told her to stay there.
Soon, she pulled away. Defendant drove a little farther, stopped the truck, and told Y.M. not to
tell anyone.
¶ 20 The trial court admitted photographs of Luis’s house, the driveway, the garage and
backyard, and the driveway area where defendant had led her during Luis’s party. Y.M. marked
this spot. Also admitted were photos of several areas of defendant’s home on Second Avenue.
¶ 21 Y.M. testified on cross-examination that most of her cousins were at Luis’s party. Usually,
she and they were playing in the front yard. The front porch was next to the front yard. Most
people were in the backyard, where tables were set up behind the garage.
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2022 IL App (2d) 210328-U
¶ 22 The last incident of abuse by defendant occurred in the summer of 2017. Sometime after
Christmas 2017, Y.M.’s family and defendant’s family stopped seeing each other. The breakdown
was over money. One day shortly before Christmas, Y.S. called Y.M. and told her that someone
had stolen money from Elia’s home. In March 2018, Y.M. told Elia about the numerous incidents
of abuse by defendant. During the conversation, they also talked about the apparent theft and
whether defendant had been involved.
¶ 23 Y.M. felt very close to Maria, Gabriella, and Perla and somewhat less to Jonathan. She
considered Perla her unpaid babysitter when Elia was at work. Perla usually drove Y.M. around
when needed. When Y.M. lived on Second Avenue, Elia would pick her up from school and drive
her to defendant’s home. Defendant never picked her up from school, because he was always
working until either 4 p.m. or 6 p.m., usually the latter. When Y.M. arrived at defendant’s home,
her cousins would be there. Depending on business conditions, Elia got off work between 8 p.m.
and midnight, but she generally picked up her daughters afterward. Maria worked on weekday
evenings but not on weekends.
¶ 24 Shown the photographs of defendant’s house, Y.M. testified that the first floor had a
“shotgun layout,” or open floor plan, in which one could stand in one room and see most of the
other rooms. On the second floor were three bedrooms, one for defendant and Maria, one for
Gabriella, and the third for Jonathan. Perla’s bedroom was in the basement. The rest of the
basement was an open area.
¶ 25 At Luis’s house, the children played in the backyard and rarely played in the front.
Defendant’s house was two or three streets away. The incident that occurred when she was outside
with Y.S. and Anai and defendant called her inside was probably just before Halloween. As best
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2022 IL App (2d) 210328-U
she could recall, only defendant was at his house. If Jonathan was there, he was on the second
floor.
¶ 26 Y.M. told her sister about defendant’s abusive acts a few months to a year before she told
Elia.
¶ 27 When Y.M. talked with Elia about the money theft, Y.M. became upset because people
were blaming defendant. Elia blamed defendant but at one point had accused Y.M.
¶ 28 Y.M. was upset to have not seen members of defendant’s family since the breakup. She
missed defendant and Maria and had hoped that the matter would not get as far as a trial.
¶ 29 The State next called Y.S. She testified that, before moving to Southfield Drive in Aurora
with Elia, Echeveria, and Y.M., she lived on Winterfield Drive with them. In March 2018, she,
Elia, and Y.M. spoke to the police about defendant’s alleged offenses. Since then, she had not
seen defendant, Maria, or their children until coming to court. Before March 2018, she saw them
almost every weekend, usually at their house. Other than on holidays, Elia was not usually there.
Sometimes, Y.M. and Y.S. would be in different parts of the house and not see each other.
¶ 30 At one time, when Y.S. was at defendant’s house with Maria, Y.M. phoned her from
another location and complained about defendant. Maria drove Y.S. to her home on Winterfield
Drive. When they arrived, she saw that Y.M. and defendant were outside arguing. Maria asked
defendant why he was there and told him he had no business being there.
¶ 31 Defendant frequently drove to Winterfield Drive to pick up Y.S. and Y.M. Sometimes,
when defendant dropped them off at their home, he would tell Y.S. either to wait in the car while
he went inside to use the bathroom or to go inside first because he had to talk to Y.M.
¶ 32 At times, Y.S. would communicate through Facetime. Once, while defendant was driving
Y.M. somewhere. Y.M. made a Facetime call to Y.S., who was downstairs at defendant’s house.
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2022 IL App (2d) 210328-U
Y.M. said that defendant was making her uncomfortable. Gabriella called Y.S. from upstairs, and
Y.S. left the room without the phone. When she returned, the Facetime call had ended.
¶ 33 Shortly before Christmas 2017, while the girls were in defendant’s car, he told Y.M. to stay
in the front seat while Y.S. went inside. Later, Y.S. asked Y.M. about the incident. Y.M. initially
said that defendant had wanted to talk to her about a Christmas gift but then told her something
else (counsel interjected before Y.S. could specify).
¶ 34 When Y.S. went to the police station in March 2018, she spoke with Kristin Temple with
the Department of Children and Family Services (DCFS). They discussed a SnapChat exchange
about accusations of some sort. Someone had stolen something from Y.S.’s home. Although her
family was not sure who did it, they were accusing defendant because a neighbor’s camera had
shown that his car was parked in the lot of their apartment complex for two hours while they were
not home.
¶ 35 Gabriella and Perla alternated using the basement bedroom. The first-floor plan was
basically open. Y.S.’s cousins were there most, but not all, of the time that Y.M. and Y.S. were
there. Defendant would return from work late at night.
¶ 36 Elia testified that Y.M. was born October 12, 2002, and Y.S. was born May 18, 2005. In
March 2018, after talking with her daughters, she took them to the police station. Y.M. was
nervous, afraid, and crying. Next, they went to the Child Advocacy Center.
¶ 37 In March 2018, defendant lived on Second Avenue with Maria (Elia’s sister) and their three
children. Before then, Elia worked five days a week, including some weekends, and Maria took
care of Y.M. and Y.S. at those times. Under this arrangement, Elia understood that Maria, Perla,
and sometimes Jonathan would babysit her daughters. However, at times she would drop her
daughters off at defendant’s home when she knew that only defendant would be home. Also,
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2022 IL App (2d) 210328-U
defendant would have contact with her daughters when he went to her home when she was not
there. Elia did not always know in advance when defendant would go to her house while her
daughters were home alone.
¶ 38 Sometime in 2017, Elia and Maria got into a dispute about accusations relating to money
belonging to Echeveria that someone had stolen from Elia’s home in November or earlier that year.
Elia might have asked Y.M. about the money, but she never accused her of stealing it. She did not
know of Y.M. posting anything on social media about the matter. After Maria found out that Elia
had accused defendant of the theft, Maria and Y.M. were still close and talking to each other.
During a conversation about the money theft, Y.M. told Elia about defendant’s acts of abuse.
Later, Elia told police investigator Chris Tunney that she believed that defendant had stolen the
money.
¶ 39 Defendant and Maria resided near Luis’ house. During her fifth-grade year, Y.M. also
lived within a block of Luis. At that time, Elia dropped off her daughters at defendant’s home
from Monday through Friday before going to work. Most weekdays, defendant and Maria were
at work, but their three children were home, and Elia left Perla or Gabriella in charge of babysitting
for pay. Elia picked up the children whenever she finished working, generally at 9 or 10 p.m., but
sometimes on weekends, when she got off very late, she would let them stay overnight.
¶ 40 Luis hosted parties at his home. The men usually gathered on a cement area near the garage
or a grassy area behind it. The children did not play outside in front but instead in the garage or
on the grass nearby. The garage was attached to a driveway, which ran alongside the house and
was wide enough to fit one car. Behind the house, the driveway was wide enough to side-by-side
park two or three vehicles. Elia recalled Luis holding a cotillion for his daughter. Perhaps 40
people attended, most of them outside.
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¶ 41 Before the money incident, Elia’s relationship with Maria had been good. However, Elia
and her daughters suffered from losing touch with defendant’s family. After she told Maria about
Y.M.’s accusations about defendant, Maria stopped talking to her, not the other way around.
¶ 42 Perla testified that, before moving out a year before the trial, she resided with defendant
and his family for nine years. He was her stepfather, and she had known him since she was three.
In 2008, Elia and her daughters came to Aurora. In 2011, defendant’s family moved to Second
Avenue, and Elia’s family moved to an apartment complex on the west side. For three or four
years before March 2018, Perla was working, but she saw Y.M. and Y.S. every weekend while
Elia was at work, sometimes on weekday evenings, and during holidays or family events.
¶ 43 In March 2018, Perla spoke to Tunney outside defendant’s house. Tunney told her that he
was recording their conversation. Perla told Tunney that, when she and Y.S. returned to the house
after playing with the dogs, she saw defendant and Y.M. sitting on the living room couch, three or
four feet apart. Perla did not recall telling Tunney that she saw Y.M. lying down or that she saw
defendant move away from Y.M. Perla did not confront them there, because her brother and sister
were upstairs. Instead, she called Y.M. to her bedroom downstairs and asked her whether
defendant had ever disrespected her. Y.M. said no. Perla could not recall telling the investigator
that something about the situation did not seem right or normal. Perla did not believe that
defendant had abused Y.M., but she did not know whether she told the investigator that she was
unsure on this point. She told Tunney that she wondered whether Y.M. had instigated the sexual
conduct or provoked defendant into abusing her, but Perla admitted that she was guessing.
¶ 44 Perla testified that Elia’s daughters were at her home every weekend and that defendant
would see them then. Defendant drove the girls to and from their home on Winterfield and to
stores, but only on the rare occasions when Maria and Gabriella were unavailable. On some but
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not all of these occasions, defendant would be alone with the girls, but other times Jonathan was
also there. However, Perla admitted that she told Tunney that it was normal for defendant to be
alone with the girls.
¶ 45 Perla testified on cross-examination that her family lived at Luis’s house with Elia and her
daughters from 2008 to 2011. The backyard was behind the garage and not nearly big enough for
10 children to play there. The garage driveway was wide enough for one car. Perla went to Luis’s
house for the party in honor of his daughter. About 50 or more people were there, between 10 and
20 of whom were children. Gabriella supervised the youngsters, who were always playing together
in the backyard or on the front porch. Perla identified the admitted photographs showing the
property.
¶ 46 Perla testified that, at the house on Second Avenue, the front door opened into the living
room, from which one could see the kitchen. Since 2014, Perla had worked the same job from
7:30 a.m. to 4:30 p.m., getting home by 4:45 or 5 p.m. Defendant got home at 6:30 p.m. Jonathan
came home from school at about 3:30 p.m., and Gabriella would watch him until an adult came
home. Perla’s bedroom was in the basement, and she was usually either there or in the living
room.
¶ 47 Shannon Krueger testified as follows. She was a pediatric nurse practitioner whose duties
included conducting sexual-assault examinations. On April 12, 2018, she examined Y.M., who
told Krueger that her uncle had sexually abused her. A physical exam revealed nothing abnormal,
which neither confirmed nor negated possible sexual abuse. Lab test results were also negative.
¶ 48 Maria testified on direct examination as follows. Defendant was her husband and Elia was
her sister. In March 2018, Elia and the police told her of the allegations against defendant.
Defendant was in Mexico at the time. She sent him money so that he could return home early. In
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the three or four previous years, she had been in regular contact with Y.M., as she and Y.S. were
at her house every weekend. She also saw them at family gatherings but seldom on weekdays. On
some weekends, defendant and Y.M. were both at the house. Defendant picked up Y.M. and Y.S.
when Maria and Gabriella were unavailable. Between 2015 and 2108, when Y.M. and Y.S. came
to her house, they never slept over. Previously, they sometimes slept over in the living room.
¶ 49 Maria recalled that, in December 2017, Y.S. was at defendant’s house and asked Maria to
drive her home. Maria did so and, when she arrived, defendant was sitting in his truck in the
parking lot. Y.M. was not outside. Maria asked defendant why he was there. He told her that Y.M.
had called him and asked him to drive her to his house, where his sister was at the time. Maria
and defendant drove back home, but Y.M. and Y.S. stayed at their home. Arriving home, Maria
asked defendant why he had been at Y.M.’s home. She testified that they did not have an argument
and did not recall having told an investigator they had. Maria told defendant, “[D]on’t do good
things that look bad,” because he had not told her in advance that he was going to Y.M.’s home.
She was not concerned that defendant had done something inappropriate at Y.M.’s home.
¶ 50 Tunney testified that, in March 2018, she became the primary investigator into Y.M.’s
allegations. She contacted defendant and members of his family. On March 30, 2018, she spoke
with defendant and Jonathan after they left their home. Defendant told her that he would come in
for an interview that afternoon, but he did not appear, and she was unable to locate and contact
him. On April 5, 2018, Tunney spoke to Perla. Perla told her that she once returned from walking
the dog and saw defendant sitting next to Y.M., who was lying on the couch. Perla told Tunney
that it did not look right to her and that she asked Y.M. whether defendant had been touching her.
¶ 51 Flora Amezcua testified that she worked for DCFS and investigated reports of neglect and
abuse. In May 2018, she recorded an interview with Maria. Maria told her about her confrontation
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with defendant outside Y.M.’s home. She said that, after they got home, she told him that he had
“better not have been doing anything stupid” at Y.M.’s home. When Amezcua asked Maria why
she said that, she replied that she “didn’t trust anyone.”
¶ 52 The State rested. The trial court granted defendant directed findings on counts II, III, VII,
VIII, and IX. In denying directed findings on the remaining counts, the court explained that there
was sufficient evidence that (1) in his living room, defendant placed his mouth on Y.M.’s vagina
(count I); (2) defendant placed his hand over Y.M.’s clothing covering her vagina (count IV); (3)
in his bedroom, defendant placed his penis into Y.M.’s mouth (count V); and (4) in his bathroom,
defendant placed his penis into Y.M.’s mouth (count VI).
¶ 53 In defendant’s case, Luis testified that he was the brother of Elia and Maria. In May 2015,
Luis hosted a cotillion for his daughter at his home on Benton Street. He held the party between
4 and 11 p.m. in the garage and nearby patio. Including Maria and defendant, 40 to 50 people
attended. Luis’s nieces and nephews attended and played in front of the house, away from the
adults. The children could not play in the backyard, because there was a fence with a little path
There were perhaps three cars in the driveway, which was clearly visible from the attached patio
and garage. Luis was present most of the time, greeting guests. At no time did Luis see defendant
alone with any of his (Luis’s) nieces during the cotillion. Most of the time, Luis saw defendant
close to him.
¶ 54 Jonathan testified as follows. He was 19 years old. When in middle school and high
school, he usually came home at about 3:30 p.m. and would be alone for an hour or two until either
Gabriella or defendant came home. He and Y.M. attended the same middle school, and Y.S.
attended a school near his house. The three arrived at about the same time as he did. He spent
time with them in the living room or his bedroom, where he always kept the door open. Gabriella
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was usually home, but Maria generally came home much later, and Perla was living elsewhere at
the time. Jonathan often went to the park with Y.M. and Y.S. and sometimes Gabriella. He never
saw anything troubling from defendant. Defendant always came home tired and did not unduly
disturb Jonathan.
¶ 55 During winter vacation in 2017-2018, he helped defendant remove a carpet from his home
and install wood flooring. They threw away the carpet in a dumpster at Elia’s apartment complex.
¶ 56 Gabriella testified that defendant was her stepfather. Between 2013 and 2018, she resided
in his Second Avenue house. After graduating from high school in 2014, she did not work outside
the home except to babysit Y.M. and Y.S. Elia paid her about $120 a week to babysit. On
weekdays, she usually babysat between 4 p.m. and 9 or 10 p.m., when she would drive them home,
or Elia would pick them up. On weekends, it could be any time. Maria was not home on weekdays
when the girls were there, because she worked very late. Monday through Saturday, defendant
came home from work at 6 p.m. Perla sometimes came home by 5:30 p.m. and occasionally visited
her boyfriend in the evening.
¶ 57 Gabriella stopped caring for her cousins after moving to Winterfield Drive in 2016. Since
the accusations against defendant, she had not spoken to them. Her cousins never accused her of
wrongdoing, but they accused a family member of stealing money from Elia’s home. In response
to the allegation, Gabriella went on SnapChat in March 2018 and posted, “[Y.M] and [Y.S.], don’t
accuse my dad of stealing money when I have proof that he did not ***.”
¶ 58 Before Elia’s family moved to Winterfield Drive, there were times when Y.M. was over at
defendant’s house while he was there. After the move, Gabriella stopped babysitting them, but
they continued to come over. Sometimes, defendant was there too. However, Gabriella did not
believe that defendant picked the girls up from their home more than twice.
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¶ 59 Defendant testified on direct examination as follows. Between 2015 and 2018, he resided
on Second Avenue and worked six days a week, finishing at 6 p.m. In March 2018, when he was
in Mexico, Maria told him about Y.M.’s accusations, and he decided to cut his trip short and return
the next day. When he returned, he stayed at his house and went to work as usual. When he
encountered the detective in the parking lot, defendant told her that he could go to the police station
that afternoon but later decided not to, because it would be better to hire an attorney.
¶ 60 Defendant never touched Y.M. on her vagina, used his fingers on her vagina, or put his
penis into her mouth. Asked whether he ever exposed himself to her, he testified, “I have never
touched [Y.M.].” Asked, “Were there times [when he was] alone with [Y.M.],” he testified, “No.”
When he gave Y.M. a ride, it was because she had asked for a ride, and Y.S. went along also.
¶ 61 In December 2017, defendant drove to Y.M.’s house because she called; he asked her why
she did not get a ride with Maria or Gabriella, and she responded that nobody was answering her
calls. When defendant arrived at Y.M.’s home, he called to tell her he was outside. In a few
minutes, Maria showed up. She and defendant did not argue.
¶ 62 Shortly before Thanksgiving 2017, defendant heard through Maria’s mother that he had
been accused of stealing money from Elia’s home. Between Thanksgiving and March 2018, he
removed the carpeting from his house. At Elia’s invitation, he discarded the carpeting in dumpsters
outside her apartment complex.
¶ 63 Defendant never broke into Elia’s home, never tried to touch Y.M. in any sexual way in
Elia’s home, never invited Y.M. into his bedroom, and never took her to his basement.
¶ 64 Defendant never asked Y.M. for help reading English-language newspapers; if he needed
help, he would have asked Perla. Y.M never read any newspapers to him. He never asked her to
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come to his bedroom to help him with anything. When Perla saw him on the living room couch
with Y.M., he had not touched Y.M. At times in the past, he had hugged Y.M.
¶ 65 Defendant rested. The State put on no rebuttal.
¶ 66 The trial court found defendant guilty of the four remaining charges. The court explained
as follows.
a) Count I was supported by Y.M.’s testimony that, when she and Y.S. were staying overnight
at defendant’s house, she saw that her pants and underwear had been pulled down and that
defendant’s mouth was on her vagina.
b) Count IV, which alleged that defendant placed his finger on Y.M.’s sexual organ, was
supported by “evidence that this happened more than once.” However, the court
specifically referenced the incident at Luis’s outdoor party—Y.M. testified that defendant
rubbed her vagina over her clothes, albeit only for a few seconds until someone called for
Y.M., and she left. The court noted the evidence that numerous people were present in the
area, but it found that the incident happened as Y.M. described it.
c) Count V, which alleged that defendant placed his penis into Y.M.’s mouth, was supported
by Y.M.’s testimony that, when she was downstairs at defendant’s house, he called her up
to his bedroom, exposed himself, pushed her down, and placed his penis into her mouth.
In addition, the court noted that Y.M. testified explicitly about what happened before,
during, and immediately after the act of penetration.
d) Count VI, which alleged conduct similar to count V, was supported by the evidence that,
while Y.M. was in the first-floor bathroom of defendant’s house, he entered the room,
closed the door, and placed his penis into her mouth. He stopped after a few seconds and
left because he heard other people walking in the house.
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¶ 67 The court explained more generally that, having observed Y.M., defendant, and the other
witnesses testify, it found that “[Y.M.] was credible in her testimony.” Y.M. gave “very detailed
accounts” of the incidents, was “straightforward on the stand,” and “appeared in court to be sad to
be [there].” She was sad that defendant had been accused of stealing money, and she had not
thought that the matter would end up in court. She “had a very specific memory regarding what
happened at each incident she described.”
¶ 68 Further, there was corroboration for Y.M.’s testimony about the bedroom incident. Y.M.’s
testimony that she felt something cold on her back was evidence that defendant had ejaculated on
her after the act of penetration. The court continued, “And with a girl of that age, unless that had
actually happened to her, I don’t know why she would be able to talk about that.”
¶ 69 By contrast, “defendant’s testimony was not particularly credible.” Moreover, there were
ample opportunities for him to commit the charged acts, as Maria was not around on weekdays
until 10 p.m. and Y.M. and Y.S. were at his home on many weekends while Elia was working.
¶ 70 After a hearing, the trial court sentenced defendant to consecutive prison terms of four
years on each of counts I, V, and VI and three years on count IV, for an aggregate sentence of 15
years. He timely appealed.
¶ 71 II. ANALYSIS
¶ 72 On appeal, defendant contends that the evidence was insufficient to prove him guilty
beyond a reasonable doubt of any of the offenses of which he was convicted. Defendant contends
generally that Y.M.’s testimony was uncorroborated by other witnesses or any physical or medical
evidence. He contends more specifically that her account of each incident on which a conviction
was based was so inherently implausible that the trial court could not reasonably find him guilty.
The State responds that the trial court properly found Y.M. credible and defendant not credible
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and that, although corroborating evidence was not strictly needed, there was substantial evidence
that defendant had ample opportunity to commit each offense.
¶ 73 Initially, we set out the basic principles of our review. When faced with a challenge to the
sufficiency of the evidence, we ask only whether, after viewing all of the evidence in the light most
favorable to the prosecution, any rational fact finder could have found the elements of the offense
proved beyond a reasonable doubt. People v. Ward, 154 Ill. 2d 272, 326 (1992). The fact finder
is responsible for determining the witnesses’ credibility, weighing their testimony, and deciding
the reasonable inferences to be drawn from the evidence. People v. Hill, 272 Ill. App. 3d 597,
603-04 (1995). It is not our function to retry the defendant. People v. Lamon, 346 Ill. App. 3d
1082, 1089 (2004).
¶ 74 Here, the court convicted defendant of criminal sexual assault (720 ILCS 5/11-1.20(a)(3)
(West 2014)) (counts I, V, and VI) and aggravated criminal sexual abuse (id. § 11-1.60(b)) (count
IV). A person is guilty of the former as charged here if he commits an act of sexual penetration,
he is a member of the victim’s family, and the victim is under 18 years of age (id. § 11-1.20(a)(3)).
A person is guilty of the latter as charged here if he commits an act of sexual conduct (see id. § 11-
1.50) and the victim is under 18 years of age and a family member (id. § 11-1.60(b)).
¶ 75 Defendant does not dispute that the testimony of Y.M., if credible, proved all the elements
of his convictions. He argues, however, that her testimony was uncorroborated and so inherently
implausible that the trial court exceeded its prerogative in finding him guilty of any offenses.
Defendant makes both specific attacks on the evidence for each conviction and general attacks on
the evidence as a whole. We consider these arguments in turn.
¶ 76 On count I, defendant argues that Y.M.’s account of the incident was implausible. He
reasons that it was “extremely unlikely” that he would have attempted to remove Y.M.’s pants and
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underwear and touch her with another person nearby who could be roused from her sleep by his
actions. However, improbability does not create reasonable doubt if the testimony, viewed in the
light most favorable to the prosecution, is sufficient to establish the offense. Y.M.’s testimony on
count I was straightforward, clear, and consistent, and the trial court credited it. We note that
defendant acted at night—when other household members were asleep—in a room occupied by
two minors, both of whom, even if they awoke, could be intimidated or embarrassed into keeping
silent about the act. The evidence was sufficient on count I.
¶ 77 Regarding count IV, defendant contends that, given the setup and number of guests at the
cotillion Luis hosted, it was improbable that there would have been no witness to his alleged act
of rubbing Y.M.’s vagina over her clothes. However, Y.M. testified that the conduct occurred at
Luis’s house during a family barbecue, not a cotillion. In addition, the trial court noted the
evidence regarding the presence of numerous people but found that the incident happened as
described by Y.M. The trial court found Y.M. to be credible and defendant to be otherwise.
Accordingly, the evidence was sufficient on count IV.
¶ 78 On count V, defendant’s challenge appears to conflate (a) the bedroom incident on which
the trial court relied with (b) either of the incidents in the basement and (c) the Facetime incident,
the latter of which was not the basis of any conviction. In any event, the evidence was sufficient,
as the trial court noted that Y.M. not only testified clearly and consistently about the encounter but
did so in detail, including describing defendant’s ejaculation onto her back.
¶ 79 Finally, on count VI, defendant contends in a general way that the circumstances made
Y.M.’s testimony implausible. Still, the trial court could consider that (1) the criminal act occurred
inside a closed bathroom in the basement, away from where most of the family (if at home) would
be present, (2) defendant stopped after only a few seconds because he heard other people walking
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nearby, and (3) there was nothing so inherently implausible about this account that the trial court
could not find it proven beyond a reasonable doubt.
¶ 80 We turn to defendant’s more general attacks on the evidence. He contends that Y.M.’s
testimony was uncorroborated by other witnesses or by any physical or medical evidence.
However, as defendant concedes, the factfinder may find guilt beyond a reasonable doubt based
on the positive testimony of a single credible witness. People v. Smith, 185 Ill. 2d 532, 541 (1999).
Our supreme court has long dispensed with the special rule that, in a sexual-offense trial, the
victim’s testimony is insufficient unless it is “clear and convincing or substantially corroborated.”
People v. Schott, 145 Ill. 2d 188, 202 (1991). The trial court found Y.M. credible, and her
testimony was positive and consistent on the charges on which defendant’s convictions were
based.
¶ 81 Defendant contends second that Y.M.’s testimony was insufficient because she had a
motive to accuse defendant falsely, i.e., to get revenge against him for stealing the money from
Elia’s home. Defendant notes that Y.M. told Elia about defendant’s abusive actions during a
conversation that started on the subject of the alleged theft. Defendant’s argument did not sway
the trial court, and we may not substitute our view of the evidence (or defendant’s view of it) for
that which the trial court took. Moreover, there was evidence from both Y.M. and Y.S. that Y.M.
told her sister about the incidents months before the March 2018 conversation with Elia. Further,
Y.M. testified that she had been close to defendant and regretted being separated from him, and
Elia testified that, during the March 2018 conversation, Y.M was upset to the point of crying.
Defendant has not persuaded us to disturb the trial court’s exercise of its fact-finding prerogative.
¶ 82 III. CONCLUSION
¶ 83 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.
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¶ 84 Affirmed.
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https://www.courtlistener.com/api/rest/v3/opinions/8483124/ | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0237p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
CAUDILL SEED & WAREHOUSE CO., INC.,
│
Plaintiff-Appellee, │
> No. 21-5345
│
v. │
│
JARROW FORMULAS, INC., │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Western District of Kentucky at Louisville.
No. 3:13-cv-00082—Charles R. Simpson, III, District Judge.
Argued: April 28, 2022
Decided and Filed: November 10, 2022
Before: SUHRHEINRICH, MOORE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: David R. Carpenter, SIDLEY AUSTIN LLP, Los Angeles, California, for
Appellant. Benjamin J. Lewis, DENTONS BINGHAM GREENEBAUM LLP, Louisville,
Kentucky, for Appellee. ON BRIEF: David R. Carpenter, SIDLEY AUSTIN LLP, Los
Angeles, California, Christopher A. Eiswerth, Daniel J. Hay, SIDLEY AUSTIN LLP,
Washington, D.C., for Appellant. Benjamin J. Lewis, J. Mark Grundy, Jared A. Cox, Amanda
D. Reed, Kyle W. Miller, DENTONS BINGHAM GREENEBAUM LLP, Louisville, Kentucky,
for Appellee.
The court delivered a PER CURIAM opinion. MOORE, J. (pp. 32–34), delivered a
separate opinion concurring in part and dissenting in part.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 2
_________________
OPINION
_________________
PER CURIAM. Caudill Seed & Warehouse Co. manufactures an important ingredient in
certain nutritional supplements. Jarrow Formulas, Inc., a customer of Caudill’s, wanted to get
into this manufacturing business. To do this, Jarrow decided to lure away Caudill’s Director of
Research, Kean Ashurst, and learn Caudill’s manufacturing process from him. Caudill,
understandably displeased, proceeded to federal court. Eight years later, a jury awarded Caudill
approximately $7,000,000 in damages under the Kentucky Uniform Trade Secrets Act
(“KUTSA”). Jarrow appeals the district court’s denial of its motions for judgment
notwithstanding the verdict and for a new trial. We AFFIRM.
I. BACKGROUND
A. Facts
Caudill is a Kentucky business that manufactures and sells a wide range of agricultural
products including seeds, fertilizers, and sprouts. One Caudill subsidiary, C.S. Health, develops
nutritional supplements. And one such supplement, made using broccoli-seed extract, attempts
to harness a substance called glucoraphanin, which some believe to have positive health effects
when consumed. Specifically, the glucoraphanin found in broccoli seeds reacts with myrosinase,
an enzyme also found in broccoli seeds, to create in the digestive tract a supposedly beneficial
compound called sulforaphane.
Caudill has developed a nutritional supplement ingredient containing high concentrations
of glucoraphanin, which it sells to producers under the trade name BroccoRaphanin. Caudill also
manufactures and distributes glucoraphanin capsules for individual use called Vitalica and
Vitalica Plus. Vitalica and Vitalica Plus are “activated” products: they add myrosinase into the
production formula to increase the amount of sulforaphane produced in the small intestine.
Jarrow Formulas is a dietary-supplement company that sells a broccoli-seed extract called
BroccoMax. To manufacture BroccoMax, Jarrow purchased glucoraphanin-containing powder
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 3
in bulk from Caudill, eventually becoming Caudill’s largest customer for the powder. Before the
events that precipitated this dispute, Jarrow did not produce its own glucoraphanin, myrosinase,
or sulforaphane. That would change.
Jarrow eventually decided to design and sell its own activated glucoraphanin product “to
increase the margins for Jarrow Formulas for the BroccoMax product and develop a higher level
of pull-through at the retail level.” Instead of investing in its own research and development,
Jarrow took a shortcut when it solicited Kean Ashurst, Caudill’s Director of Research.
Jarrow approached Ashurst for a reason. He had worked at Caudill for nine years, during
which he played a major role in the firm’s research and development efforts. This included
extensively researching the development of the broccoli-seed derivatives at issue in this case. As
part of Ashurst’s research, he assembled a collection of over 2000 articles concerning broccoli,
the effects of sulforaphane on the body, and the myrosinase glucosinolate system. In the course
of his employment with Caudill, Ashurst signed Non-Disclosure, Non-Competition, and Secrecy
Agreements, and annually reviewed and signed Caudill’s employee handbook, which barred him
from disclosing Caudill’s trade secrets or other confidential information.
Ashurst and Jarrow’s relationship evolved rapidly. On April 10, 2011, Ashurst—who
was still a Caudill employee, although Jarrow had approached him by this point—emailed
Jarrow’s CEO several confidential Caudill documents. Ten days later, Jarrow requested a “zip of
the pertinent data”—presumably a large volume of data compressed into a .zip file—and Ashurst
apparently1 obliged by sending a physical disc the next week. On May 1, Ashurst began to work
for Jarrow as a consultant. The next day, Ashurst submitted his resignation letter to Caudill,
resigning from the firm. The “Scope of Services” listed in Ashurst’s Consulting Agreement with
Jarrow made clear that Jarrow hired him to mimic the work he had done for Caudill, tasking him
with assisting in sourcing broccoli seeds; using the seeds to procure sulforaphane, glucoraphanin,
and glucosinolate products; and performing “Other projects related to seeds.”
Ashurst’s expertise proved very useful for Jarrow. Jarrow never conducted its own
research on broccoli extract products. Instead, Ashurst provided Jarrow with what the research it
1
According to Caudill, Jarrow never produced the disc in this litigation.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 4
was “looking for” by delivering a curated collection of broccoli product research compiled over
his nine years with Caudill. A Jarrow scientist acknowledged that only someone who “spen[t] all
their time” researching broccoli products could have produced such a useful research collection.
Jarrow sent Ashurst an outline of tasks that it wanted Ashurst to complete, including providing
information on ordering research steps, performing every step, solving “R&D issues,” and
blending the final product. Ashurst complied, adding that he was proposing that Jarrow adopt
“the same process that the current BroccoMax Material [uses]”—that is, the process that Caudill
used to manufacture the raw materials that Jarrow purchased from Caudill to make BroccoMax.
Over the coming months, Ashurst provided to Jarrow additional valuable information from
Caudill. Ashurst at one point bragged to Jarrow employees that they would be using a formula
that had been tested for over six months. At the time, Ashurst had been at Jarrow for just over
one month, meaning that he must have performed substantial amounts of this research while at
Caudill.
Jarrow profited handsomely from this research. Jarrow brought an activated broccoli
product into commercial production just four months after hiring Ashurst. From 2012 to 2019,
Jarrow earned $7.5 million in sales of their activated-myrosinase BroccoMax product.
B. Procedural History
Perturbed by these developments, Caudill initiated this lawsuit. In August 2014, Caudill
amended its complaint to add a claim under the KUTSA, which is the only claim relevant to this
appeal. Caudill identified six trade secrets that Jarrow allegedly misappropriated, three of which
are relevant here: “(1) research and development on supplements, broccoli, and chemical
compounds; (2) the general manufacturing process detailed in Caudill Seed’s provisional patent
application; . . . and (6) the hard drive and research notebook as described herein.” Jarrow
argued at the summary-judgment phase that Caudill insufficiently defined its trade secrets. The
district court rejected this contention, concluding that “genuine issues of material fact exist with
respect to whether the information so identified constitutes trade secrets.”
The case proceeded to trial. After hearing weeks of testimony, the jury made the
following findings:
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 5
• Caudill had a protectable trade secret regarding Trade Secrets 1, 3, 4, 5, and 6;
• Jarrow misappropriated Trade Secrets 1, 3, 4, and 5;
• Caudill was entitled to $2,023,000 in actual losses and $404,605 in unjust
enrichment as to Trade Secret 1, but was not entitled to damages on the other
trade secrets; and
• Jarrow willfully and maliciously misappropriated Trade Secrets 1, 3, 4, and 5.
Jarrow moved for judgment as a matter of law and for a new trial as to liability,
compensatory damages, and the jury’s willfulness and malice finding. Regarding the finding of
misappropriation of Trade Secret 1, Jarrow argued that Caudill had improperly asserted a
“kitchen-sink theory of trade secrets” by broadly defining all its research activities as
components of Trade Secret 1. With respect to the compensatory damages award, Jarrow argued
that the jury’s award of all of Caudill’s research-and-development costs for the period that
Ashurst worked for Caudill was improper because Caudill did not demonstrate that the trade
secret was destroyed or made public. Jarrow argued that the unjust-enrichment damages could
not stand because it was “plagued by speculation and guesswork.” Finally, concerning willful
and malicious misappropriation, Jarrow argued that the record showed no evidence of Jarrow’s
malice towards Caudill, just motivation to compete and an awareness of wrongdoing.
The district court denied Jarrow’s motion. The district court entered a judgment of
$2,427,605 in damages awarded by the jury, $1,000,000 in exemplary damages, $3,254,303.50
in attorney fees, and $69,871.82 in costs against Jarrow. Jarrow timely appealed.
II. DISCUSSION
On appeal, Jarrow raises a litany of issues. Jarrow asserts that (1) Caudill failed to define
Trade Secret 1 adequately; (2) Caudill failed to show that Jarrow acquired Trade Secret 1;
(3) Caudill did not introduce sufficient evidence attributing its damages to the misappropriate of
Trade Secret 1; (4) the award of $2,023,000 in compensatory damages lacked a legal and factual
basis; (5) the award of $404,605 in unjust-enrichment damages lacked a legal and factual basis;
and (6) the district court improperly assessed exemplary damages and attorney fees. Jarrow also
argues that, should we vacate the award of compensatory damages, we should similarly vacate
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 6
the awards of exemplary damages and attorney fees for recalculation. We take each issue in
turn.
A. Caudill Adequately Defined Trade Secret 1
Jarrow argues that Caudill insufficiently defined Trade Secret 1 at trial. We first must
weave through a procedural thicket to see whether Jarrow’s contention is even properly before
this court on appeal and, if so, what standard of review applies to Jarrow’s claim. After settling
these matters, we discuss trade secrets broadly and Caudill’s combination trade secret
specifically. At the end of this road, we conclude that Caudill suitably defined Trade Secret 1.
Turning to the issue of presentation, Caudill argues that Jarrow, by failing to object to the
jury instructions, forfeited its challenge to Caudill’s failure to define Trade Secret 1 properly,
which Jarrow sometimes casts as the district court’s failure to force Caudill to so define the
secret. The rule, however, is not so simple. The failure to object to jury instructions “does not
prevent normal appellate review” so long as a party “ma[kes] all necessary arguments to preserve
the issues raised in its appeal in its Rule 56 motion for summary judgment and in its Rule 50(b)
motion for judgment as a matter of law or alternatively for a new trial.” K&T Enters., Inc. v.
Zurich Ins. Co., 97 F.3d 171, 174–75 (6th Cir. 1996); see also City of St. Louis v. Praprotnik,
485 U.S. 112, 119–20 (1988) (plurality op.).
Jarrow made the necessary arguments. Jarrow challenged Trade Secret 1’s definition in
its motion for judgment as a matter of law at trial, and in its renewed motion for judgment as a
matter of law after trial. It is true that Jarrow’s summary-judgment briefing challenged the
definition of only the trade secrets allegedly contained in the notebook and on the hard drive, not
Trade Secret 1. But once Caudill put Trade Secret 1 at issue in its response, Jarrow challenged
Trade Secret 1’s definition in its reply brief. Taking these references together, we conclude that
Jarrow sufficiently preserved its objection to the jury instructions.
We now must determine our standard of review. After trial, Jarrow moved for both
judgment as a matter of law and a new trial. We review de novo the district court’s denial of
Jarrow’s Rule 50 motion. Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 545 (6th Cir. 2012). The
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 7
standard we apply in reviewing Jarrow’s motion for judgment as a matter of law, on the other
hand, depends on whether Jarrow challenges the sufficiency of the evidence. In federal court:
If a party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or
defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1). “In diversity cases, when a Rule 50 motion for judgment as a matter of
law is based on a challenge to the sufficiency of the evidence, [however,] this Court applies the
standard of review used by the courts of the state whose substantive law governs the action.”
Kusens v. Pascal Co., 448 F.3d 349, 360 (6th Cir. 2006). Under Kentucky law, a directed
verdict after trial “is only appropriate when ‘there is a complete absence of proof on a material
issue or if no disputed issues of fact exist upon which reasonable minds could differ.’” Alph C.
Kaufman, Inc. v. Cornerstone Indus. Corp., 540 S.W.3d 803, 817–18 (Ky. Ct. App. 2017)
(quoting Toler v. Süd–Chemie, Inc., 458 S.W.3d 276, 285 (Ky. 2014)).
Jarrow also appeals the district court’s denial of its motion for a new trial. A court may
grant a new trial “for any reason for which a new trial has heretofore been granted in an action at
law in federal court.” Fed. R. Civ. P. 59(a)(1)(A).
We have interpreted Rule 59 to mean that “a new trial is warranted when a jury
has reached a ‘seriously erroneous result’ as evidenced by: (1) the verdict being
against the weight of the evidence; (2) the damages being excessive; or (3) the
trial being unfair to the moving party in some fashion, i.e., the proceedings being
influenced by prejudice or bias.”
Mosby-Meachem v. Memphis Light, Gas, & Water Div., 883 F.3d 595, 606 (6th Cir. 2018)
(quoting Holmes v. City of Massillon, 78 F.3d 1041, 1045–46 (6th Cir. 1996)). We apply abuse-
of-discretion review to the district court’s denial of a motion for a new trial. Broad St. Energy
Co. v. Endeavor Ohio, LLC, 806 F.3d 402, 405–06 (6th Cir. 2015). “A district court abuses its
discretion when it relies on clearly erroneous findings of fact, applies the law improperly, or uses
an erroneous legal standard.” United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010).
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 8
With those issues resolved, we turn to the main event: whether Caudill defined Trade
Secret 1 with “sufficient definiteness” at trial. Restatement (Third) of Unfair Competition § 39
cmt. d (Am. L. Inst. 1995).
1. Caudill Sufficiently Explained Trade Secret 1’s Contents
The KUTSA defines a trade secret as
information, including a formula, pattern, compilation, program, data, device,
method, technique, or process, that: (a) Derives independent economic value,
actual or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use, and (b) Is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy.
Ky. Rev. Stat. § 365.880(4). In interpreting this language, we can look beyond Kentucky court
decisions: the KUTSA is a version of a uniform statute adopted in many jurisdictions and states
that it “shall be applied and construed to effectuate its general purpose to make uniform the law
. . . among states enacting it.” Id. at § 365.894; see Allied Erecting & Dismantling Co. v.
Genesis Equip. & Mfg., Inc., 805 F.3d 701, 703 (6th Cir. 2015); Auto Channel, Inc. v.
Speedvision Network, LLC, 144 F. Supp. 2d 784, 788 (W.D. Ky. 2001). Although few Kentucky
cases apply the KUTSA, the Kentucky Supreme Court has relied on the Restatement (Third) of
Unfair Competition in the past. See, e.g., Montgomery v. Montgomery, 60 S.W.3d 524, 528 nn.3,
11, 13 (Ky. 2001). Consequently, we will return to this Restatement repeatedly throughout the
opinion.
“A trade secret is any information that can be used in the operation of a business or other
enterprise and that is sufficiently valuable and secret to afford an actual or potential economic
advantage over others.” Restatement (Third) of Unlawful Competition § 39 (Am. L. Inst. 1995).
Trade Secret 1 is what is known as a “combination” trade secret. “[A] new combination of
known steps or processes can be entitled to trade-secret protection.” Mike’s Train House, Inc. v.
Lionel, L.L.C., 472 F.3d 398, 411 (6th Cir. 2006), abrogated on other grounds as recognized by
A.K. ex rel. Kocher v. Durham Sch. Servs., L.P., 969 F.3d 625, 629–30 (6th Cir. 2020). Caudill
claims—and the jury found—protection not for one specific piece of information, but rather for
its entire process of research and development. In assessing Caudill’s case, we take heed of the
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 9
maxim that “[i]t is not possible to state precise criteria for determining the existence of a trade
secret.” Restatement (Third) of Unlawful Competition § 39 cmt. d (Am. L. Inst. 1995). Still,
caselaw provides some general guiding principles. “The fact that some or all of the components
of [a combination] trade secret are well-known does not preclude protection for a secret
combination, compilation, or integration of the individual elements.” Id. cmt. f. Indeed, “a
plaintiff may prevail in a trade-secrets case without identifying a specific item of information
that is not publicly known or readily accessible.” Mike’s Train House, 472 F.3d at 410 (citing
3M v. Pribyl, 259 F.3d 587, 595–96 (7th Cir. 2001)); see also Melvin F. Jager, 1 Trade Secrets
Law § 5:28 (Oct. 2021) (“Even if each and every element in a process is known to the industry,
the combination of known elements will have sufficient novelty to be a trade secret if the
combination produces a superior product.”).
Although a combination-trade-secret plaintiff need not show that any individual item in a
combination trade secret is unique, the plaintiff must establish that “the combination of known
elements or components is unique.” Melvin F. Jager, 1 Trade Secrets Law § 5:28 (Oct. 2021);
see also Sit-Up Ltd. v. IAC/InterActiveCorp., No. 05 Civ. 9292, 2008 WL 463884, at *9
(S.D.N.Y. Feb. 20, 2008). A plaintiff must “offer[] . . . concrete evidence that its business
method uniquely strung together certain elements in a particular way[,]” and cannot “have the
Court [or jury] infer that, because it ran a successful . . . business, its combination of various,
possibly secret, data and business protocols must have been unique.” Sit-Up, 2008 WL 463884,
at *10. Because all of a combination trade secret’s elements may individually be publicly
known, the uniqueness of the combination is critical to establishing trade-secret protection.
In addition to showing novelty, a trade-secrets plaintiff must “defin[e] the information for
which protection is sought with sufficient definiteness to permit a court to apply the criteria for
protection described in this Section and to determine the fact of an appropriation.” Restatement
(Third) of Unfair Competition § 39 cmt. d (Am. L. Inst. 1995). The trade secret must be defined
with “reasonable particularity.” Phoenix Process Equip. Co. v. Cap. Equip. & Trading Corp.,
No. 3:16-cv-00024, 2021 WL 1062553, at *16 (W.D. Ky. Mar. 19, 2021). Reasonable
particularity “must be ‘particular enough as to separate the trade secret from matters of general
knowledge in the trade or special knowledge of persons skilled in the trade.’” Id. (quoting
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Babcock Power, Inc. v. Kapsalis, No. 3:13-cv-717, 2015 WL 9257759, at *3 (W.D. Ky. Dec. 17,
2015)). If a plaintiff “effectively assert[s] that all information in or about its [product] is a trade
secret,” then it brings a case “both too vague and too inclusive,” and does not allow a jury to
“separate the trade secrets from the other information that goes into any” product in the field.
IDX Sys. Corp. v. Epic Sys. Corp., 285 F.3d 581, 583–84 (7th Cir. 2002) (applying the
Wisconsin Uniform Trade Secrets Act).
In cases involving a combination trade secret based on technical information, like the
current appeal, the reasonable-particularity requirement takes on special importance. A
combination-trade-secret plaintiff must “describe the secret with sufficient specificity that its
protectability can be assessed and to show that its compilation is unique.” Sit-Up Ltd., 2008 WL
463884, at *10. And a plaintiff asserting a combination trade secret over highly complex
technical information cannot merely offer “lists of broad technical concepts . . . ‘identif[ying]
categories of information’” without showing which information contained within those
categories constituted a trade secret. Calendar Rsch. LLC v. StubHub, Inc., No. 2:17-cv-04062,
2020 WL 4390391, at *7 (C.D. Cal. May 13, 2020) (quoting Loop AI Labs Inc. v. Gatti, 195 F.
Supp. 3d 1107, 1116 (N.D. Cal. 2016)).2
“Whether a particular type of information constitutes a trade secret is a question of fact.”
Alph C. Kaufman, 540 S.W.3d at 818 (quoting Fastenal Co. v. Crawford, 609 F. Supp. 2d 650,
672 (E.D. Ky. 2009)). Substantial evidence presented at trial showed that Caudill’s research-
and-development efforts constituted a protectable combination trade secret: Caudill repeatedly
demonstrated that it had assembled a unique combination of processes and information that aided
its research and development processes at a level of depth beyond merely listing technical
concepts. To give some examples:
• One witness who had worked with Ashurst at Caudill testified that Ashurst
“seemed, in my experience, to understand the whole process. It was a
compilation of discoveries they had made before, and he was working with
previous discoveries by Caudill to work on new projects.”
2
Calendar Research arises under the federal Defend Trade Secrets Act, but “Kentucky’s trade secret
protection statute is nearly identical to the DTSA.” C-Ville Fabricating, Inc. v. Tarter, No. 5:18-cv-379, 2019 WL
1368621, at *14 (E.D. Ky. Mar. 26, 2019).
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 11
• Ashurst “assembled that very large collection of information in the course of
[his] work for Caudill Seed Company,” “probably” “curated that compilation
of information,” and “read those articles in the course of [his] work for
Caudill Seed Company.”
• Caudill extensively tested the microbial contents of both its products and its
competitors’, which a witness agreed gave Caudill a competitive advantage
and provided Caudill with important information related to product quality.
• Caudill had a collection of documents that showed “the process from the seed
all the way to the making of BroccoRaphanin,” and this data would have
saved industry employers “time and money had [they] had that document in
[their] possession after May 2, 2011.”
We therefore agree with the district court that Caudill sufficiently defined Trade Secret 1
at trial, as the work that Caudill had performed before Ashurst arrived, the specific work that
Ashurst performed while at Caudill, and the “body of knowledge” that Ashurst subsequently
took to Jarrow. “The jury agreed,” and “[e]vidence presented at trial supports the jury’s
finding.” Alph C. Kaufman, 540 S.W.3d at 818.
Jarrow then tries another angle, arguing that Caudill repeatedly shifted its level of
generality at trial, defining different aspects of the secret as public or confidential based on the
argument that Caudill sought to present. For example, Jarrow contends that a Caudill witness
vacillated on whether Trade Secret 1 contained confidential material or was composed entirely of
public information. We disagree. For instance, one Caudill executive constantly reiterated over
almost 100 pages of testimony that Caudill’s trade secret is in the entire research-and-
development process, even though many of the individual steps may be in the public domain.
The jury could credit this and similar testimony to understand Trade Secret 1 as containing all of
Caudill’s process, regardless of Jarrow’s contentions that Caudill concealed Trade Secret 1’s true
definition. Jarrow’s argument, therefore, does not convince us that Caudill failed to define its
trade secret properly.
Failing to provide a convincing legal argument, Jarrow turns to policy. Policy concerns
about employee mobility loom in the background when assessing trade-secret claims based on
information derived from departing employees. There is a “long-standing tension between
employment law and the trade secrets doctrine[,]” and to avoid an anticompetitive effect, “a
party seeking to protect trade secrets [must] describe the subject matter of the trade secret with
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 12
sufficient particularity to separate it from matters of general knowledge in the trade or of special
knowledge of those persons who are skilled in the trade.” Calendar Rsch. LLC, 2020 WL
4390391, at *5 (quoting Mattel, Inc. v. MGA Entm’t, Inc., 782 F. Supp. 2d 911, 967 (C.D. Cal.
2011)). And when trade secrets consist of incremental advances in a highly specialized technical
field, “a more exacting level of particularity may be required to distinguish the alleged trade
secrets from matters already known to persons skilled in that field.” Id. (quoting Loop AI Labs,
195 F. Supp. 3d at 1115); Restatement (Third) of Unfair Competition § 39 Reporter’s note to
cmt. d (Am. L. Inst. 1995) (“For example, to protect the ability of former employees to utilize
their general knowledge and skill, a court may impose a rigorous burden on the former employer
to define the precise contours of the claimed trade secret.” (citation omitted)). According to
Jarrow, Caudill’s suit undermines this policy.
As a general matter, Kentucky law supports Jarrow. Kentucky law has long recognized
an employee’s “right to take with him all the skill he has acquired” when moving between
employers. Birn v. Runion, 222 S.W.2d 657, 659 (Ky. 1949) (quoting Garst v. Scott, 220 P. 277,
278 (Kan. 1923)). Kentucky’s highest court has held that “[a]ll [of an employee’s] knowledge,
skill and information, except trade secrets, become a part of his equipment for the transaction of
any business in which he may engage, just the same as any part of the skill, knowledge,
information or education that was received by him before entering upon the employment.”
Progress Laundry Co. v. Hamilton, 270 S.W. 834, 836 (Ky. 1925) (quoting Garst, 220 P. at
278). If Caudill’s case rested on the fact that Ashurst joined Jarrow, then this argument might be
convincing.
Ashurst, however, did more than simply move companies. Ashurst sent Caudill
documents to Jarrow, produced an outline for Jarrow recreating Caudill’s research strategy, and
prompted Jarrow to “lay on some BS” to ensure that Caudill did not catch wise to Jarrow’s
machinations, In other words, he provided Jarrow with the results of years of research, testing,
and analysis that informed Caudill’s production process. Similar behavior has supported courts
imposing trade-secret liability in the past. Fastenal, 609 F. Supp. 2d at 672. We reject Jarrow’s
employee-mobility argument.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 13
Jarrow argued that Caudill improperly defined its trade secret in three ways: by showing
insufficient particularity, by presenting a constantly shifting trade secret, and by defining the
trade secret in such a way as to impose on free labor movement. Because “the jury’s verdict is
[not] so flagrantly against the weight of the evidence as to indicate passion or prejudice,” Alph C.
Kaufman, 540 S.W.3d at 819 (quoting Consol. Infrastructure Mgmt. Auth., Inc. v. Allen, 269
S.W.3d 852, 856 (Ky. 2008)), and because the district court did not rely on clearly erroneous
facts in reaching this conclusion, we reject all three of Jarrow’s arguments and uphold the jury’s
conclusion that Caudill properly defined Trade Secret 1.
2. Trade Secret 1 Is Not Improperly Composed of Public Information
In addition to arguing that Caudill did not sufficiently define Trade Secret 1, Jarrow
advances the separate but related argument that much of Trade Secret 1 comes from the public
domain. This is another important feature in trade-secret law: as discussed above, trade secrets
must not be “readily ascertainable by proper means.” Ky. Rev. Stat. § 365.880(4)(a). Under
Kentucky law, “[i]nformation cannot constitute a trade secret and, thus, is not confidential if the
subject matter is ‘of public knowledge or general knowledge in the industry’ or if the matter
consists of ‘ideas which are well known or easily ascertainable.’” Insight Ky. Partners II, L.P. v.
Preferred Auto. Servs., Inc., 514 S.W.3d 537, 555 (Ky. Ct. App. 2016) (quoting Heyer-Jordan &
Assocs., Inc. v. Jordan, 901 S.W.2d 814, 821 (Tenn. Ct. App. 1990)).
Unfortunately, Kentucky law provides no further guidance on this point. For example,
Insight did not concern a combination trade secret, and we have located no cases evaluating
combination trade secrets under the KUTSA.3 Courts evaluating UTSA claims have split on the
question of whether combination trade secrets may consist entirely of public-domain materials.
3
We have found only two cases that even come close. Before the KUTSA’s adoption, Kentucky’s highest
court suggested that elements known to an industry could not combine to produce a trade secret. Mid-States Enters.,
Inc. v. House, 403 S.W.2d 48, 50 (Ky. 1966) (“[T]here could be no novelty or uniquen[]ess about the components of
a device if they are known to others.”). But the court made that observation to dispatch the plaintiff’s argument that
application of a well-known design to a new industry was a protectable trade secret. Additionally, in an unpublished
post-KUTSA case concerning disclosure of trade secrets during discovery, the Kentucky Supreme Court dismissed
the plaintiff’s argument that “a compilation of information that would allow an unfair economic advantage to others
if disclosed” could receive trade-secret protection if it “would provide meaningful confidential information to the
detriment of” the plaintiff. Ky. Farm Bureau Mut. Ins. Co. v. Hopper, No. 2002-SC-0774, 2003 WL 22415748, at
*5 (Ky. Oct. 23, 2003). This case gives us little guidance because the putative trade secret there was really an
internal corporate self-assessment.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 14
Compare Mike’s Train House, 472 F.3d at 411, and 3M, 259 F.3d at 595–96 (stating that they
may), with Olaplex, Inc. v. L’Oréal USA, Inc., 855 F. App’x 701, 710–11 (Fed. Cir. 2021)
(faulting the plaintiff for (a) not proving use and (b) failing to define the “testing and know how
and “dead ends and trials and errors” trade secrets with specificity).
We need not choose a side in this split because Jarrow does not assert that Trade Secret 1
consists entirely of public-domain materials. Jarrow instead argues that “so much of Caudill’s
purported ‘seed to shelf’ process was generally known in the industry and readily ascertained by
persons (like Ashurst) who are skilled in the trade.” But the fact that “much of” the Caudill
process was known to the industry, even if true, does not matter, because it means that some of
the process that Ashurst brought to Jarrow was not known to the industry. See Chemetall GmbH
v. ZR Energy, Inc., No. 99 C 4334, 2001 WL 1104604, at *6 (N.D. Ill. Sept. 18, 2001) (mem.)
(“Thus, the defendants’ argument that ‘much’ of plaintiff’s ZMP process is in the public domain
is a non-starter, because ‘much’ is not all.” (citation omitted)). As a result, Jarrow cannot
establish that Caudill impermissibly relied on solely public-domain materials to establish Trade
Secret 1.
B. Caudill Proved that Jarrow Acquired and Used All of Trade Secret 1
Jarrow separately argues that even if Caudill permissibly defined Trade Secret 1, Caudill
never satisfied the legal requirement of showing that Jarrow acquired and used the entire
combination trade secret. Jarrow explains that if this requirement is not enforced, a defendant
could be liable for acquiring or using only a component of a combination trade secret that is
readily discernible from general industry knowledge. Caudill disputes that trade-secret law
imposes such a requirement. We agree with Caudill.
The parties dispute a legal issue: whether trade-secret law requires a plaintiff to show
acquisition and use of the entirety of a combination trade secret. We therefore undertake de
novo review of this legal claim. Hanover Am. Ins. Co. v. Tattooed Millionaire Ent., Inc., 974
F.3d 767, 779 (6th Cir. 2020).
Authorities disagree as to whether a combination-trade-secret plaintiff must show
acquisition and use of the entire combination. One line of thinking, expressed in the Restatement
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 15
of Unfair Competition, explains that a trade secret’s “unauthorized use need not extend to every
aspect or feature of the trade secret; use of any substantial portion of the secret is sufficient to
subject the actor to liability.” Restatement (Third) of Unfair Competition § 40 cmt. c (Am. L.
Inst. 1995). “[T]raditional trade secret law” recognizes that “the user of another’s trade secret is
liable even if he uses it with modifications or improvements upon it effected by his own efforts,
so long as the substance of the process used by the actor is derived from the other’s secret.”
Mangren Rsch. & Dev. Corp. v. Nat’l Chem. Co., 87 F.3d 937, 944 (7th Cir. 1996) (quoting In re
Innovative Constr. Sys., Inc., 793 F.2d 875, 887 (7th Cir.1986)).4 This tradition has a solid
foundation: if a trade secret misappropriator could avoid liability by changing a few details in
their final product, “the protections that law provides would be hollow indeed.” Id.
But that does not tell the whole story. Several courts have concluded that a trade-secrets
plaintiff cannot prove the use of a combination trade secret unless that plaintiff “prove[s] use of
each and every element in combination.” Vital State Can., Ltd. v. DreamPak, LLC, 303 F. Supp.
2d 516, 529 (D.N.J. 2003). For instance, in GSI Technology, Inc. v. United Memories, Inc.,
California’s Northern District concluded that it would be “overbroad and incorrect” to impose
liability based on partial use of a combination trade secret, because doing so could create liability
for a firm that “misappropriate[ed]” a portion of a combination trade secret containing either its
own intellectual property or publicly available information. No. 5:13-cv-01081, 2016 WL
3035699, at *6 (N.D. Cal. May 26, 2016). And in American Airlines, Inc. v. KLM Royal Dutch
Airlines, Inc., the Eighth Circuit spoke to the requirement of showing acquisition of an entire
combination, holding that a plaintiff’s combination-trade-secret case could not survive summary
judgment because “American’s expert testified that the specific combination of all five elements
constituted a trade secret,” but “[i]t is undisputed that KLM never received all five elements.”
114 F.3d 108, 111–12 (8th Cir. 1997).
Jarrow highlights this latter line of authorities to argue that Caudill never showed that
Jarrow acquired every piece of information that could constitute a part of Caudill’s research-and-
development process. Jarrow also presents several differences between the firms’ manufacturing
processes, implying that it did not use the entirety of Trade Secret 1. Unfortunately for interested
4
Mangren did not concern a combination trade secret.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 16
readers and industry spies, we will decline to summarize those differences so as to protect the
parties’ secrets. Caudill disputes the differences between the firms’ products, but more
importantly explains that the evidence at trial demonstrated that Jarrow acquired and used
Caudill’s entire process, regardless of what portion of the process made it into Jarrow’s final
product.
We begin by considering—and rejecting—Jarrow’s argument that trade-secrets law
requires showing acquisition of each atom of a combination trade secret. First, we disagree that
such a requirement necessarily exists: Jarrow presents no in-circuit case, and no principle of
Kentucky law, that would support such a requirement for combination-trade-secrets plaintiffs.
Second, as the district court recognized, even if such a requirement existed, it would make a
good deal of sense to relax it in combination-trade-secrets case like this one, in which the
acquired trade secret comprised a party’s entire research process. That is because when a trade
secret consists of a mass of public information that has been collected and sorted, it will always
be possible to identify increasingly minute details of the combination that a plaintiff would need
to show were specifically misappropriated. See GlobeRanger Corp. v. Software AG USA, Inc.,
No. 3:11-cv-0403, 2015 WL 3648577, at *12–13 (N.D. Tex. June 11, 2015). Jarrow cannot
avoid liability in this fashion. The evidence at trial showed that Jarrow, through Ashurst,
received vast quantities of information concerning Caudill’s research-and-development process.
We affirm the district court’s denial of Jarrow’s post-trial motions on this ground.
Jarrow fares no better as to the purported requirement that a combination-trade-secrets
plaintiff show use of the entire combination. Trade-secrets law does not demand a mirror-image
between the misappropriated secrets and the eventual product derived from them. Restatement
(Third) of Unfair Competition § 40 cmt. c (Am. L. Inst. 1995); GlobeRanger Corp., 2015 WL
3648577, at *13; cf. Avery Dennison Corp. v. Four Pillars Enter. Co., 45 F. App’x 479, 487 (6th
Cir. 2002) (per curiam). We see no reason not to apply this general principle to combination
trade secrets: when the law grants protection over many interconnected pieces of information, an
even-higher threat exists of a misappropriating party changing one element of the combination to
evade liability. Holding otherwise would produce bizarre outcomes: a trade-secret thief could
misappropriate a research process, design a competing product in far less time than it would have
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 17
otherwise taken, and avoid liability because it did not debut the same product as its victim-
competitor. See 3M, 259 F.3d at 596. We similarly affirm the dismissal of Jarrow’s post-trial
motions on this ground.
C. The District Court Properly Calculated Damages
Jarrow next faults the district court for improperly awarding damages. We disagree.
Caudill claimed entitlement to just under $10 million in damages. This included a
request for $4,535,793 in research-and-development costs, about $2,000,000 of which was
incurred in the 2002–2011 period that Ashurst worked for Caudill. Caudill’s expert testified that
Caudill was entitled to unjust enrichment damages, estimating Jarrow’s profits from 2011-2019
on various Jarrow products. Caudill’s expert based his damage predictions on the jury finding
Jarrow liable on all six trade secrets.
The jury awarded Caudill $2,023,000 in actual losses and $404,605 in unjust enrichment.
The jury did not calculate these numbers randomly. Instead, for actual losses, the jury calculated
Caudill’s research-and-development costs spanning the approximately eight years and four
months for which Ashurst worked for Caudill. The unjust-enrichment amount represents
Jarrow’s profits relating to the four relevant products “from May 2011 through the end of 2017.”
The district court upheld this award against Jarrow’s motion for judgment as a matter of
law or motion for a new trial. The district court stressed that Caudill received only a portion of
the damages that it sought, even considering the jury’s verdict that Jarrow misappropriated four
Caudill trade secrets.
Jarrow makes three arguments on appeal. Jarrow claims that the damages award was
calculated improperly based on the damages expert’s consideration of all six asserted trade
secrets, even though Caudill recovered damages on only Trade Secret 1; Jarrow argues that the
$2,023,000 compensatory-damages award cannot stand because the trade secret was not
published or destroyed, and puts forward a blunderbuss of other reasons why compensatory
damages were improperly calculated; and Jarrow asserts that the unjust-enrichment award is
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 18
insufficiently tied to the damages that Caudill proved at trial. But first, we again must determine
whether Jarrow forfeited this argument, and what the applicable standard of review is.
Caudill asserts that Jarrow forfeited its damages arguments by failing to object to the
damages award at the close of trial. This is incorrect. A party can preserve a challenge to a
damages award by presenting the issue to the district court in a post-trial motion. Roush v. KFC
Nat’l Mgmt. Co., 10 F.3d 392, 397 (6th Cir. 1993). Because Jarrow’s motion for judgment as a
matter of law devoted nearly half of its pages to damages issues, it did not forfeit this argument.
Regarding the standard of review, the parties agree that Jarrow appeals the denial of its
Rule 50 motion. Because this is a diversity case in which Jarrow challenges the sufficiency of
the evidence, we therefore apply Kentucky’s standard for Rule 50 motions, which holds that
judgment as a matter of law “is only appropriate when ‘there is a complete absence of proof on a
material issue or if no disputed issues of fact exist upon which reasonable minds could differ.’”
Alph C. Kaufman, 540 S.W.3d at 817–18 (quoting Toler, 458 S.W.3d at 285); see also Bierman
v. Klapheke, 967 S.W.2d 16, 18–19 (Ky. 1998).
1. The Evidence Supports the Jury’s Compensatory-Damages Verdict
Jarrow first argues that Caudill did not introduce sufficient evidence attributing its
compensatory damages to Trade Secret 1. Jarrow makes this argument in two separate ways: by
arguing that the compensatory damages award was against the sufficiency of the evidence, and
by explaining that the compensatory damages cannot be tied specifically to Trade Secret 1.
Each trade secrets “case requires a flexible and imaginative approach to the problem of
damages.” Melvin F. Jager, 1 Trade Secrets Law § 7:20 (Oct. 2021) (quoting Univ. Computing
Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 538 (5th Cir. 1974)). This flexibility means that
“the plaintiff is required to prove the amount of such loss with only as much certainty as is
reasonable under the circumstances.” Restatement (Third) of Unfair Competition § 45 cmt. b
(Am. L. Inst. 1995). “Damages in trade secrets cases are difficult to calculate . . . . When the
misappropriated trade secret is used to field competing products, the best measure of damages is
the plaintiff’s lost profits or the defendant’s illicit gains.” Acuity Brands Lighting, Inc. v.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 19
Bickley, No. 5:13-cv-366, 2015 WL 12976104, at *2 n.2 (E.D. Ky. June 8, 2015) (quoting Avery
Dennison Corp., 45 F. App’x at 485).
Jarrow tosses out many objections to the jury’s award of compensatory damages. It
asserts that Chief Operating Officer Dan Caudill’s testimony concerned some research and
development for products unrelated to glucoraphanin. This, Jarrow reasons, implies that Ashurst
worked on some research and development that did not concern glucoraphanin, meaning that the
jury should not have awarded Caudill all of its research-and-development costs over Ashurst’s
nine-year tenure. Jarrow also faults Caudill’s expert for pulling research-and-development
figures from Caudill’s consolidated tax returns without recognizing that Caudill has numerous
subsidiaries. Jarrow additionally complains that Trade Secret 1 did not embody the full
$2,023,000 of research-and-development costs awarded. Finally, Jarrow notes that because
Caudill disclosed some of its research-and-development information through publicly filed
patent applications in 2008 and 2009, Jarrow would not have needed to recreate all of Caudill’s
work, making the full research-and-development award improper.
The Rule 50 standard dooms these arguments. The record provides evidence that would
permit a jury to infer that the 2002–11 research-and-development costs reflected the damages
that Trade Secret 1’s misappropriation inflicted on Caudill. For example, Dan Caudill testified
that Ashurst’s research-and-development efforts concerned glucoraphanin, and that the goal of
this research was to develop a commercially successful glucoraphanin powder. Dan Caudill
performed this research “primarily with Ashurst,” and the duo’s work “took off on a path that no
one else was working on.” Caudill’s damages expert, on cross-examination, specifically
confirmed that the company’s research-and-development expenses related to broccoli seeds.
As to the reliance on consolidated tax returns, courts have concluded that tax returns are
valid evidence in calculating trade-secrets damages. See Hirtle Callaghan Holdings v.
Thompson, No. 2:18-cv-2322, 2021 WL 1163739, at *5 (E.D. Pa. Mar. 26, 2021). Jarrow was
certainly welcome to argue to the jury that consolidated tax returns could not provide a basis on
which to award damages, but Caudill presented more than a “complete absence of proof” by
providing them.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 20
Jarrow’s argument about Caudill’s purported failure to link research-and-development
costs to Trade Secret 1 fares no better. Jarrow claims that because the jury found no
misappropriation of the tangible Trade Secrets 2 or 6, the jury could not have awarded the full
amount of research-and-development costs based on the intangible Trade Secret 1. Jarrow cites
no precedent for this proposition and cannot satisfy Kentucky’s stringent standard for sufficiency
challenges.
Finally, Jarrow’s argument about Caudill’s research and development existing in the
public domain also fails. First, as catalogued above, combination trade secrets can consist of
public information. Second, and more importantly, Jarrow fails to persuade us that this argument
satisfies (or even approaches) Kentucky’s sufficiency-of-the-evidence standard.
In sum, Jarrow’s sufficiency-of-the-evidence arguments on damages lose less on their
content and more on their procedural posture. As Caudill’s expert explained, Caudill provided
evidence that its research-and-development expenses related to broccoli seeds, “[a]nd if there’s
evidence that sways the jury the other way, then” the jury would be free to decide differently.
Jarrow indeed tried to “sway[] the jury the other way”: the damages issue was the first issue that
Jarrow pressed in closing, with Jarrow’s attorney highlighting the importance of the damages
argument by noting that he had not in thirty-one years of practice begun a closing argument by
discussing damages. One element of damages that Jarrow stressed was the “illogical claim” that
Caudill’s research-and-development costs all went towards the alleged trade secrets. The jury
rejected Jarrow’s argument and embraced Caudill’s, and we will not disturb its decision.
2. Jarrow’s Challenge to Caudill’s Expert’s Testimony in Light of the Jury
Verdict Also Fails
Jarrow separately argues that Caudill’s damages award fails as a matter of law because it
relies on expert testimony undermined by the jury’s verdict. At trial, Caudill’s expert assumed
as part of his analysis that Caudill would recover on all six alleged trade secrets, conceding that
there would be an “impact [on] the analysis” if the jury found no liability on Trade Secret 2. The
jury then found no misappropriation of Trade Secrets 2 or 6. Jarrow thus argues that the jury
could not have given Caudill the full recovery that it sought for Trade Secret 1. The parties
again provide no standard of review, but it appears that this is a legal issue that we review de
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 21
novo as to Jarrow’s Rule 50 motion. Hanover Am. Ins. Co., 974 F.3d at 779. To the extent that
Jarrow intends to challenge the district court’s denial of its Rule 59 motion, we apply abuse-of-
discretion review. Broad St. Energy Co., 806 F.3d at 405–06.
Jarrow supports its argument with two out-of-circuit cases in which courts found that an
expert’s reliance on trade secrets that were not misappropriated doomed a damages award:
Texas Advanced Optoelectronic Solutions, Inc. v. Renesas Electronics America, Inc., and O2
Micro International Ltd. v. Monolithic Power Systems, Inc. Neither of these cases dictates
Jarrow’s conclusion.
In Texas Advanced Optoelectronic Solutions, a jury found the defendant liable on
multiple grounds, but an appellate panel vacated some grounds for liability, leaving only one
remaining. 895 F.3d 1304, 1311–15 (Fed. Cir. 2018). Turning to the damages award, the court
concluded that because the plaintiff’s expert “did not distinguish among” the multiple grounds,
and because two of the three grounds had been vacated, the damages award needed to be vacated
as well. Id. at 1317. This was because the expert “did not explain which of the trade secrets
contributed to what amount of profit to be disgorged; he assigned all profits to the
misappropriation of all trade secrets.” Id.
Texas Advanced Optoelectronic’s reasoning does not call for reversal here. There, the
jury awarded the full amount of requested trade-secrets damages. Id. at 1328. First, in Texas
Advanced Optoelectronic, the appellate court reversed the district court in part, concluding that
two of the three secrets did not qualify for protection. Id. at 1317. We, by contrast, affirm the
district court’s decision as to Trade Secret 1’s protectability, and thus have no reason to go down
Texas Advanced Optoelectronic’s path. More importantly, the jury here awarded far less than
the total amount requested. Texas Advanced Optoelectronic’s fears of a court having “no basis
to conclude” that the relevant ground for liability “supports the entire award” thus are unavailing,
because the jury did not award the “entirety” of Caudill’s damages. 895 F.3d at 1317. Indeed,
the jury appeared to heed Caudill’s expert’s claim that a finding of no misappropriation of
Caudill’s other trade secrets would affect the damages calculation by awarding reduced damages.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 22
In O2, the plaintiff’s damages expert testified that the theft of eleven trade secrets
unjustly enriched the defendant by $16 million. O2 Micro Int’l Ltd. v. Monolithic Power Sys.,
Inc., 399 F. Supp. 2d 1064, 1076 (N.D. Cal. 2005). The jury found that the misappropriation of
only one trade secret resulted in the defendant being unjustly enriched and awarded $12 million
in damages. Id. The district court recognized that damages must be calculated flexibly but
struck the expert’s testimony because it no longer provided a “reasonable basis” to support a jury
award. Id. Because the jury had been “left without sufficient evidence, or a reasonable basis, to
determine the unjust enrichment damages . . . the jury’s award of unjust enrichment damages was
based on speculation and guesswork, not on evidence.” Id. at 1077. The court granted the
defendant’s motion for judgment as a matter of law. Id.
O2 is not as persuasive as Jarrow thinks. The plaintiff’s damages expert there took an
all-or-nothing approach: his model turned on misappropriation of all the trade secrets without
offering the jury a way to attribute value to each individual trade secret. Id. at 1076. But
Caudill’s expert gave the jury options. As explained above, although Caudill’s expert’s damages
model assumed misappropriation of all six trade secrets, he testified that all of Caudill’s research
and development expenses went to broccoli seed research. That allowed the jury to calculate the
value of Trade Secret 1 even while finding no misappropriation of Trade Secrets 2 and 6. Jarrow
has presented no evidence convincing us that Kentucky’s Supreme Court would take a more
narrow view of the evidence that can support a trade-secrets damages award, and so we will
adhere to the broader view that a court may flexibly award trade-secrets damages. See Melvin F.
Jager, 1 Trade Secrets Law § 7:20 (Oct. 2021); Acuity Brands Lighting, Inc., 2015 WL
12976104, at *2 n.2.
Jarrow also finds no refuge in Kentucky law. In Insight Kentucky Partners, a trade-
secret case that also included a tortious-interference claim, plaintiff’s damages expert included
money spent at different vendors than the one involved in the litigation. 514 S.W.3d at 553. The
Kentucky Court of Appeals ruled that, because the testimony provided no “causal link” between
those expenses and the damages relevant to this case, the damages award had to be vacated. Id.
Otherwise, the plaintiff could have collected “damages that had no relationship to the claims
asserted by” the plaintiff. Id. But the portion of Insight concerning damages calculations does
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 23
not refer to the trade-secrets claim, because the court ruled that the underlying information was
not a trade secret. Id. at 554–55. As a result, we cannot conclude that Kentucky’s courts would
import Insight’s rigid reasoning into the malleable context of trade secrets. The district court
properly rejected Jarrow’s argument on this point.
3. The Award of Research-and-Development Costs Was Not Legally Defective
Jarrow next argues that Caudill cannot collect research-and-developments costs from the
time that Ashurst worked at Caudill because those costs may be awarded only when the
underlying secret is destroyed (which didn’t happen here). This is also a legal issue that we
review de novo as to Jarrow’s Rule 50 challenge and for abuse of discretion as to its Rule 59
motion. See Hanover Am. Ins. Co., 974 F.3d at 779 (Rule 50); Broad St. Energy Co., 806 F.3d at
405–06 (Rule 59).
Jarrow is right that actual loss to the plaintiff is one way to measure damages. “[T]his is
an appropriate measure of damages only when the defendant has in some way destroyed the
value of the secret.” Univ. Computing, 504 F.2d at 535. “Where the plaintiff retains the use of
the secret, as here, and where there has been no effective disclosure of the secret through
publication, the total value of the secret to the plaintiff is an inappropriate measure.” Id.
(emphasis added).
But actual loss to the plaintiff is not the only method of calculating damages in trade
secret theft cases. Courts, including our own, utilize several other measures of monetary relief.
See Mid-Michigan Computer Sys., Inc. v. Marc Glassman, Inc., 416 F.3d 505, 510 (6th Cir.
2013); Avery Dennison, 45 F. App’x at 485; Wellogix v. Accenture, L.L.P., 716 F.3d 867, 879
(5th Cir. 2013); Univ. Computing, 504 F.2d at 535–38; see also Restatement (Third) of Unfair
Competition § 45 cmt. d (listing “four methods of measuring monetary relief in trade secret
cases”).
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 24
One of those options is the “measure of the value of the secret to the defendant.” Univ.
Computing, 504 F.2d at 536.5 “This is usually the accepted approach where the secret has not
been destroyed and where the plaintiff is unable to provide specific injury.” Id. Thus, the
appropriate measure of damages “is not what the plaintiff lost, but rather the benefits, profits, or
advantages gained by the defendant in the use of the trade secret.” Id. (cleaned up). We adopted
this measure of damages in Avery Dennison, adding that “[i]f the benefit to the defendant in
terms of direct profits is not ascertainable, damages may be awarded based on the value to the
defendant of the secret at the time of misappropriation, the value derived from savings because
of increased productivity, or the value derived from savings in research costs.” Avery Dennison,
45 F. App’x at 486 (emphasis added).6
Courts, including this one, have emphasized that “every case requires a flexible and
imaginative approach to the problem of damages,” and is ‘controlled by its own peculiar facts
and circumstances.’” Univ. Computing, 504 F.2d at 538 (quoting Enter. Mfg. Co. v. Shakespeare
Co., 141 F.2d 916, 920 (6th Cir. 1944)). With this caveat: “Pecuniary loss in any event can be
determined only by reasonable approximation. The actual value of what has been appropriated is
always the ultimate in appraisement.” Enter. Mfg., 141 F.2d at 920.
Take University Computing, which mirrors this case in some ways. There the defendants
misappropriated a retail inventory control system owned by the plaintiff and marketed it to
competitors. The Fifth Circuit explained:
In the type of case which we now consider, when the parties were potentially in
direct competition and the course of conduct of the defendant extended over a
period of time and included a number of different uses of the plaintiff’s trade
secret, and where the process of developing a computer system was very difficult
5
University Computing noted that this second approach to measuring the value of the trade secret to the
defendant has “many variations,” including a “reasonable royalty” standard and its subsidiary “standard of
comparison method.” 504 F.2d at 538.
6
The defendant-misappropriator in Avery Dennison “did not use the stolen trade secrets to bring directly
competing products to market. Rather it used the [plaintiff-manufacturer of pressure-sensitive adhesive labels’]
secrets to create a panoply of new products, save significantly on time and resources devoted to research, and
streamline their manufacturing processes.” 45 F. Appx at 486; see also id. at 482. The plaintiff’s damages expert
presented three theories of damages, all aimed at the ill-gotten benefits to the defendant: reasonable royalty, the
defendant’s profits, and avoided costs. Id. at 486. We held the district court’s decision to allow the expert’s
testimony was within its discretion because the “theories were sufficiently factually supported.” Id. at 487.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 25
and required substantial technical and theoretical advances, we believe a broader
measure of damages is needed.
Univ. Computing, 504 F.2d at 538. That “broader measure” included factors in addition to
development costs. Id. Based on this flexible and comprehensive approach, the Fifth Circuit
affirmed the district court’s instructions to the jury that it could consider the plaintiff’s
development costs and the defendant’s sales, among other factors. Id. at 539–40.
Here the jury was instructed that if it found that Jarrow misappropriated Trade Secret 1,
damages could “include both the actual loss caused by the misappropriation and unjust
enrichment caused by misappropriation that is not taken into account in computing actual loss.”
The monetary value for unjust enrichment included “the profits that Jarrow Formulas derived
from the sales of products utilizing such Caudill trade secret or secrets and the value gained or
money saved by Jarrow Formulas by not having to expend resources on research and
development.” The jury was admonished not to double count any damages, and to limit the
recovery period to “the time it would have taken Jarrow Formulas to obtain the information by
proper means.”
The jury instructions in this case were not only in-sync with the “benefit-to-defendant”
method of damage calculation laid out in Mid-Michigan Computer and Avery Dennison but were
also fine-tuned to the unique facts of this case, per University Computing and Enterprise
Manufacturing’s instruction. And the jury obviously got the message: it did not award Caudill
all of its requested research-and-development costs. As the district court held in its ruling on
Jarrow’s motion for judgment as a matter of law, “[t]he jury’s verdicts . . . indicate[d] that it
found Caudill Seed’s evidence established that Jarrow Formulas’ misappropriation of Caudill
Seed’s research and development ‘seed to shelf’ only had compensable value insofar as it
enabled Jarrow Formulas to become a broccoli seed extract manufacturer and developer of a
successful activated formula broccoli seed product in four months.” This meant that Caudill
“was thus entitled to a portion of the damages claimed which the jury determined from the
evidence represented the value gained or money saved by Jarrow Formulas by not having to
expend resources on research and development and the profits Jarrow Formulas derived from
sales of products achieved through that jump start afforded to Jarrow Formulas.”
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 26
In sum: the jury was properly instructed on the appropriate legal theory of compensatory
damages.
4. The Unjust-Enrichment Award Has a Proper Basis
Jarrow next argues that the award of unjust-enrichment damages rested upon an improper
basis. We disagree.
In trade-secrets cases, “[d]amages may include both the actual loss caused by
misappropriation and the unjust enrichment caused by misappropriation that is not taken into
account in computing actual loss.” Ky. Rev. Stat. § 365.884(1). Some courts in trade-secrets
cases permit plaintiffs to pursue both compensatory and restitutionary damages, “provided that
there is no double recovery.” Restatement (Third) of Unfair Competition § 45 cmt. c (Am. L.
Inst. 1995). The jury awarded Caudill $404,605 in unjust-enrichment damages.7 This amount
apparently came from Caudill’s damages expert’s calculation of the net profits on four Jarrow
products that contained either glucoraphanin or activated glucoraphanin. The district court
concluded that a jury faced with Caudill’s evidence could conclude that Jarrow gained a
substantial competitive advantage from its misappropriation and could award damages
accordingly.
On appeal, Jarrow raises a series of arguments challenging the sufficiency of the evidence
supporting the unjust-enrichment award, all stemming from the proposition that a jury must
allocate recovery for unjust-enrichment damages “based on the role plaintiff’s trade secret played
in the commercial success of defendant[’s] product.” Softel, Inc. v. Dragon Med. & Sci.
Commc’s, Ltd., 891 F. Supp. 935, 943 (S.D.N.Y. 1995). Because we once again evaluate a
sufficiency-of-the-evidence claim in a diversity case, we apply Kentucky’s standard, which asks
us to determine whether a “complete absence of proof” exists as to the damages issue. Here,
Caudill presented sufficient proof.
First, Jarrow argues that Caudill presented “no evidence sufficiently tying all of the
products at issue to Trade Secret 1.” Three of the four products used only glucoraphanin, a
7
The verdict form awards $404,605 in unjust-enrichment damages. The district court’s opinion denying
Jarrow’s post-trial motions incorrectly stated that the jury awarded $404,603 in unjust-enrichment damages.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 27
commercially available product that Jarrow could have procured from other suppliers (the fourth
product used myrosinase-activated broccoli material). In response, Caudill explains, and we
agree, that although Jarrow could have purchased glucoraphanin elsewhere, Caudill alleged that
Jarrow used Caudill’s proprietary process to produce glucoraphanin in-house. See Imperial
Chem. Indus. Ltd. v. Nat’l Distillers & Chem. Corp., 342 F.2d 737, 743 (2d Cir. 1965). Jarrow
tries to make hay of the expert’s reliance on products containing glucoraphanin, but the jury was
instructed that Trade Secret 1 includes research and development related to glucoraphanin.
Second, Jarrow again asserts that Caudill’s damages expert assumed Caudill would
successfully prove misappropriation of all six trade secrets, which it failed to do. As discussed
supra, we see no mismatch between the expert’s testimony and the ultimate damages award, and
so we decline to adopt Jarrow’s argument.
Third, Jarrow claims that even if the unjust-enrichment award can partially stand, Caudill
did not present evidence showing that Jarrow should have to disgorge “all profits over a six-year
period.” This is because Jarrow already manufactured broccoli-based products before Ashurst
joined the company. But Caudill demonstrates that the jury instructions allowed the jury to
award damages for an additional period if the jury believed that Jarrow “retained an advantage
over good faith competitors because of the misappropriation.”
Because Jarrow cannot show a “complete absence of material proof” on these issues, we
reject Jarrow’s argument. The trial featured much discussion of glucoraphanin’s value. See,
e.g., R. 438 (Trial Tr. 2 at 11:9–21) (Page ID #19906); R. 452 (Trial Tr. 3-B at 10:4–17) (Page
ID #20671); R. 458 (Trial Tr. 13 at 40:25–42:6) (Page ID #21296–98); R. 470 (Trial Tr. 15-B at
8:2–9) (Page ID #21718). Caudill explained to the jury that Jarrow had profited for several years
because of its misappropriation of Caudill’s trade secrets, and that the jury could award unjust-
enrichment damages on that basis. Id. at 58:22–60:8. We affirm the district court’s denial of
Jarrow’s post-trial motion as to the unjust-enrichment damages.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 28
5. The Award of Exemplary Damages Need Not Be Reconsidered
At trial, the jury found that Jarrow willfully and maliciously misappropriated Trade
Secret 1. This finding was proper. And based on that finding, the court awarded $1,000,000 in
exemplary damages and $3,254,303.50 in attorney fees. Those awards were also proper.
a. Sufficient Evidence Supports the Jury’s Finding of Willful and
Malicious Misappropriation
The KUTSA authorizes exemplary damages and reasonable attorney fees in a trade-
secrets case “[i]f willful and malicious misappropriation exists.” Ky. Rev. Stat. §§ 365.884(2),
365.886. The parties agreed to jury instructions explaining that willful and malicious
misappropriation is “behavior motivated by spite or ill will and a disregard for the rights of
another with knowledge of probable injury.” The instructions explained that the relevant
motivation must come from employees and agents of Jarrow Formulas “other than Kean
Ashurst.” After Caudill received $1,000,000 in exemplary damages and $3,254,303.50 in
attorney fees, Jarrow moved for judgment as a matter of law, contending that Caudill should
have presented proof of actual malice, The district court denied the motion, applying what
Jarrow calls on appeal a “significantly lower standard” than that provided in the jury instructions.
Jarrow takes issue with the district court’s reference to a case in which “a breach of basic
commercial ethics and fraud” supported an award of exemplary damages. Jarrow thus appears to
argue that sufficient evidence does not support the correct, higher standard for exemplary
damages presented in the jury instructions.
Before proceeding to our analysis, we must for the final time determine the proper
standard of review. Because Jarrow argues that the evidence is insufficient to support the
verdict, and because we are reviewing a Rule 50 motion in a diversity case, we again apply
Kentucky’s standard, granting a directed verdict only if “there is a complete absence of proof on
a material issue or if no disputed issues of fact exist upon which reasonable minds could differ.”
Alph C. Kaufman, 540 S.W.3d at 817–18 (quoting Toler, 458 S.W.3d at 285).
To determine whether sufficient evidence supports the jury’s finding of “willful and
malicious” misappropriation, we must define the phrase “willful and malicious.” Unfortunately,
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 29
no Kentucky case defines willful and malicious conduct in the context of trade-secret
misappropriation. As a result, we must try to predict how Kentucky’s highest court would
distinguish ordinary trade-secrets cases from those in which a plaintiff can receive exemplary
damages. Brown Jug, Inc. v. Cincinnati Ins. Co., 27 F.4th 398, 402 (6th Cir. 2022).
Kentucky’s courts have looked to Black’s Law Dictionary when defining “willful and
malicious injury.” Huddleston ex rel. Lynch v. Hughes, 843 S.W.2d 901, 906 (Ky. Ct. App.
1992). That definition provides:
For such to exist there must be an intent to commit a wrong either through actual
malice or from which malice will be implied. Such an injury does not necessarily
involve hatred or ill will, as a state of mind, but arises from intentional wrong
committed without just cause or excuse. . . . It may involve merely a willful
disregard of what one knows to be his duty, an act which is against good morals
and wrongful in and of itself, and which necessarily causes injury and is done
intentionally.
Id. (quoting Willful and Malicious Injury, Black’s Law Dictionary (6th ed. 1990)) (emphasis
removed). And in Collins v. Rocky Knob Associates, Inc., the Kentucky Court of Appeals added
another layer, quoting the Supreme Court of Kentucky as defining “willful” to mean “conduct
which is still, at essence, negligent, rather than actually intended to do harm, but which is so far
from a proper state of mind that it is treated in many respects as if it were so intended.”
911 S.W.2d 608, 611 (Ky. Ct. App. 1995) (quoting Kirschner v. Louisville Gas & Elec. Co.,
743 S.W.2d 840, 842–43 (Ky. 1988)).
These definitions are an awkward fit for trade-secret law. Intentional misconduct
satisfies Kentucky’s general definition of “willful and malicious injury.” But to find liability in a
KUTSA case, a plaintiff must already establish intentional misappropriation. Ky. Rev. Stat.
§ 365.880(2). A plaintiff could thus argue that the court may award exemplary damages in every
KUTSA case: every businessperson presumably “knows [it] to be his duty” that he should not
steal a competitor’s trade secrets. Huddleston, 843 S.W.2d at 906 (quoting Willful and Malicious
Injury, Black’s Law Dictionary (6th ed. 1990)). That cannot be the case, however, because the
statute distinguishes between damages for “misappropriation” and damages for “willful and
malicious misappropriation.” Ky. Rev. Stat. § 365.884. And applying Kentucky law, “[o]ur
goal in construing each statute is to give effect to its plain meaning and unambiguous intent
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 30
without rendering any part meaningless.” A.H. v. Louisville Metro Gov’t, 612 S.W.3d 902, 908
(Ky. 2020).
We are caught somewhat between two principles: Kentucky’s definition of malice,
which would include all trade-secret cases, and Kentucky’s general rule that each provision of a
statute should be read to have independent effect. The parties’ agreed-upon jury instructions,
requiring, “behavior motivated by spite or ill will and a disregard for the rights of another with
knowledge of probable injury,” appears to us to navigate that divide. It distinguishes itself from
the language of Black’s Law Dictionary, under which an injury “does not necessarily involve
hatred or ill will, as a state of mind,” allowing for clearer application to trade-secrets cases.
Willful and Malicious Injury, Black’s Law Dictionary (6th ed. 1990). But it remains within the
spirit of Kentucky’s requirements for finding willful and malicious injury.
Measured against this standard, Caudill presented sufficient evidence at trial to allow a
jury to find willful and malicious misappropriation. A few notable anecdotes stand out:
• While Ashurst was working for Caudill, Jarrow requested a contact email for
Ashurst outside of his employee account, and immediately wrote to it asking
for his collection of broccoli-related research;
• Jarrow, after learning that Ashurst had a non-disclosure agreement with
Caudill, “offered to pay [Kean Ashurst] to deliver on [Caudill’s] new formula
for Jarrow Formulas” (quoting trial testimony) (alterations in original);
• Jarrow accepted Ashurst’s advice to “lay on some BS” when discussing
broccoli products with Caudill;
• Jarrow never informed Ashurst that he should stop working on broccoli-seed-
extract products.
Taken together, these pieces of evidence show ill will towards Caudill, and a disregard of
Caudill’s rights. They therefore give sufficient evidence to support the jury’s finding of willful
and malicious misappropriation.
b. The Exemplary Damages and Attorney Fees Were Appropriate
Finally, in a footnote, Jarrow asserts that if the court orders a new trial on compensatory
damages but affirms the finding of willful and malicious conduct, we should still vacate the
exemplary damages, because they are tied to the compensatory damages, see Tex. Advanced
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 31
Optoelectronic, 895 F.3d at 1318, as well as the attorneys’ fees award, which are based on
degree of success. Because we do not disturb the compensatory damages award, the exemplary
damages and attorneys’ fees award do not need to be reassessed, and Jarrow does not assert any
other error in those awards.
III. CONCLUSION
The judgment of the district court is AFFIRMED in full.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 32
____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
____________________________________________________
KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.
I join in the bulk of the per curiam opinion. I write separately because I would hold that
the jury improperly awarded Caudill for its research-and-development costs because the relevant
trade secret was not destroyed. As a result, I would reverse the district court’s award of
compensatory damages and remand for recalculation.
The majority correctly states that courts flexibly consider damages in trade-secrets
disputes. But that flexibility has one relevant limit: a plaintiff may only recover “the value of
the trade secret if it has been destroyed through a public disclosure by the defendant.”
Restatement (Third) of Unfair Competition § 45, cmt. d (Am. L. Inst. 1995).
In the often-cited case of University Computing Co. v. Lykes-Youngstown Corp., the Fifth
Circuit justified this rule by noting that “in most cases the defendant has utilized the secret to his
advantage with no obvious effect on the plaintiff save for the relative differences in their
subsequent competitive positions.” 504 F.2d 518, 535 (5th Cir. 1974). If the secret is not
destroyed, “the plaintiff retains the use of the secret” and therefore “the total value of the secret
to the plaintiff is an inappropriate measure.” Id.; see Softel, Inc. v. Dragon Med. & Sci.
Commc’ns, Inc., 118 F.3d 955, 969 (2d Cir. 1997). Thus, if a trade secret is not destroyed or
revealed, the trade secret’s total value is not an appropriate basis for calculating damages. If the
plaintiff keeps the goose, the defendant is on the hook for only the value of the stolen golden
eggs.
The Restatement presents an illustrative example:
A and B are competing manufacturers of poultry vaccines. A spends $400,000 to
develop a secret process for the production of a new vaccine. B appropriates the
trade secret and begins to produce the vaccine in competition with A. B earns
$50,000 in net profits on sales of the vaccine. In the absence of evidence
indicating loss to A in excess of $50,000, A may recover B’s $50,000 profit in
addition to the award of an injunction prohibiting further use of the process by B.
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 33
Restatement (Third) of Unfair Competition § 45, illustration 2 (Am. L. Inst. 1995). That
illustration strongly resembles this case: A (Caudill) spends a large amount of money
developing a production process, B (Jarrow) misappropriates it and earns profits from using the
same process, and A can recover the profits B made, but not the money that A spent on research
and development. Adhering to this rule makes sense because, as University Computing
explained, A (Caudill) retains the ability to profit from its trade secret.
The district court dismissed this argument, concluding that the jury did not award Caudill
all its requested research-and-development damages. R. 530 (Mem. Op. re: Mot. for J. as a
Matter of Law at 48–49) (Page ID #25945–46). But the parties agree (and I do, too,) that the
jury did award Caudill all the research-and-development costs that it incurred while it employed
Ashurst.1 This calls the Restatement’s hypothetical to mind. We should therefore apply the
prohibition on the recovery of research-and-development damages to this award.
Against this conclusion, Caudill argues that Jarrow did destroy or diminish Caudill’s
trade secret by misappropriating and using it, or at least that the jury may have so found.
Appellee’s Br. at 36. But this cannot be correct. If a trade secret is “destroyed” whenever a
company misappropriates and uses it without revealing its contents or destroying the physical
embodiment of the secret, then the secret would be destroyed in every trade-secret case. It would
be pointless to have a rule limiting research-and-development recovery to cases involving a trade
secret’s destruction. Caudill cannot square the jury’s award here with foundational trade-secrets
law.
Further, the majority implies that the $2,023,000 award of compensatory damages
represents the money Jarrow saved by not expending its own resources on research and
development. If this were indeed how the jury had conceived of these damages, they should
properly have been included in its “unjust enrichment” award, rather than its award for Caudill’s
1
The amount of actual losses awarded almost exactly matches Caudill’s research-and-development
expenses over that time. R. 492-1 (Mem. in Supp. of Renewed Mot. for J. as a Matter of Law at 25 & n.11) (Page
ID #21929). The parties agree that the award reflects Caudill’s research-and-development costs over that roughly
eight-year period. Id.; Appellee Br. at 41. As a result, although we may not know with literal certainty that the jury
based its damages award on those research-and-development costs, I believe that it is sufficiently obvious that we
may address the legal error in the jury’s award. See Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1051 (8th Cir. 2005).
No. 21-5345 Caudill Seed & Warehouse Co. v. Jarrow Formulas, Inc. Page 34
“actual losses.” R. 435 (Verdict at 3) (Page ID #19783). That the jury awarded the exact
amount of Caudill’s research-and-development expenses while Ashurst worked there as
Caudill’s “actual losses” is an indication that the jury improperly awarded Caudill the value of its
trade secret as compensation, even though the trade secret was not destroyed. Moreover, the
award here transgresses Kentucky’s law of damages. In Kentucky, as in many other states,
“actual or compensatory damages seek to make the plaintiff whole by awarding an amount of
money designed to equal the wrong done.” Ronald W. Eades, Kentucky Law of Damages § 2:1
(2022) (quoting Mo-Jack Distrib., LLC v. Tamarak Snacks, LLC, 476 S.W.3d 900, 910 (Ky. Ct.
App. 2015)). “The object is not to place the plaintiff in a better position than he would have
been had the wrong not been done.” Ky. Cent. Ins. Co. v. Schneider, 15 S.W.3d 373, 374–75
(Ky. 2000) (citing Robert E. Anderson et al., 22 Am. Jur. 2d Damages § 27 (2022)); see also
Reed v. Mercer Cnty. Fiscal Ct., 295 S.W. 995, 996 (Ky. 1927) (“Of course the injured party
may not make a profit out of the injury”). A court may not issue an award that “result[s] in a
windfall” for one party “and put[s] it in a position better than before” the harm occurred. Level 3
Commc’ns, LLC v. TNT Constr., Inc., 220 F. Supp. 3d 812, 823 (W.D. Ky. 2016).
In sum, the compensatory-damages award permits Caudill to collect millions of dollars
spent developing its trade secret while retaining the ability to profit indefinitely off that same
trade secret. Because the jury’s award runs afoul of applicable legal principles, I would vacate
the compensatory-damages award and respectfully dissent from part II.C.3 of the per curiam
opinion.2 I concur in the per curiam except as noted.
2
I additionally dissent from Part II.C.5.b. The Kentucky Uniform Trade Secrets Act caps exemplary
damages at twice the compensatory award. Ky. Rev. Stat. § 365.884(2). Because I would send the compensatory
award back to the district court for recalculation, the exemplary award could require adjustment as well. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483138/ | 11/10/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0212
No. DA 22-0212
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LOUIS TED CAYE,
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 19, 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 10 2022 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483126/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0453n.06
Case No. 21-4211
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 09, 2022
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
JUMAL A. MCQUEEN, ) OHIO
Defendant-Appellant. )
) OPINION
)
Before: SILER, NALBANDIAN, and READLER, Circuit Judges.
SILER, Circuit Judge. Jumal McQueen appeals his within-guidelines sentence for
possessing a firearm as a convicted felon under 18 U.S.C. § 922(g)(1). He pled guilty to the firearm
offense, but he argues that the district court erred by adding a four-point sentence enhancement
under USSG § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony offense,
i.e., drug possession with the intent to distribute. McQueen claims the government failed to show
by a preponderance of the evidence that he possessed drugs with the intent to distribute them and
that there was a sufficient nexus between his felon-in-possession charge and drug-distribution
offense. We affirm.
I
During a traffic stop, McQueen evaded police officers, and a car chase ensued. McQueen
crashed and fled on foot. Police caught up to McQueen and arrested him. The officers found
Tramadol pills and cash on his person; and they found a loaded gun, a baggie of suspected
Case No. 21-4211, United States v. McQueen
marijuana, two baggies of cocaine, and more cash in his car. The cocaine baggies weighed about
1.31 and 1.25 grams each, and the cash totaled $3,428. While incarcerated, the jail recorded
McQueen saying over the phone that he had “the gun and a little bit of a like, like, a gram of work”
on him when arrested. The government did not charge McQueen for possessing the drugs. But it
charged him with violating 18 U.S.C § 922(g)(1) for possessing a firearm as a convicted felon.
McQueen pled guilty.
During sentencing, the probation office recommended a four-point enhancement under
§ 2K2.1(b)(6)(B) because McQueen “used or possessed . . . [a] firearm . . . in connection with
another felony offense.” McQueen objected to the total-offense level on the basis that the
government did not sufficiently prove that he committed another felony. McQueen did not,
however, object to the truthfulness of the government’s sentencing allegations or present evidence
calling them into question. The district court responded to McQueen’s objection saying, “I didn’t
know he was still maintaining [his objection] but of course that 4 point enhancement applies
because it clearly–from the facts in this case, it does apply.” The district court calculated a
guidelines range of forty-one to fifty-one months of imprisonment, and it sentenced McQueen to
forty-four months imprisonment and three years of supervised release.
II
The § 2K2.1(b)(6)(B) enhancement applies when the government shows by a
preponderance of the evidence that a defendant used or possessed a firearm in connection with
another felony offense. United States v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019). The
enhancement applies even if the government does not charge a defendant for the other felony
offense. Id. (citing § 2K2.1(b)(6)(B), cmt. 14(C)). Here, the predicate felony offense that triggered
the enhancement was McQueen’s possession of drugs with the intent to distribute.
-2-
Case No. 21-4211, United States v. McQueen
McQueen’s challenge is twofold: the government did not prove by a preponderance of the
evidence that (1) he intended to distribute drugs, and (2) there was a sufficient nexus between his
felon-in-possession charge and drug-distribution offense. As a result, he argues, the district court
misapplied the enhancement and miscalculated his guideline range. Thus, he asks us to review the
procedural reasonableness of his sentence, see Gall v. United States, 552 U.S. 38, 51 (2007)
(explaining that procedural sentencing errors include improperly calculating the guidelines range
or assigning a sentence on clearly erroneous findings), which we review for an abuse of discretion.
Id. In determining whether the district court abused its discretion, we review for clear error
McQueen’s challenge to the district court’s implicit factual finding that he intended to distribute
drugs. See United States v. Frazier, 426 F. App’x 401, 404 (6th Cir. 2011) (reviewing a district
court’s factual finding of possession with intent to distribute for clear error). And we review with
due deference McQueen’s challenge to the district court’s implicit determination that there was a
sufficient nexus between his felon-in-possession charge and drug-distribution offense. See
Shanklin, 924 F.3d at 919 (reviewing a district court’s nexus determination with due deference).
Under both standards, because the undisputed record adequately supports the district court’s
judgment, McQueen is not entitled to relief.
A
McQueen argues the district court committed clear error in finding the government proved
by a preponderance of the evidence that he intended to distribute drugs. A district court commits
clear error when, based on the evidence, a reviewing court is left with the “definite and firm
conviction” that the district court made a mistake. United States v. Seymour, 739 F.3d 923, 928
(6th Cir. 2014). Here, McQueen cannot show clear error because the only evidence at sentencing
supports the district court’s finding.
-3-
Case No. 21-4211, United States v. McQueen
The government submitted evidence showing that McQueen’s car held individually
wrapped drugs and large amounts of cash. These are factors from which a district court may infer
intent. United States v. Montgomery, 491 F. App’x 683, 689 (6th Cir. 2012). Moreover, the
government submitted evidence showing that McQueen was unemployed and talked about dealing
drugs. In contrast, McQueen submitted no evidence controverting these facts. For instance,
McQueen did not challenge the portions of the presentence report (“PSR”) showing that: his car
held “a small baggie of suspected marijuana” and “two baggies of suspected crack cocaine”; police
seized $3,428.00 in cash from his car and person even though he was unemployed; or he admitted
during a recorded phone call in jail that he had about “a gram of work” on him when the police
arrested him. The Federal Rules permit sentencing courts to rely on undisputed parts of a PSR.
Fed. R. Crim. P. 32(i)(3)(A); see also United States v. Fuller-Ragland, 931 F.3d 456, 465 (6th Cir.
2019). And McQueen did not challenge the lab report showing that the two small baggies of
suspected crack cocaine held cocaine.
The preponderance-of-the-evidence standard asks whether a disputed fact is supported by
“the greater weight of the evidence.” Turpin v. Merrell Dow Pharms., Inc., 959 F.2d 1349, 1357
n.2 (6th Cir. 1992). Here, the PSR and lab report represent not simply the greater weight of the
evidence—they represent the only evidence. The district court did not rely on clearly erroneous
facts and thus did not abuse its discretion on this ground.
Despite this record, McQueen argues that the government failed to meet its burden for two
reasons. First, he argues that the government failed to show intent because it did not charge him
with any drug-related offenses. Although McQueen’s premise that the government did not charge
him with any drug-related offense is correct, his conclusion does not follow. For starters,
§ 2K2.1(b)(6)’s text does not require the government to charge the other felony:
-4-
Case No. 21-4211, United States v. McQueen
If the defendant–
***
used or possessed any firearm or ammunition in connection with another felony
offense; or possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be used or possessed in connection with
another felony offense, increase by 4 levels.
USSG § 2K2.1(b)(6)(B) (emphasis omitted). Moreover, as McQueen concedes in his brief,
§ 2K2.1(b)(6)’s comment 14(C) and our precedent provide that the enhancement applies even if
the other felony offense is uncharged. His argument thus fails.
Second, McQueen argues that United States v. Mukes, 980 F.3d 526 (6th Cir. 2020),
compels the result he seeks. But this argument fails because Mukes is easily distinguishable.
There, the district court applied the enhancement based solely on an indictment. Id. at 531–34.
We reasoned that due process required more than relying on an indictment’s unproven allegations.
Id. Moreover, the conduct the government claimed formed the basis of the offense (firing a firearm
into the air) was not a felony under state law. Id. at 534. We held that the district court abused its
discretion by applying § 2K2.1(b)(6)(B) because the government failed to prove a predicate felony
offense. Id. at 536. Here, in contrast, the district court did not rely on an indictment as the basis
of a predicate felony. It relied on uncontroverted evidence submitted at sentencing. McQueen
even admits the government could charge him with a felony drug offense. His reliance on Mukes
is thus misplaced.
Because McQueen cannot show clear error on this record, the district court’s implicit
finding that McQueen intended to distribute drugs was not clearly erroneous.
-5-
Case No. 21-4211, United States v. McQueen
B
McQueen also argues that the enhancement does not apply because the government failed
to establish a sufficient nexus between his felon-in-possession charge and drug-distribution
offense. In other words, he contends the government failed to show a close enough proximity
between the gun and drugs. Because this is a fact-specific inquiry, we give due deference to the
district court’s determination. Shanklin, 924 F.3d at 919. Although we have not set clear
parameters around due deference, at the very least it means that if the undisputed facts support the
district court’s determination, we will defer to it. See United States v. Taylor, 648 F.3d 417, 432
(6th Cir. 2011) (explaining that “undisputed facts” supported a sentencing enhancement under
§ 2k2.1(b)(6)). Here, because the undisputed evidence supports its determination, we defer to the
district court’s implicit conclusion that a sufficient nexus existed between McQueen’s felon-in-
possession charge and drug-distribution offense.
For drug-trafficking offenses to trigger § 2K2.1(b)(6)(B)’s enhancement, the guidelines
require that the firearm be found in “close proximity to drugs, drug manufacturing materials, or
drug paraphernalia.” Shanklin, 924 F.3d at 920 (quoting the language of § 2K2.1(b)(6)(B), cmt.
14(B)). Here, the firearm, drugs, and cash were found in close proximity to each other. For
instance, the unchallenged portions of the PSR and the lab report show that McQueen’s car held a
loaded gun, individually wrapped drugs, and large amounts of cash—while he, the driver, had
more drugs and cash on his person.
Yet despite these facts and deferential standard of review, McQueen argues that he is
entitled to relief under United States v. Hymon, 333 F. App’x 40 (6th Cir. 2009). But Hymon is
easily distinguishable. There, the district court applied § 2K2.1(b)(6)(B)’s enhancement even
though the PSR did not mention where in the defendant’s home officers found a firearm in relation
-6-
Case No. 21-4211, United States v. McQueen
to drugs. Id. at 42. We reasoned that in drug-trafficking cases, the government must show close
proximity between a gun and drugs to prove that firearm possession is more than “merely
coincidental” to the drug crime. Id. (discussing § 2K2.1(b)(6)(B), cmt. 14(B)). Because the
government failed to do so, we concluded the district court incorrectly applied the enhancement.
Id.
Here, the facts diverge from Hymon in two critical ways. First, the PSR listed where police
found the firearm, cash, and drugs in relation to each other because it says they were found in
McQueen’s vehicle. Second, the police found the drugs in a car, not a multi-room house. We
often find a sufficient nexus for purposes of § 2K2.1(b)(6)(B)’s enhancement where guns and
drugs are found together in smaller areas, like a car, even if stashed in separate compartments.
See, e.g., United States v. Moore, 580 F. App’x 452, 452–54 (6th Cir. 2014) (holding that a loaded
firearm in compartment behind driver’s seat in minivan was in close proximity to bag of meth on
driver); United States v. Campbell, 257 F. App’x 981, 982 (6th Cir. 2007) (holding that a loaded
firearm in car trunk was in close proximity to drugs on driver’s person and in trunk). And
demonstrating a sufficient nexus between the firearm and other felony offense “is not a particularly
onerous burden.” United States v. Davis, 372 F. App’x 628, 629 (6th Cir. 2010).
McQueen cannot show clear error because uncontroverted evidence at sentencing supports
the district court’s factual finding that McQueen intended to distribute drugs. And he cannot
overcome the due deference we afford the district court’s nexus determination because the
uncontroverted evidence supports it. We thus hold the district court did not abuse its discretion by
applying § 2K2.1(b)(6)(B)’s four-point sentence enhancement.
For the reasons above, we AFFIRM the district court.
-7- | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483144/ | Toor v LoTemple (2022 NY Slip Op 06388)
Toor v LoTemple
2022 NY Slip Op 06388
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
822 CA 21-01546
[*1]SUMAN TOOR, PLAINTIFF-RESPONDENT,
vSAMUEL LOTEMPLE AND RETROTECH, INC., DEFENDANTS-APPELLANTS.
LAW OFFICE OF JOHN WALLACE, ROCHESTER (VALERIE L. BARBIC OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
Appeal from an order of the Supreme Court, Monroe County (Debra A. Martin, A.J.), entered September 20, 2021. The order, insofar as appealed from, denied in part the motion of defendants for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting that part of the motion with respect to the 90/180-day category of serious injury within the meaning of Insurance Law § 5102 (d) and dismissing the complaint, as amplified by the bill of particulars, to that extent and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the vehicle she was driving was struck by a vehicle driven by defendant Samuel LoTemple and owned by defendant Retrotech, Inc. In her complaint, as amplified by the bill of particulars, plaintiff alleged that she sustained a serious injury within the meaning of Insurance Law § 5102 (d) under, inter alia, the significant limitation of use and 90/180-day categories. Defendants moved for summary judgment dismissing the complaint, and they now appeal from an order that, among other things, denied their motion with respect to the significant limitation of use and 90/180-day categories of serious injury.
Contrary to defendants' contention, they failed to meet their initial burden with respect to the significant limitation of use category of serious injury. The reports of defendants' medical experts did not establish that plaintiff's injuries are the result of preexisting degenerative disease inasmuch as they " 'fail[ed] to account for evidence that plaintiff had no complaints of pain [in the allegedly affected areas] prior to the accident' " (Baldauf v Gambino, 177 AD3d 1307, 1308 [4th Dept 2019]; see Shah v Nowakowski, 203 AD3d 1737, 1738 [4th Dept 2022]; Crane v Glover, 151 AD3d 1841, 1842 [4th Dept 2017]). Further, although defendants contend that plaintiff's injuries are not "significant" as that term is used in Insurance Law
§ 5102 (d), their own submissions in support of their motion raised triable issues of fact with respect to whether plaintiff's injuries are significant (see Baldauf, 177 AD3d at 1308). In light of defendants' failure to meet their initial burden with respect to that category of serious injury, there is no need to consider the sufficiency of plaintiff's opposition thereto (see Summers v Spada, 109 AD3d 1192, 1193 [4th Dept 2013]).
We agree with defendants, however, that Supreme Court erred in denying their motion with respect to the 90/180-day category of serious injury, and we therefore modify the order accordingly. " 'To qualify as a serious injury under the 90/180[-day] category, there must be objective evidence of a medically determined impairment or impairment of a non-permanent nature . . . as well as evidence that plaintiff's activities were curtailed to a great extent' " (Baldauf, 177 AD3d at 1308). An injured plaintiff must be prevented " 'from performing substantially all of the material acts which constituted his [or her] usual daily activities' for at least 90 out of 180 days following the accident" (Cohen v Broten, 197 AD3d 949, 950 [4th Dept 2021], quoting Licari v Elliott, 57 NY2d 230, 238 [1982]). Here, defendants met their initial [*2]burden by submitting plaintiff's deposition testimony, which established that although plaintiff was limited in certain daily activities, she was able to perform others. In response, plaintiff did not raise an issue of fact (see generally Pastuszynski v Lofaso, 140 AD3d 1710, 1711 [4th Dept 2016]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483123/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0455n.06
No. 21-4105
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 10, 2022
) DEBORAH S. HUNT, Clerk
JIMMY SAGASTUME-HERNANDEZ,
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
MERRICK B. GARLAND, Attorney General, ) APPEALS
Respondent )
)
)
Before: McKEAGUE, WHITE, and MURPHY, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Petitioner Jimmy Sagastume-Hernandez, a native
and citizen of Honduras, seeks review of a Board of Immigration Appeals order denying his
application for asylum, withholding of removal, and protection under the Convention Against
Torture. Because Sagastume-Hernandez has not shown an entitlement to relief, the petition is
DENIED.
I.
Sagastume-Hernandez entered the United States without immigration documentation in
July 2014. Shortly after, the Department of Homeland Security initiated removal proceedings
against him. Sagastume-Hernandez conceded his removability on August 11, 2014, and again on
August 10, 2016. He applied for asylum and withholding of removal based on his political
opinion—“[o]pposition to the National Party in Honduras and support[] of the LIBRE Party”—
and his alleged membership in three social groups: (1) “[f]amily members of LIBRE
No. 21-4105, Sagastume-Hernandez v. Garland
[Party] candidates running for office”; (2) “[f]amily members of Suyapa Jacqueline [Trejo
Cardon]”—a cousin of Sagastume-Hernandez who successfully ran for mayor as a LIBRE Party
candidate; and (3) “family members of that same [cousin] who publicly helped her campaign.”
AR 99, 118-19. He applied for protection under the Convention Against Torture (CAT) on the
same grounds.
In February 2019, an immigration judge (IJ) held a hearing on Sagastume-Hernandez’s
applications. Sagastume-Hernandez explained that he has supported the LIBRE Party since 2011.
When asked why, Sagastume-Hernandez responded that “they had a good proposal for the country
to help bring up the economy.” AR 124. Sagastume-Hernandez testified that in 2013, his cousin
Suyapa Jacqueline Trejo Cardon (Cardon) ran for mayor of the Municipality of Macuelizo, in the
Department of Santa Barbara, as the LIBRE Party candidate. She defeated the incumbent mayor,
who was a member of the rival National Party. Sagastume-Hernandez told the IJ that he supported
Cardon during this campaign by “telling people that she was a good candidate,” that “she was
going to help people,” and that “she was going to open new places for jobs.” AR 127.
Sagastume-Hernandez testified that during Cardon’s campaign, he was approached by
“Elsa,” a member of the National Party, who offered him 500 lempiras to vote for the National
Party candidate in the presidential race. He declined the offer and told Elsa that he “was not going
to betray [his] party.” AR 128. According to Sagastume-Hernandez, after Cardon was elected,
members of the National Party harassed her, warning her “that if she didn’t quit the position she
was going to be killed and all her family.” AR 127. These threats led Cardon to step down as
mayor, after which the former mayor reassumed power.
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No. 21-4105, Sagastume-Hernandez v. Garland
Sagastume-Hernandez also recounted an incident in March 2014 when he was verbally
threatened by a member of the National Party named “Gido.”1 At the time, Sagastume-Hernandez
worked at Chumbagua, a sugar company, selling food, water, and sodas. Gido approached him at
work and “said that if he would see me again he wouldn’t forgive me.” AR 130.2 Sagastume-
Hernandez testified that he kept working at the sugar company “because [he] needed to,” but was
frightened because Gido was a known drug dealer with a reputation as a “dangerous man” who
“like[d] to kill people.” Id. Sagastume-Hernandez reported the incident to police in Santa Barbara,
but they informed him “[t]hat they couldn’t do anything against [Gido] if they didn’t have any
evidence.” AR 137.
According to Sagastume-Hernandez, he “did not know at the time why [Gido] had
threatened [him].” AR 152. But “a couple of months later, [he] found out that [Gido] [was] one
of the men who approached [his] cousin [Cardon] and told her that she had to resign from the
position [of mayor] or all of her family would be killed.” Id. Sagastume-Hernandez explained,
“When I found out that [Gido] was one of the people who threatened my cousin, . . . I fled
immediately because I was afraid that he would kill me since I am [her] cousin.” Id.
Sagastume-Hernandez testified that he fled Santa Barbara to San Pedro Sula, a city in
Honduras roughly two hours away. He stayed there with his sisters for three months and was not
1
The record reflects three spellings for the individual who threatened Sagastume-Hernandez. He is referred
to as “Gido” in the immigration hearing transcript, AR 129, “Gaido” in Sagastume-Hernandez’s written application,
AR 151, and “Gaydo” by a Honduran news source, AR 207. Because Sagastume-Hernandez’s brief utilizes the
spelling “Gido,” we do the same.
2
Sagastume-Hernandez included the same incident in the addendum to his written application for asylum,
explaining that “[i]n March of 2014, about three months before I left Honduras, [Gido] approached me when I was
working at Chumbagua and told me that he didn’t want to see me there anymore. He told me that if he saw me there
again, he would not pardon me.” AR 151-52.
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No. 21-4105, Sagastume-Hernandez v. Garland
verbally or physically threatened. After three months, he passed through Guatemala and Mexico
before arriving in the United States.
Regarding his family remaining in Honduras, Sagastume-Hernandez explained that Cardon
remained in the Department of Santa Barbara. She ran for mayor as a LIBRE Party candidate
again in 2018 and won. His father and sisters also remained in Honduras but relocate occasionally.
Sagastume-Hernandez testified that Gido threatened his father and sisters in Honduras in 2014,
and again in 2016. However, he conceded that no one has ever physically harmed him or his
family members. According to Sagastume-Hernandez, all threats against his family members
ceased in 2016. Further, Sagastume-Hernandez testified that Gido was killed in 2018. He
suspected that drug traffickers committed the murder to “settle some debt.” AR 134.
At the conclusion of the hearing, the IJ denied Sagastume-Hernandez’s petition for asylum
and withholding of removal. Although the IJ accepted Sagastume-Hernandez’s testimony about
Gido as truthful, the IJ concluded that Sagastume-Hernandez failed to establish an appropriate
nexus between Gido’s threat and Sagastume-Hernandez’s political opinion or social groups. The
IJ was “not satisfied that any threat issued to the respondent was because of his political opinion.”
AR 67 (emphasis added). The IJ further found that Sagastume-Hernandez was never physically
harmed in any way, and that his testimony that he was verbally threatened by a drug trafficker on
one occasion failed to rise to the level of past persecution.
Additionally, the IJ noted that Sagastume-Hernandez did not demonstrate an objective
basis for fear of future persecution, given that (1) the only person who threatened Sagastume-
Hernandez—Gido—died in 2018; (2) Cardon was elected mayor under the LIBRE Party platform
a second time in 2018 and has continued to serve as mayor without any threats or harm to her
person; and (3) Sagastume-Hernandez’s father and sisters have remained in Honduras as both
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No. 21-4105, Sagastume-Hernandez v. Garland
supporters of the LIBRE Party and family members of Cardon without sustaining any physical
harm, and were only threatened twice, with the last threat coming from the now-deceased Gido in
2016.
Finally, the IJ found that Sagastume-Hernandez could reasonably relocate within
Honduras, since the threat against him came from a now-deceased person in Santa Barbara, and
considering that Sagastume-Hernandez moved two hours away to San Pedro Sula where he lived
for three months without incident.
The IJ also denied the claim for protection under the CAT because there was “no showing
that [Gido] was a governmental actor in any way,” nor that the government of Honduras engages
in or consents to the torture of its citizens based on political party. AR 70.
Sagastume-Hernandez appealed to the Board of Immigration Appeals (BIA), which
affirmed the IJ’s order of removal. He then brought this petition for review.
II.
When the BIA reviews an IJ’s decision de novo and issues its own separate opinion, we
review the BIA’s opinion as the final agency determination. Guzman-Vazquez v. Barr, 959 F.3d
253, 259 (6th Cir. 2020). But we review the IJ’s decision to the extent the BIA adopts its reasoning.
Id. We defer to an agency’s findings of fact if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (citation and internal quotation marks
omitted). Such findings are conclusive unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” Id. (quoting Ben Hamida v. Gonzales, 478 F.3d 734, 736 (6th Cir.
2007)). We review questions of law de novo. Id.
To establish an entitlement to asylum, an applicant must show that he or she is “unable or
unwilling” to return to his or her country because of “past persecution or a ‘well-founded fear’ of
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No. 21-4105, Sagastume-Hernandez v. Garland
future persecution ‘on account of race, religion, nationality, membership in a particular social
group, or political opinion.’” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th Cir. 2010)
(quoting 8 U.S.C. § 1101(a)(42)); see also 8 U.S.C. § 1158(b) (providing that the burden of proof
is on the applicant to establish refugee status). The applicant must also establish that the alleged
protected ground “was or will be at least one central reason” for the persecution. Umaña-Ramos
v. Holder, 724 F.3d 667, 671 (6th Cir. 2013) (quoting 8 U.S.C. § 1158(b)(1)(B)(i)).
To succeed on a withholding claim, an applicant must show that there is a “clear
probability” that he or she will be persecuted if forced to return to his or her country, and that the
persecution would be on account of race, religion, nationality, membership in a particular social
group, or political opinion. Id. at 674; see also Guzman-Vazquez, 959 F.3d at 274 (finding that
withholding applicants “must demonstrate that a protected ground was at least one reason for their
persecution”).
III.
Sagastume-Hernandez contends that his evidence met these thresholds because he
“successfully demonstrated past persecution and a well-founded fear of future persecution on
account of his political opinion and membership in a particular social group.” Petitioner Brief 3.
A. Past Persecution
Sagastume-Hernandez argues that he established proof of threats from members of the
National Party, and that those threats were due to his allegiance to the LIBRE Party and his familial
ties to a LIBRE Party candidate. However, in both his application and at his hearing, Sagastume-
Hernandez only identified one incident with specificity: Gido’s verbal threat made at the
Chumbagua sugar company in March of 2014.
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No. 21-4105, Sagastume-Hernandez v. Garland
The record does not conclusively connect this event to Sagastume-Hernandez’s political
opinion or his relationship with Cardon. Sagastume-Hernandez’s written application stated:
“[Gido] approached me when I was working at Chumbagua and told me that he didn’t want to see
me there anymore. He told me that if he saw me there again, he would not pardon me.” AR 151-
52. Sagastume-Hernandez testified to similar effect at his hearing. When asked exactly what Gido
told him, Sagastume-Hernandez answered: “That if he ever saw me again he wouldn’t forgive
me.” AR 123. None of the statements attributable to Gido mention, or even indirectly reference,
Sagastume-Hernandez’s politics or family. When asked how Gido would even know of his
political affiliations, Sagastume-Hernandez answered, “I don’t know how he knew.” AR 138.
Further, in his application, Sagastume-Hernandez wrote that “[he] did not know at the time why
[Gido] had threatened [him].” AR 152. Such confusion indicates that Gido did not mention the
LIBRE Party, National Party, Cardon, or anything related to politics at the time of the
confrontation.
Sagastume-Hernandez speculates that since Gido was one of the men who threatened his
cousin and intimidated her into stepping down as mayor, he must have also targeted Sagastume-
Hernandez over politics. But Sagastume-Hernandez also explained that Gido was the leader of a
group of drug traffickers, and a violent man with a dangerous reputation who “like[d] to kill
people” and “beat his workers.” AR 129-30, 151. This suggests that Gido may have had a different
motivation to threaten Sagastume-Hernandez, separate and apart from his politics. “Asylum is not
available to victims of indiscriminate violence, unless they are singled out on account of a
protected ground.” Bonilla-Morales, 607 F.3d at 1138 (quoting Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151 (9th Cir. 2010)). Here, the evidence does not compel the conclusion that Gido’s threat
was based on Sagastume-Hernandez’s political opinion or family, as opposed to Gido’s general
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No. 21-4105, Sagastume-Hernandez v. Garland
penchant for violence or his role as a drug trafficker. See Myftari v. Mukasey, 302 F. App’x 401,
408–09 (6th Cir. 2008) (finding that a petitioner failed to establish a nexus between her past
persecution and her political opinion, in part because her assailants did not mention politics, nor
give her any reason to believe they were kidnapping her because of her political associations, and
because there was an alternative explanation for their conduct). We therefore must affirm the
BIA’s decision that Sagastume-Hernandez failed to establish the requisite nexus between a
statutorily protected ground and any past persecution.
Nor do we find persuasive Sagastume-Hernandez’s argument that the “relationship
between the economic and social agendas of the National Party” necessitates a mixed-motive
analysis, and therefore the BIA erred by failing to consider “the relationship between the political
agenda of the National Party and their ulterior motive of seeking revenge against [Sagastume-
Hernandez].” Petitioner Brief 12-13. A mixed-motive analysis still requires the petitioner to
demonstrate that a protected ground motivated the persecution in part. Guzman-Vazquez, 959 F.3d
at 270, 274 (explaining that with respect to asylum claims, “the applicant must establish that race,
religion, nationality, membership in a particular social group, or political opinion was or will be at
least one central reason for persecuting the applicant,” and that applicants for withholding of
removal must demonstrate that “a protected ground was at least one reason for their persecution”).
Here, the BIA concluded that Sagastume-Hernandez failed to establish any nexus between a
statutorily protected ground and past persecution, and that there was insufficient evidence to prove
Gido’s one-time threat had “any connection to [Sagastume-Hernandez’s] political opinion or his
relationship to his cousin.” AR 4. The evidence adequately supports this conclusion. As discussed,
Sagastume-Hernandez was unable to explain how Gido knew of his political affiliations or family
relationship to Cardon. His own declaration implies that Gido did not refer to either politics or
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No. 21-4105, Sagastume-Hernandez v. Garland
family in his threat. And none of the affidavits proffered by Sagastume-Hernandez’s family
members shed light on the motivation behind Gido’s attack; they merely reiterate, in vague terms,
that Sagastume-Hernandez left Honduras because he feared for his life.
Such evidence does not compel the conclusion that Sagastume-Hernandez’s political
beliefs or family ties had a role in motivating Gido’s attack, even under a mixed-motive analysis.
Absent evidence establishing that Gido’s March 2014 threat was motivated, at least in part, by
Sagastume-Hernandez’s politics, the BIA did not err in denying his petition due to lack of nexus.
Further, even assuming that Sagastume-Hernandez established a nexus between Gido’s
2014 threat and a protected ground, the BIA’s conclusion that “the vague threat directed toward
[Sagastume-Hernandez] on a single occasion at work does not establish harm amounting to past
persecution” was not erroneous. AR 4. Persecution within the meaning of 8 U.S.C.
§ 1101(a)(42)(A) entails “more than a few isolated incidents of verbal harassment or intimidation,
unaccompanied by any physical punishment, infliction of harm, or significant deprivation of
liberty.” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998). Sagastume-Hernandez does not
explain how his single encounter with Gido, which never escalated beyond a vague verbal threat,
was severe enough to constitute persecution. See Japarkulova v. Holder, 615 F.3d 696, 701 (6th
Cir. 2010) (“In the vast majority of cases, . . . mere threats will not, in and of themselves, compel
a finding of past persecution.” (quoting Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997))).
Because the evidence does not conclusively establish past persecution on account of
Sagastume-Hernandez’s political opinion or particular social group, the BIA did not err in denying
this petition on those grounds.
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No. 21-4105, Sagastume-Hernandez v. Garland
B. Future Persecution
Nor has Sagastume-Hernandez established a well-founded fear of future persecution
because of his political opinion or membership in a particular social group. Because Sagastume-
Hernandez did not establish past persecution, he must “independently establish a well-founded
fear of future persecution.” Kukalo v. Holder, 744 F.3d 395, 401 (6th Cir. 2011). This can “be
based on either a likelihood of harm specifically targeted at the applicant or a ‘pattern or practice’
of persecuting others similarly situated.” Yu Yun Zhang v. Holder, 702 F.3d 878, 880 (6th Cir.
2012) (quoting 8 C.F.R. § 1208.3(b)(2)(iii)).
Sagastume-Hernandez provides country condition reports and news articles that he claims
“establish[] a pattern or practice in Honduras of members and supporters of minority political
parties being threatened and harassed by members of the National Party.” Petitioner Brief 15. He
also points out that members of the National Party threatened other members of his family to the
point that they frightened his cousin into renouncing her position as mayor.
We agree with the BIA that this fails to satisfy Sagastume-Hernandez’s burden. The only
person to ever threaten him personally—Gido—died in 2018. Sagastume-Hernandez offers no
evidence that anyone else in Honduras intends to do him harm. Further, Sagastume-Hernandez
testified that his father and two sisters, all LIBRE Party supporters, have remained in Honduras
without suffering any threats or harm. By his own admission, all threats against these family
members ceased in 2016. Cardon even ran for mayor as a LIBRE Party candidate in 2018 and
won. She, like Sagastume-Hernandez’s father and sisters, has not been threatened, verbally or
physically, since 2016. That Sagastume-Hernandez’s alleged persecutor is deceased and his
remaining family has not suffered a threat in several years indicates that Sagastume-Hernandez’s
fear of future harm is not objectively reasonable. See Bonilla-Morales, 607 F.3d at 1138 (finding
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No. 21-4105, Sagastume-Hernandez v. Garland
that an applicant failed to establish a well-founded fear of future persecution, in part because her
family remained in the country and suffered no mistreatment).
And, as the BIA points out, Sagastume-Hernandez lived for three months without incident
in San Pedro Sula. This suggests safe relocation is possible within his home country. When asked
if there was any place within Honduras that he could safely live, Sagastume-Hernandez replied:
“No, there’s also a lot of crime.” AR 131. But fear of widespread crime does not establish
persecution, and Sagastume-Hernandez did not establish why he would be singled out for
mistreatment among the general population. A petitioner “cannot rely on speculative conclusions
or mere assertions of fear of possible persecution, but instead must offer reasonably specific
information showing a real threat of individual persecution.” Mapouya v. Gonzales, 487 F.3d 396,
412 (6th Cir. 2007) (citation omitted). Sagastume-Hernandez has not shown that he faces an
individualized threat beyond the general threat to the population from “crime.” Cf. Kamara v.
Holder, 362 F. App’x 466, 470–71 (6th Cir. 2010) (rejecting a claim of well-founded fear of future
persecution where the petitioner could not establish why the “bad people” running his country
would single him out for harm); Lumaj v. Gonzales, 462 F.3d 574, 578 (6th Cir. 2006) (rejecting
a claim of well-founded fear of future persecution because although a widespread threat of violence
existed in Albania, there was no evidence that individuals were targeted on political grounds).
Accordingly, the record does not compel the conclusion that Sagastume-Hernandez has an
objectively reasonable fear of future persecution on account of his political opinion or membership
in a particular social group. Sagastume-Hernandez’s asylum claim fails.
C. Withholding of Removal and CAT Claims
Because Sagastume-Hernandez’s asylum claim fails on the grounds that he did not
establish past or future persecution, and his withholding of removal and CAT claims are based on
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No. 21-4105, Sagastume-Hernandez v. Garland
the same evidence, these claims necessarily fail as well. See Sarr v. Gonzales, 485 F.3d 354, 361-
62 (6th Cir. 2007) (rejecting a claim for the withholding of removal because the applicant did not
meet the more lenient standard for asylum); see also Guzman-Vazquez, 959 F.3d at 273–74
(discussing why “an alien must meet a higher burden in establishing a right to withholding of
removal than in demonstrating asylum eligibility” (quoting Singh v. Ashcroft, 398 F.3d 396, 401
(6th Cir. 2005))). “An applicant seeking relief under the Convention Against Torture has the
burden of proving that it is more likely than not that he will be tortured if removed to the proposed
country.” Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006) (citing 8 C.F.R. § 208.16(c)(2)).
For the same reasons Sagastume-Hernandez failed to demonstrate that persecution on these
grounds was more likely than not, he also fails to demonstrate that torture on these grounds is more
likely than not. See id. at 397-98 (denying relief under the CAT where petitioners based their CAT
claims on the same grounds as their unsuccessful requests for asylum and withholding).
IV.
For the reasons set out above, we deny Sagastume-Hernandez’s petition for review of his
claims for asylum, withholding of removal, and relief under the Convention Against Torture.
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https://www.courtlistener.com/api/rest/v3/opinions/8483127/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0454n.06
Case No. 20-6381
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 09, 2022
)
MELISSA MONDAY-WEST, as Administratrix DEBORAH S. HUNT, Clerk
)
of the Estate of Stanford Lynn West; JAMES D.
)
LYON, as Chapter 7 Trustee for the Bankruptcy
) ON APPEAL FROM THE
Estate of Melissa Monday-West,
) UNITED STATES DISTRICT
Plaintiffs - Appellants, ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
v. )
) OPINION
WELLS FARGO BANK, N.A., )
Defendant - Appellee. )
Before: BOGGS, LARSEN, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge.
Melissa Monday-West, as Administratrix of the Estate of Stanford Lynn West, and James
D. Lyon, as Chapter 7 Trustee for the Bankruptcy Estate of Melissa Monday-West (collectively,
the “Wests”), filed this lawsuit against Wells Fargo Bank, N.A. (“Wells Fargo”) following Wells
Fargo’s undisputed wrongful denial of their request for a loan modification pursuant to the Home
Affordable Modification Program (“HAMP”). The Complaint claims common-law fraud and both
negligent and intentional infliction of emotional distress (“NIED” and “IIED,” respectively) under
Kentucky law. The district court granted Wells Fargo’s motion to dismiss all of the Wests’ claims,
finding that despite the bank’s admission that it wrongfully denied the Wests’ loan modification,
each of their state-law claims fail because they failed to show causation. The district court
Case No. 20-6381, West v. Wells Fargo Bank, N.A.
interpreted Kentucky law on causation to require the Wests to allege that if Wells Fargo had
approved them for a Trial Period Plan (“TPP”)—a prerequisite to obtaining a permanent loan
modification—they would have satisfied the requirements of the TPP and Wells Fargo would have
approved them for a loan modification, in order to overcome a motion to dismiss. But the Wests’
Complaint makes no such claim, so the district court granted the motion to dismiss.
We find that the claims fail at an earlier stage of the inquiry, and for the reasons set forth
below, we affirm the judgment of the district court.
I.
When reviewing a lower court’s order dismissing an action under Federal Rule of Civil
Procedure 12, this court applies a de novo standard and accepts all well-pleaded facts in the
Complaint as true. See Mik v. Fed. Home Loan Mortg. Corp., 743 F.3d 149, 156-57 (6th Cir.
2014). The court may also consider documents attached to the Complaint and take judicial notice
of public records. See Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999) (The court
may consider public records and matters of which a court may take judicial notice.), abrogated on
other grounds by Swierkiewicz v. Sorema, 534 U.S. 506 (2002). The court does so here both to
provide background and to summarize the operation of HAMP.
The Home Affordable Mortgage Program
During the early and mid-2000s, the housing market and mortgage industry in the United
States underwent substantial growth. But both the rate of growth and stability of the market were
unsustainable, resulting in a housing bubble that burst around 2008, causing housing values to
sink. Many Americans found themselves upside down on their mortgages, meaning they owed
more than the value of their homes, and a significant number faced foreclosure due to defaults. In
response, Congress enacted the Emergency Economic Stabilization Act, Pub. L. No. 110–343, 122
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
Stat. 3765, to “provid[e] stability to and prevent[] disruption in the economy and financial
system. . . .” Among other things, the Act authorized the Secretary of the Treasury to “use loan
guarantees and credit enhancements to facilitate [mortgage] loan modifications to prevent
avoidable foreclosures.” 12 U.S.C. § 5219(a). Pursuant to this authority, the Secretary created
HAMP, which incentivizes loan servicers to help homeowners avoid foreclosure by refinancing
mortgages at interest rates more favorable to borrowers. Id. The Secretary provides monetary and
other incentives to participating loan servicers each time the servicer agrees to modify a loan under
the program.
In Supplemental Directive 09-01, the Secretary provides criteria, and offers optional
software, for loan servicers to use to determine borrowers’ eligibility for HAMP.1 Loan servicers
may also use their own software to evaluate borrowers under the same criteria. Id. If a borrower
meets the criteria, the Secretary directs that participating loan servicers “MUST offer the
modification.” Id. at 4.
The modification process consists of two stages: First a TPP, then a permanent loan
modification. Id. at 18. After a loan servicer determines that a borrower is eligible, the borrower
must comply with the terms of a TPP agreement, which requires the borrower to make payments
in specified amounts and provide documentation in a manner similar to the loan servicing
requirements for loans in forbearance. Id. If the borrower complies with the TPP terms, the
permanent loan automatically goes into effect at the end of the trial period. Id.
1
See U.S. Dep’t of Treasury, Supp. Dir. 09-01, at 5 (Apr. 9, 2009), available at:
https://www.hmpadmin.com/portal/programs/docs/hamp_servicer/sd0901.pdf (last accessed Aug. 31, 2022).
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
Wells Fargo’s Participation in HAMP
Wells Fargo was a loan servicer participant in HAMP at all times relevant to this lawsuit.
It elected to use its own software, rather than the optional software provided by the Secretary, to
determine borrowers’ eligibility for loan modifications. The bank, however, did not audit its
software to verify the accuracy of its eligibility determinations in accordance with the criteria set
forth by the Secretary. In fact, the Office of the Comptroller of the Currency (“OCC”) investigated
Wells Fargo in 2010 and found that it “failed to devote adequate oversight to its foreclosure
processes, failed to ensure compliance with applicable laws, and failed to adequately audit its
foreclosure procedures.” After the investigation, Wells Fargo signed two consent orders in 2011
pledging “to maintain adequate governance and controls to ensure compliance with HAMP; to
engage in ongoing testing for compliance with HAMP; and to ensure that the bank’s mortgage
modification and foreclosure practices were regularly reviewed and any deficiencies promptly
detected and remedied.” Wells Fargo also agreed that a Compliance Committee and an Audit and
Examination Committee, comprised of its board members, would monitor its compliance with the
consent orders.
Nevertheless, in June 2015, about four years after Wells Fargo signed the consent orders,
the OCC found that Wells Fargo had not been complying with the orders. Errors stemming from
this noncompliance led Wells Fargo to wrongfully deny mortgage modifications to 184 borrowers
between 2013 and 2014. The OCC noted several compliance issues, including that Wells Fargo
had not ensured that its audit and compliance programs were sufficient to identify and promptly
resolve deficiencies in its mortgage-modification and foreclosure practices. The OCC also
questioned whether Wells Fargo was making good-faith efforts, consistent with HAMP, to modify
delinquent mortgage loans and prevent foreclosures. As a result, the OCC prohibited Wells Fargo
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
from taking on additional residential-mortgage-servicing business until it reached compliance with
the consent orders. The OCC and Wells Fargo also entered a stipulation and order in May 2016,
in which Wells Fargo accepted a $70 million civil penalty and acknowledged the error that led to
the wrongful loan-modification denials in 2013 and 2014, discussed above.
In February 2018, the Federal Reserve Board (“FRB”) got involved, announcing that it
would “prohibit Wells Fargo from expanding its business until it sufficiently improves its
governance and controls.” The FRB followed up with a cease-and-desist order against Wells
Fargo, requiring it to submit a plan to improve and maintain control over its processes including
effective testing and validation measures for compliance with applicable laws. After the cease-
and-desist order, Wells Fargo disclosed to its shareholders in its second-quarter 2018 Form 10-Q
that, due to an error in its software, the bank improperly denied loan modifications to
approximately 625 eligible borrowers beginning on April 12, 2010, until it discovered and
corrected the error on October 20, 2015. In its next quarterly 2018 Form 10-Q, Wells Fargo
disclosed that it discovered additional instances of wrongful denials, raising the number of affected
borrowers to approximately 870 and the resulting wrongful foreclosures to approximately 545.
Wells Fargo Denies the Wests’ Application for a Loan Modification
Against this backdrop, the Wests took out two mortgage loans on a home that they co-
owned in Lexington, Kentucky. Wells Fargo serviced both loans and owned one, while Fannie
Mae owned the other. After defaulting on the loans, on or about December 28, 2011, the Wests
applied for a loan modification. Using its own software to evaluate their eligibility for a loan
modification, Wells Fargo extended them a temporary modification under the Home Affordable
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
Unemployment Program.2 Once the Wests completed that program, Wells Fargo requested that
they submit documentation required to apply for a HAMP loan modification. The Wests submitted
the requested information, but Wells Fargo denied their application on October 2, 2012.
The Wests promptly began the process of submitting a second application for a HAMP
loan modification, which was not facially complete until November 30, 2012. In the meantime,
Wells Fargo filed a foreclosure action against the Wests on November 2, 2012. Wells Fargo
reviewed the Wests’ second application on December 13, 2012, and again concluded that they
were not eligible for a loan modification. It sent the Wests a letter denying the second application
on February 12, 2013, explaining that their income—the same income they submitted for their
application for the Home Affordable Unemployment Program—was not sufficient to qualify for a
loan modification under HAMP. Unable to pay the principal balance of their loan without a
modification, the Wests filed for Chapter 13 bankruptcy. But Fannie Mae objected to their
proposed plan of reorganization because of the pre-petition mortgage arrearages and the
reorganization failed. The case was subsequently bifurcated, resulting in Melissa West’s case
being converted to a Chapter 7 case and discharged, and Stanford West’s being dismissed without
discharge. The Fayette County Circuit Court subsequently issued a foreclosure judgment on the
home, and it sold for $208,773.75. Wells Fargo received $174,046.97 of the proceeds.
Wells Fargo Admits Wrongful Denial of Loan Modification
On September 11, 2018, after filing Form 10-Q documents disclosing the wrongful denials
of loan modifications between 2010 and 2015, Wells Fargo sent a letter to the Wests informing
them that they were among the affected. The letter stated, in relevant part:
2
While the Home Affordable Unemployment Program goes largely unexplained in the briefing, based on context, it
appears to differ from HAMP in that it does not offer the opportunity for a permanent loan modification.
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
We have some difficult news to share. When you were considered for a loan
modification, you weren’t approved, and now we realize that you should have been.
We based our decision on a faulty calculation, and we’re sorry. If it had been
correct, you would have been approved for a trial modification. We want to make
things right.
The bank enclosed a check for $15,000 and offered to pay for a mediator to further resolve any
issues if the Wests found such measures appropriate. The Wests filed this suit.
II.
We review de novo a district court’s order granting a motion to dismiss under Federal Rule
of Civil Procedure 12(b)(6). We “construe the allegations of the complaint in the light most
favorable to plaintiffs [and] accept all well-pled factual allegations as true.” U.S. Citizens Ass’n
v. Sebelius, 705 F.3d 588, 597 (6th Cir. 2013). In so doing, “we may affirm on any grounds
supported by the record, even if different from the grounds relied on by the district court.” Hayes
v. Equitable Energy Res. Co., 266 F.3d 560, 569 (6th Cir. 2001). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Lindke v. Tomlinson, 31 F.4th 487, 495–96 (6th Cir. 2022) (quoting
Middlebrooks v. Parker, 15 F.4th 784, 789 (6th Cir. 2021) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation
marks omitted)). “This plausibility standard requires the plaintiff to plead ‘factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’” Id. (quoting Iqbal, 556 U.S. at 678).
In diversity cases like this one, the court applies state substantive law in accordance with
the controlling decisions of the Kentucky Supreme Court. Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938); Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d 188, 191 (6th Cir. 1994). If the
state Supreme Court has not yet addressed an issue presented, this court must predict how it would
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
rule, by looking to “all relevant data,” including state appellate decisions. Kingsley Assocs., Inc.
v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995).
III.
The Complaint alleges that Wells Fargo’s erroneous representation that the Wests did not
qualify for a loan modification coupled with its failure to disclose its error gives rise to claims of
fraudulent omission, NIED, and IIED. The district court rejected each of these claims, finding that
the Complaint did not plausibly establish causation. A fresh look at the issues presented leads our
analysis of the fraud and negligence claims to focus on the first element required for each claim:
the existence of a duty, rather than on causation, which is typically evaluated after duty has been
established. See Benzon v. Morgan Stanley Distribs., Inc., 420 F.3d 598, 610-11 (6th Cir. 2005)
(“[B]ecause our review of a district court’s determination of a motion to dismiss is de novo . . . . it
is appropriate . . . to consider the merits of [the] [p]laintiffs’ claims . . . despite the absence of a
district court holding in that regard.”). Duty is not an element of an IIED claim, but the claim fares
no better, as we agree that the Complaint does not sufficiently plead the elements of such a claim.
As an initial matter, we accept the Wests’ contention that the Complaint claims, or at least
attempts to claim, fraudulent omission. The Wests label Count One as “Common Law Fraud,”
and allege that Wells Fargo both made material misrepresentations and concealed information that
it had a duty to disclose. Wells Fargo insists that Plaintiffs’ claim is for fraudulent
misrepresentation and not fraudulent omission. Yet, throughout their briefing at the district court
and here, the Wests maintain that the Complaint alleges fraudulent omission, not fraudulent
misrepresentation. Viewing the Complaint in the light most favorable to the Wests, the common-
law-fraud count plainly alleges that Wells Fargo withheld information that it had a legal duty to
disclose. And, unlike fraudulent misrepresentation, which centers on an affirmative misstatement,
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
a claim of fraud by omission is “grounded in a duty to disclose.” Republic Bank & Tr. Co. v. Bear
Stearns & Co., 683 F.3d 239, 255 (6th Cir. 2012) (quoting Giddings & Lewis, Inc. v. Indus. Risk
Insurers, 348 S.W.3d 729, 747 (Ky. 2011)). While the Wests also allege that the bank made
misrepresentations on which they reasonably relied, they explicitly abandon any claim for
fraudulent misrepresentation by declaring that the Complaint does “not allege that Wells Fargo
made a misrepresentation regarding their loan modification[,]” but instead alleges fraudulent
omission. Moreover, the Wests do not otherwise address fraudulent misrepresentation in their
briefing. A claim raised in a complaint but unaddressed by a plaintiff in its response to a
dispositive motion is deemed abandoned. See Engler v. Arnold, 862 F.3d 571, 577 (6th Cir. 2017)
(declining to disturb district court’s finding that the plaintiff abandoned claim by failing to address
it in response to dispositive motion). As such, we analyze the common law fraud count as a claim
for fraudulent omission, which both parties have briefed.
“To prevail on [a fraud by omission] claim, a plaintiff must prove: (1) the defendant had a
duty to disclose the material fact at issue; (2) the defendant failed to disclose the fact; (3) the
defendant’s failure to disclose the material fact induced the plaintiff to act; and (4) the plaintiff
suffered actual damages as a consequence.” Republic Bank & Tr. Co, 683 F.3d at 255 (internal
quotation marks omitted). Whether a duty to disclose exists is a question of law for the court.
Nationwide Agribusiness Ins. Co. v. Thompson, 2022 WL 1194020, at *11 (Ky. Ct. App. Apr. 22,
2022) (citing Giddings & Lewis, Inc., 348 S.W.3d at 747). A duty to disclose arises under four
circumstances in Kentucky: (1) a confidential or fiduciary relationship between the parties; (2) a
duty created by statute; (3) when a defendant has created the impression of full disclosure to the
plaintiff but has only partially disclosed material facts; and (4) when a party to a contract fails to
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
disclose superior knowledge that the other party relied on it to disclose. Giddings, 348 S.W.3d at
747–48.
For their part, the Wests do not identify any of the circumstances laid out in Giddings as
the source of the duty on which they premise their fraud by omission claim. Instead, they argue
that Wells Fargo “admitted it violated a duty owed” to the Wests when it sent them an apology
letter stating that it erred in processing their application for a loan modification. Yet, the Wests
do not explain how this admission of error creates a duty. Nor do they point to any authority
identifying the source of a legal duty under similar circumstances. The Wests cite a Seventh
Circuit case and a number of district court opinions from other states that they say demonstrate the
viability of their claims. But none of those cases aids our analysis as they do not apply Kentucky
law. Moreover, the Complaint does not otherwise plead that a duty arose out of one of the four
circumstances permitted under Kentucky law.
Turning to the first category under which a duty may arise, the Complaint does not allege
a confidential or fiduciary relationship between the Wests and Wells Fargo. This may be because,
“[e]xcept in special circumstances, a bank does not have a fiduciary relationship with its
borrowers.” In re Sallee, 286 F.3d 878, 893 (6th Cir. 2002); see also Snow Pallet, Inc. v.
Monticello Banking Co., 367 S.W.3d 1, 4 (Ky. Ct. App. 2012) (“As a general rule, banks do not
owe a fiduciary duty to their customers.”). In 2002, this court noted that there are only two
instances where Kentucky courts have found special circumstances present in a relationship
between a bank and a borrower, both of which involved the “bank profit[ing] at the borrower’s
expense from confidential information received from the borrower.” See In re Sallee, 286 F.3d at
893. In the first instance, “the bank used the confidential business plans of one borrower to help
one of the borrower’s competitors generate new business for the bank.” Id. (citing Steelvest, Inc.
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 485–86 (Ky. 1991)). Similarly, in the second
instance, “the bank usurped a corporate opportunity of one of its borrowers that the borrower
revealed to the bank in confidence.” Id. (citing Henkin, Inc. v. Berea Bank & Trust Co., 566
S.W.2d 420, 422 (Ky. Ct. App. 1978). In 2012, the Court of Appeals of Kentucky cited In re
Sallee, Steelvest, and Henkin in finding that, although the plaintiff may have identified a conflict
of interest with respect to the bank’s business relationships, no fiduciary duty existed where the
plaintiff had not alleged that the bank defendant “profited from any confidence” it gained through
the plaintiff. Snow Pallet, 367 S.W.3d at 5. The same is true here; the Wests have not alleged any
misuse of confidential information. In particular, while the Complaint alleges that Wells Fargo
profited from the foreclosure sale, it does not allude to any confidential information that Wells
Fargo gained through the Wests to secure this profit. See In re Sallee, 286 F.3d at 893 (“Without
a great deal more, a mere confidence that a bank will act fairly does not create a fiduciary
relationship. . . .”). As such, the Wests cannot establish that a duty arose out of a fiduciary
relationship or the bank’s disclosure of confidential information.
There are also no statutory grounds establishing a duty. Viewing the Wests’ argument
generously, they attempt to identify a statutory duty deriving from HAMP’s directive. In
particular, they point out that HAMP requires mortgage servicers to offer loan modifications to
borrowers who meet certain threshold requirements, and they included allegations to this effect in
their complaint. Thus, the Wests argue, Wells Fargo’s failure to disclose its mistaken eligibility
assessment and two resultant wrongful denials of a temporary loan modification violated the
bank’s duty under HAMP to provide loan modifications for eligible borrowers.
Wells Fargo counters that HAMP does not create a private right of action. While Wells
Fargo is right that HAMP alone does not provide for a private right of action, it does not necessarily
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
prohibit state-law claims; even where a violation of a federal law is used for support. See, e.g.,
Mik, 743 F.3d at 166 (agreeing with the Seventh Circuit that a “violation of federal law can support
a state law claim, even when—or, perhaps, especially when—there is no private right of action
under a federal statute”) (citing Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 554) (7th Cir.
2012)). Still, the Wests point to no case law, and we have found none, supporting the idea that
HAMP’s requirement that mortgagees offer loan modifications to borrowers who qualify gives
rise to a statutory duty of disclosure on Wells Fargo to borrowers. See Wigod, 673 F.3d at 574
(finding that the plaintiff was right that HAMP imposes a requirement on servicers, but that the
obligation is owed to mortgagors in the HAMP modification process, not the public). Indeed, as
the servicer on the two loans at issue, arguably Wells Fargo’s obligation was to the mortgagees—
in this case Fannie Mae and itself—not to the Wests as mortgagors. Id.3 Hence, the Wests’
allegations are insufficient to plausibly establish that Wells Fargo owed it a statutory duty.
The Complaint’s allegations also fail to plausibly establish a duty based on either the third
or fourth circumstances. Wells Fargo argues that it had no duty to disclose under either the partial
disclosure or superior-knowledge theories because the Wests admit that Wells Fargo did not know
about its calculation error when it inaccurately represented to the Wests that they did not qualify
for a trial loan modification. We agree. “Only when a partial disclosure makes the spoken words
materially misleading does the omission become actionable.” Gresh v. Waste Servs. of Am., Inc.,
311 F. App’x 766, 773 (6th Cir. 2009) (citing United Parcel Serv. Co. v. Rickert, 996 S.W.2d 464,
469 (Ky. 1999)). There was no partial disclosure of the error because the bank was unaware of it.
And only “where one party to a contract has superior knowledge and is relied upon to disclose
3
Additionally, the bank argues that HAMP is a program created pursuant to the authority of a federal statute but is
not itself a statute. The court need not address this issue, as the Complaint does not establish that Wells Fargo owed
a duty to the Wests under HAMP.
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
same,” will the superior-knowledge circumstance create a duty. Giddings, 348 S.W.3d at 748. To
show superior knowledge, the Wests must first demonstrate contractual privity with the bank, and
then show that the bank “possess[ed] superior knowledge of the facts affecting the subject-matter
of the contract [and did] not disclose those facts” to the Wests even though the bank knew that the
Wests were “ignorant thereof, and relie[d], and [could] only rely, on [the bank] to make a full
disclosure.” Roberts v. Parsons, 242 S.W. 594, 595 (Ky. 1922); Helm v. Ratterman, No. 2020-
CA-1434-MR, 2022 WL 495613, at *6 (Ky. Ct. App. Feb. 18, 2022) (“The Sixth Circuit, in
analyzing Kentucky case law, recognized that the “superior knowledge” duty requires contractual
privity.”). Here, Wells Fargo denied the Wests’ applications in 2012 and 2013 but did not find out
that it erred in doing so until 2015, well after the Wests’ home had already been foreclosed on and
sold in 2014. Further, after Wells Fargo learned of the error, it disclosed it to the Wests. Though
Wells Fargo disclosed the issue with its software to the Wests almost three years after discovering
that it affected their application for a loan modification, the tardy notification does not affect
resolution of the superior knowledge or partial disclosure questions.
In any event, the Wests do not allege or argue in their briefing that Wells Fargo partially
disclosed any known material fact with respect to their eligibility for a loan modification so as to
“create[] the impression of full disclosure.” Giddings, 348 S.W.3d at 747. Nor do they argue that
the bank failed to disclose facts for which it possessed superior knowledge that affected the subject
matter of any contract relevant to their claim. Rather, they lay out historical fact recitations of the
bank’s failure to adequately maintain its systems. This recitation, however, does not include any
allegation that the particular system error that led to the denial of a temporary loan modification
was known to Wells Fargo in October of 2012 or February 2013 when the Wests received word of
their denials. To be sure, Wells Fargo’s record of compliance with HAMP leaves much to be
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
desired; it was twice ordered in 2011 alone to do better to ensure compliance. And based on the
bank’s discovery of subsequent errors, it apparently continued to struggle. But neither the
Complaint’s allegations nor any of its exhibits identify the calculation error at issue in the West’s
denial such that the court can reasonably infer the bank’s superior knowledge. Indeed, Wells
Fargo’s storied difficulty with properly handling home foreclosures following the housing market
collapse was, at minimum, publicly documented in the referenced consent orders. Thus, the
Wests’ allegations do not establish that their relationship with Wells Fargo exceeded the bounds
of an everyday arms-length business transaction such that Wells Fargo owed them a duty under
the third or fourth circumstances. And, “[w]hen the first circumstance (a fiduciary duty) does not
exist, the courts have been careful not to apply the other three circumstances so broadly as to
transform everyday, arms-length business transactions into fiduciary relationships.” Gresh, 311
F. App’x at 772.
IV.
Likewise, the Wests fail to identify any duty to support their NIED claim. To prevail on
an NIED claim, a plaintiff must first prove the elements of a common law negligence claim: “(1)
the defendant owed a duty of care to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff,
and (4) legal causation between the defendant’s breach and the plaintiff’s injury” that results in
“severe” or “serious” emotional injury. Osborne v. Keeney, 399 S.W.3d 1, 17 (Ky. 2012)
(retracting from the “impact rule,” under which it formerly required some form of physical impact
as a prerequisite for a claim of emotional injury). With respect to the element of duty in the context
of a negligence claim, Kentucky “has adopted a ‘universal duty of care’ which requires every
person to exercise ordinary care in his activities to prevent foreseeable injury.” T & M Jewelry,
Inc. v. Hicks ex rel. Hicks, 189 S.W.3d 526, 530 (Ky. 2006). But “of course, . . . the ‘universal
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
duty of care’ is not boundless.” Id. at 531. The Wests seem to couch the bank’s actions in terms
of its responsibility to comply with HAMP. Yet, in Zusstone v. Bank of America N.A., the Court
of Appeals of Kentucky noted that it was “aware of no Kentucky caselaw specifically addressing
whether a plaintiff may maintain a state-law negligence claim based on a HAMP violation,” and
like the parties in this case, the parties in Zusstone had cited none. No. 2017-CA-001063-MR,
2019 WL 4565544, at *3 (Sept. 20, 2019). As such, the court looked to the Kentucky Supreme
Court’s most appropriate case law. Id. More specifically, it explained that Kentucky has codified
the common-law doctrine of negligence per se under Ky. Rev. Stat. Ann. § 446.070 (West), but
the Kentucky Supreme Court limited its application to state statutes, not federal statutes and
regulations or local ordinances. Id.; see also T & M Jewelry, 189 S.W.3d at 530. And while a
complete reading of T & M Jewelry suggests that Kentucky would find the existence of a duty if
presented with persuasive “public policy, statutory and common law theories,” the parties here
have pointed to nothing of the sort. 189 S.W.3d at 531; see also Zusstone, 2019 WL 4565544, at
*3 (stating that “[i]f the federal court for the Western District of Kentucky had not” been the first
to say that a party cannot “base her negligence claim on HAMP violations,” “this [c]ourt would
have.”). Further, “[a]s a general matter, a mortgagee has no duty to reach an agreement on a loan
modification with a mortgagor in default.” SMA Portfolio Owner, LLC v. Corporex Realty & Inv.,
LLC, 112 F. Supp. 3d 555, 572 (E.D. Ky. 2015), aff’d sub nom. Bank of Am., N.A. v. Corporex
Realty & Inv. Corp., 661 F. App’x 305 (6th Cir. 2016).
Here, as discussed in the fraud analysis above, the Wests cannot establish any duty arising
from a statute, common law, or a confidential or fiduciary relationship. And they point to no
Kentucky cases imposing a duty of care by servicers or mortgagees to borrowers. See Rush v.
Mac, 792 F.3d 600, 605 (6th Cir. 2015) (finding no duty arising from HAMP under a state law
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
where HAMP does not create a private right of action and the state has not recognized such a duty).
The Wests attempt to fill this void by arguing that Kentucky’s voluntary-assumption-of-duty rule
applies. But the voluntary-assumption rule applies only where physical harm is alleged. See
Morgan v. Scott, 291 S.W.3d 622, 632 (Ky. 2009) (confirming that Kentucky has “adopted the
Restatement (Second) of Torts § 324A regarding the elements necessary for liability for the breach
of a voluntarily assumed duty.”); Restatement (Second) of Torts § 324A (noting that one who
voluntarily undertakes to render services to another is subject to liability “for physical harm
resulting from his failure to exercise reasonable care to protect his undertaking . . . .”) (emphasis
added). The Wests make no such allegation here. Accordingly, the Complaint does not state a
claim for NIED because the Wests fail to identify any duty of care owed to them by Wells Fargo.
V.
Finally, the Complaint contains an IIED claim, arguing that Wells Fargo’s conduct in
maintaining and failing to timely correct its faulty software system, and concealment of the error
from 2015 to 2018 caused the Wests severe emotional distress. Wells Fargo argued, and the district
court held that the Wests’ claim failed to plausibly establish that Wells Fargo’s conduct was the
cause of their alleged harm. We do not deem it necessary to analyze causation, as we find that the
Complaint fails to adequately allege the outrageous conduct element of IIED and thus does not
state a plausible claim for relief.
As this court explained in Mik, 743 F.3d at 169, the Kentucky Supreme Court recognized
the tort of outrageous infliction of emotional distress in Craft v. Rice, 671 S.W.2d 247, 251 (1984).
The elements of the claim are:
1. The wrongdoer’s conduct must be intentional or reckless;
2. The conduct must be outrageous and intolerable in that it offends against the
generally accepted standards of decency and morality;
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
3. There must be a causal connection between the wrongdoer’s conduct and the
emotional distress; and
4. The emotional distress must be severe.
Id. (quoting Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996)). “The standards for this
tort are strict.” Id. (quoting Mineer v. Williams, 82 F.Supp.2d 702, 706 (E.D.Ky.2000)). The
Kentucky Supreme Court has emphasized that a showing of IIED requires allegations of conduct
that is “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Mik,
743 F.3d at 169 (internal quotation marks and citation omitted). As we noted in Mik, Kentucky
courts have been strict in assessing proof of outrageous conduct. Examples of such conduct
include instances in which the defendant:
(1) harassed the plaintiff by keeping her under surveillance at work and home,
telling her over the CB radio that he would put her husband in jail and driving so
as to force her vehicle into an opposing lane of traffic; (2) intentionally failed to
warn the plaintiff for a period of five months that defendant’s building, in which
plaintiff was engaged in the removal of pipes and ducts, contained asbestos;
(3) engaged in a plan of attempted fraud, deceit, slander, and interference with
contractual rights, all carefully orchestrated in an attempt to bring [plaintiff] to his
knees; (4) committed same-sex sexual harassment in the form of frequent incidents
of lewd name calling coupled with multiple unsolicited and unwanted requests for
[] sex; (5) was a Catholic priest who used his relationship [as marriage counselor
for] the [plaintiff] husband and the wife to obtain a sexual affair with the wife;
(6) agreed to care for plaintiff’s long-time companion-animals, two registered
Appaloosa horses, and then immediately sold them for slaughter; and (7) subjected
plaintiff to nearly daily racial indignities for approximately seven years.
Id. (citing Stringer v. Wal-Mart Stores, Inc., 151 S.W. 3d 781, 789-90 (Ky. 2004), partially
overruled on other grounds by Toler v. Sud-Chemie, Inc., 458 S.W.3d 276 (Ky. 2014)). In Mik,
Freddie Mac had evicted the plaintiffs, who were renters at a property on which it obtained a
foreclosure. The eviction probably violated the Protecting Tenants at Foreclosure Act (PFTA),
112 U.S.C. § 5220. Id. at 170. But Freddie Mac’s conduct lined up with Kentucky law as it stood
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Case No. 20-6381, West v. Wells Fargo Bank, N.A.
before the passage of the PFTA. Id. As such, this court concluded that Freddie Mac’s behavior
was “unfortunate” but not “extreme” or “atrocious.” Id. at 169.
The same is true here. Wells Fargo’s failure to extend a temporary modification to the
Wests appears to have run afoul of HAMP. And its disappointing record of properly maintaining
its calculation tool(s) led to multiple court orders for it to audit, correct, and improve its systems.
Its conduct was far from perfect and certainly unfortunate, but as previously noted, HAMP
permitted lenders to utilize their own calculating tools in assessing borrower eligibility. Thus,
Wells Fargo’s decision to develop and use its own tool conformed with the rules. The apparent
ineffectuality of the tool, which led to the denials, is regrettable but does not meet the high bar for
outrageous conduct erected by Kentucky courts. Accordingly, the Complaint does not state a claim
for IIED under Kentucky law and the court need not address the remaining elements.
VI.
For the reasons set forth above, we AFFIRM the judgment of the district court.
- 18 - | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483125/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0452n.06
Case No. 21-6148/6149
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Nov 09, 2022
) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,
)
Plaintiff - Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF KENTUCKY
MOISES TAJIBOY-ALFARO, )
Defendant - Appellant. ) OPINION
)
)
Before: COLE, GIBBONS, and BUSH, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. After Moises Tajiboy-Alfaro pled guilty to
illegal reentry, the district court sentenced him to eighty-four months of imprisonment and a
consecutive term of twenty months of imprisonment for violating the terms of his supervised
release. Tajiboy-Alfaro argues that this sentence is procedurally unreasonable because his prior
convictions were “double counted” in calculating both the base offense level and the criminal
history category for his Guidelines range. He also contends that his sentence is substantively
unreasonable because the district court placed too much weight on his criminal history. Finally,
he argues that the consecutive nature of his sentence is substantively unreasonable.
The district court properly applied the Guidelines, including a permissible form of “double
counting” affirmatively contemplated by the Sentencing Commission. Furthermore, the district
court addressed and balanced the relevant sentencing factors in determining his sentence,
Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
ultimately varying downward significantly from the Guidelines range. Because the district court
did not abuse its discretion in sentencing Tajiboy-Alfaro, we affirm.
I.
Moises Tajiboy-Alfaro came to the United States from Guatemala illegally as a teenager.
His criminal record began when he was twenty years old. He is now fifty-three. In that time,
Tajiboy-Alfaro committed numerous offenses, including: felony battery of a law enforcement
officer in 1998, two federal felonies related to a counterfeit currency scheme in 2000, felony
burglary and theft in 2004, and three felony illegal reentry violations in 2009, 2012, and 2016,
each after being deported. All of these crimes occurred and were adjudicated in either Florida or
Texas.
Tajiboy-Alfaro’s 2016 illegal reentry violation occurred in the Western District of Texas.
He was imprisoned for the offense from September 20, 2016, to September 11, 2018, at which
point he was released, and his three-year period of supervised release commenced. On October 3,
2018, Tajiboy-Alfaro was deported back to Guatemala.
In May 2019, Tajiboy-Alfaro was apprehended by police officers in Covington, Kentucky.
He had fled the scene of a car accident, causing a car chase with police and almost striking an
officer in the process. After investigation, it was determined that Tajiboy-Alfaro, driving without
a license or insurance, caused the accident after recklessly chasing another vehicle. On April 8,
2021, he pled guilty to a felony count of fleeing and evading the police and was sentenced to two
years imprisonment.
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Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
Tajiboy-Alfaro was then transferred into federal custody for handling of charges of reentry
after his October 2018 deportation and of violating his supervised release imposed in 2016.1 In
July 2021, Tajiboy-Alfaro pled guilty to illegal reentry. Four months later, Judge Bunning held a
combined sentencing hearing for the illegal reentry and supervised release violations. At the
hearing, Tajiboy-Alfaro stipulated that his commission of state and federal crimes in 2019 violated
his supervised release imposed by the Western District of Texas. The government sought a within-
Guidelines sentence of 124 months in the illegal reentry case due to Tajiboy-Alfaro’s recidivist
behavior and to secure more effective deterrence. While the government made no specific
recommendation as to the length of the sentence for the supervised release violations, it did request
that the illegal reentry and supervised release sentences be imposed consecutively. Tajiboy-Alfaro
sought a downward variance to a total sentence of sixty months because of his age, his cooperation
with government investigations, and the overrepresentation of his criminal history when
calculating the Guidelines range. He also noted his inability to participate in many prison programs
because of his immigration status.
The district court discussed the 18 U.S.C. § 3553(a) factors, listened to Tajiboy-Alfaro’s
statement, and sentenced him. During the sentencing, Tajiboy-Alfaro challenged the use of his
prior convictions to calculate both the offense level and the criminal history category, implying
that it amounted to impermissible “double counting.” Judge Bunning acknowledged the high
Guidelines range but rejected the argument as “the case law is pretty clear” and moved on to
pronounce the sentence. 2:21-cr-20, DE 19, Sentencing Tr., PageID 77. The 2019 illegal reentry
offense carried a Guidelines range of 110 to 137 months. For that crime, Judge Bunning sentenced
1
In May 2021, the Western District of Texas transferred Tajiboy-Alfaro’s 2016 case to the Eastern
District of Kentucky for disposition and sentencing for the supervised release violations.
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Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
Tajiboy-Alfaro to eighty-four months imprisonment followed by three years of supervised release.
The supervised release violations carried a Guidelines range of eighteen to twenty-four months,
and Judge Bunning sentenced Tajiboy-Alfaro to twenty months of imprisonment to run
consecutively with his illegal reentry sentence. In total, Tajiboy-Alfaro was sentenced to 104
months of imprisonment and three years of supervised release.
II.
Criminal sentences are reviewed for procedural and substantive reasonableness under an
abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).2 A district court can
commit procedural error by “failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. A
sentence is substantively reasonable when the length of the sentence conforms to the factors listed
under § 3553(a) and is “sufficient, but not greater than necessary, to comply with the purposes” of
retributive justice, deterrence, protection of the public, and rehabilitation. 18 U.S.C. § 3553(a).
While courts must consider “the totality of the circumstances, including the extent of any variance
from the Guidelines range,” Gall, 552 U.S. at 39, a below-Guidelines sentence is presumed not to
be unreasonably severe. See United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008).
Additionally, the abuse-of-discretion standard means a defendant’s argument must go beyond
“asserti[ng] that the district court should have balanced the § 3553(a) factors differently.” United
States v. Sexton, 512 F.3d 326, 332 (6th Cir. 2008).
III.
2
Defendants must object at the district court to receive review of their procedural unreasonableness
challenges for abuse of discretion, as opposed to plain error review. United States v. Sears,
32 F.4th 569, 573 (6th Cir. 2022). Tajiboy-Alfaro has done so in this case.
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Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
First, Tajiboy-Alfaro argues that his sentence is procedurally unreasonable because it is an
impermissible form of “double counting” his prior convictions. Next, he asserts that his sentence
is substantively unreasonable because the district court emphasized his criminal history too heavily
in weighing the § 3553(a) factors. Finally, Tajiboy-Alfaro claims that the district court’s decision
to impose a consecutive sentence was substantively unreasonable because the judge relied on a
single § 3553(a) factor. Because Tajiboy-Alfaro’s arguments without merit, we affirm.
A.
Tajiboy-Alfaro first argues that his sentence for illegal reentry was procedurally
unreasonable. He claims that his sentence was the result of impermissible double counting when
applying the Guidelines because his prior convictions increased the base offense level by twenty
levels and enhanced his criminal history score by twelve points. Tajiboy-Alfaro does not claim
that the district court improperly applied the Guidelines. Rather, he argues that § 2LB1.2(b)(1)(a),
the sentencing guideline for illegal reentry, is anomalous in its severity and thus the district court
should have disregarded § 2LB1.2 beyond the base offense level it provides.
Double counting can be procedurally unreasonable. United States v. Farrow, 198 F.3d
179, 193 (6th Cir. 1999). “It is well established that impermissible double counting occurs when
precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways.”
United States v. Duke, 870 F.3d 397, 404 (6th Cir. 2017) (citation and quotation marks omitted).
This inquiry requires determining whether double counting occurred and, if so, whether such
double counting was impermissible. Id.
Double counting did occur in Tajiboy-Alfaro’s sentence. His prior convictions were used
to increase his base offense level under U.S.S.G. § 2L1.2(b)(1) (four-level increase for felony
reentry offense), §2L1.2(b)(2) (eight-level increase for a felony offense other than reentry
-5-
Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
committed, before defendant was first deported, for which a sentence of two years or more was
imposed), and §2L1.2(b)(3) (eight-level increase for a felony offense other than reentry committed,
after defendant was first deported, for which a sentence of two years or more was imposed). These
prior felonies were also used to enhance Tajiboy-Alfaro’s criminal history category, which totaled
over twenty criminal history points under § 4A1.1 and placed him in criminal history Category VI.
The combination of those two factors yielded an advisory Guidelines range of 110 to 137 months.
However, this double counting was permissible. Double counting is allowed “‘where it
appears that Congress or the Sentencing Commission intended to attach multiple penalties to the
same conduct.’” United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (quoting Farrow,
198 F.3d at 194). The Sentencing Commission expressly contemplated the use of prior convictions
to calculate both the offense level and criminal category for defendants under § 2L1.2 in the
Application Notes. See United States v. Jarman, 144 F.3d 912, 914 (6th Cir. 1998) (“[T]he
Application Notes to the Sentencing Guidelines are accorded controlling weight.”) (citation
omitted). In the Application Notes for illegal reentry, the Commission explains: “A conviction
taken into account under subsection (b)(1), (b)(2), or (b)(3) is not excluded from consideration of
whether that conviction receives criminal history points pursuant to [§ 4A] (Criminal History).”
U.S.S.G. § 2L1.2, cmt. n.3.
Circuit precedent confirms that the calculations in Tajiboy-Alfaro’s case are proper and
not procedurally unreasonable. In United States v. Hernandez-Fierros, we held that double
counting was permissible when an illegal reentry defendant’s previous conviction increased both
his base offense level and his criminal history score. 453 F.3d 309, 312-13 (6th Cir. 2006). The
district court did not abuse its discretion and imposed a procedurally reasonable sentence when it
properly applied the Guidelines.
-6-
Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
B.
Tajiboy-Alfaro next argues that his sentence of eighty-four months for illegal reentry was
substantively unreasonable because the district court gave “undue weight to [his] criminal history”
and inadequate consideration to the other § 3553(a) factors. CA6 R. 15, Appellant Br., at 14.
He recites his many contributions to the community, his educational efforts, his aid to government
investigations, his family ties, and the difficult childhood circumstances that led him to this point.
He argues that the district court focused too heavily on the defendant’s eight prior felonies and
gave inadequate attention to the other positive aspects of Tajiboy-Alfaro’s history and character,
formulating a sentence that was substantively unreasonable.
Substantive unreasonableness can occur “when the district court selects the sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider pertinent § 3553(a) factors
or gives an unreasonable amount of weight to any pertinent factor.” United States v. Sexton,
512 F.3d 326, 332 (6th Cir. 2008) (citation omitted). While the court has broad discretion, it must
consider the factors under § 3553(a): the nature and circumstances of the offense, the history and
character of the defendant, the kinds of sentences available, the sentencing range established by
the Guidelines, and the need to avoid sentencing disparities with defendants who have been found
guilty of the same conduct and with similar criminal histories. Id.
At Tajiboy-Alfaro’s sentencing, the district court gave detailed review, explanation, and
balancing of the § 3553(a) factors, without giving undue weight to any one factor. The district
judge first discussed Tajiboy-Alfaro’s character and contributions to his community with counsel.
He listened to Tajiboy-Alfaro’s counsel describe his client’s family connections to the United
States, status as an ordained minister, history of providing helpful information to the government
without anything in exchange, and his two children who served in the United States military. The
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Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
judge engaged with this discussion, referencing a letter that Tajiboy-Alfaro had written to him in
which “[Tajiboy-Alfaro] mentioned he just wants to make America a better place for his kids.”
2:21-cr-20, DE 19, Sentencing Tr., PageID 81. The judge then heard from Tajiboy-Alfaro and
discussed the nature and circumstances of the present reentry offense. Proceeding to his criminal
history, the judge warned that it “is one of the worst I’ve seen for an illegal reentry defendant,”
but also acknowledged that Tajiboy-Alfaro had “done some things that have been helpful . . .
gotten some degrees, some certifications[,] . . . been able to support [his] family to some extent.”
Id. at 92. Finally, the district court noted the recidivist nature of Tajiboy-Alfaro’s behavior, stating
that he had not shown the necessary respect for the law and had proved himself to be “somewhat
of a menace to society” with a history of violating the terms of his supervision and “a history of
flight.” Id. at 92.
“Looking at all of the factors,” the judge imposed Tajiboy-Alfaro’s sentence. Id. at 93.
Although application of the Guidelines for the illegal reentry offense produced a range of 110 to
137 months, or approximately nine to eleven years, the judge varied downward and selected a
sentence of eighty-four months, or approximately seven years. He then sentenced Tajiboy-Alfaro
to twenty months for each of the four supervised release violations, to run concurrently with one
another but to run consecutively with the eighty-four-month term for illegal reentry. The
supervised release sentence was within the Guidelines range of eighteen to twenty-four months.
The district court’s sentence evinces no abuse of discretion. The sentence imposed was
not only a significant downward variance from the properly calculated Guidelines range, but it
also balanced Tajiboy-Alfaro’s extensive criminal history with the positive attributes and
contributions he has made throughout his life and while in custody. Tajiboy-Alfaro’s arguments
-8-
Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
that the sentencing factors should have been balanced differently are inadequate to rebut the
presumption of reasonableness.
C.
Tajiboy-Alfaro finally argues that the consecutive nature of district court’s sentence is
substantively unreasonable. He asserts that the district court only gave one reason for issuing a
consecutive sentence and failed to consider the other § 3553(a) factors, thereby abusing its
discretion. Tajiboy-Alfaro points to the transcript of the sentencing hearing, where the district
judge, just before handing down a consecutive imprisonment sentence, stated that Tajiboy-Alfaro
“violated the trust of the district court judge . . . who imposed the [2016 illegal reentry] sentence.”
2:21-cr-18, DE 19, Sentencing Tr., PageID 93. Tajiboy-Alfaro claims that this violation of trust
was the only reason relied upon by the judge in issuing a consecutive sentence, and therefore its
consecutive nature is substantively unreasonable.
When a defendant is sentenced for multiple offenses, sentencing judges have discretion to
impose those sentences to run either concurrently or consecutively. 18 U.S.C. § 3584(a). In
exercising that discretion, the sentencing judge must consider the factors listed in 18 U.S.C.
§ 3553(a), which includes policy statements by the Sentencing Commission. 18 U.S.C.
§ 3553(a)(5)(A). The Sentencing Commission’s policy statement in U.S.S.G. § 7B1.3(f) provides:
“A term of imprisonment imposed upon the revocation of probation or supervised release shall be
ordered to be served consecutively to any sentence that the defendant is serving . . . .” U.S.S.G.
§ 7B1.3(f). The district court is not obligated to order a consecutive sentence, but it must consider
the Sentencing Commission’s stated preference for consecutive sentences in supervised release
violations as well as the other § 3553(a) factors. United States v. Johnson, 640 F.3d 195, 208 (6th
Cir. 2011).
-9-
Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
Additionally, there is no requirement that the sentencing judge state a specific reason or
place the entirety of the § 3553(a) balancing process on the record to impose a consecutive
sentence. Id. If the court makes “generally clear” on the record the rationale under which it
imposed the consecutive sentence, it has not abused its discretion. United States v. Owens, 159
F.3d 221, 230 (6th Cir. 1998). Judges satisfy the requirement of relying on the § 3553(a) factors
when it they make clear that they are choosing a substantive sentence and running sentences
consecutively for the same reasons. United States v. Cochrane, 702 F.3d 334, 346 (6th Cir. 2012).
Tajiboy-Alfaro’s claim that the consecutive nature of his sentence was substantively
unreasonable fails for two reasons. First, his claim that “breach of trust” was the only explanation
for imposing the consecutive sentence is not supported by the record. The comment regarding
Tajiboy-Alfaro’s breach of trust was part of the court’s summation of the entirety of the § 3553(a)
factors: “Looking at all of the factors I have to consider . . . I’m going to impose a combination
sentence here that I think is appropriate, given the facts and circumstances, given the fact that
[Tajiboy-Alfaro] violated the trust of the district court judge . . . .” 2:21-cr-20, DE 19, Sentencing
Tr., PageID 93. At that point, the district judge pronounced Tajiboy-Alfaro’s sentence length and
that the two terms would run consecutively.
Second, the judge made clear that the same reasons for Tajiboy-Alfaro’s substantive
sentence applied to the decision to run the sentences consecutively. By referencing “all of the
factors” and the same “facts and circumstances,” the court indicated that its reasoning for the
substantive sentence length and its consecutive nature was the same: the recidivist nature of
Tajiboy-Alfaro’s criminal history coupled with the mitigating circumstances of his life and
character. Although the district court did not give a factor-by-factor breakdown of its reasons for
- 10 -
Nos. 21-6148/6149, United States v. Tajiboy-Alfaro
imposing a consecutive sentence, it was not required to do so. Cochrane, 702 F.3d at 346 (“The
district court need not state its rationale [for a consecutive sentence] explicitly . . .”).
The district court did not abuse its broad discretion in imposing a consecutive sentence.
The court imposed a twenty-month sentence, on the lower end of the Guidelines range, for the four
separate supervised release violations that Tajiboy-Alfaro committed, and it did not do so
arbitrarily or unreasonably. Tajiboy-Alfaro’s challenge to the consecutive nature of his sentence
therefore fails.
IV.
For the foregoing reasons, we affirm the district court’s sentencing decisions.
- 11 - | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483129/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0447n.06
Case No. 21-1491
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 08, 2022
)
UNITED STATES OF AMERICA, DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
ABIODUN OLUFEMI FABODE, ) MICHIGAN
Defendant - Appellant. ) OPINION
)
Before: SILER, McKEAGUE, and LARSEN, Circuit Judges.
SILER, Circuit Judge. Abiodun Olufemi Fabode was a licensed pharmacist and the co-
owner of Friendz Pharmacy in Detroit, Michigan. In 2016, agents with the United States Drug
Enforcement Administration noticed a series of “red flags” at Friendz Pharmacy. Those red flags
included pattern prescribing (where the same doctor repeatedly prescribes the same type of opioid,
the same strength opioid, and the same number of tablets to multiple patients); slotting (where
doctors and pharmacists strategically space out prescriptions to avoid suspicion); remarkably high
opioid prices; and an unusual number of patients paying for drugs with cash. These were all signs
of a deep-seated and complicated drug-diversion conspiracy.
Here is how the scheme worked. A series of so-called “patient recruiters” found and paid
sham patients to fraudulently seek out opioid prescriptions; some recruiters had as many as 80
Case No. 21-1491, United States v. Fabode
sham patients at a time. Those patients then obtained opioid prescriptions from complicit doctors,
i.e., doctors who were paid to write prescriptions for patients even though the patients had no
identifiable medical need. Patient recruiters then met the patients, paid the patients for their
prescriptions, and took those prescriptions to a complicit pharmacy, e.g., Friendz Pharmacy.
There, a complicit pharmacist filled the prescriptions, charged a premium—as much as a 400%
markup on every prescription—and then handed the drugs directly to the patient recruiters. The
patient recruiters then resold the drugs at an even higher price to street-level drug dealers.
Everyone profited: the patient recruiters resold the opioids for street value, the patients earned
about $100 for every prescription they procured, the doctors earned a substantial fee for every
prescription they wrote, and the pharmacists earned a hefty profit on every prescription they sold.
Fabode’s pharmacy sold a large quantity of exorbitantly priced opioids, Fabode personally
filled many of the illicit prescriptions, and he often bypassed the sham patients and ensured that
opioids were handed directly to the patient recruiters.
In 2018, federal prosecutors charged Fabode and five of his coconspirators with a series of
federal drug-distribution charges. Every defendant except for Fabode pleaded guilty and
cooperated with the government. Fabode proceeded to trial, and several of his codefendants
testified against him. Their testimony linked Fabode to every facet of the conspiracy: the planning,
the patient recruitment, the drug sales, and the attempted coverup. Fabode was convicted for
violating 21 U.S.C. §§ 841(a)(1) & 846, which together prohibit any person without statutory
authorization from knowingly or intentionally conspiring “to manufacture, distribute, or dispense,
or possess with intent to manufacture, distribute, or dispense, a controlled substance.” The district
court sentenced him to 96 months of imprisonment followed by three years of supervised release.
-2-
Case No. 21-1491, United States v. Fabode
Fabode now challenges his convictions and sentence. He takes issue with several
statements made by the prosecutors at trial, one of the district court’s evidentiary rulings, the
district court’s drug-quantity calculation, his sentence to a longer term of imprisonment than that
received by his codefendants, and portions of the district court’s jury instructions. We affirm.
I
Fabode believes prosecutorial misconduct tainted his trial. He supports his prosecutorial-
misconduct claim with three arguments, none of which persuades us.
First, he says the prosecution impermissibly vouched for the credibility of its cooperating
witnesses. “Improper vouching occurs when a jury could reasonably believe that a prosecutor was
indicating a personal belief in a witness’[s] credibility.” Taylor v. United States, 985 F.2d 844,
846 (6th Cir. 1993). These comments often come in one of two forms. The first form is “blunt
comments” about a cooperating witness’s credibility, United States v. Garcia, 758 F.3d 714, 723
(6th Cir. 2014) (citation omitted), where a prosecutor expresses a personal opinion about the
veracity of a witness’s testimony. See, e.g., United States v. Acosta, 924 F.3d 288, 299–300 (6th
Cir. 2019). Second, improper vouching often takes place when a prosecutor suggests he or she
“has special knowledge” or ability to evaluate the truthfulness of a witness’s testimony. Garcia,
758 F.3d at 723 (citation omitted). Both forms of vouching are inappropriate because they “plac[e]
the prestige of the office of the United States Attorney behind th[e] [cooperating] witness,” id. at
723 (quoting United States v. Trujillo, 376 F.3d 593, 607–08 (6th Cir. 2004)), and “inevitably give
jurors the [mistaken] impression that the prosecutor is carefully monitoring the testimony of the
cooperating witness to make sure that the [witness] is not stretching the facts—something the
prosecutor usually is quite unable to do,” United States v. Carroll, 26 F.3d 1380, 1388 (6th Cir.
-3-
Case No. 21-1491, United States v. Fabode
1994) (quoting United States v. Arroyo-Angulo, 580 F.2d 1137, 1150 (2d Cir. 1978) (Friendly, J.,
concurring)).
Fabode points to one comment that, in his mind, amounted to improper credibility
vouching. Fabode’s attorney, Mr. Shulman, made the following remark in his closing statement:
Now, all of these witnesses who were paraded before you by the
government who were involved in a conspiracy, . . . all of them entered agreements
with the government. They’ve all pled guilty to conspiracy, they’ve all given the
government an agreement that said they would come in and testify, all in hopes that
they would have their sentences reduced, and they’re all facing significant time in
prison pursuant to plea agreements, which are evidence, and you can look at those.
For the most part, most of them are going to be serving about seven years
in prison, and now they’re seeking to reduce their sentences, and although no
promises have been made to these people, they’ve all been told if you come in and
testify and your testimony’s helpful to us that we’ll write a memorandum to the
judge to have your sentence reduced.
I want you to think about that. I want you to think about the credibility of
the witnesses that you’ve heard in this case, all of them, and who has a reason to lie
or not be totally candid?
The prosecutor responded:
Mr. Shulman also talked about the cooperators in this case. He said that
they’re here, they’re motivated, they want to tell the story that the government
wants to hear so we can speak in their favor in reducing their sentences. All of
them testified that recommendation does not come unless their testimony is truthful.
And they were here to speak their truth, which is what they did. They’ve all
accepted responsibility for their actions, and they were here to tell you about the
truthful testimony they’ve given as to what their roles were in this conspiracy.
The prosecutor’s response did not rise to improper vouching. He never implied he had
some special ability to separate truth from untruth; he never implied, for example, that he would
decide whether the witnesses testified truthfully enough to earn a reduced sentence. And even
though the prosecutor’s closing statement passingly characterized certain testimony as “truthful,”
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Case No. 21-1491, United States v. Fabode
this remark was less flagrant than the cases that reversed a conviction for “blunt comments” about
a cooperating witness’s credibility. Compare Acosta, 924 F.3d at 299–300 (finding improper
vouching where a prosecutor said a witness was “a fine young man” who “testified very well” and
“remembered everything”), with United States v. Reid, 625 F.3d 977, 984–85 (6th Cir. 2010) (no
improper vouching when a prosecutor passingly suggested a witness was a truthful person).
Furthermore, when defense counsel attacks the credibility of the government’s witnesses in his
closing arguments, as he did here, the government may “respond by arguing that those witnesses
should be believed.” United States v. Boyd, 640 F.3d 657, 671 (6th Cir. 2011) (citing Reid, 625
F.3d at 985).
Fabode’s second prosecutorial-misconduct argument fares no better. He says the
government’s closing argument “misstated the evidence” and “repeatedly referred to acts not in
evidence.” His brief cites two examples: (1) comments implying Fabode “trafficked in more than
200,000 doses of medication,” and (2) comments suggesting Fabode “took in well over a million
dollars from illicit [drug] sales.” But even if these comments misstated the evidence, the district
court cured any hypothetical error when it instructed the jury that “the lawyers’ statements and
arguments are not evidence.” United States v. Emuegbunam, 268 F.3d 377, 406 (6th Cir. 2001)
(explaining how such an instruction “generally cure[s] any improprieties in a closing argument”).
For his third and final prosecutorial-misconduct argument, Fabode accuses the government
of interfering with his Sixth Amendment right to call a critical witness in his favor. This argument
rests entirely on one witness: Olugbade Bolanle, Fabode’s former business partner and the co-
owner of Friendz Pharmacy. The government warned the district court that Bolanle could face
potential criminal exposure if he testified. The district court agreed with the government and
appointed counsel to advise Bolanle about “the possible implications of [his] testimony.”
-5-
Case No. 21-1491, United States v. Fabode
When the defense subpoenaed Bolanle for trial, Bolanle’s counsel appeared and advised
the district court that his client was “inevitably going to take the Fifth Amendment” and that there
was “no avenue of examination that . . . would be even remotely open for [his] client to answer
questions.” The district court quashed the defense’s subpoena and excused Bolanle from trial.
The district court explained that, with one minor exception, Bolanle’s Fifth Amendment privilege
would cover nearly every avenue of potential questioning.
While the Sixth Amendment affords criminal defendants the right to call favorable
witnesses, Washington v. Texas, 388 U.S. 14, 19 (1967), this right “may, in appropriate cases, bow
to accommodate other legitimate interests,” Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting
Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). One of those competing “legitimate
interests,” we have explained, is a witness’s “assertion of his Fifth Amendment privilege against
self incrimination.” United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir. 1998). It was
reasonable for the district court to appoint counsel for Bolanle, hold a hearing to evaluate his
potential criminal exposure, and make a specific finding that his privilege against self-
incrimination would cover nearly every relevant issue to which he could testify at trial. Thus, the
prosecution did not engage in misconduct, nor did it violate Fabode’s constitutional rights simply
by advising the district court that a potential witness faced criminal exposure if the defense
compelled him to testify.
Every case relied on by Fabode is distinguishable. Webb v. Texas, for instance, held that a
trial court deprived a criminal defendant of due process by directing a “lengthy,” “intimidating,”
and “threatening” warning at the defendant’s only witness. 409 U.S. 95, 97–98 (1972). But here
the district court never offered such an “unnecessarily strong” admonishment to Bolanle. Id. at
98. The court simply recognized his Fifth Amendment right against self-incrimination and then
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Case No. 21-1491, United States v. Fabode
appointed counsel to advise him about his constitutional rights. The other cases Fabode cites, see
e.g., United States v. Morrison, 535 F.2d 223 (3d Cir. 1976), are even farther from the mark.
In a last-ditch effort to muddy the waters, Fabode says the government should have granted
use immunity to Bolanle because it would have removed any self-incrimination concerns, which,
in turn, would have allowed Fabode to call Bolanle as a defense witness. Grants of immunity,
however, are discretionary decisions left to the government. United States v. Lenz, 616 F.2d 960,
962 (6th Cir. 1980). And as we have previously explained, the Sixth Amendment right to call and
compel favorable witnesses does not “require[] the Government to exercise its statutory use-
immunity power affirmatively for a defendant’s benefit.” Id.
Even if the statements and actions flagged by Fabode had amounted to prosecutorial
misconduct, none was flagrant enough to warrant a new trial. See United States v. Krebs, 788 F.2d
1166, 1177 (6th Cir. 1986) (“To warrant a new trial . . . prosecutorial misconduct ‘must be so
pronounced and persistent that it permeates the entire atmosphere of the trial.’” (quoting United
States v. Lichenstein, 610 F.2d 1272, 1281 (5th Cir. 1980))). The alleged prosecutorial misconduct
was isolated and infrequent, and, given the weight of testimonial and documentary evidence
presented against Fabode, it is highly unlikely that any of the abovementioned behavior prejudiced
him. See Emuegbunam, 268 F.3d at 404 (listing “the total strength of the evidence against the
accused” as a relevant factor in any prosecutorial-misconduct inquiry).
II
Next, Fabode takes issue with the district court’s decision to allow the government to
question him at trial about a prior investigation into drug-distribution practices at Friendz
Pharmacy. He believes the questioning ran afoul of Federal Rules of Evidence 404(b) (because it
was prior “bad act” evidence”) and 403 (because it was unduly prejudicial). We disagree. Even
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Case No. 21-1491, United States v. Fabode
if the government’s investigation-related questioning could be taken for the propensity inference
prohibited by Rule 404(b), the questioning was still admissible and probative for at least two proper
purposes: it rebutted Fabode’s good-faith defense and impeached his credibility. Both of those
admissible purposes were relevant and material to Fabode’s trial, and the government’s questions
were sufficiently probative of those purposes to satisfy Rule 403’s balancing scheme.
Furthermore, the district court diminished the threat of any undue prejudice by prohibiting the
government from discussing the facts underlying the 2011 investigation. The district court also
issued two limiting instructions for the jury not to consider any prior-investigation evidence for
the “propensity” purpose prohibited by Rule 404(b). Given the limitations imposed by the district
court—how it restricted the scope of any investigation-related questioning and how it repeatedly
instructed the jury to not consider the evidence for an inadmissible propensity inference—we find
no abuse of discretion. See United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989) (“In
determining the admissibility of bad acts evidence under Rule 404(b), a trial judge is accorded
‘broad discretion.’”).
III
Fabode also challenges the district court’s drug-quantity calculation. The probation office
recommended the district court hold Fabode liable for a converted drug weight of 49,225.31kg,
which equates to the total number of Oxycodone 30mg and Oxymorphone 40mg pills sold at
Friendz Pharmacy during the conspiratorial period (January 2015 to March 2018). This converted
drug weight resulted in a base offense level of 36. USSG § 2D1.1(a)(5). After adding two points
because Fabode abused a position of public or private trust (pharmacist), USSG § 3B1.3, four
points because he “was an organizer or leader of a criminal activity that involved five or more
participants,” USSG § 3B1.1(a), and two points for obstruction of justice, USSG § 3C1.1, the
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Case No. 21-1491, United States v. Fabode
report recommended a total offense level of 43. Fabode’s total offense level of 43, paired with a
criminal history category of two, yielded a guideline range of life imprisonment.
Luckily for Fabode, rather than holding him responsible for every Oxycodone 30mg and
Oxymorphone 40mg tablet sold at Friendz Pharmacy during the conspiratorial period, the district
court limited his liability to “prescriptions that he himself issued.” This resulted in a base offense
level of 34, which equates to a converted drug weight of 10,000–30,000kg. USSG § 2D1.1(c)(3).
The district court also declined to apply the four-point leadership enhancement and the two-point
obstruction-of-justice enhancement and reduced Fabode’s criminal history category from a two to
a one. All these decisions led to a significantly diminished guidelines range of 188–235 months.
But the district court’s leniency went even farther. The district court varied downward by roughly
50% because of its view that the guidelines range, though diminished, remained “much greater
than necessary to achieve” 18 U.S.C. § 3553(a)’s objectives.
Despite the district court’s leniency, Fabode says the court failed to adequately explain
how it arrived at its drug-quantity calculation (10,000–30,000kg). And he believes the district
court’s alleged overestimation resulted in an erroneously high guidelines range which in turn led
to a higher sentence.
We review a district court’s drug-quantity calculation for clear error. United States v.
Jeross, 521 F.3d 562, 570 (6th Cir. 2008). And we find clear error only when there’s no
“competent evidence in the record” to support the district court’s calculation. United States v.
Campbell, 317 F.3d 597, 604 (6th Cir. 2003) (citing United States v. Owusu, 199 F.3d 329, 338
(6th Cir. 2000)). So long as there is “some minimum indicium of reliability beyond mere
allegation” to support the district court’s calculation, we generally defer to the drug weight
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Case No. 21-1491, United States v. Fabode
approximated by the finder of fact. United States v. Ward, 68 F.3d 146, 149 (6th Cir. 1995)
(quoting United States v. Smith, 887 F.2d 104, 108 (6th Cir. 1989)).
Given this highly deferential standard of review, we find no reversible error here because
there was more than “some minimum indicia of reliability” to support a converted drug weight of
10,000kg–30,000kg and a base offense level of 34. Friendz Pharmacy sold approximately 245,000
Oxycodone 30mg and Oxymorphone 40mg pills during the conspiratorial period, which translates
to a converted drug weight of 49,225kg. Friendz Pharmacy had two licensed pharmacists. So if
the district court split the converted weight—half for Fabode, half for the other pharmacist—it
could have reasonably concluded that Fabode sold a converted drug weight of roughly 24,612.5kg.
If roughly 40% of those sales were illicit, then the proper converted drug weight fell within what
is required for a base offense level of 34. And testimony could easily lead a reasonable sentencing
judge to believe that more than 40% of the Oxycodone and Oxymorphone pills sold by Fabode
were sold illegally. One doctor, after all, testified to having approximately 200 patients regularly
refill fraudulent opioid prescriptions, often at Friendz Pharmacy, and often by Fabode. We
recognize these numbers are estimations, but “[d]istrict courts may approximate the quantity of
drugs for sentencing purposes . . . as long as they err on the side of caution.” United States v.
Elder, 90 F.3d 1110, 1127 (6th Cir. 1996) (citation omitted).
Even if the district court erred in its drug-quantity calculation, and even if the error led to
an incorrect guidelines range, this is one of the “unusual circumstances” where an incorrect
guidelines calculation does not warrant a resentencing. Cf. Molina-Martinez v. United States, 578
U.S. 189, 201 (2016). The district court varied substantially from its guidelines calculation, and it
implied the guidelines had little influence on its sentencing decision. So we are satisfied that even
if the district court modestly overestimated the quantity of illicit drug sales attributable to Fabode,
- 10 -
Case No. 21-1491, United States v. Fabode
“a more lenient sentence would not be imposed” if we remanded the case for resentencing. United
States v. Alford, 436 F.3d 677, 683 (6th Cir. 2006). Remand would therefore be an exercise in
futility.
IV
Fabode also believes the district court impermissibly punished him for exercising his Sixth
Amendment right to trial by jury. This is so, he argues, because his coconspirators, all of whom
pleaded guilty, received substantially lower prison sentences than he received. But as we have
previously explained, “[m]ere disparity in sentences is insufficient” to show a sentencing judge
punished a defendant for exercising his right to trial by jury. United States v. Frost, 914 F.2d 756,
774 (6th Cir. 1990). Unlike Fabode, the other conspirators accepted responsibility for their actions.
Each of them cooperated with the government and assisted the government’s investigation. The
district court was free to recognize their cooperation and reward them for their contrition. United
States v. Stewart, 628 F.3d 246, 260 (6th Cir. 2010); USSG § 3E1.1 (allowing for a two-point
offense-level reduction if a defendant “clearly demonstrates acceptance of responsibility for his
offense”).
Fabode also claims his sentence undermines § 3553(a)(6), which instructs district courts
“to avoid unwarranted sentence disparities among defendants with similar records who have been
found guilty of similar conduct.” We have explained that § 3553(a)(6) refers to “national
disparities between defendants with similar criminal histories convicted of similar conduct—not
disparities between codefendants.” United States v. Bass, 17 F.4th 629, 636 (6th Cir. 2021)
(quoting United States v. Conatser, 514 F.3d 508, 521 (6th Cir. 2008)).
- 11 -
Case No. 21-1491, United States v. Fabode
V
Finally, Fabode argues that the Supreme Court’s recent decision in Ruan v. United States,
142 S. Ct. 2370 (2022), requires us to reverse Fabode’s convictions and order a new trial.
However, it does not.
The statute underlying Fabode’s convictions, 21 U.S.C. § 841(a), provides that it is
unlawful for any person, “except as authorized,” to “knowingly or intentionally” “manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance.” Doctors and pharmacists regularly dispense controlled substances, so the “except as
authorized” clause is especially important when, like here, the government charged a medical
professional with improperly distributing prescription medication. According to federal
regulations, a prescription is authorized—and thus it lies outside § 841(a)’s prohibition—when it
is “issued for a legitimate medical purpose by an individual practitioner acting in the usual course
of his professional practice.” 21 C.F.R. § 1306.04(a). How to properly capture § 841(a)’s elements
in a jury instruction—especially the “except as authorized” proviso and the guidance provided by
§ 1306.04(a)—is a difficult question we have addressed before. See, e.g., United States v.
Godofsky, 943 F.3d 1011 (6th Cir. 2019); United States v. Volkman, 797 F.3d 377 (6th Cir. 2015).
In June 2022, more than two years after Fabode’s trial and approximately three weeks
before we held oral argument, the Supreme Court released its decision in Ruan, which sought to
clarify the debate surrounding § 841(a). The Supreme Court held, for the first time, that § 841(a)’s
“knowingly or intentionally” mens rea applies not only to the elements coming after the mens rea
standard (“manufacture, distribute, or dispense, or possess with intent to manufacture, distribute,
or dispense, a controlled substance”) but also to the “except as authorized” clause at the beginning
of the provision. Id. at 2375. In practice, this means the “except as authorized” clause works like
- 12 -
Case No. 21-1491, United States v. Fabode
an additional element: “[O]nce a defendant meets the burden of producing evidence that his or her
conduct was ‘authorized,’ the Government must prove beyond a reasonable doubt that the
defendant knowingly or intentionally acted in an unauthorized manner.” Id. at 2376. Stated
differently, if a defendant produces any evidence that he or she had statutory authorization to
dispense or distribute the controlled substances underlying his charges, then the prosecution must
show beyond a reasonable doubt “that the defendant knew that he or she was acting in an
unauthorized manner, or intended to do so.” Id. at 2375. The Supreme Court reiterated, however,
that circumstantial evidence and “objective criteria such as ‘legitimate medical purpose’ and ‘usual
course’ of ‘professional practice’” are often probative indicia of a defendant’s subjective
knowledge and intent. Id. at 2382.
Days after the Supreme Court released its decision in Ruan, we ordered the parties to
submit supplemental briefing “discussing what impact, if any,” the decision had on Fabode’s
appeal. Both parties submitted supplemental briefs, and we carefully reviewed their submissions.1
For his part, Fabode asserts the jury instructions at his trial failed to capture § 841(a)’s mens rea
requirement.
But we need not reach that question. This conclusion is motivated by the fact that Fabode
never asked the district court to issue a Ruan-like instruction. He never asked the district court to
instruct the jury that, to convict, it must find that he knowingly dispensed controlled substances
without authorization or that he did so intentionally. And he never objected to the § 841(a)
instruction given by the district court. Therefore, we review the correctness of the instruction,
including its compliance with Ruan, for plain error. Neder v. United States, 527 U.S. 1, 9 (1999);
1
Fabode’s attorney filed his brief one day late. He then moved this court to accept his untimely brief. (Doc.
50.) We GRANT that motion.
- 13 -
Case No. 21-1491, United States v. Fabode
see also Greer v. United States, 141 S. Ct. 2090, 2096 (2021) (applying plain error review when
defendant has “an opportunity to object,” fails to do so, and “later raises the forfeited claim on
appeal”).
Under plain error review, Fabode must show “a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Greer, 141 S. Ct. at 2096.
Fabode cannot eclipse this high bar, as the evidence overwhelmingly demonstrated that he knew
he was acting in an unauthorized manner. For instance, at trial, codefendant Niesheia Tibu testified
that Fabode charged her more to fill prescriptions because she was a street dealer, and he knew she
could get more money selling the prescribed substances on the street. Tibu also testified that after
she was caught, she asked another pharmacist to warn Fabode not to fill any more of her
prescriptions. Detective Chad Allan testified at trial that his investigation uncovered numerous
ways that Fabode attempted to cover up his scheme using methods like data manipulation, pattern
prescribing, and slotting. And codefendant Dr. Vasan Deshikachar testified at trial that it would
be “obvious to other medical professionals” that Fabode’s scheme was illegitimate.
Given the overwhelming evidence in this case, Fabode cannot show a reasonable
probability that but for the district court’s failure to issue a jury instruction consistent with Ruan’s
mens rea holding, the outcome would have been different. Therefore, we find the Supreme Court’s
recent decision in Ruan does not require us to reverse Fabode’s conviction and order a new trial.
AFFIRMED.
- 14 - | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483135/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 9, 2022 *
Decided November 10, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1441
REBECCA I. HARP, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 20-C-1743
KILOLO KIJAKAZI,
Acting Commissioner of Social Security, Lynn Adelman,
Defendant-Appellee. Judge.
ORDER
The Social Security Administration reopened Rebecca Harp’s application for
disability insurance benefits based on evidence that she had concealed income, and
relying on that evidence, it revoked her benefits. Harp argues that the agency wrongly
reopened her case and that the money she concealed was not from substantial gainful
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 22-1441 Page 2
activity and thus did not affect her eligibility for benefits. Because substantial evidence
supports the agency’s contrary findings, we affirm.
Harp’s adult daughter, Nashawn, is disabled and requires extensive care. State
programs in Wisconsin will pay caregivers, including family members, for at-home
care. In 2014, Harp selected herself and her other daughter as Nashawn’s caregivers and
received money through a state program. After a payment issue arose with that
program, Harp enrolled Nashawn in a different program and again selected herself as a
caregiver. That program paid family members for services that “exceed the typical care-
giving/support responsibility” of family members, such as toileting, bathing, assisting
with complete transfers, and other “unique services.” Case managers regularly assessed
whether payments to Harp were proper under this standard. Harp earned, on average,
thousands of dollars per month from both programs in 2014 and 2015.
While Harp was receiving this money from the state programs, she applied for
federal disability insurance benefits based on a spine injury. Her income and work
history are relevant to her eligibility for benefits. See 20 C.F.R. §§ 404.1572, 404.1574(a).
At her hearing before an administrative law judge, Harp did not disclose receiving any
money from these state programs; nor did she list her caregiving work in her
“Claimant’s Work Background,” a form that she signed with her application. Unaware
of these omissions, the ALJ ruled in 2015 that she was disabled and eligible for benefits.
She began receiving benefits shortly afterward.
A few years later, the Social Security Administration learned of Harp’s income
from the state programs and halted her benefits. Harp received a letter from the agency
in April 2019 warning that she would no longer receive disability benefits. The agency
explained that it was reopening the disability ruling based on evidence (pay stubs from
the state programs listing Harp as an “employee” and itemizing her “gross wages”) that
Harp had wrongly concealed earnings. Her benefits temporarily resumed, though, after
she requested reconsideration. A month before the hearing on the reopened case, the
agency wrote that she would receive disability payments that she was “due.”
The hearing came next. Harp swore that she never performed caregiving tasks
for Nashawn and could not perform certain tasks (like picking Nashawn up) because of
her spinal injury. When asked why the state paid her thousands of dollars monthly, she
admitted that it paid her for the overnight hours “monitoring” Nashawn and changing
her diapers when no other caregiver was present. She conceded that, if she did not do
this monitoring, the state would have paid another caregiver for it. But, Harp insisted,
she did not need to disclose the payments because they were not “wages” for work but
No. 22-1441 Page 3
a “stipend” for “a home”; the state programs did not report it to the Social Security
Administration; and an IRS agent told her that she did not need to pay taxes on it.
Finally, Nashawn’s daytime caregiver testified that she did not observe Harp caring for
her daughter while that caregiver was present.
The ALJ ruled against Harp, concluding that she had engaged in substantial
gainful activity and earned, on average, thousands of dollars monthly for caregiving
services. 20 C.F.R. §§ 404.1572, 404.1574(a). This activity and the income it generated
meant that she was not disabled and was ineligible for disability insurance benefits.
20 C.F.R. § 404.1520(b). See SSA, Substantial Gainful Activity, available at
https://www.ssa.gov/oact/cola/sga.html (listing the disqualifying amounts as earnings
between $1,070 and $1,130 per month from 2014 to 2016) (last accessed October 7, 2022).
The Appeals Council denied Harp’s request for review, and the district court upheld
the ALJ’s order. We review the district court’s ruling de novo, Jarnutowski v. Kijakazi,
48 F.4th 769, 773 (7th Cir. 2022), and uphold the ALJ’s decision if it is supported by
substantial evidence. 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019).
On appeal, Harp takes aim at the decision to reopen her case. In her view, the
letter that she received a month before the hearing, promising that she would receive
resumed benefits that she was due, was the “final” decision of the agency. But the letter
does not purport to be final, and it did not cancel the upcoming hearing on her
reopened case to decide what benefits she was due. Moreover, the standard for
“reopening” was met here. Determinations about benefits may be “reopened” “[a]t any
time if—(1) It was obtained by fraud or similar fault.” 20 C.F.R. § 404.988(c)(1). The
letter notifying Harp of the agency’s decision to reopen her case was supported by
ample evidence of “fraud or similar fault.” The evidence included the pay stubs from
state programs listing Harp as an “employee” and the “wages” they paid her at the very
time she claimed that she was not working. In her reply brief, Harp argues for the first
time that these pay statements are “fabricated.” But this argument is unsubstantiated,
and she waived it because she did not raise it before the district court or in her opening
brief. See Wonsey v. City of Chicago, 940 F.3d 394, 398 (7th Cir. 2019).
Harp next reprises her contention that the ALJ wrongly decided to cancel her
benefits because, in her view, the income she received from the state care programs was
not for substantial gainful activity. She revisits the reasons she gave to the ALJ, but they
are all unavailing. First, she contends that the income did not disqualify her from
benefits because it was not taxable. But the regulations describe substantial gainful
No. 22-1441 Page 4
activity as “work that is usually done for pay or profit” and make no distinction
between taxable income and non-taxable income. 20 C.F.R. § 404.1572(b).
Second, she argues that her assertion that her spinal injury prevented her from
caring for her daughter, and the daytime caregiver’s testimony, support Harp’s view
that she did no caregiving. But the ALJ was not required to believe Harp’s assertion,
and other evidence amply refuted it. See Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015).
For instance, the ALJ permissibly relied on Harp’s admission that when she
“monitored” Nashawn all night, including changing her diapers, she performed tasks
for which the state would otherwise pay non-family members. And the state programs,
which paid family members only for caregiving work not normally provided by
families, regularly assessed whether they paid Harp according to those restrictions. As
for the other caregiver’s testimony that she did not observe Harp caring for Nashawn,
the ALJ reasonably discounted it because Harp was paid for the hours when the
daytime caregiver was not present and could not observe her.
Finally, Harp attempts to characterize her earnings as a “stipend” for giving her
daughter a place to live—in other words, the state paid for Nashawn’s rent. But the
record contains substantial evidence that the state programs paid recipients only for
services, not for housing.
AFFIRMED | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483132/ | NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0448n.06
Case No. 22-5206
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Nov 08, 2022
GARY ACCORD, individually and on behalf of ) DEBORAH S. HUNT, Clerk
)
all others similarly situated,
)
Plaintiff - Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
ANDERSON COUNTY, TENNESSEE, et al., )
Defendants, ) OPINION
)
COCKE COUNTY, TENNESSEE, )
)
Defendant - Appellee. )
Before: SILER, NALBANDIAN, and READLER Circuit Judges.
NALBANDIAN, Circuit Judge. About two years after Gary Accord’s plea bargain, he and
putative class members filed suit against all 95 Tennessee counties. Accord alleged that
widespread-county use of invalid charging instruments led to void arrests, prosecutions, and
judgments. The district court dismissed 94 counties from the suit for lack of standing, leaving
only Cocke County. Having whittled the case down, the court considered the County’s argument
that Accord’s suit was untimely under Tennessee’s two applicable one-year statutes of limitations.
The court agreed and dismissed his suit, holding that Accord’s allegedly void judgment did not
negate the statutes of limitations and that he cannot bring a direct constitutional challenge on top
of his § 1983 claim. For the same reasons, we AFFIRM.
No. 22-5206, Accord v. Anderson County, et al.
I.
On June 29, 2018, a highway patrolman stopped Gary Accord in Cocke County, Tennessee
for driving with “no headlight.” (R. 98-1, Accord Citation, at 1) But the stop didn’t end with a
blown headlight. Accord admitted to taking the opioid “Hydrocodone” earlier that day, and he did
“poorly” on the patrolman’s drug test. (Id.) As a result, the patrolman arrested Accord for driving
under the influence and transported him to county jail.
Rather than obtaining an arrest warrant, the patrolman filed a complaint-affidavit called the
“Uniform Citation Form/Affidavit of Complaint.” (R. 1, Original Complaint, at 8 ¶ 6.) And the
State later prosecuted Accord using that same form.
On December 3, 2018, Accord and the County struck a plea deal. Under the terms, the
County’s General Sessions Court reduced Accord’s DUI charge to reckless endangerment and
sentenced him to 11 months and 29 days in jail, with a suspended sentence.
About two years later, on February 1, 2021, Accord filed a class action complaint under 42
U.S.C. § 1983 against all 95 Tennessee counties—Cocke County included. Accord alleged that
the officials from the General Sessions Court of Cocke County had not used a proper charging
instrument or prepared and signed an arrest warrant. He argued that his charging form did not
provide formal notice of an offense or comply with Tennessee’s criminal procedural rules. And
he reasoned that the form invalidates his criminal proceedings.
Accord alleged that his experience was not unusual. He contended, on behalf of a class,
that every General Sessions Court in Tennessee fails to use proper charging instruments—a
practice he says violates the United States Constitution, as well as Tennessee law. He later
Page 2 of 10
No. 22-5206, Accord v. Anderson County, et al.
amended his complaint, still alleging Fourth, Sixth, and Fourteenth Amendment violations under
42 U.S.C. § 1983, as well as a state-law claim for false light invasion of privacy.
With 95 counties joined to the class action suit, the district court ruled on a slew of motions.
Most relevant among them, the court dismissed 94 of the counties for lack of standing. Only Cocke
County remained.
The court then granted the County’s Rule 12(b)(6) motion with prejudice. The court
reasoned that the applicable statute of limitations barred Accord’s claims. And the court rejected
Accord’s argument that he could assert direct constitutional claims along with his § 1983 claims.
Because the statute of limitations barred the suit, the court declined to consider the County’s other
bases for dismissal. Accord timely appealed.
II.
We review a district court’s dismissal for failure to state a claim de novo. Kenjoh Outdoor,
LLC v. Marchbanks, 23 F.4th 686, 692 (6th Cir. 2022). Here, the court based its dismissal on
Tennessee’s statutes of limitations. When the complaint’s allegations make out a time-barred
claim, “dismissing the claim under Rule 12(b)(6) is appropriate.” Cataldo v. U.S. Steel Corp., 676
F.3d 542, 547 (6th Cir. 2012). More generally, to survive a Rule 12(b)(6) motion, the 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) (citation and quotation marks omitted).
A facially plausible claim allows courts “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citation omitted). And “we construe the complaint in the
light most favorable to” Accord, “accept[ing] all well-pleaded allegations” as true and drawing all
Page 3 of 10
No. 22-5206, Accord v. Anderson County, et al.
reasonable inferences in his favor. Keene Grp., Inc. v. City of Cincinnati, 998 F.3d 306, 310 (6th
Cir. 2021).
III.
We first address whether Tennessee’s two applicable one-year statutes of limitations barred
Accord’s § 1983 and state-law claims. They did. The district court correctly held that the statutes
of limitations barred each of his claims.
Accord’s federal claims are subject to a one-year statute of limitations. For § 1983 claims,
we apply the statute of limitations in the state “where the cause of action originated.” Hall v.
Spencer County, 583 F.3d 930, 933 (6th Cir. 2009) (citing Owens v. Okure, 488 U.S. 235, 249–50
(1989)). Tennessee law provides a one-year time limit for actions brought under federal civil rights
statutes. Tenn. Code Ann. § 28-3-104(a)(1)(B).
Accord’s state-tort claim also faces a one-year statute of limitations. The Tennessee
Governmental Tort Liability Act provides that “the action must be commenced within twelve (12)
months after the cause of action arises.” Tenn. Code Ann. § 29-20-305(b). So Tennessee law
required Accord to bring his federal and state claims within one year.
That much is straightforward. The harder question is when the clock started ticking.
Although state law provides the appropriate limitations period for § 1983 claims, federal law
determines when that time starts to accrue. Wallace v. Kato, 549 U.S. 384, 388 (2007). Claims
normally accrue “when the plaintiff can file suit and obtain relief.” Jordan v. Blount County, 885
F.3d 413, 415 (6th Cir. 2018) (quotation omitted). Under what some call our discovery rule, time
starts for § 1983 claims when a “plaintiff discovers, or in the exercise of reasonable diligence
should have discovered, both his injury and the responsible party.” Hall, 583 F.3d at 933 (citation
Page 4 of 10
No. 22-5206, Accord v. Anderson County, et al.
omitted). Under an objective standard, we must ask, “[W]hat event should have alerted the typical
lay person to protect his or her rights[?]” Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir.
2005) (quotation omitted).
Tennessee tort claims accrue similarly. Time starts “when the plaintiff knows or in the
exercise of reasonable care and diligence should know that an injury has been sustained as a result
of wrongful or tortious conduct by the defendant.” Gibson v. Trant, 58 S.W.3d 103, 117 (Tenn.
2001) (quoting John Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998)).
The statutes of limitations bar Accord’s claims. We have two dates to choose from:
Accord’s arrest on June 29, 2018, and his plea deal on December 3, 2018. Yet it doesn’t matter
which one we choose. Accord did not sue until February 1, 2021—more than two years after his
plea deal. So, even under his best-case scenario, he filed over a year too late. Thus, Tennessee
law bars his federal and state-law claims.
Accord, not surprisingly, resists this conclusion. He asserts that the County never had
subject-matter jurisdiction over his case because he never received a proper charging instrument.
And that faulty instrument led to a wrongful prosecution and due process violations. Although
these look like merits arguments, what Accord contends is that statutes of limitations don’t apply
to void-ab-initio cases, like his.1
He reasons that the limitations only bar an action when a prosecution begins. So, the
argument goes, because he had a void prosecution, the clock never started ticking. Accord leaves
1
A void-ab-initio judgment includes one that is “rendered in violation of due process.” World-
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). A court would make such
judgment “without legal authority,” which creates a legal nullity that has no effect. In re Hamilton,
540 F.3d 367, 373–74 (6th Cir. 2008).
Page 5 of 10
No. 22-5206, Accord v. Anderson County, et al.
us with two options: either we allow plaintiffs with allegedly void arrest warrants and prosecutions
to bring § 1983 claims forever, or we treat the claims like we normally do, accruing time from the
day plaintiffs discover their injuries. We choose the latter. And for good reason.
The logic of applying Accord’s void-ab-initio argument to the § 1983 context is
fundamentally flawed. His void-ab-initio argument is, at its core, a procedural-due-process
challenge. He says that his “void” prosecution stems from a lack of due process—that he didn’t
get adequate notice. He then asks us to disregard the statute of limitations because of his due-
process violation. But we decline to carve an exception out from the statute-of-limitations
requirement simply because a party alleges a due-process deficiency.
Such deficiencies are a feature, not a bug, of many § 1983 claims. To even proceed on a
procedural-due-process claim, parties must generally allege what Accord did: that a wrongful
process led to an invalid result. See Wedgewood Ltd. P’ship I v. Twp. of Liberty, 610 F.3d 340,
349 (6th Cir. 2010) (requiring parties to prove that the state did not afford “adequate procedural
rights” before depriving them of a life, liberty, or property interest protected by the Fourteenth
Amendment’s Due Process Clause). So logically applying Accord’s “void ab initio” argument
would require us to apply a statute-of-limitations exception to other procedural-due-process
claims. But we’ve never identified such a broad exception to procedural-due-process cases under
§ 1983. And we decline to do so now.
Parties alleging procedural-due-process errors must still meet the statute of limitations.
See, e.g., McNamara v. City of Rittman, 473 F.3d 633, 638–39 (6th Cir. 2007) (barring procedural-
due-process claims against a city’s past violations); Printup v. Dir., Ohio Dep’t of Job & Fam.
Page 6 of 10
No. 22-5206, Accord v. Anderson County, et al.
Servs., 654 F. App’x 781, 787–88 (6th Cir. 2016) (affirming that the statute of limitations barred
a procedural-due-process claim). And our general discovery rule still applies to such actions.
Accord responds with several lines of cases, but all prove inapposite. To be sure, the
Tennessee Supreme Court has held in some situations that void judgments are not subject to
statutes of limitations. Turner v. Turner determined that a mother whose parental rights had been
terminated was not barred by the “reasonable time” filing requirement in Tennessee Rule 60.02.
473 S.W.3d 257, 268 (Tenn. 2015). The mother sought to challenge the original judgment as void
eight years after it had been rendered. Id. at 264. The court, following the majority of federal
courts applying Federal Rule of Civil Procedure 60, held that “the reasonable time filing
requirement does not apply to motions seeking relief from void judgments.” Id. at 278. Similarly,
in Edwards v. Allen, the court held that a declaratory challenge to property-use reclassification was
not subject to a statute of limitations when the plaintiffs contended that the original reclassification
was void ab initio. 216 S.W.3d 278, 292–93 (Tenn. 2007). And nearly all of Accord’s other cases
stand for similar notions.2 But they don’t help his case.
2
See S. Tacoma Way, LLC v. State, 233 P.3d 871, 873–74 (Wash. 2010) (voiding a property sale
that violated statutory requirements); In re Sale of Real Est. by Lackawanna Cnty. Tax Claim
Bureau, 255 A.3d 619, 634 (Pa. Commw. Ct. 2021) (voiding a judicial sale of property because a
court of common pleas lacked jurisdiction); Autin v. Goetz, 524 S.W.3d 617, 629 (Tenn. Ct. App.
2017) (noting that parties can challenge the enforcement of void protective orders that a court
enters without subject matter jurisdiction); Poffenberger v. Goldstein, 776 A.2d 1037, 1042–43
(Pa. Commw. Ct. 2001) (quieting title because the recording of a deed did not provide adequate
notice); In re Adoption of Hatcher, 16 S.W.3d 792, 796 (Tenn. Ct. App. 1999) (allowing an attack
on an adoption order entered by a court that lacked subject matter jurisdiction); People ex rel. Vill.
of Northbrook v. City of Highland Park, 342 N.E.2d 196, 200 (Ill. App. 1976) (concluding that the
statute of limitations does not bar attacks on void annexations of land); Paul v. L.A. Cnty. Flood
Control Dist., 37 Cal. App. 3d 265, 268, 275–76 (1974) (quieting title on a property that had a
defective tax deed); Allen v. Hussey, 225 P.2d 674, 684–85 (Cal. Ct. App. 1950) (voiding an airport
lease created in violation of a trust created by a statute).
Page 7 of 10
No. 22-5206, Accord v. Anderson County, et al.
These courts allow parties to invalidate the void thing itself. And Accord doesn’t want
that. Instead, he brings a § 1983 claim seeking monetary damages for a past injury. He doesn’t
seek to set aside a prior judgment as void per se. So his case is, as we discuss above, like any other
civil rights suit seeking monetary damages. It would be a different matter if Accord was seeking
to invalidate or vacate his criminal conviction or perhaps even his plea agreement (though those
challenges would likely be more appropriate in state court).3
True, Accord’s damages claim hinges in large part on establishing that the process that led
to his conviction was flawed—something that would overlap with what he would have to show to
set aside the judgment entirely. But overlap isn’t enough. His claim is not for a void judgment.
It’s for damages. And Accord fails to cite any case that recognizes the statute-of-limitations
exception that he argues for here.
3
Accord relies on many state-criminal-law cases that use the void-ab-initio doctrine to invalidate
prior judgments or dismiss cases. See State v. Ferrante, 269 S.W.3d 908, 915 (Tenn. 2008)
(barring Tennessee from prosecuting a defendant because of a void charging instrument); State v.
Campbell, 641 S.W.2d 890, 893 (Tenn. 1982) (denying a defendant’s motion to dismiss a
prosecution because Tennessee “cure[d] all defects emanating from the first arrest and charging
procedure” by “obtain[ing] an indictment or presentment”); State v. Shell, 512 S.W.3d 267, 270
(Tenn. Crim. App. 2016) (dismissing charges because an affidavit of complaint “did not evolve
into an arrest warrant” and did not “commence the prosecution”); State v. Wilson, 6 S.W.3d 504,
507 (Tenn. Crim. App. 1998) (affirming a dismissal of an invalid warrant); State v. Morgan, 598
S.W.2d 796, 797–98 (Tenn. Crim. App. 1979) (reversing a defendant’s conviction because of a
void warrant); Myers v. State, 577 S.W.2d 679, 681 (Tenn. Crim. App. 1978) (voiding a judgment
because a city judge had no jurisdiction to entertain a defendant’s plea); State v. Grieco, No.
E2015–01110–CCA–R3–CD, 2017 WL 956345, at *5 (Tenn. Crim. App. Mar. 10, 2017) (barring
Tennessee from prosecuting a defendant because of a void charging instrument); State v. Floyd,
No. E2016-00260-CCA-R3-CD, 2016 WL 4547370, at *2 (Tenn. Crim. App. Aug. 31, 2016)
(reversing a DUI conviction because a county criminal court did not have jurisdiction from an
invalid arrest warrant); Rivas v. McAllister, No. E2015–01506–CCA–R3–HC, 2016 WL 853317,
at *2 (Tenn. Crim. App. Mar. 4, 2016) (denying a defendant’s petition for habeas relief after
finding his judgment valid); State v. Gastineau, No. W2004-02428-CCA-R3-CD, 2005 WL
3447678, at *3 (Tenn. Crim. App. Dec. 14, 2005) (requiring a warrant or citation to provide notice
of a law violation before a court can find a defendant guilty).
Page 8 of 10
No. 22-5206, Accord v. Anderson County, et al.
He last challenges the district court for relying on cases that don’t involve jurisdictional
challenges or void-ab-initio prosecutions. That critique is unavailing. Precedent makes at least
one thing clear: A state’s limitations period applies to all § 1983 cases within that state. See
Wallace, 549 U.S. at 387. And the same limits apply to his state-law claim. Seeing that Accord’s
void-ab-initio argument does not negate the limitations on his claims, we hold his suit time-barred.
IV.
We next address whether Accord can bring a direct constitutional challenge against a
municipality because he can no longer raise his time-barred Monell claim. He cannot. Binding
precedent limits him to a § 1983 claim, even if he can’t succeed on the claim.
Put simply, parties can no longer bring a direct constitutional action where § 1983 applies.
See, e.g., Smith v. Kentucky, 36 F.4th 671, 674 (6th Cir. 2022); Demery v. City of Youngstown,
818 F.2d 1257, 1263 n.6 (6th Cir. 1987) (Guy, J., concurring). Indeed § 1983 provides the only
recourse for constitutional claims against a municipality like Cocke County. See, e.g., Warthman
v. Genoa Twp. Bd. of Trustees, 549 F.3d 1055, 1062 (6th Cir. 2008) (reasoning that had an
employee “sought relief pursuant to the Due Process Clause, she would have been required to do
so through the vehicle of a 42 U.S.C. § 1983 claim”); Thomas v. Shipka, 818 F.2d 496, 500 (6th
Cir. 1987), vacated on other grounds, 872 F.2d 772 (1989).
Otherwise, allowing Accord to imply a cause of action directly under the Constitution
would “circumvent the applicable limitations period . . . .” Smith, 36 F.4th at 676 (citing Thomas,
818 F.2d at 500). Congress already provided the statutory recourse of “equal effectiveness through
which [Accord] could have vindicated [his] constitutional rights.” Thomas, 818 F.2d at 500. And
recognizing “a second direct constitutional claim with a different statute of limitations would run
Page 9 of 10
No. 22-5206, Accord v. Anderson County, et al.
contrary to the intent of the Supreme Court’s mandate” that each state select one statute of
limitations for all § 1983 claims. Id. at 504 (citing Wilson v. Garcia, 471 U.S. 261, 275 (1985)).
Our recent case, Smith v. Kentucky, confirms that § 1983 provided Accord an exclusive
chance at relief. 36 F.4th at 675–76. There, the statute of limitations barred the plaintiffs’ § 1983
claim, so they resorted to seeking an implied action directly under the Constitution. Id. at 675.
We rejected the argument then, just as we do now. Id. Accord had a year to bring a Monell claim,
which he didn’t do. He missed his chance at his exclusive remedy. And Accord does not—and
cannot—cite one case that allows parties to choose between a Monell claim and a direct
constitutional challenge.
V.
For these reasons, we AFFIRM the district court’s grant of the County’s motion to dismiss.
Page 10 of 10 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484242/ | Filed 11/15/22 P. v. Hunter CA2/7
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 SEVEN
THE PEOPLE, B317637
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA087132-02)
v.
CURTIS MAURICE HUNTER,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Sean D. Coen, Judge. Affirmed.
Daniel Milchiker, 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, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Daniel C. Chang, Deputy Attorneys
General, for Plaintiff and Respondent.
________________________
Curtis Maurice Hunter, convicted in 2007 on two counts of
attempted willful, deliberate and premeditated murder, appeals
the summary denial of his petition for resentencing pursuant to
1
Penal Code section 1172.6 (former section 1170.95). Although
the superior court erred in failing to appoint counsel for Hunter
and to allow briefing before determining whether Hunter was
ineligible for relief as a matter of law, that error was harmless
2
because the record of conviction establishes that Hunter was not
found guilty of attempted murder under any theory of liability
affected by the amendments to the law of murder made by Senate
Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). We
affirm.
1
Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.)
All further statutory references are to the Penal Code.
2
We construed the Attorney General’s request for judicial
notice of the record in Hunter’s direct appeal (People v. Hunter,
B205552) as a motion to augment the record pursuant to
California Rules of Court, rule 8.155(a)(1)(A) and granted the
motion, incorporating by reference the clerk’s and reporter’s
transcripts that comprise the record in the prior appeal as part of
the record in the instant appeal.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Hunter’s Conviction for Attempted Murder
Hunter was charged in a two-count information filed
January 22, 2007 with the attempted willful, deliberate and
premeditated murder of Anthony Bickham and Shawn Turner.
Firearm-use and criminal street gang enhancements were
specially alleged as to both counts. The People’s theory of the
case, as summarized in our opinion affirming Hunter’s
convictions (see People v. Hunter (Mar. 18, 2009, B205552)
[nonpub. opn.]), was that Bickham and Turner, members of a
Crips gang, were walking near the border of the territory of a
Bloods gang, when Hunter, a member of the Bloods, recognized
Bickham and Turner as Crips, pulled a gun and fired several
shots at them, narrowly missing Bickham and severely injuring
Turner.
Hunter’s jury was instructed pursuant to CALCRIM
No. 600 that to prove attempted murder the People had to prove,
among other elements, “The defendant intended to kill that
person,” and pursuant to CALCRIM No. 601 that the allegation
Hunter had acted deliberately, willfully and with premeditation
required the People to prove, in part, he “intended to kill when he
acted” and “decided to kill before acting.” The jury was also
instructed on attempted voluntary manslaughter—heat of
passion (CALCRIM No. 603) as a lesser included offense of
attempted murder. There were no instructions on liability for
attempted murder on a theory of aiding and abetting or the
natural and probable consequences doctrine.
With respect to the specially alleged enhancements for
personal use and intentional discharge of a firearm, the jury was
instructed pursuant to CALCRIM Nos. 3148 and 3150 it had to
3
find the defendant “personally discharged a firearm during the
commission or attempted commission of the crime” and “intended
to discharge the firearm.”
Hunter was convicted of the attempted deliberate, willful
and premeditated murder of both men. The jury found that both
offenses had been committed for the benefit of a criminal street
gang and that Hunter had personally and intentionally
discharged a firearm causing great bodily injury to Turner and
had personally and intentionally discharged a firearm during the
attempt on Bickham’s life. The court sentenced Hunter to an
3
aggregate indeterminate state prison term of 75 years to life.
2. Hunter’s Petition for Resentencing
On December 13, 2021 Hunter, representing himself, filed a
petition for resentencing pursuant to former section 1170.95. The
petition included Hunter’s declaration that he had been charged
with attempted murder under the natural and probable
consequences doctrine and could not now be convicted of
attempted murder because of Senate Bill 1437’s amendments to
sections 188 and 189. Hunter requested appointment of counsel
to assist him. (The petition also asserted Turner and Bickham
had recanted their testimony identifying Hunter as the man who
shot them and argued his trial counsel had provided
constitutionally ineffective assistance.)
3
On appeal Hunter argued only that the clerk’s minute
order and abstract of judgment needed to be corrected to
accurately reflect the sentence actually imposed. We agreed and
ordered the clerical errors corrected. (People v. Hunter, supra,
B250552.)
4
On December 15, 2021 the superior court summarily denied
Hunter’s petition without appointing counsel. The court stated,
because Hunter had been convicted of attempted murder, he was
not eligible for resentencing.
Hunter filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708;
People v. Lewis (2021) 11 Cal.5th 952, 957.) It also authorized,
through former section 1170.95, an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not now be convicted of murder because of Senate
Bill 1437’s changes to the definitions of the crime. (See Strong, at
p. 708; Lewis, at p. 957; Gentile, at p. 843.) As amended by
Senate Bill No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775),
effective January 1, 2022, these ameliorative changes to the law
now expressly apply to attempted murder and voluntary
4
manslaughter.
4
Although the superior court summarily denied Hunter’s
petition prior to Senate Bill 775’s effective date on the ground
Senate Bill 1437 did not apply to attempted murder, the
5
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief, the court must appoint counsel to
represent the petitioner, if requested (§ 1172.6, subd. (b)(3)), and
direct the prosecutor to file a response to the petition, permit the
petitioner to file a reply and determine if the petitioner has made
a prima facie showing that he or she is entitled to relief.
(§ 1172.6, subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1172.6 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “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 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. . . . 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.” (Id. at
pp. 970-971, internal quotation marks omitted.)
legislation expanding the reach of Senate Bill 1437’s
amendments to murder liability had been signed by the Governor
and chaptered two months earlier—prior even to the filing of
Hunter’s petition.
6
When a petitioner has carried the burden of making the
requisite prima facie showing he or she falls within the
provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
“At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to 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. . . . A finding that there is substantial evidence to support
a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
2. The Superior Court Erred in Denying Hunter’s Petition
Without Appointing Counsel and Allowing Briefing
Senate Bill 775’s expansion of eligibility for resentencing
and its revisions to a petitioner’s procedural rights under
section 1172.6 apply to all cases not yet final on the legislation’s
effective date. (People v. Basler (2022) 80 Cal.App.5th 46, 56;
People v. Porter (2022) 73 Cal.App.5th 644, 652; see In re Estrada
(1965) 63 Cal.2d 740, 744-745.)
By its express terms, former section 1170.95 as enacted by
Senate Bill 1437 did not authorize a petition to vacate a
7
conviction for any offense other than murder. As discussed,
however, among other changes Senate Bill 775 amended former
section 1170.95, subdivision (a), to expressly permit relief for
petitioners convicted of attempted murder under the natural and
probable consequences doctrine if they could not now be convicted
of attempted murder because of changes to sections 188 and 189
effected by Senate Bill 1437. Because Hunter’s petition included
his declaration that he satisfied those elements of a prima facie
showing for resentencing relief, it was error to summarily deny
his petition without appointing counsel and permitting an initial
round of briefing. (§ 1172.6, subds. (b)(3), (c); see Lewis, supra,
11 Cal.5th at p. 963 [“petitioners who file a complying petition
requesting counsel are to receive counsel upon filing of a
compliant petition”].)
3. The Superior Court’s Errors Were Harmless: Hunter Is
Ineligible for Resentencing as a Matter of Law
A superior court’s procedural errors prior to assessing
whether a petitioner has made a prima facie showing of
entitlement to relief pursuant to section 1172.6, subdivision (c), is
state law error only, reviewable for prejudice under the harmless
error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis,
supra, 11 Cal.5th at pp. 957, 973-974.) Specifically, “a petitioner
‘whose petition is denied before an order to show cause issues has
the burden of showing “it is reasonably probable that if [he or
she] had been afforded assistance of counsel his [or her] petition
would not have been summarily denied without an evidentiary
hearing.”’” (Lewis, at p. 974.) Here, the jury’s instructions and
verdict—part of the record of conviction now included in the
8
5
record on appeal —unquestionably establish that Hunter was
neither tried nor convicted of attempted murder on a now-invalid
theory of accomplice liability.
To reiterate, there were no jury instructions concerning
aider and abettor (accomplice) liability, nor was the jury
instructed on the natural and probable consequences doctrine.
To the contrary, as instructed, to find Hunter guilty of attempted
deliberate, willful and premeditated murder, the jury necessarily
found he had acted with express malice—that is, that he intended
to kill his victims. The jury findings of actual malice were
confirmed by the additional findings that Hunter had personally
and intentionally discharged a firearm during the two attempted
murders.
Because there is no reasonable probability Hunter would
obtain a more favorable result if the matter were remanded and
counsel appointed and given the opportunity to file a
memorandum supporting the petition, the court’s errors in
denying Hunter’s petition were harmless. (See People v. Mancilla
(2021) 67 Cal.App.5th 854, 864; see generally People v. Watson,
supra, 46 Cal.2d at p. 836.)
5
See footnote 2.
9
DISPOSITION
The postjudgment order denying Hunter’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
10 | 01-04-2023 | 11-16-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484243/ | Filed 11/16/22 P. v. Arnold CA2/5
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 FIVE
THE PEOPLE, B311683
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM011449)
v.
STEPHEN ARNOLD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Andrea C. Thompson, Judge. Affirmed.
Lori E. Kantor for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Stephen Arnold appeals an order of commitment
the trial court entered pursuant to the Sexually Violent Predator
Act, Welfare and Institutions Code section 6600 et seq. (SVPA or
1
Act). He contends there is insufficient evidence to support the
order. He also argues the trial court erroneously permitted an
expert psychologist to testify for the People. We reject both
arguments and affirm the order.
BACKGROUND
Arnold was a troubled juvenile. He began drinking alcohol
and smoking marijuana in his early teens. He dropped out of
school in tenth grade. According to his mother, Arnold was a
“very disturbed child” who went “crazy” when he became
intoxicated. He was arrested on two occasions as a minor for
petit larceny.
In his early twenties, Arnold began regularly using crack
cocaine and PCP. From 1980, when he was 20, to 1991 when he
was 31, Arnold was repeatedly arrested for many different
crimes, including larceny, theft, fraud, robbery, possession of
stolen property, possession of narcotics, assault, and criminal
possession of a firearm or knife. On at least nine occasions, he
was convicted and sentenced.
A. Arnold’s arrests and convictions for sexually violent
crimes
On four occasions Arnold was arrested for committing
sexually violent crimes. In June 1984, Arnold was arrested for
1
Unless otherwise stated, all further statutory
references are to the Welfare and Institutions Code.
2
rape in concert with force or violence. The victim, however,
declined to assist the prosecution, and the case was not pursued.
In August 1984, Arnold was arrested and charged with
forcible rape and sodomy. He pled guilty to “sexual misconduct,”
a misdemeanor under New York law.
On July 5, 1991, Arnold was arrested for sexually
assaulting Cynthia S. He allegedly forced Cynthia S. to orally
copulate him at knife point. Arnold also allegedly raped Cynthia
S. twice. He was booked and released the same day. Later, when
Cynthia S. did not appear at trial, the prosecution dropped the
charges against Arnold.
On July 12, 1991, while the Cynthia S. case was pending,
Arnold committed the crimes that led to his long-term
incarceration. Armed with a pellet rifle, Arnold forced his way
into a residence, subdued two men, and demanded money from
Diane L. and the men.
During this incident, Arnold ordered Diane L. to orally
copulate him. She complied after Arnold threatened to shoot her
and the men if she did not do as he demanded. Arnold then
ordered Diane L. to take off her pants and underwear and have
intercourse with him. While Arnold was raping Diane L., the
police arrived. Arnold fled but was apprehended that day.
In March 1992, Arnold was convicted of forced rape, forced
oral copulation, and first-degree robbery. He was sentenced to
twenty-six years in prison.
B. Arnold’s behavior in prison
While Arnold was in prison, correctional officers wrote two-
dozen reports charging him with violation of prison rules. Many
of Arnold’s violations related to possession of alcohol. In 1998, he
was accused of trying to physically force another inmate to
3
perform a sexual act. There is no record, however, of whether
any charges were brought related to this offense. In 2002, Arnold
was found to have committed a serious rule violation for indecent
exposure. Arnold lifted his penis over his underwear and stated
to a correctional officer, “This is what you want.”
C. The commencement of this action and Arnold’s
confinement at a state hospital
Shortly before Arnold finished serving his sentence, the
People commenced this action. On March 22, 2007, the People
filed a petition for commitment pursuant to the SVPA. At the
probable cause hearing on April 24, 2007, the court denied
Arnold’s motion to dismiss, and ordered that he be confined in a
secured facility pending trial. Arnold was then transferred to the
Coalinga State Hospital (the hospital).
D. Arnold’s conduct at the hospital
For a variety of reasons not relevant here, the case was not
brought to trial until January 2020. While Arnold was in the
hospital waiting for trial, the authorities wrote 176 infraction
reports for a wide range of offenses, including possession of
alcohol, possession of pornography, and aggressive and
threatening conduct.
Arnold was frequently intoxicated at the hospital. On one
occasion, when his psychiatrist told him he appeared intoxicated,
Arnold responded, “I don’t fucking care what you think.”
Arnold also showed no remorse for his sexually violent
crimes. He denied committing any sexual offenses, claiming he
was simply in the “wrong place at the wrong time.”
Arnold was frequently verbally abusive to hospital staff,
especially when he was intoxicated. He often called women at
4
the hospital sexualized names. On one occasion, referring to a
staff member, Arnold stated, “If that bitch says one more word,
I’m going to rape her.”
In September 2017, while psychiatric technician Froila
Fernandez was treating another patient, Arnold walked by and
dropped a letter on her lap. In the letter, Arnold solicited
Fernandez to buy a throw-away phone so they could speak freely.
He also praised her physical attributes and stated she had a “well
shape[d] butt.”
E. The trial
Both parties waived their right to a jury trial. The bench
trial lasted from January to December, 2020, taking nearly a
year to complete due to delays associated with the COVID-19
pandemic.
Both parties called two psychologists as expert witnesses:
the People called Dr. Harry Goldberg and Dr. Laljit Sidhu;
Arnold called Dr. Amy Phenix and Dr. Brian Abbott. Doctors
Goldberg, Sidhu, and Phenix diagnosed Arnold with anti-social
personality disorder (ASPD) and alcohol abuse disorder. Dr.
Abbott did not diagnose Arnold with ASPD because he could not
substantiate one criterion, namely conduct disorder before age
15. Dr. Abbott agreed with the other expert psychologists that
Arnold had alcohol abuse disorder.
Dr. Goldberg opined that Arnold was a sexually violent
predator (SVP) within the meaning of the statute. Doctors Sidhu,
Phenix, and Abbott opined that Arnold did not meet the criteria
for an SVP. Because we must review the evidence in a light most
favorable to the People, we shall discuss Dr. Goldberg’s testimony
in detail below.
5
F. The order of commitment
On March 8, 2021, the trial court issued a proposed
statement of decision in which it found the People’s petition true
2
and that Arnold was an SVP. The court also entered an order of
commitment. The court ordered Arnold committed to the custody
of the California Department of State Hospitals (DSH) for
appropriate treatment and confinement for an indeterminate
time.
On March 22, 2021, Arnold filed a notice of appeal from the
March 8, 2021, “judgment.”3
DISCUSSION
I. There is Substantial Evidence Supporting the
Commitment Order
Under the SVPA, a sexually violent predator is defined as
“a person who has been convicted of a sexually violent offense
against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety
of others in that it is likely that he or she will engage in sexually
violent criminal behavior.” (§ 6600, subd. (a)(1).)
2
The proposed statement of decision stated that if the
parties did not file objections within 15 days, “this Statement of
Decision shall become the final judgment.” There is nothing in
the record indicating whether any objections to the proposed
statement of decision were filed.
3
The order of commitment was a final determination
of Arnold’s rights under the SVPA, equivalent to a final judgment
(People v. Whaley (2008) 160 Cal.App.4th 779, 782), from which
an appeal may be taken. (Code Civ. Proc., § 904.1, subd. (a)(1).)
6
The People must prove three elements beyond a reason a
reasonable doubt to prevail: “(1) the person has suffered a
conviction of at least one qualifying ‘sexually violent offense,’ (2)
the person has ‘a diagnosed mental disorder that makes the
person a danger to the health and safety of others,’ and (3) the
mental disorder makes it likely the person will engage in future
predatory acts of sexually violent criminal behavior if released
from custody.” (People v. Yates (2018) 25 Cal.App.5th 474, 477.)
The term “diagnosed mental disorder” includes “a
congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the commission
of criminal sexual acts in a degree constituting the person a
menace to the health and safety of others.” (§ 6600, subd. (c),
italics added.)
Arnold does not dispute there is substantial evidence
showing he committed qualifying sexually violent offenses. He
also does not dispute there is substantial evidence supporting the
trial court’s finding he has ASPD.
Arnold instead contends there is no substantial evidence
supporting a finding that he has a “diagnosed mental disorder”
within the meaning of the Act. He argues there is insufficient
evidence showing a causal nexus between his ASPD and his
predisposition to commit sexual crimes. In other words, Arnold
argues there is insufficient evidence that his “ASPD predisposed
him to the commission of criminal sexual acts.”
A. Standard of review
We review the sufficiency of the evidence in SVPA cases
under the same substantial evidence test used in criminal
appeals. (People v. Orey (2021) 63 Cal.App.5th 529, 560 (Orey).)
“In assessing the sufficiency of the evidence, we review the entire
7
record in the light most favorable to the judgment to determine
whether it discloses evidence that is reasonable, credible, and of
solid value such that a reasonable trier of fact could find the
defendant [is a sexually violent predator] beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) “Reversal
for insufficiency of the evidence is warranted only if it appears
that ‘ “upon no hypothesis whatever is there sufficient
substantial evidence to support [the judgment].” ’ ” (Orey, supra,
63 Cal.App.5th at p. 561.)
We cannot reweigh the facts or the credibility of the
witnesses. (People v. Snow (2003) 30 Cal.4th 43, 67.) “The
testimony of just one witness is enough to support the judgment
“so long as that testimony is not inherently incredible.” (In re
Daniel G. (2004) 120 Cal.App.4th 824, 830; accord People v.
Bowers (2006) 145 Cal.App.4th 870, 879 [“A single psychiatric
opinion that an individual is dangerous because of a mental
disorder constitutes substantial evidence”].)
In an SVP trial, the People must present expert testimony
by a psychologist or psychiatrist to establish the elements for
commitment. (See People v. Yates, supra, 25 Cal.App.5th at p.
478; People v. Ward (1999) 71 Cal.App.4th 368, 374 (Ward); Evid.
Code, §§ 800, 801.) “Although an expert’s opinion on an ultimate
issue of fact is admissible, and may constitute substantial
evidence [citation], the conclusion by itself does not constitute
substantial evidence without an adequate factual foundation.”
(People v. $47,050 (1993) 17 Cal.App.4th 1319, 1325.)
B. Dr. Goldberg’s testimony is sufficient to uphold the
commitment order
Dr. Goldberg found that Arnold met all the criteria for
ASPD: (1) conduct disorder before age 15, (2) violation of social
8
norms, (3) aggressiveness, (4) impulsivity, (5) manipulation of
others and deceitfulness, and (6) lack of remorse.
To determine whether Arnold’s was likely to commit
sexually violent crimes if released, Dr. Goldberg pursued a
“structured actuarial approach.” He applied two actuarial
instruments: the Static-99 and Static-2002R. Under the Static-
99, Dr. Goldberg placed Arnold in a group with a 5-year
recidivism rate of 30.7 percent, and a 10-year recidivism rate of
42.8 percent. Arnold’s “relative risk” under this assessment is
97.2 percent, which means that he has a higher risk of recidivism
than 97.2 percent of sex offenders. Under the Static-2002R, Dr.
Goldberg placed Arnold in a group with a 19.2 percent recidivism
rate in 5 years.
Dr. Goldberg also concluded idiosyncratic factors indicated
that Arnold was more likely to commit sexually violent crimes
than other individuals with similar scores on the Static-99 and
Static-2002R. Unlike most men of his age, Arnold’s aggression,
impulsivity, and sexual desire were not diminishing. Arnold’s
behavior at the hospital generated an extraordinary 176 reports
of misconduct, demonstrating unabated aggression and a lack of
impulse control. Further, Arnold stated that his sex drive had
gone up, and he reported he continued to masturbate 2 times a
week.
Dr. Goldberg testified, “I think this combination of his
sexual preoccupation, impulsivity, aggressivity and history of
sexual aggression is a really bad combination for him.” He also
stated that Arnold was a psychopath with no empathy for others,
further increasing the risk he would reoffend. Dr. Goldberg
concluded: “I just can’t see this man controlling himself once he
is released.”
9
Dr. Goldberg explained that there is a nexus between
Arnold’s ASPD and his predisposition to commit sexually violent
crimes in a predatory manner. According to Dr. Goldberg, ASPD
includes “characteristics, such as aggressiveness, lack of remorse,
impulsivity . . . that were associated with the . . . convicted
charge.”
Dr. Goldberg noted that Arnold has been arrested four
times for sexually violent crimes, two of which resulted in
convictions.4 According to Dr. Goldberg, this set Arnold apart
from most sex offenders, about 70 percent of whom are “one-time
offenders.” Only seven percent of rapists and eight percent of
child molesters have three or more arrests for sexual offenses.
Dr. Goldberg opined that Arnold’s multiple arrests and
convictions indicate “he has difficulty controlling his urges
toward sex, whether . . . the alleged victim is agreeing to it or
not.”
Dr. Goldberg found particularly troublesome the proximity
of the events involving Cynthia S. and Diane L. in July of 1991.
Arnold’s arrest for raping Cynthia S. on July 5 did not deter him
from raping Diane L. just a week later on July 12. In Dr.
Goldberg’s view, this indicates “problems in the volitional
capacity, which is one of the definitions of a mental disorder
under the sexually violent predator statute.”
Dr. Goldberg’s testimony is substantial evidence that
Arnold is a sexually violent predator within the meaning of the
Act. Moreover, Dr. Goldberg provided a sufficient foundation for
4
The Static-99 and Static-2002R consider arrests for
sexual offenses, as well as convictions, as part of the “actuarial
process.”
10
his opinions. Although a reasonable trier of fact could have found
the testimony of the other expert psychologists more convincing,
we do not reweigh the evidence. Dr. Goldberg’s testimony, by
itself, is sufficient to support the trial court’s findings and order
of commitment.
II. Under the Law of the Case, Arnold is Barred from
Asserting His Argument Regarding the Testimony of
an Independent Evaluator
The SVPA provides that before a person is committed, the
person “shall be evaluated by two practicing psychiatrists or
psychologists, or one practicing psychiatrist and one practicing
psychologist.” (§ 6601, subd. (d).) “If one or more of the original
evaluators is no longer available to testify for the [People] in
court proceedings,” the People’s attorney may request the DSH to
perform replacement evaluations. (§ 6603, subd. (d)(1).) The
People’s attorney may also request “updated evaluations” if
necessary. (Ibid.)
In 2013, Dr. George Joseph Grosso and Dr. Laljit Sidhu
were appointed as replacement evaluators for Arnold. They both
determined that he did not meet the requirements for
commitment under the Act.
The People then filed a motion pursuant to Code of Civil
Procedure section 2032.020 (section 2032.020) to permit a third
psychologist, Dr. Richard Ramanoff, to conduct an examination.
The trial court granted the motion.
Arnold challenged this order by filing a petition for writ of
mandate. In an unpublished opinion, this division affirmed the
order, stating: “Consistent with People v. Landau (2013) 214
Cal.App.4th 1, 24–27 (Landau), we hold the respondent court had
discretion to order a mental evaluation of an alleged sexually
11
violent predator by Dr. Romanoff.” (Arnold v. Superior Court
(Nov. 14, 2014), B254887 [nonpub. opn.] (Arnold I).)
Dr. Romanoff never evaluated Arnold. While the case was
delayed, he stopped working for the DSH.
In 2019, the People filed a motion for an updated
evaluation by Dr. Sidhu, but not from Dr. Grosso, who was no
longer under contract with the DSH. That motion was granted.
The People subsequently retained Dr. Goldberg. Although
the record is unclear on this point, the parties agree that Dr.
Goldberg was not one of the original or replacement evaluators;
he was instead retained as an independent expert pursuant to
section 2032.020. At trial, the court denied Arnold’s motion to
exclude Dr. Goldberg’s testimony.
Arnold contends that the SVPA does not permit the People
to retain an expert “to prepare an independent evaluation of an
alleged SVP and testify to their opinion.” He further contends
that Landau and Arnold I were “incorrect” in holding to the
contrary. This argument is barred by the law of the case.
“Under the doctrine of the law of the case, a principle or
rule that a reviewing court states in an opinion and that is
necessary to the reviewing court’s decision must be applied
throughout all later proceedings in the same case, both in the
trial court and on a later appeal.” (People v. Jurado (2006) 38
Cal.4th 72, 94 (Jurado).) Generally, the doctrine applies to the
Court of Appeal’s denial of a petition for writ of mandate when
the matter is fully briefed, there is an opportunity for oral
argument, and the cause is decided by a written opinion. (See
Kowis v. Howard (1992) 3 Cal.4th 888, 894.)
Arnold does not dispute these requirements are satisfied.
Arnold I was decided on the merits after the matter was fully
12
briefed and the parties had an opportunity for oral argument. In
a substantive written opinion, we rejected the same legal
argument that Arnold makes in this appeal regarding the
retention of an independent expert.
Arnold argues that we should nonetheless revisit the issue
in the interests of justice. The law of the case doctrine does not
apply “when the rule stated in the prior decision was a ‘ “manifest
misapplication” of the law resulting in “substantial injustice.” ’ ”
(Jurado, supra, 38 Cal.4th at p. 95.) We reject this argument.
Although good faith arguments can be made that Landau and
Arnold I were decided incorrectly, there was no manifest
misapplication of the law.
Arnold also argues that this court should reconsider the
issue based on new facts. He contends “[t]he facts not previously
considered by the court . . . consist of the legislative history of
section 6603, subdivision (d)(1).” It is true we may reconsider a
legal issue when presented with new facts that could change the
result. (Krumdick v. White (1895) 107 Cal. 37, 40; accord In re
Estate of Baird (1924) 193 Cal. 225, 234–236 [prior appellate
decision on sufficiency of the evidence is not law of the case when
evidence on retrial materially changed].) But the legislative
history of the Act does not amount to “new facts” in this case.
13
DISPOSITION
The March 8, 2021, order of commitment is affirmed.
NOT TO BE PUBLISHED
*
TAMZARIAN, J.
We concur:
BAKER, Acting P. J.
KIM, J.
*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6, of the
California Constitution.
14 | 01-04-2023 | 11-16-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487274/ | Per Curiam:
Demurrer overruled. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487276/ | Grubb, J.,
charging the jury:
Gentlemen of the jury:—During six very arduous days you have attended here to the painful and pathetic story of the mysterious disappearance and death of a boy but eight years old. During this trying period, you have; with great inconvenience and discomfort to yourselves, doubtless, discharged faithfully.one of the highest duties of citizenship—the duty of standing between your fellow; citizen who is accused, and your State, which is his. prosecutor, and determining whether or not he is guilty of the crime charged against him, before the punishment, which he will justly deserve if found guilty, shall be inflicted upon him for destroying an individuál human life and menacing the public safety; You have been selected for the purpose of determining whether the prisoner now on trial is the person who caused the death in question. You are not here to ascertain—in case you shall find he is not that person—what other person is the real criminal. That is not the duty of this jury, but of the public-authorities. Your duty is to discover, if you can, from the evidence produced from this witness stand—and from no other source whatsoever—whether or not the prisoner at the bar is the guilty person. If you are morally certain that he is such, then you must convict him regardless of all other considerations; otherwise you must acquit him.
With these prefatory remarks, we will proceed to the con*481sideration of the law applicable to the case before you:
Walter W. Blackburn, the prisoner at the bar, stands charged in this indictment with murder of the first degree, for the wilful and felonious killing of Edward H. Gardner, with express malice aforethought, in the month of October, 1891, at Wilmingtoti Hundred, within this County.
Under any indictment for murder of the first degree the jury may find the accused guilty of either murder of the first or second degree,or of manslaughter, according as the law and evidence may warrant, but unless they shall find him guilty of one of these three grades of felonious homicide, they must acquit him and render a general verdict of “not guilty.” It therefore becomes necessary for the jury, in the present instance, to be sufficiently informed by the Court as to the definition and nature of murder and the distinctions between the two degrees thereof, as well as to the differences between these and the inferior grades of homicide.
Homicide is the killing of any human creature, and is of three kinds: justifiable, excusable, and felonious. The taking of human life is held to be justifiable when done in the execution of public justice, as where the proper public officer duly executes a criminal under lawful sentence of death; or in the advancement of public justice; or for the prevention of any atrocious crime attempted to be committed with force—of which examples need not here be given. Excusable homicide is that which is committed either by misadventure, or in self-defense. Homicide by misadventure is the accidental killing of another where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct. Homicide in self-defense is where one is assaulted upon a sudden affray, and, in the defense of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills his assailant.
In the case now before you, the marks of mortal violence upon the deceased, if you believe the witnesses thereto, show an unlawful killing and there is no evidence showing any ground for the plea of self-defense,—much less of justification. Therefore *482you cannot lawfully find that this is a case of either justifiable or excusable homicide i
Is it then a case of felonious homicide ? Felonious homicide, at common law, is of two kinds; namely, manslaughter and murder; the difference between which consists principally in this, that in murder there is the ingredient of malice, whilst in manslaughter there is none; for manslaughter, when voluntary, arises from the sudden heat of passion, but murder from the wickedness and malignity of the heart. Therefore manslaughter is defined to be the unlawful killing of another without malice either express or implied and without premeditation. Manslaughter is either voluntary or involuntary. Voluntary manslaughter is where one kills another in the heat of blood, and this usually arises from fighting or from provocation. Involuntary manslaughter is where one in doing an unlawful act, not felonious nor tending to . great bodily harm, or in doing a lawful act without proper caution or requisite skill, undesignedly kills another.
You will see at once that this is not a case of voluntary manslaughter; because there is no evidence of any provocation or heat of blood at the time of the killing of the deceased. Nor is it one' of involuntary manslaughter, because the evidence of the brutal marks of violence upon him, if you believe it, shows that his slayer was doing an unlawful act tending not only to great bodily harm to -the deceased, but to produce his death. If, therefore, you cannot lawfully render a verdict of manslaughter, it will be necessary for you to determine whether the killing of the deceased is murder.
Murder, which is one of the two kinds of felonious homicide, —manslaughter being the other—is where a person of sound memory and discretion, unlawfully kills any reasonable creature, in being under the peace of the State with malice aforethought either express or implied. The chief characteristic of this crime, distinguishing it from manslaughter and every other kind of homicide and therefore indispensably necessary to be proved, is malice prepense or aforethought. This term, malice, is not' restricted to spite or malevolence towards the deceased in particu*483lar, but, in its legal sense, is understood to mean that general' malignity and recklessness of the lives and personal safety of others which proceed from a heart void of just sense of social duty and fatally bent on mischief. Malice is implied by law from every deliberate cruel act committed by one person against another, no matter how sudden such act may be, for the law considers that he who does a cruel act voluntarily, does it maliciously. And whenever the act from which the death ensues, as proven by the prosecution, appears prima facie to have been committed delibertely, the law presumes that it was done in malice; and it is incumbent upon the prisoner to show from evidence, or by inference from the circumstances of the case, that the offense is of a mitigated character and does not amount to murder.
Under the statute law of this State there are two degrees of murder; namely: Murder of the first, and Murder of the second degree. The first is where the crime of murder is committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; and the second degree is where the crime of murder is committed otherwise and with malice aforethought implied by law. Express malice is proved by evidence of a'deliberately formed design to kill another; and such design may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, knowing it to be such; a preconcerted hostile meeting, mutually agreed upon or notified and threatened by the prisoner, privily lying in wait; a previous quarrel or grudge; antecedent menaces; the preparation of poison or other means of doing great bodily hax;m to the deceased; or any other circumstances evidencing such deliberately formed design to kill. Implied or constructive malice is an. inference or conclusion of law from the facts found by the jury; and among these, the actual intention of the prisoner becomes an important and material fact; for, though he may not have intended to take away life, or to do any personal harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act from which the law raises the presumption of malice. It is the difference between express and *484implied or constructive malice aforethought which distinguishes murder of the first from murder of the second degree, except, however, that under our statute, murder of the first degree may be committed when the malicious killing is done in perpetrating, or attempting to perpetrate any crime punishable with death— as rape or arson is in this State—although from such a felonious act malice is merely implied or presumed by the law. Therefore murder of the second degree is held to be proved where it is not satisfactorily shown by the evidence submitted to the jury, that the killing was done with a deliberately formed design to take life, or in perpetrating or attempting to perpetrate any crime punishable with death, but is so shown that it was done suddenly, without justification or excuse, and without any provocation, or without provocation sufficient to reduce the homicide to the grade of manslaughter, or was done in perpetrating or attempting to perpetrate a felony (not capitally punishable,) or any unlawful act of violence from which the law raises the presumption of malice.
Having thus instructed you as to murder of the first and of the second degree, and the lesser grades of homicide, for your proper guidance in determining the guilt or innocence of the prisoner whom you have in charge, it is also proper to remind you that, as the law presumes every accused person to be innocent until he is proven guilty, the burden is upon the prosecution to prove beyond a reasonable doubt by competent evidence, every essential ingredient of the crime charged in this indictment, before the prisoner can be found guilty thereof. But, on the other hand, every sane man is presumed to intend that which is the ordinary and natural consequence of his own wilful act. Therefore on a charge of murder, where the fact of killing as charged in the indictment is shown by the prosecution, unaccompanied by circumstances of justification, excuse or mitigation, the' law presumes that the homicide was committed with-malice, and hence amounts to murder, until the contrary is shown, and consequently the burden is thereupon thrown upon the accused of disproving the malice and showing by evidence to the satisfaction of *485the jury that the killing was not malicious, but was either justifiable or excusable homicide, or manslaughter.
But, for the reasons already stated, you cannot, in this instance, lawfully find that the killing of the deceased is either justifiable or excusable homicide, or manslaughter. So that,if, after a careful review of all the testimony before you, you shall be satisfied that the slayer of the deceased is guilty of a higher grade of homicide than manslaughter, it will then be your duty to determine from the evidence, whether the prisoner is guilty in manner and form as he stands indicted—that is, of murder of the first degree—or guilty only of murder of the second degree.
In considering the evidence, with a view to determining this question, you must be guided by the legal definition and nature of these two degrees of murder, and bear in mind the distinction between malice aforethought express and malice aforethought implied, as these have just been explained to you. And here, it is necessary also to inform you that, although when the fact of killing as charged in the indictment is shown by the prosecution unaccompanied by circumstances of justification, excuse or extenuation, the law presumes that the homicide was committed with malice until the contrary appears from the evidence produced at the trial, yet.it goes no further than to imply malice, and therefore the legal presumption goes no further in such a case than that the killing is murder of the second degree under our statute. Wherefore, before a verdict of murder of the first degree can be lawfully rendered by the jury, it must be shown by the prosecution, that the prisoner killed the deceased with a deliberate purpose and formed design to take his life. Such deliberate purpose and formed design may exist only for a moment, but it must be shown by the facts and circumstances attending the homicide to actually exist, in order to prove that express malice aforethought, without the evidence of which, a conviction of murder of the first degree cannot be secured.
But before the prisoner can be found guilty of murder of either degree under this indictment, it is incumbent on the prosecution to prove to you, beyond a reasonable doubt, first, thatv *486Edward H. Gardner died on or about October 15th, 1891; second, that his death was caused by the means and in the manner described in the said indictment, and third, that the prisoner, Walter W. Blackburn, is the person who committed the fatal act as alleged therein, and in this County. That Gardner was found dead on said day is shown by witnesses who have not been contradicted in this respect. And, unless you disbelieve the testimony of the Coroner’s Physician, Dr. Smith, as well as of other witnesses, it has been satisfactorily proven that Gardner’s death was caused by the means and in the manner described in the indictment. If, therefore, you shall be entirely satisfied from the evidence that these two essential facts have been satisfactorily established by the prosecution,—yet you will still have to be satisfied, beyond a reasonable doubt, from all the evidence on both sides before you, whether or not the prisoner is the person who caused the death of Gardner as alleged in this indictment. The question for you to determine, is not the general one, Who did it ?, but the specific one, Did Walter W. Blackburn, the prisoner at the bar, do it ? This is the real and essential question which you must solve by the evidence and answer by your verdict.
The prosecution contends that the prisoner is the person who caused the death of Gardner. This the prisoner denies; and endeavors to prove an alibi and other circumstances to disprove the testimony and contention of the State. So far as the testimony discloses, no human eye—save the perpetrator’s—saw when, where, how or by whom this shocking homicide was committed. Consequently the case against the prisoner cannot be proved by direct and positive testimony, but rests solely upon what is called circumstantial or presumptive evidence. As you are aware, gentlemen of the jury, the fact in controversy to be proved in any trial will generally be attested by those who speak of their own actual and personal knowledge of its existence; or else it is to be inferred from other facts satisfactorily proved. In the former case, the proof rests upon our faith in the veracity, impartiality, opportunity for observation, accuracy of memory, etc., of those who speak of their own personal knowledge. In the *487latter case, it rests on the same ground, with the addition of the experienced connection between the collateral facts thus proved and the fact in controversy. In the former case, the proof applies immediately to the factum porbandum, without any intervening process, and it is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collateral facts, supposed to have a connection, near or remote, with the fact in controversy, it is termed circumstantial and sometimes presumptive evidence; and it is from such facts, if unexplained by the prisoner where guilt is charged, that the jury may, or may not, deduce or infer, or presume his guilt according as they are satisfied, or not, of the natural connection between similar facts, and the guilt of the person thus connected with them. Circumstantial evidence is receivable in both civil and criminal trials. As crime is usually committed secretly, and often by crafty professional criminals, its use in criminal trials is even more necessary than in civil suits. For, if excluded by courts in criminal trials, the great majority of criminals, and especially the most skillful and dangerous ones, would escape punishment, and society would thus be deprived of adequate protection. Circumstantial evidence is adopted the more readily, on the one hand, in proportion to the difficulty of proving the fact by direct evidence, and, on the other because of the general ease with which it can be disproved, or with which other facts can be proved which are inconsistent with it, if it never really occurred.
But you must nevertheless remember, and most positively, that circumstantial evidence, to warrant a conviction, must be entirely satisfactory and of such significance, consistency and force as to produce conviction in the minds of the jury of the guilt of the accused beyond a reasonable doubt. As this Court has heretofore announced, the established rule on the subject is this: where the evidence is circumstantial, the jury must be fully satisfied, not only that the circumstances proved are consistent with the prisoner’s having committed the act charged as constituting the crime, but they must also be likewise satisfied that the facts are such as to be inconsistent with any other rational conclusion *488than that the prisoner was the guilty party. Proof beyond a reasonable doubt does not mean that the guilt of the accused, or any other fact, shall be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proved merely to a moral certainty. To require more in dealing with human conduct and the ordinary affairs of life would be impracticable and therefore unreasonable. It is sufficient that any disputed fact relating to these shall be established by that amount of competent or appropriate evidence which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible, is their sufficiency to satisfy the mind and conscience of a man of common sense and ordinary discretion; and so to convince him that he would act upon that conviction in matters of the highest concern and importance to his own interest. Reasonable doubt, in the legal sense, therefore, does not mean a vague, speculative or whimsical doubt, or uncertainty—nor a merely possible doubt—of the truth of the fact to be proved. In civil trials it is the duty of the.jury to decide in favor of the party on whose side the weight of evidence preponderates, and according to the apparent probability of truth. But in criminal trials, because of the graver consequences of a wrong decision, the jurors are required to be satisfied, beyond any reasonable doubt, of the guilt of the accused, or it is their duty to acquit him. In civil cases it.is sufficient if the evidence in the aggregate agrees with and súpports the hypothesis which it is adduced to prove; but in criminal cases, it must be such as to produce a moral certainty ' of guilt and to exclude any other reasonable hypothesis than that of-the guilt of the accused. In both cases a verdict may well be founded on circumstances alone; and these often lead to a conclusion more satisfactory than that produced by direct evidence
• In this connection we will briefly refer to the law in respect to the proof of motive in criminal cases. Whenever upon the general' evidence, the..imputed guilt of the prisoner appears to the 'jury to be doubtful, the absence of any testimony in proof of a *489motive for the commission of the crime charged, is a circumstance which the jury may consider in connection with all the evidence in the case, in favor of the prisoner’s innocence. But whenever upon the general evidence, the jury are satisfied beyond a reasonable doubt, of the guilt of the accused, notwithstanding the absence of any testimony in proof of such a motive, then, in that case his guilt being already proved, such absence thereof is manifestly immaterial; for if actually produced in such a case, it could only operate as a corroborative circumstance.
Before concluding our instructions as to the law of this case, it is necessary to consider another matter. For the purpose of proving an implied confession of his guilt by the prisoner, evidence has been introduced by the State to show that, on certain occasions when charged by Mrs. Gardner with having killed her son, the prisoner failed to reply to, or deny this charge; and to show also that, when the prisoner’s wife made a certain statement to Mrs. Gardner in the prisoner’s presence, he did not make any response thereto. If you should believe that such charges and statements were really made in his presence, then you are entitled to learn from the Court what effect they should have, in contemplation of law, upon your minds in the consideration of this case. The law is well settled that the prisoner’s extrajudicial confession, when the corpus delicti that is, the fact of death and that it was criminally caused, has not been otherwise proved, is not sufficient for his conviction. There are two kinds of extra-judicial confessions; namely: direct confessions of guilt, and indirect confessions; which latter, like admissions in civil cases, may be inferred from the conduct of the prisoner and from his silent acquiescence in the statements of others, respecting himself, and made in his presence. But acquiescence, to have the effect of such a confession, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or the language fully understood by the party, and his mind and attention sufficiently directed to its purport and impor*490tance before any inference can be drawn from his passiveness or silence. The circumstances too, must be not only such, as afforded him an opportunity to act or speak, but such also as would properly and naturally call for some action or reply from men similarly situated. Thus, for instance, if in this case you should believe that when the said statement and charges were made by his wife and Mrs. Gardner, his mind was so distracted by his shock or grief over the death of the boy, or by the prevailing exictement or confusion of the occasion, that he did not sufficiently note or comprehend the import of said charges or statements; or did not reply to them from a considerate desire not to have a controversy with the dead boy’s mother in her then agitated and shocked condition; or for any other probable and adequate reason, then you should not regard his alleged silence as a tacit acquiescence or implied confession of his guilt. While confessions of guilt, when they are deliberate and voluntary, are among the most effectual proofs in the law, yet the evidence of verbal confessions—and, a fortiori, of such as are inferred from silent acquiescence—is to be received with great caution. Tha degree of credit due to them is to be estimated by the jury under the circumstances of' each case.
And now, gentlemen of the jury, it becomes your duty, subject to the law as we have given it to you, to determine from the evidence before you whether or not the prisoner is the person who caused the death of Gardner, as charged in this indictment, That Walter W. Blackburn, the prisoner at the bar, is that person the prosecution contends is the only just and rational inference to be drawn from a careful and intelligent consideration of all the facts and circumstances proved by the credible and reliable witnesses in the case. In support of this contention, the State has sought to show, among other things, to your satisfaction the following circumstances (if you find we state them correctly): that between one and two o’clock on the afternoon of Wednesday, October 14th, 1891, Edward H. Gardner, then about eight years old went forth alive from his home and his mother’s presence, and was found dead with marks of mortal violence upon him about *491nine p. m. of the following day, Thursday, October 15th, concealed in a baggage car standing on the railroad track between Fourth and Fifth streets, in this City; that, about 9:45 p. m. on said Wednesday Mrs. Isabella Scott, when in the immediate locality of said baggage car, discovered a man carrying the body of a boy under suspicious circumstances, who escaped from her view when he saw her, and whom, as she testifies, she believes to have been the prisoner; that about 5:00 a.m. next day, Thursday, October 15th, the prisoner informed Mrs.Gardner,the boy’s mother that he had seen the boy the previous afternoon and that he would find him for her if in town; that about 8:30 p. m. of said Thursday he met Harry Seaman at John J. Cook’s store at 7th and Church Streets., and informed him and Cook that young Gardner, his own brother-in-law, was lost on the day before; that he had dreamed he saw blood on the- railroad track or car and that he wanted a lantern; that he procured one, and, taking Seaman with him, went to the railroad, searched there and found the boy lying dead in a baggage car between Fourth and Fifth Streets (it being about where Mrs. Scott says she had seen the man carrying a boy the night before); that about 9:00 p. m., Mrs. Gardner was informed of his discovery and she, with her sons and the prisoner, went to the car and brought the boy’s lifeless body to her home; that both at the car and at her home she accused the prisoner with having caused his death, and that he made no reply to these charges; that the prisoner’s wife as the boy was carried into the house, exclaimed to Mrs. Gardner in his presence, “Oh Mom, I knowed this long ago, but Walter (the prisoner) told me not to tell you,”—to which she added that she did not know the boy was dead but that the prisoner had told her he would find the boy after a while,—and that the prisoner made no reply to this statement.
On the other hand, the prisoner denies that he is the person who caused Gardner’s death, and, in order to disprove the theory and impeach the testimony of the prosecution and establish his innocence, has endeavored to prove by witnesses produced in his behalf before you, among other things, that he and the boy Gard*492ner were warm friends; that he did tell Mrs. Gardner on the same evening that she had made her charges against him, that he was not guilty of them, and thereupon charged Hinesly with the death of the boy for reasons then stated by him to her; that he had been talking with his sister about Hazel’s previous assault upon young Gardner at the railroad cars, who had urged him to look for the boy among the cars in the same locality, before he fell asleep and had the dream about blood on the railroad track or cars; that it was after this dream and his sister’s said suggestion that he sought a lantern and got Seaman to go with him among the cars until the boy was found in the baggage car which was close to the very locality where Hazel’s previous assault had been made; that Mrs. Scott had never known or seen the prisoner prior to the moment when she saw, as she said, the man carrying the boy on Wednesday night, October 14th; that she had given conflicting descriptions of the man she said she saw carrying the boy that night, and that she had said other things discrediting her testimony; that the prisoner was at the Institute Hall landing outside the Firemen’s ball room, from 9:00 until about 11:00 p. m., which period included the very time at which Mrs. Scott said she saw the said man carrying the boy between 9:30 and 9:55 o’clock that evening on the railroad, and, lastly, that the prisoner was seen by a succession of witnesses during the continuous period from the time the boy left home about 2:00 p. m. on Wednesday until the discovery of the boy’s corpse in the baggage car about 9:00 p. m. on Thursday, and that therefore, he could not have been present, at the killing of Gardner, or at the time his body was concealed in the baggage car where it was found, or when Mrs. Scott says she saw the man carrying the boy.
It is these opposing contentions and this conflicting testimony upon which you have to sit in judgment and reach a conclusion before you render your verdict. If, in this brief summary of the testimony offered on each side,' we have erred in any respect, you will correct the error. Our purpose in referring to its general outlines only, is simply to aid you in your investigation, by directing your attention to the main line of inquiry; *493leaving you to determine, as is your exclusive right and duty, not only what has been proved but also what credit, and weight you will give to it. In considering the testimony, if it is conflicting, you should reconcile it where that is possible, so as to harmonize it all; but where it is irreconcilable you must give credit to that portion which you shall believe to be most entitled to it and reject such as you may deem least worthy of credit, after due deliberation upon all the evidence.
It only remains for us to say, in conclusion, that if, after youf thorough consideration of all the facts and circumstances proved on both sides in this case, you shall be satisfied beyond a reasonable doubt that the prisoner is the person who caused the death of the boy Gardner, as alleged in this indictment, then you are further to determine, subject to the law as we have explained it to you, whether or not the prisoner is guilty of murder of the first degree, or of a lesser grade of felonious homicide, and to render your verdict accordingly. But if, after such consideration of said facts and circumstances, you shall not be satisfied beyond|a reasonable doubt that the prisoner is guilty of murder of the first degree, or of a lesser grade of felonious homicide, then you are to acquit him and render a verdict of “not guilty.”
With these instructions, which are more specific and extended than is usual in ordinary trials, because of the exceptional features of this uncommon case, we commit it to you for your most careful and conscientious consideration. You have both a solemn and responsible duty to discharge, for not only the fate of the prisoner, but also the safety of this community depend upon your verdict.
Verdict, Not guilty.
These four cases which follow, though not recent, are considered of sufficient importance to include in this report. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487277/ | Lore, C. J.,
charging the jury:
Gentlemen of the jury:—John Moraban, the prisoner, is indicted for the crime of manslaughter.
On the twentieth day of September of the present year the prisoner met Nathaniel P. Walls, the deceased, at Second and Market streets in this City; they there had drinks together in a saloon; separated a short time and met next on Market Street, between Second and Third; after a short conference, they separated again and next met on Front Street, between French and Walnut streets, and together went to’ Stewart's saloon, at the corner of Walnut and Front streets. Separating there, the next meeting was on the platform of the P., W. & B. R. R. Depot, in this City.
The prisoner was there walking on the platform eastwardly and came into collision with the deceased, who was walking westwardly on the same platfrom. In such collision the deceased was there pushed, or thrown down upon the platform by tho prisoner; his skull was fractured; he was carried unconscious to the Railroad Depot Hospital, and from there, the same evening to the Delaware Hospital, and the next day between eleven and twelve o’clock to his home on Walnut Street, between Fifth and Sixth streets in this City, where he remained until he died, on the first day of October last—eleven days after the injury.
The State claims that death resulted from the wound and that the accused is guilty of the crime charged.
Manslaughter, gentlemen, is the unlawful killing of another without malice, express or implied. It is either voluntary or involuntary.' /
Voluntary manslaughter is where one kills another in the heat of blood; and this usually occurs in fighting, or upon provocation.
Involuntary manslaughter is where one in committing an unlawful act, not felonious nor tending to great bodily harm, or *496in committing a lawful act without proper caution, or without requisite skill, unguardedly or undesignedly kills another. \/tí is manslaughter, if death results from an unlawful act, such as an unlawful assault, and also where it results from a lawful act committed without proper caution or requisite skill.
It has been held to be manslaughter where death resulted from allowing an unrully ox to run at large upon a highway; by carelessly laying poison to kill rats; where death ensues in' a prize-fight; from throwing stones wantonly or in play; or where workmen throw rubbish from a house carelessly.
So that manslaughter may arise from an unlawful act or from a lawful act done without proper caution or without requisite .skill.
To establish this offense, it is necessary for the State to prove to you, beyond a reasonable doubt, that the act of the prisoner which produced the wound was unlawful, and that the wound so produced was the cause of the death of Walls.
The prisoner claims that the assault in this case was lawful, and that even if it had not been, that Walls did not die from the wound, but from maltreatment or misconduct solely. If either of these be proved, you should acquit him.
If Walls staggered up against the prisoner and there was an unintentional collision, and the prisoner there used so much force as was reasonably necessary to get rid of contact with the body of the deceased, he only did what he had a right to do, and is not liable.
But if the prisoner intentionally came into contact with the deceased, or used unreasonable violence, then his act was unlawful and he is liable.
But even though the act was unlawful, if death resulted from some other cause than the wound, you may not convict the prisoner.
The law on this point has been clearly stated in the case of the State vs. “Schooner” Long, in which case my brother Grubb delivered the charge. It is very well settled law in all the authorities, that where the bruise or wounds are adequate or calculated *497to produce death, it is no excuse to say that had proper care and attention been given, his recovery might have followed. And even if death ensues from a wound given in malice, but not in its nature mortal, but which being neglected or mismanaged the person dies, this would not excuse the person who gave it, but he would be held guilty, unless he could make it clearly and certainly appear that maltreatment of the wound, or the misconduct of the wounded man and not the wound itself was the sole cause of his death. For if the wound had not been given, the person had not died.
Where such a defense is set up and relied upon, the burden is upon the accused to show clearly and satisfactorily that such maltreatment or misconduct of the deceased or his attendants was the sole cause of the death. For if they only increased the danger of the wound or accelerated the death, it would be no excuse.
To acquit on this ground, you must find that the death resulted from such maltreatment or misconduct alone.
If, from the evidence, you believe that the assault on Walls was unlawful and that death resulted from the wound either mediately or immediately, your verdict should be guilty.
If, on the other hand, you believe that the assault was lawful, or that the death did not result from the wound but from maltreatment or misconduct solely; in either case you should acquit him.
The State should prove every element of the crime beyond a reasonable doubt, which is such a doubt as would prevent reasonable men from reaching a conclusion to a moral certainty. Such a doubt should inure to the acquittal of the accused.
On the other hand, where the accused relies upon the defense of maltreatment or misconduct as a cause of death, he must clearly and certainly show that that was the sole cause.
Good character, gentlemen, is always admitted to be proved, and in case of doubt, should incline the scales in favor of the prisoner.
*498You have heard the evidence, and upon that you must base your verdict. You stand, under our system of law between the prisoner and the community; and it is your duty to see, under the sanction of your oath, that your verdict shall be conscientiously in accordance with the law and the evidence.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487278/ | Cullen, J.,
charging the jury,
Gentlemen of the jury:—George C. Woods, stands indicted for the crime of manslaughter in the killing of Howard J. Hannum, on the 17th day of August, 1896, in this city. The evidence on the part of the State and in behalf of the prisoner having been presented to you at the bar of this Court, it now becomes our duty to instruct you as to the law governing this case, which you are to apply to the evidence and render your verdict accordingly.
Manslaughter is the unlawful killing of another without any malice, express or implied. It is of two kinds, first, voluntary manslaughter, where upon a sudden quarrel two persons fight, and one of them kills the other; or where a man greatly provokes another by some personal violence, etc., and the other immediately kills him. Second, involuntary manslaughter, as defined by our present Chief Justice in the case of the State vs. John Morahan, “is where one in committing an unlawful act not felonious nor tending to great bodily harm, or in committing a lawful act without proper caution, or -without requisite skill, unguardedly or undesignedly kills another.”
The prisoner under this indictment, is charged with the offense of involuntary manslaughter, coming under and embracing the crime mentioned under the second division of the definition above given. To constitute this crime, the party charged must be engaged in an unlawful act when the killing occurs, and to determine this matter, you must first, from the evidence produced, be satisfied that the prisoner was acting unalwfully; in other words, doing that which he had no right to do. A person has a right to put off and eject from his premises any one who is acting in a disorderly or improper manner, arid to effect this he *501may use sufficient force to accomplish this purpose, but if he employs more than sufficient to attain this end, he becomes a trespasser ab initio, and would be liable, as if he were the original wrong-doer, though in the beginning he was but exercising the right every one enjoys under the law. If from the evidence you are satisfied that the prisoner was using only sufficient force to remove or eject the deceased, if he was behaving in a disorderly manner and disturbing his family, and in the exercise of such force he only used sufficient to attain that end and death ensued, the prisoner is not liable, and your verdict should be one of acquittal; but if you believe from the evidence that the prisoner violently attacked the deceased and used undue violence, he was acting unlawfully and if death ensued from the force and violence used he was guilty of involuntary manslaughter as claimed by the State, and you should find him guilty as he stands indicted.
This indictment charges the prisoner with causing the death of the deceased by reason of blows and violence inflicted by him. This is a necessary averment in the indictment, and constitutes the gist of the offense, and gives notice to the accused of that with which he is charged. Now, to convict the prisoner, the facts alleged as to the killing and the manner of killing must be proved to your satisfaction beyond a reasonable doubt; if not, the prisoner is entitled to the benefit of the doubt. You are therefore to take all the evidence offered bearing upon this branch of the case and satisfy yourselves whether, as alleged in the indictment, the deceased came to his death from the blows and violence inflicted by the prisoner, or came to his death from other causes.
We have been asked by the counsel for the prisoner, who denies the truth of the averments in the indictment, to charge you upon this question, and since the same has been adjudicated in our courts would quote the decision in part in the case of State vs. Taylor, Houston’s Criminal Cases, delivered by Judge Wootten: “The prisoner at the bar, through his counsel, denies these allegations, and insists that there is no evidence that Mackey was cast, thrown and pushed into the creek by the prisoner at *502the bar.” (I might say here that this was an indictment for murder and the question came up as to the allegations in the narr not having any support by the proof.) The decision continues as follows: “And they further insist that there is no evidence whatever that Mackey came to his death by choking, suffocating and drowning. These facts must be established by the evidence to the satisfaction of the jury beyond a reasonable doubt, which may be direct or circumstantial or presumptive. This case rests entirely on circumstantial or presumptive evidence, and you must draw your conclusions from all the facts and circumstances which are in evidence before you.”
On the same point, in the case of State vs. Townsend, in the same book (page 340) in the opinion delivered by the late Chief Justice Gilpin, he says as follows: “But as the Court has been asked to charge you by the counsel for the prisoner on one other point presented by him in the case, the Court will say to you that if the deceased's skull was fractured, not by a blow of some kind inflicted by the prisoner, but by his falling after he was struck by him, with his head against a stone or some other hard substance in the street, and there is sufficient evidence to satisfy you that such was the case, then the.prisoner could not be convicted of manslaughter, or any other offense under the indictment, because it does not so allege the killing, but in a wholly different, and in a more direct manner. Or if the fatal blow was given in any other manner, or in any other way substantially or essentially different from those alleged in the indictment, and the jury should entertain a reasonable doubt on that point, of the guilt of the prisoner in- manner and form as he stands indicted, he was entitled to the benefit of it, and should.be acquitted.” The decisions of our courts conform in every respect to all prior decisions in this country and England upon this subject. In other words, in short, where a party is charged with a crime, the offense should be alleged in the indictment, and that must be proved to the satisfaction of the jury beyond a reasonable doubt; because otherwise the prisoner is not prepared and cannot make the defense that would be necessary for him to make. You will observe *503that in this case the prisoner is charged with force and violence in inflicting blows and injuries in an unlawful manner, from the effects of which this person died. Now whether these blows be inflicted justifiably or unlawfully, if the averment in the indictment is not proved beyond a reasonable doubt; in other words, if it is not clear to you that the person died from the effect of this violence, then the prisoner cannot be convicted.
We would rather say to you that where there is a conflict of testimony you must reconcile it if you can; if not, then you are to consider the intelligence of the witnesses; their opportunities and means of information, giving credit to such as you deem best qualified. You are the sole judges of the testimony. You must take or reject such as in your judgment you deem correct, or otherwise. Their manner and way of giving testimony is subject to your scrutiny. Witnesses may be competent, and by law allowed to testify, but the credibility of their testimony is to be weighed by you. In a word, you are the sole judges of all the testimony given in this case, and may give full faith to, or reject such as in your judgment you deem right and proper, in order to arrive at a proper verdict.
The same principles that I speak of have also been decided in the case of the State vs. John Morahan, in which our present Chief Justice delivered the opinion.
The good character of the accused may always be given in evidence. If the facts proved show conclusively, beyond á reasonable doubt, that the prisoner in any case is guilty as charged, good character is of no avail; but if there are doubts in the case which prevent a jury from reaching a moral conclusion, then a good character asserts itself and should be taken and considered by the jury as a preponderating circumstance against the guilt of the prisoner. Such has been the decision of our courts, and where proper doubts exist good character should always avail the prisoner.
I have not repeated the evidence. It is fresh on your minds. And that you are to judge, as to its effect as applied to the law as laid down by the Court. If you are satisfied from the evidence *504that the prisoner did unlawfully, without legal right, assault the deceased and inflict the injuries as alleged in the indictment from which he died and the same caused his death beyond a reasonable doubt, your verdict should be guilty as indicated. But if the prisoner was but exercising what right as we have stated by law he is invested with, and used no undue force or violence beyond what was necessary and you are not satisfied beyond a reasonable doubt that the death which ensued was caused by force, then your verdict should be not guilty.
Under the provisions of our statute, a party indicted for a felony which involves an assault, may be acquitted of the felony and the jury may find a verdict for an assault; but to do this you must be satisfied from the evidence that the prisoner, with force and violence, attempted to do a corporal injury to the deceased from wantonness or malice. If you are satisfied from the evidence that such was the case you may acquit of the felony and find guilty of an assault; but to do this you must be satisfied that the prisoner was acting at the beginning unlawfully, or, if in defense of the assault made, that he exceeded the force necessary to be used. All these matters you are to determine from the facts. j
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487279/ | Cullen, J.,
charging the jury:
Gentlemen of the jury:—The prisoner at the bar, Dennis Dinneen, is indicted for the crime of arson; which at common law constituted, as defined by Lord Coke, “the malicious and voluntary burning of the house of another, by night or by day.” The offenses of burning houses and other property are now, in the several States of this country, provided for by various statutes, among which is included a statute in our own State. The evidence,therefore, upon indictment for this offense, may vary in some respects from that required in an indictment at common law. I believe that this is the first case, so far as I am informed, that has arisen under this statute. Our statute, under which the indictment is framed, provides that “If any person shall wilfully and maliciously burn, or set on fire any dwelling house, (whether it be his own or that of another, in which there shall be at any time some human being;) or any store, or other building, adjoining to or parcel of a dwelling house (whether it be his own or that of another, in which there shall be at the time some human being;) such person shall be deemed guilty of arson (of the first degree) and felony,” etc.
The indictment in this case is framed under the first paragraph of that section; that is, the party is charged, with the burning of a dwelling house in which there was a human being, not a store or other building, as under the second paragraph.
To convict the prisoner of the offense alleged under this indictment, the State must prove to your satisfaction; first, the burning—which would be, in this case, if you please, a burning that would constitute the entire destruction of the building—“or setting on fire.” The mere setting on fire, if that fact be proved, is of course equivalent to the destruction of the building when it is burned up. Second, that it was a dwelling house in which at the time of burning or setting on fire, there was “some human being.” Third, that the offense was committed "wilfully and maliciously.”
Now, all these facts must be established satisfactorily to you, *507beyond a reasonable doubt, before a conviction can be had as against the party, in manner and form as he stands indicted; that the offense was committed “wilfully and maliciously.” In other words, gentlemen, you must be satisfied, from the evidence produced before you, that the prisoner set on fire the duelling house. I am confining this case entirely to the facts that are before you, without the other portion attached, for you will observe that the indictment in this case, according to the proofs, and the ground on which they stake a conviction is that he “set on fire,” a dwelling house stated in the indictment, in which at the time was a human being, and that he did so intentionally, with an intent to do a great wrong and injury.
And we must say to you that the ownership of the dwelling house, in the construction of this statute, (which differs from the common law,) whether it be that of the party charged with the offense or that of another, makes no difference, as the gravamen of the offense is the burning or setting on fire of a dwelling house “ in which there shall be at the time some human being.” So that if there be a setting on fire of a dwelling house, it matters not whom it belongs to, whether it be the dwelling house of the owner himself or of another party, the gravamen of the offense is a dwelling house in which there is a human being.
The evidence to prove a crime such as to justify conviction may be direct and positive, as when the crime is proved by witnesses who saw the act charged actually committed, or where the party charged admits or confesses, leaving no doubt or uncertainty as to the guilt of the party charged. Now, that is the strongest evidence in one sense; and yet there may be other evidence stronger than that. But where the evidence is positive —for instance, if a man kills another and witnesses around see him do it, see him fire the shot, if you please, or see him strike the other with some instrument, from which the other falls dead—that is a positive fact, that is direct testimony; but you will observe, gentlemen, that if the law rested upon that fact, no man could be convicted of a crime unless there was direct and positive evidence that he did it, and many criminals would escape *508and go unwhipped of justice. But there are other means by which these things may be detected. Crime necessarily seeks secrecy, and therefore there are other matters which may be brought in and by which a jury may know what is direct' and positive. But there is another grade of offense, to which I shall call your attention, by which a party may be convicted; and there is also another kind of evidence which is admissible in civil as well as criminal cases—more particularly in criminal than in civil cases—called “presumptions” or more generally defined as “circumstantial evidence.” And unless such was admissible, most criminals would escape, as crime seeks secrecy and cannot, in most cases, be proved by direct and positive testimony. In fact, circumstantial evidence of crime, if properly supported and constituting an unbroken chain, constitutes a proof as strong and conclusive as direct and positive evidence and, in some cases, more so.
Where a crime has been committed and there is no direct and positive proof thereof, but facts and circumstances are proved as showing motive, the declarations by parties charged and other matters, if taken together, would satisfy a reasonable mind of the guilt of the party; in other words, as a whole, constituting an unbroken chain or secondary evidence, under such proof, the evidence would be equally as strong as that of direct and positive proof. These presumptions (or “circumstantial evidence” as defined in the books) are of three kinds: first, violent presumption, where the facts and circumstances proved, necessarily attend the facts presumed; as, for instance, if a man is killed in a house, or along a road and some person be seen running from the place, with a weapon drawn and covered with blood; that is a violent presumption that he did the deed. It is not positive as contra-distinguished from direct and positive evidence, which is where a man saw the prisoner do the act. But if a man, if you please, has a knife upon which his name appears or one which everybody knows, and it is found sticking in the wound on the dead man, and that is connected with the fact that he had a quarrel with his adversary before that and swore he would kill him, and that *509knife is found a short time afterwards sticking in the dead man, that is presumptive evidence. In other words, it is circumstantial evidence. It is liable, however, to rebuttal.
The next kind of evidence is probable presumption; that is, where there are facts and circumstances surrounding a case, where a tragedy had been committed or some unlawful act done, connecting somebody or other with it. As, for instance, if an article be stolen and the accused be seen coming from the house in question that is a probable presumption. A man coming from the house does not furnish a violent presumption as would be the case if the man coming from the house was found with the stolen goods upon his person. Then there would be a violent presumption that he had taken the goods. Circumstances would naturally occur, from a crime having been committed, to show that the man was in some way connected with it by his immediate surroundings or the manner in which he acted or his sayings or his confession.
The Court having thus defined the general principles of law applicable in a case of an indictment for arson, you are to decide upon the evidence produced before you, as applied to the law laid down by the Court, as to the guilt or innocence of the prisoner. You have heard the testimonv on both sides; that is a matter with you. There is in this case no direct or positive proof of the guilt of the party charged. I mean by that that nobody saw him do it, according to the evidence here; it is to be taken from the circumstances which surround this case. You heard the testimony; that of the prosecuting witness that he was upon the ladder, and as to the identity of either party. That is a circumstance. As to all the other facts, his declarations and what he said, as to the motives that influenced him, they are circumstances; and therefore they bring it under the head, as I say, of what is called “circumstantial testimony.” There is, in this case, no direct or positive proof of the guilt of the party charged. The evidence is presumptive or circumstantial. We must say to you that a party charged is presumed to be innocent until he is proved guilty. You are to decide this case upon presumptive *510or circumstantial evidence, as there is no direct or positive evidence. In consideration of the evidence being presumptive or circumstantial, we must say to you that circumstantial evidence ought to be acted on with great caution. Unless taken entire and forming one perfect link to satisfy you beyond a reasonable doubt, the prisoner is entitled to the benefit of the doubt and you should acquit him. But, gentlemen, if you are satisfied from all the facts and circumstances proved in this case, though there is no direct and positive proof, that the prisoner set fire to the said dwelling house, as alleged in the indictment,.in which was a human being, “wilfully and maliciously,’’ then you should find the prisoner guilty in manner and form as he stands indicted.
We have been asked to charge you that, as witnesses who were produced and who testified in behalf of the prisoner were near relations of and kin to the prisoner, their testimony is to be taken with great caution. ■ We must say to you that you are the sole judges of the credibility of the witnesses. If competent, the Court allows them to testify. What faith and credit are to be given them is within your sole province. They stand on the same footing with other witnesses. The law applicable to accomplices does not apply to relations. All classes interested or even parties accused are competent under our laws. Their credibility is a matter with you. You may accept or reject their testimony. It is your sole right to. decide the weight of testimony. If conflicting, you should reconcile it if possible. If you cannot, then you are to consider and give weight to the testimony of such as you think have had the best opportunities for a knowledge of this act and who are free from bias. In other words, you are to decide on the testimony given you, and are the sole and only judge of it.
We have been asked to charge you, that, if there be a reasonable doubt in your minds as to the guilt of the prisoner, he shall be entitled to the benefit of it, as laid down in 9 Houston, 386, being a charge delivered by our late Chief Justice Comegys, in the case of The State vs. Fiftzpatrick and McGurgan; which is undoubtedly the law and is in the following words: “It is due to *511the prisoner who is charged in the indictment with this serious crime, that I should say as is, in fact, usually said in all cases of crime, or of misdemeanor only,—that the presumption of law is in favor of innocence; that is, that every one charged with a crime is presumed to be innocent, and that no conviction can be rightfully made unless the jury are satisfied, from the proof in the case and from that only, that a party charged is guilty beyond a reasonable doubt—which is only another way of saying that unless the minds of the entire panel of jurors are convinced beyond such a doubt as reasonable men should, from the proof before them after calmly considering it, entertain of the guilt imputed, the verdict should be one of acquittal. No suspicions or conjectures are to be indulged in, but only facts and circumstances-proved are to be allowed any weight. No consequence in criminal trials is to be given to mere weight of testimony. Unless the facts relied upon for conviction are so evident, and compulsory of the mind, as to exclude any doubt of guilt, they must not be allowed to make up a verdict of guilty. A prisoner must not be convicted, if any doubt of guilt of a reasonable nature growing out of the facts proved or by reason of their insufficiency, exists in the jurors’ minds.”
Now, gentlemen, we have given you the law. The facts have been given here before you. You are to apply the facts here—to judge of the facts, and apply them to the law as we have laid it down.
Verdict, not guilty | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487280/ | Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—Michael Miele, the prisoner at the bar, is charged in this indictment with murder of the first degree; it being alleged that he did, on the fourteenth day of July, 1909, kill one Vincent H. Walker, in this City, by cutting or stabbing him with a knife; inflicting thereby a mortal wound, from which the’said Walker died.
It is not denied by the defendant that he inflicted the blow or wound which caused the death of Vincent H. Walker, but he claims that he committed the act in the necessary and lawful defense of his person. He contends that he was pursued, struck, knocked down and kicked in the head by several persons, and that when he arose he was in such a mental condition, caused by *36such beating and kicking, that he was incapable of thinking intelligently at the time Walker was cut, or of discerning who were attacking him.
It is not necessary for us to explain to you at length what constitutes murder of the first degree, because, although indicted for such crime, the Attorney-General has stated to you that he does not ask for a verdict of guilty of murder of the first degree. We will say, however, in order that you may the more clearly understand what constitutes murder of the second degree, that murder of the first degree is committed where the killing is done with express malice aforethought,—with a sedate, deliberate mind and formed desgin to kill.
The State contends that the prisoner is guilty of murder of the second degree, and it becomes our duty to instruct you with more particularity in respect to such crime.
Murder of the second degree is where the killing is done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life, or to perpetrate a crime punishable with death, but where the killing nevertheless was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. And where the circumstances surrounding the case show that the killing was committed under the influence of a wicked and depraved heart, or with cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree.
Malice is implied by law from every cruel act committed by one person against another, however sudden the act may be, for the law considers that he who does a cruel act voluntarily does it maliciously. Malice is an essential element of the crime charged in this indictment, and it must be proved just as any other material element of the charge. Without malice there can be no murder.
When the killing is shown to have been done with a deadly capon malice is presumed, in the absence of evidence to the *37contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon.
A deadly weapon is such a weapon as is likely to produce death, when used by one person against another; such, for example, as a knife, or a piece of wood, of sufficient size to cause death to one who may be struck by it. And if death is produced by the use of a deadly weapon, great must be the provocation to reduce the killing from murder to manslaughter.
Manslaughter is usually committed where one in a sudden affray, in the heat of blood or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter the provocation must be very great; so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved heart and is characterized by malice, manslaughter results not from malice but from unpremeditated and unreflecting passion.
We have been asked by counsel for the prisoner to charge you in respect to the law of self-defense. We will say that a slight assault will not excuse or justify the killing of the assailant with a deadly weapon.
The burden of establishing self-defense to the satisfaction of the jury rests upon the accused.
In repelling or resisting an assault no more force may be used than is necessary for the purpose, and if the person assailed uses in his defense greater force than is necessary he becomes the aggressor.
If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the accused a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely *38do so, or to use such other reasonable means as were within his power to avoid killing his assailant.
No one may take the life of another, even in self-defense, unless there is no other available means of escape from death .or great bodily harm. If one is attacked and from the character of such attack he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased would be a justifiable act of self-defense.
If, on the other hand, the attack was of a trifling character and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such attack by the use of a weapon likely to produce death would not be an act of justifiable self-defense.
In ascertaining whether the accused was in danger of injury at the hands of the deceased when he struck the mortal blow; and, if in such danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses.
In order to justify or excuse the accused in striking the fatal blow it is not sufficient that he at the time believed himself to be in danger of death or great bodily harm at the hands qf the deceased, but the circumstances must have been such, in the judgment of the jury, as to justify a reasonable man in such belief; and further, that there was no reasonable way of avoiding or escaping from such danger except by slaying the assailant.
Even though you should be satisfied that the prisoner committed the first assault, if you should further believe that he withdrew from the combat and retreated, with the honest intent to escape, and was pursued and unlawfully assaulted then his assailants became the aggressors, and the prisoner had the right in self-defense to use so much force as was necessary under the circumstances to repel the attack upon him and protect himself.
If you are satisfied that the prisoner after being so attacked and knocked down arose, and drawing a knife inflicted the fatal *39blow upon Walker, when he knew, or should have known, that Walker was- not one of the persons who had assaulted him, or if it was not necessary in order to save his life or protect himself from great bodily harm that he should strike the fatal blow, his' act was an unlawful one.
If you believe that the prisoner, at the time he cut Walker, was in such a condition, caused by being beaten and kicked about the head, that he was incapable of thinking intelligently or of discerning who the attacking parties were, you should consider such condition in reaching a verdict in the case.
The good character of an accused person, when proved, is to be taken in connection with all the other evidence, and is to be given such weight, under all the facts and circumstances of the case, as in the judgment of the jury it is entitled to.
Where there is conflict in the testimony it is the duty of the jury to reconcile such conflict, if they can. If they cannot, they should accept such testimony as they consider under all the circumstances is most worthy of their credit and belief, having regard to the ignorance or intelligence of the witnesses, their interest or bias, and the opportunity which they had of observing and knowing the things respecting which they testified.
In order to convict the prisoner it is incumbent upon the State to prove beyond a reasonable doubt every material ingredient of the crime charged. In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If after carefully and conscientiously considering and weighing all the eviv deuce in the case you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague or speculative doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all of the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances proved in the case.
If you are satisfied that the prisoner stabbed the deceased *40in necessary and lawful self-defense, as we have defined it to you, your verdict should be not guilty.
If, however, you are satisfied that the prisoner killed the deceased unlawfully, but without malice, your verdict should be guilty of manslaughter.
But if you believe that the prisoner killed the deceased maliciously, without justification or excuse, and without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder of the second degree.
Verdict, guilty of murder of the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483141/ | Wilmot v Kirik (2022 NY Slip Op 06368)
Wilmot v Kirik
2022 NY Slip Op 06368
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, WINSLOW, BANNISTER, AND MONTOUR, JJ.
786 CA 21-01555
[*1]THOMAS C. WILMOT, SR., THOMAS C. WILMOT, JR., AND LORETTA W. CONROY, PLAINTIFFS-RESPONDENTS-APPELLANTS,
vTONY KIRIK, DEFENDANT-APPELLANT-RESPONDENT, AND COUNTY OF MONROE, DEFENDANT-RESPONDENT-APPELLANT.
ROSENHOUSE LAW FIRM, ROCHESTER (MICHAEL A. ROSENHOUSE OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.
HARRIS BEACH PLLC, PITTSFORD (H. TODD BULLARD OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS-APPELLANTS.
JOHN P. BRINGEWATT, COUNTY ATTORNEY, ROCHESTER (ADAM M. CLARK OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.
Appeal and cross appeals from a judgment (denominated order) of the Supreme Court, Monroe County (Debra A. Martin, A.J.), entered October 22, 2021. The judgment, among other things, set aside the judgment of foreclosure of the property at issue and vacated the referee's deed issued to defendant Tony Kirik.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483149/ | Smith v MDA Consulting Engrs., PLLC (2022 NY Slip Op 06389)
Smith v MDA Consulting Engrs., PLLC
2022 NY Slip Op 06389
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND WINSLOW, JJ.
823 CA 22-00548
[*1]NICHOLAS SMITH, PLAINTIFF-RESPONDENT,
vMDA CONSULTING ENGINEERS, PLLC, DEFENDANT-APPELLANT.
UNDERBERG & KESSLER LLP, BUFFALO (CAROL R. FINOCCHIO OF COUNSEL), FOR DEFENDANT-APPELLANT.
DOLCE PANEPINTO, P.C., BUFFALO (AARON C. GORSKI OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Chautauqua County (Grace Marie Hanlon, J.), entered March 23, 2022. The order, insofar as appealed from, denied the motion of defendant for summary judgment.
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law and in the exercise of discretion without costs, the motion is granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence action seeking damages for injuries he sustained after falling off of a foundation wall while erecting a salt storage shed for the Town of Mansfield (Town). Defendant had contracted with the Town to assist in preparing a bid package, solicit bids, assist the Town in obtaining grant money from the State, and review the submitted bids for the salt storage shed project. Plaintiff commenced the instant action asserting causes of action against defendant for violations of Labor Law §§ 200, 240 (1), and 241 (6), and for common-law negligence. Defendant appeals from an order that, inter alia, denied its motion for summary judgment dismissing the complaint.
Initially, to the extent that Supreme Court's denial of the motion was premised on defendant's failure to promptly file a statement of material facts as previously required by 22 NYCRR 202.8-g (former [a]), we substitute our discretion, which may be exercised by the Appellate Division "even though there has been no abuse of discretion by the lower branch of the court" (Phoenix Mut. Life Ins. Co. v Conway, 11 NY2d 367, 370 [1962] [internal quotation marks omitted]; see Chamberlin v Samaritan Med. Ctr., 249 AD2d 956, 957 [4th Dept 1998]), to deem that mistake corrected by defendant's late filing (see CPLR 2001). As defendant asserts, the affidavit of its attorney was the functional equivalent of a statement of material facts, there was no prejudice to plaintiff, and defendant rectified its omission in a timely manner. We also note that the regulation was amended several months after the order was entered requiring that statements of material facts be provided only if directed by the court and providing courts with several remedies in the event of a failure by the proponent of summary judgment to provide the statement (see 22 NYCRR 202.8-g [e]). Further, at least one other Department of the Appellate Division has been hesitant to require "blind adherence to the procedure set forth in 22 NYCRR 202.8-g" even before the amendment (Leberman v Instantwhip Foods, Inc., 207 AD3d 850, 852 [3d Dept 2022] [internal quotation marks omitted]).
Regarding the merits, we agree with defendant, which was undisputedly not an owner or a contractor, that it met its initial burden on the motion with respect to the Labor Law § 240 (1) cause of action by establishing that it was not an agent of the Town. "An agency relationship for the purposes of section 240 (1) arises only when work is delegated to a third party who obtains the authority to supervise and control the job" (Blake v Neighborhood Hous. Servs. of N.Y. City, [*2]1 NY3d 280, 292-293 [2003]). "Thus, unless a defendant has supervisory control and authority over the work being done when the plaintiff is injured, there is no statutory agency conferring liability under the Labor Law" (Walls v Turner Constr. Co., 4 NY3d 861, 864 [2005]). Pursuant to the express terms of the contract between the Town and the nonparty contractor—i.e., plaintiff's employer—as well as the terms of the contract between the Town and defendant, defendant had no control over the means or methods of the performance of the work by the contractor, and it also had no control over safety precautions for the workers at the construction site (see Hastedt v Bovis Lend Lease Holdings, Inc., 152 AD3d 1159, 1162 [4th Dept 2017]; Phillips v Wilmorite, Inc., 281 AD2d 945, 946 [4th Dept 2001]). The deposition testimony submitted by defendant established the same. In opposition, plaintiff failed to raise a triable issue of fact whether defendant was liable as an agent of the Town (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
For those same reasons, it was error to deny defendant's motion with respect to the Labor Law § 241 (6) cause of action (see Hargrave v LeChase Constr. Servs., LLC, 115 AD3d 1270, 1271 [4th Dept 2014]; Phillips, 281 AD2d at 946). Defendant also established that it did not actually direct or control the work that brought about plaintiff's injuries, and plaintiff raised no issue of fact with respect thereto. Therefore, it was error to deny defendant's motion with respect to the Labor Law § 200 and common-law negligence causes of action (see Bausenwein v Allison, 126 AD3d 1466, 1468 [4th Dept 2015]; Suconota v Knickerbocker Props., LLC, 116 AD3d 508, 508-509 [1st Dept 2014]).
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483146/ | Tarsel v Trombino (2022 NY Slip Op 06364)
Tarsel v Trombino
2022 NY Slip Op 06364
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
768 CA 21-01464
[*1]MICHAEL J. TARSEL AND SUZANNE M. TARSEL, PLAINTIFFS-RESPONDENTS,
vJAMES J. TROMBINO, DEFENDANT-APPELLANT.
PULLANO & FARROW, ROCHESTER (MALLORY K. SMITH OF COUNSEL), FOR DEFENDANT-APPELLANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (KAREN G. FELTER OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
Appeal from an order of the Supreme Court, Oneida County (Bernadette T. Clark, J.), entered September 30, 2021. The order, inter alia, ordered defendant to pay punitive damages to plaintiffs in an amount to be determined after discovery and a hearing.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487282/ | Conrad, J.,
charging the jury:
Gentlemen of the jury:—Carmela Borrelli, the prisoner at the bar stands indicted for the murder of Andrew Nordine on the second day of April last, in the city of Wilmington in this county.
The uncontradicted evidence in the case as well as the admission of the defendant shows that the said Andrew Nordine: came to his death on the day mentioned by reason of one or two-pistol shots discharged by the prisoner. The defense set up by the prisoner is justifiable homicide, that is, that while admitting the killing she had ample excuse and justification for the act. Of the facts as disclosed by the evidence you are the sole judges and it remains for the Court to instruct you regarding the law of homicide.
Where the testimony is conflicting the jury should reconcile it if possible, but if this cannot be done, they should accept that part of it which they deem worthy of credit, and reject that which they deem unworthy of credit, having due regard to the intelligence or ignorance, and impartiality or .bias of the witnesses and their opportunity to know the facts to which they testify.
By the law of this State felonious homicide is of three kinds,— *352murder of the first degree, murder of the second degree and manslaughter. It is not necessary for the Court to explain to you at any length what constitutes murder of the first degree because the prisoner is not charged with that degree of murder.. We may say, however, that to establish murder of the first degree it must be shown that the killing was committed with express malice aforethought, that is, with a sedate deliberate mind, and formed design to kill.
Murder of the second degree, which is the crime charged against the prisoner, is where the killing was done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury.
Where there is no deliberate mind or formed design to take life, or to perpetrate a crime, punishable by death, but where the killing was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter, the crime is murder of the second degree. Where the circumstances show that the killing was done under the influence of a wicked and depraved heart, or with a cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree.
All homicides with a deadly weapon, that is with a weapon likely to produce death, are presumed to be malicious, until the contrary appears from the evidence, and the burden of proof is on the accused, as the natural and probable consequences of the use of a deadly weapon are presumed by the law to have been intended by the person so using it. If death ensues from an unlawful cruel act of violence on the part of the slayer, in the absence of adequate or sufficient provocation, the law implies that such was done maliciously, and the crime is murder of the second degree. In order to constitute the crime of murder of the second degree, it is not essential that the slayer intended to kill his victim at the time he struck the fatal blow,
Manslaughter is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter the provocation must be very great; so great as to produce *353such a transport of passion as to render the person for the time being, deaf to the voice of reason. Manslaughter results not from malice but from unpremeditated and unreflecting passion.
As regards self-defense, the Court would say that no looks or gestures, however insulting; no words however opprobrious or offensive can amount to a provocation sufficient to justify even a slight assault. Nor can a slight assault excuse the killing of the assailant with a deadly weapon so as to reduce the offense from the grade of murder to that of manslaughter.
The burden of establishing self-defense to the satisfaction of the jury rests with the accused. In repelling, or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assaulted use in his defense greater force than is necessary for that purpose, he becomes the aggressor. No one may take the life of another even in self-defense, unless there is no other means of escape from death, or .from great bodily harm.
If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the accused a reasonable belief that she was in danger of death or great bodily harm, it was her duty to use only such reasonable means as were within her power to avoid killing her assailant.
If one is attacked and from the character of the attack he or she had reasonable cause to believe and did believe that he or she was in imminent danger of death or great bodily harm, and he or she had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased would be a justifiable act of self-defense. But if the attack was of a trifling nature, and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such an attack by the use of a deadly weapon likely to produce death, would not be an act of justifiable homicide.
In ascertaining whether the accused was in any, and in what danger of injury at the hands of the deceased when she discharged the pistol, and if in such danger, whether she took the proper *354course to avoid such danger, the jury should consider all the facts and circumstances of the case as disclosed by the witnesses.
In order to justify a killing it is not sufficient that the accused believed herself to be in danger of death or great bodily harm .at the hands of the deceased, but the circumstances must have been such as to justify a reasonable person in such belief, and further that there was no reasonable way of avoiding such danger except by slaying the assailant.
The State is bound to prove beyond a reasonable doubt every material ingredient of the crime charged. If after weighing and considering all the evidence you should entertain a reasonable doubt as to the guilt of the prisoner, you should give her the benefit of such a doubt and your verdict should be not guilty. A reasonable doubt is not a mere vague, fanciful or speculative doubt, but such a doubt as fair-minded and conscientious men might entertain after a careful consideration of all the evidence in the case.
If you are not satisfied beyond a reasonable doubt that the prisoner unlawfully killed Andrew Nordine, or even if you should be convinced that she did kill him, and if you are satisfied that she did it in necessary and lawful self-defense, as we have defined it to you, your verdict should be not guilty. If, however, you are satisfied that the prisoner killed the deceased unlawfully but without malice your verdict should be guilty of manslaughter.
If you do not bélieve the prisoner guilty either of murder of the second degree or of manslaughter, you are at liberty to find her guilty of assault only, if the evidence in the case would warrant you in so doing.
If you believe that the prisoner killed the deceased without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder in the second degree.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487283/ | Pbnnewill, C. J.,
charging the jury:
Gentlemen of the jury:—Carmine Russo, is charged in this indictment with murder of the first degree.
The State contends that Carmine Russo, the prisoner at the bar, on the sixteenth day of January last, without excuse, justification or provocation, deliberately, designedly and with express malice aforethought, shot and killed one William Kidd, while the latter was standing, in company with some other young men, on the north west comer of Sixth and Adams Streets in this City.
The prisoner admits that he shot and killed William Kidd at the time and place mentioned, but insists that it was not done either with express or implied malice, but under great provocatian, and with the belief that he was in much danger and about to suffer great bodily harm. He contends that he and another Italian were, just before the shooting, being pursued by a number of small boys , who were throwing snow-balls at them and hitting them; that at the time a number of young men were standing at the comer of Sixth and Adams Streets urging the boys on and encouraging them in their assault upon the prisoner-and his companion, and that some of those young men also threw snowballs at them; that when the prisoner and his companion walked out to where the young men were standing, some of them drew their revolvers and were about to assault the prisoner and his companion, when he fired the fatal shot; that he did not intend to shoot the deceased or anyone else, but did the shooting when he believed that those men were about to do him great bodily harm.
The State insists that neither the deceased nor anyone in his party had done or said anything to indicate in the-slightest way to the prisoner that they intended to injure or annoy him, but on the contrary, that the deceased was endeavoring to separate the prisoner’s companion and one of the deceased’s party, when the prisoner seized the deceased by the coat with his left hand and with his right hand drew a revolver from his pocket, and pointing it at the breast of the deceased fired and killed him.
*543Under this indictment you may find any one of four verdicts as the evidence in your judgment shall warrant, viz.: murder of the first degree, as charged in the indictment; murder of the' second degree; manslaughter, or not guilty.
It is the duty of the Court to define or explain to you, as clearly as we may, what is murder of the first and second degree,
Homicide is the killing of one human being by another. Felonious homicide is of three kinds; murder of the first degree, murder of the second degree and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart, As here used this term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways; as, for instance, by lying in wait for the deceased, or by antecedent menaces or threats that disclose a purpose on the part of the prisoner to commit the act charged, or by a former grudge, ill-will, spite, hatred, or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the accused toward his victim at the time when the crime was committed. The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill.
*544If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder. If a design or intention to take life be but the conception of a moment, it is sufficient. If the slayer had time for thought and thinking but for a moment, did intend to kill, and in fact did kill, it is just the same in legal contemplation as if he had intended it for a length of time, and killing under such circumstances is held to be both deliberate and premeditated.
In order, therefore, to find a verdict of murder of the first degree, you must be satisfied that the prisoner killed the deceased with express malice aforethought, that is, with a sedate,deliberate mind and formed design to kill.
Murder of the second degree is where the crime is committed with implied malice; that is, where the malice is not express, as in murder of the first degree, but is an inference or conclusion of law from facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse and without provocation or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was committed without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree.
In order, to find a verdict of murder of the second degree, you must be satisfied that the prisoner killed the deceased with implied malice.
Malice, however, is implied by law from every unlawful and cruel act committed by one person against another, however sudden that may be; for the law considers that he who does an unlawful and cruel act voluntarily, does it maliciously. If death ensues from an unlawful and cruel act of violence on the part of the slayer, in the absence of adequate or sufficient provocation, the law implies that such act was done maliciously, and the crime is murder of the second degree.
*545Therefore murder of the second degree is held to be proved it is not satisfactorily shown by the evidence submitted to the jury, that the killing was done with a deliberately formed design to take life, or in perpetrating or attempting to perpetrate any crime punishable with death, but where it is shown that it was done suddenly, without justification or excuse, and without any provocation, or without provocation sufficient to reduce the homocide to the grade of manslaughter.
Where the killing is shown to have been done with a deadly Weapon, such as a pistol, it is presumed to have been done maliciously, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been by the person using the deadly weapon. If death is produced by the use of a deadly weapon, great must be the provocation to reduce the killing from murder to manslaughter
Manslaughter is where one person unlawfully kills another without malice. For example, where one in a sudden affray, in the heat of blood, or in a transport of passion, inflicts the mortal wound, without time for reflection or for the passions to cool. In order to reduce the crime to manslaughter the provocatian must be very great—so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved spirit and is characterized by malice, manslaughter results not from malice but from unpremeditated and unreflecting passion.
If the slayer who had received the provocation from the other, or who had received the blow from the other, had time for his blood to cool, and for the heat of passion, which amounts to a frenzy in which reason is presumed in law to be unseated for the time being, to subside, and for his reason to regain its sway, then it it would not be manslaughter, but murder of either the first or second degree according to the circumstances. If the killing, however, is done during the continuance of the unseating of reason, without time for reflection or for the passions to cool, the crime is reduced to manslaughter.
*546We have been asked to charge you with reference to the law of self-defense. And we will say to you that no looks or gestures, however insulting, no words, however opprobrious or offensive, can amount to a provocation sufficient to excuse or justify even a slight assault. Nor can a slight assault excuse the killing of an assailant with a deadly weapon, so as to reduce the offense from the grade of murder to that of manslaughter. The most usual instance of manslaughter is where two persons are engaged in a fight and one kills the other in the heat of passion. The burden of establishing self-defense to the satisfaction of the jury rests upon the accused. In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary he becomes the aggressor.
If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the' accused a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant. No one may take the life of another, even in self-defense, unless there is no other available means of escape, from death or great bodily harm. If one is attacked, and from the character of such attack he has reasonable cause to believe, and does believe, that he is in imminent danger of death or great bodily harm, and he has no other reasonable means of avoiding or preventing death or great bodily harm, then the killing would be a justifiable act of self-defense. If, on the other hand, the attack was of a trifling character, and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such attack by the use of a weapon likely to produce death would not be an act of justifiable self-defense.
In ascertaining whether the accused was in any danger of injury at the hands of the deceased when he fired the shot, and, if in such danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses. In order to *547justify or excuse the accused in firing the shot, it is not sufficient that he at the time believed himself to be in danger of death or great bodily harm at the hands of the deceased; but the circumstances must have been such, in the judgment of the jury, as to justify a reasonable man in such belief, and, further, that there was no reasonable way of avoiding or escaping from such danger except by slaying the assailant.
If you believe there was any provocation that caused the prisoner to fire the fatal shot, then you must consider whether such provocation was caused or provoked by the deceased or some one else. If such provocation was not caused by the deceased but wholly by another, then such provocation cannot re-the crime from murder to manslaughter, and the jury should not consider such provocation in determining the grade of the crime unless the deceased was present and assisting, aiding or abetting him who caused the provocation.
The degree of credit due to a confession is to be estimated by the jury under the circumstances of the particular case. The whole of what the accused said on the subject at the time of making the confession should be taken together. The jury may believe that part which criminates the accused and reject that which is in his favor, or credit so much as is in his favor and discard that which is against him, if they see sufficient grounds, upon all the evidence, for so doing; for the jury are at liberty to judge of it, like any other evidence, from all the proven circumstances of the case.
The good character of an accused person, when proved, is to be taken in connection with all the other evidence in the case, and is to be given just such weight under all the facts and circumstances of the case as in the judgment of the jury it is entitled to.
When the testimony is conflicting the jury should -endeavor to reconcile it, if it is possible to do so. If it is not possible to reconcile it, they should give credit to that testimony which they consider most worthy of their belief.
It would seem hardly necessary to remind a jury of your intelligence, character, and apparent fairness that you are to ^determine this case upon the evidence which you have heard from *548the witnesses and the law as the Court has stated it, and upon nothing else. You are acting under your oaths, as we are under ours. The prisoner is entitled to, and should receive, a fair and impartial trial, just the same as any other person charged with the commission of crime. And so, we say that in reaching your verdict you are not to be influenced or governed by anything other than the law and the evidence.
In every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoner it is incumbent upon the State to prove beyond a reasonable doubt every material ingredient of the crime charged. If, after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague, speculative or possible doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all the evidence; and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case as shown by the evidence.
Now, gentlemen, if you should believe from the evidence that the prisoner killed William Kidd with express malice aforethought —that is, with a sedate, deliberate mind and formed design to kill, your verdict should be guilty in manner and form as he stands indicted; namely, of murder of the first degree. If you should believe that the defendant killed the deceased, not with express malice, but with implied malice; that is, not with a deliberate mind and formed design to kill, but with a wicked and depraved heart and with a cruel and reckless indifference to human life, your verdict should be guilty of murder of the second degree. If you should believe that the defendant killed the deceased unlawfully, but without malice, express or implied, your verdict should be guilty of manslaughter.
*549If you should not be satisfied beyond a reasonable doubt that the defend mt killed William Kidd maliciously or unlawfully, your verdict mould be not guilty.
M.\ Wales:—Will your Honors call attention to the fact that the statement alleged to have been made by this defendant was not a confession but was an oral statement, was not made under O'tth, and could not have been a confession.
Pennewill, C. J.:—We will simply say to you, gentlemen of the jury, that in considering any statement made by the prisoner, you are to give it such weight as you think it is entitled to, under all the facts and circumstances of this case.
Verdict guilty.
(Counsel for defendant thereupon filed motions for a new trial and in arrest of judgment. Argument was heard by the Court on March 7th, and after holding the matter under advisement until March 15th, the following opinion was rendered):
Pennewill, C. J.,
delivering the opinion of the Court:
The Court have carefully considered the reasons assigned for a new trial in the above stated case, as well as the arguments óf counsel in support of and against the motion.
The motion for arrest of judgment, we understand, has been abandoned, and no argument was made thereon.
■ We are prepared to render a decision upon the motion for a new trial, and think it proper to give the reasons briefly for our conclusion.
It is alleged (1) that the defendant did not have sufficient time and opportunity in which to fully and fairly prepare for trial, and secure the attendance of witnesses in his behalf. As to this reason it is only necessary to say, that at the time of the prisoner’s arraignment, his counsel, who had been assigned by the Court, was asked how much time he would require to prepare for the trial. He requested two weeks, and although the Attorney-General insisted upon a shorter period, the Court granted the request of the prisoner’s counsel, and two weeks were allowed.
*550(2) That a continuance of the case on the ground of the absence of a material witness, Filippo Di Rosario, was improperly refused by the Court, whereby the defendant suffered injustice. We say in reply to this reason, that the prisoner’s counsel stated to the Court, before the commencement of the trial, that he had not been able to ascertain where the said witness was, and did not know that he would be able to learn of his whereabouts if the case should be continued to the next term. While counsel did informally ask that the case might be continued, such continuance was not insisted upon, and no formal or legal application was made therefor. Indeed it is impossible to see how any legal grounds could have been laid, because counsel had not seen the witness, nor had he talked with any one who had seen him since the assault was committed. He has not in fact yet seen the witness or learned where he is, and could not therefore know what would be the nature of his testimony if his attendance could be secured. Counsel frankly said to the Court that he had no. assurance that he would be able to secure the attendance of the witness at any time.
(3) That the verdict rendered by the jury was plainly due to a misapprehension of the Court’s instructions, particularly as regards the finding by the jury of express malice aforethought on the part of the defendant, that is, a sedate, deliberate and formed design to kill. It might be sufficient to say in respect to this reason, that there has been no evidence whatever submitted to the Court showing or tending to show that the jury did not clearly understand the instructions given. We cannot assume they did not understand, and in the absence of any evidence to the contrary we must assume they did, and especially may we do so because the jury did not ask the Court for any further instructions, or indicate in any way that they did not fully and clearly comprehend the entire charge. We are satisfied that the jury was composed of exceptionally capable and intelligent men, and are sure that the Court did everything in their power to cledrly explain to them not only the legal import and meaning of “express malice aforethought,” but also every other term or thing that was necessary or proper to be explained in the trial of *551one indicted for murder of the first degree. The Court not only gave the usual charge, in the language uniformly employed by our Courts respecting express malice, implied malice, uncontrollable passi m, reasonable doubt, and other important matters, but sub-star.tially and succinctly repeated such instruction at the close of the charge so that the jury -could not fail to understand. We may say further that counsel for the prisoner requested the Court to charge the jury upon the points mentioned in certain language, and finding that his prayers correctly stated the law we charged substantially, if not in the exact language he asked the Court to employ.
(4) That it clearly appeared during the trial of the case that perjury was committed by a majority of the eye witnesses called and examined on behalf of the State, whose testimony was an important factor in producing the verdict.
We notice this ground only to say that no evidence whatever Was adduced to support it, and it cannot therefore impress the 'Court in the slightest degree. In the absence of any evidence to sustain the charge it would be just as reasonable and proper to assume that the witnesses for the defense who contradicted those for the State were themselves open to the same charge. But there is nothing before the Court to show that the witnesses on either side were guilty of perjury in giving their testimony at the trial.
(5) The remaining reasons will be grouped and considered together, for they are of a general character, and have been partially covered by what we have already said. They are substantially as follows:
That the verdict was not in accord with substantial justice, and so gross as to shock the conscience of the Court. That the evidence adduced at the trial was insufficient to sustain a verdict of murder of the first degree, sufficient testimony being produced on behalf of the defendant to create a reasonable doubt of express malice aforethought on the part of the accused. That .the verdict was the result of undue sympathy for the deceased and of prejudice towards the defendant as the outgrowth of a strong prevailing public sentiment. That the public welfare did not *552reasonably require the defendant to be unduly hurried in the preparation of his defense, or the ordinary and usual course of administration of justice to be interrupted.
It was the duty of the Court to instruct the jury in respect to the law applicable to the case. This was done as fully and clearly as we were able to do, and we have no doubt the jury understood the charge they received. With the evidence in the case the Court could not, and cannot, have anything to do under the provisions of the Constitution of the State. The weight and effect of the evidence, as well as the credibility of the witnesses, were matters solely and exclusively for the consideration and determination of the jury, and there can be no reason for holding that their verdict was not in accord with substantial justice, or so gross as to shock the conscience of the Court.
While it would be improper for the Court to express any opinion upon the verdict rendered by the jury, we- do say that no defendant charged with a serious crime could have had a fairer or more impartial trial. While there was a special convening of the grand jury under a recent statute which provided for a notice of six days instead of twenty days as previously required, the Court took the precaution, which perhaps was not necessary, to say to the grand jury that they should not be affected by the fact that they were called together in special session, but it was their duty to consider and determine any matters that might be presented to them just as though they were met in usual and regular session.
Ample time was given the defendant, after the indictment was found, to prepare his defense. This case was not exceptional in the time allowed the defendant to prepare for his trial, because other defendants charged with a similar crime have been allowed no longer time.
There is absolutely nothing presented to the Court to show that the verdict of the jury was the result of sympathy for the deceased or of prejudice towards the defendant, or that it was influenced by public clamor in any degree.
*553Although it may have been entirely unnecessary, and prob- • ably was, nevertheless the Court did, near the close of their charge, caution the jury in the following words :
■‘It would seem hardly necessary to remind a jury of your intelligence, character and apparent fairness that you are to determine this case upon the evidence which you have heard from the witnesses, and the law as the Court have stated it, and upon nothing else. You are acting under your oaths, as we are under ours. The prisoner is entitled to, and should receive, a fair and impartial trial, just the same as any other person charged with the commission of crime. And so we say that in reaching your verdict you are not to be influenced or governed by anything other than the law and the evidence.”
In conclusion we will say that in our opinion every right of the defendant, constitutional or otherwise, was fully safe-guarded at his trial. He was ably defended by competent counsel assigned by the Court. He was given the right to compel the attendance of witnesses in his defense at the expense of the County. Practically every ruling upon the admissibility of testimony was in the prisoner’s favor, and there was no exception entered to the charge of the Court. The jury, as is well known, was composed of representative, intelligent and conscientious men, and when the case was closed and submitted to them for their decision they returned their verdict, not hastily, but after remaining out all night, and presumably, after many hours of careful consideration and thought.
The motion for a new trial is overruled.
Mr. Gray:—May I ask that sentence be passed upon the prisoner.
Pennewill, C. J.:—(through a sworn interpreter) Carmine Russo, stand up.
Carmine Russo, you were indicted by the grand jury of this County for murder of the first degree.
Upon that indictment you had a fair and impartial trial. Your counsel, with great zeal and fidelity, presented to the Court and jury every fact and argument which in his judgment were available for your defense. The jury, nevertheless, rendered a *554. verdict of guilty; and it therefore becomes the solemn duty of this Court to pronounce the sentence of the law upon you for the commission of the heinous crime for which you were indicted.
Have you anything to say why the Court should not now pronounce the sentence of the law upon you.
The Prisoner {through the interpreter):—■ I have nothing to say.
Pennewill, C. J.:—The sentence of the law, as considered f by the Court, is that you, Carmine Russo, be now taken from the ) bar of this Court to the New Castle County Workhouse, the \ public prison of this county, the place from which you came, ) and be there safely and securely kept in custody until Friday; ^ the seventeenth day of June, in the year of our Lord, nineteen ) hundred and ten, and on that day, between the hours of ten < o’clock in the morning and three o’clock in the afternoon, you be i taken to some convenient place of private execution within the f precincts of said prison enclosure and that you be then and there l hanged by the neck until you be dead; and may God have mercy { on your soul.
You are now committed to the custody of the Board of Trustees of the New Castle County Workhouse. until this sentence is carried into execution. . | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487284/ | Pennewill, C. J.
delivering the opinion of the court:
The court have carefully considered these motions, having given them considerable thought since the argument, and we are now prepared to render our decision. The motions, as we understand them, are that Reese Roberts, who has been indicted at the present term of this court, for the murder of Ann <M. Casey and Robert Casey, Jr., of Brandywine Hundred, shall be permitted to offer testimony to show that the indictments against him were found upon illegal and improper testimony.
In support of these motions, affidavits have been filed which *143aver “that the grand jury which found each of said indictments received incompetent, illegal, irrelevant, hearsay and secondary evidence in order to receive any testimony which would authorize them to return said indictments into this court; and that, without said illegal, incompetent, irrelevant, hearsay and secondary evidence, there was no testimony introduced whatever before said grand jury which proved or tended to prove in any manner the charge set out in said indictments.”
The defendant further avers in each of his affidavits that it is made in good faith and that he believes that the only testimony before the grand jury was hearsay testimony alone.
Upon each of said affidavits he prays for an order to examine witnesses to substantiate his statements and that each of said indictments shall be quashed and set aside.
It will be noted that there is no affidavit filed by any one who knows or professes to know the fact that the indictments were found upon said testimony; and it will be further observed that there is no averment in either of these affidavits of any fraud or corruption on the part of the grand jury.
But one authority has been cited in support of the prisoner’s application and that is the case of Royce v. Territory of Oklahoma, 5 Okl. 61, 47 Pac. 1083. And while that case does seem to support the contention made by counsel for the defendant, yet upon a careful reading it will be found that the decision in that case was based very largely upon a statute of the territory of Oklahoma; and we have not been informed that there is any similar statute in any other state, and certainly there is no such statute in this state. It is true we have in this state the following constitutional provision: “In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel, to be plainly and fully informed of the nature and cause of the accusation against him, to meet the witnesses in their examination face to face, to have compulsory process in due time, on application by himself, his friends or counsel, for obtaining witnesses in his favor, and a speedy and public trial by an impartial jury; he shall not be compelled to give evidence against himself, nor shall he be deprived of life, liberty or property, unless by the judgment of his peers or by the *144law of the land. ” {Const. Del. art. 1, § 7.) But we think there is nothing in this provision of the Constitution which would justify this court in granting the application made by the prisoner. ;We think that there cannot be found in any state, perhaps, where the rules of the common law govern, any case which would justify the court in granting this application; and we do not think upon the authority of the Oklahoma case alone that we should reverse what has been, as far as we know, the universally recognized doctrine or rule, for many, many years in this state in regard to indictments and the evidence upon which the grand jury find them; there being no allegations or averments of fraud or corruption on the part of the grand jury.
The motions are refused.
On October 10, 1910, the prisoner, a colored man, was placed on trial for the murder of Robert Casey, Jr., on the nineteenth of August, 1910, in Brandywine hundred, New Castle county.
The contention of the state was that the prisoner, on the night of August nineteenth, went to the home of Robert Casey, Jr., oh the Philadelphia pike, near Claymont, and by striking and beating him, while in bed, with a club broken from a wild cherry tree standing upon the bank of the Delaware river, killed and murdered the said deceased with express malice aforethought; and that the prisoner was therefore guilty of murder of the first degree.
The evidence of the state was wholly circumstantial. It was substantially as follows:
Robert Casey, Jr., was last seen alive about six o’clock on the evening of August nineteenth, 1910. The next noming, about half-past six o’clock two drivers of a bakery wagon stopped at Casey’s store and dwelling to deliver bread. Not finding Casey and his wife up, they called “Uncle Bob” about a dozen times and also made noises by dropping boxes upon the front porch floor in order to arouse them. Not succeeding in doing so, one of them then entered the house through a rear side window, the shutter of which was slightly ajar, and proceeding to the second story, discovered both Robert Casey, Jr., and his wife, Ann Casey, lying *145dead in bed in a room at the front part of the house facing the Philadelphia pike. The left side of each of their faces was bruised, their skulls were crashed in over the temple, as if they had been struck by some blunt instrument, and blood had oozed from their noses, ears and mouths. Leaning against a screen, which was leaning against the window of the same bedroom, was found a club, about three feet long, evidently broken or twisted from a wild cherry tree. The club was about an inch and three-quarters thick at the larger end and one inch thick at the small end. It had blood spots upon it. The physician who made the autopsy testified that death was caused by the above-described wounds and that the same were evidently produced by the said club or some similar instrument. A ladder Was found lying upon the ground not far from the house. It was long enough to reach the roof of the front porch. Upon this roof the Window of the bedroom, where the two bodies were found, opened. This porch, as well as the rear shed, had a tin roof. Tracks of dust and scratches were found upon the former roof and tracks of dust also upon the latter. Crashed egg shells were found upon the chair near the window, the shutter of which was ajar on the first floor. Egg stains were upon the sill of the same window, and also upon the cellar door beneath it on the outside, where they had evidently been tracked. There were no other tracks around the house. The combination lock of the safe, in the store on the first floor, had been knocked off. A hatchet and shutter bolt were found near the safe. A quantity of pennies and dimes contained in separate spool boxes were found concealed behind certain ledgers in the safe which seemed not to have been disturbed. Detective Gillis the morning after the murder found on the floor of the safe, in plain view, a red leather wallet containing silver coins of various denominations from fifty cents down amounting in all to about thirty-eight dollars and ten cents, also some old and foreign coins in the same wallet. A black leather wallet which the deceased was familiarly known to have kept in the safe, and in which he kept his money before depositing in bank, was missing.
There was also found in the bedroom, where the bodies of the Caseys were discovered, two or three dollars in the pockets of the *146trousers of Robert Casey, Jr., said trousers being hung across the back of a chair; also three watches and brooches were found in same room.
Three witnesses testified that between five and six o’clock on the night of the murder they saw the prisoner walking on Darley road just west of the Philadelphia pike, being 3,200 feet south of the Casey home. Two other witnesses, being the conductor and motorman, respectively, of a Darby trolley car, testified that they saw the prisoner get on their car at Eighth and Market streets, Wilmington, between 8:38 and 8:40 of the same night, and that he got off the car between 9:15 and 9:20 at Myrtle avenue, just opposite the Darley road where the three witnesses located him earlier in the evening; Myrtle avenue being a road leading from the Philadelphia pike to the Delaware river. Mrs. Baldwin, another witness, saw the prisoner at 10:55 the same night east of the railroad station at Claymont, about three-quarters of a mile from the Casey home, where he stopped at the window of her residence, saying that he had gotten off the train at the wrong station and asking if she could direct him to a place where he could stay all night. She could not give him the information, and he left. She positively identified the prisoner as the man she saw, stating that an electric light was shining from the ceiling of the room down into his face as he stood outside near the window, which was up and had a screen in it, and that it was a bright moonlight night.
On August twenty-fifth, the wild cherry tree, from which the club was taken with which the murder was supposed to have been committed, was found on the bank of the Delaware river, 2,500 feet southeast of the Casey home. The butt of the cherry tree from which the club was taken was offered in evidence, as well as the piece broken from the small end of the club. Both fitted to a nicety the respective ends of the club from which they had been detached. A long bark-covered splinter left on the butt fitted exactly into a corresponding splintered place on the large end of the club.
On the same day certain tracks were discovered leading from Myrtle avenue in an easterly direction along the Delaware river, *147first across a com field to a grass field, where they disappeared, then continuing across a plowed field made ready for sowing grass, then continuing across another com field to a point within four to six feet of the wild cherry tree, at which point, owing to the ground being packed, the tracks were not visible. About the same distance from the wild cherry tree the tracks again started in a northwesterly direction through the same com field, and upon reaching the northwesterly side thereof, turned in a southwesterly direction and ended at the comer of the com field. The last track seen at that point pointed in the direction of the Casey home. From this point a cart track ran in a northwesterly direction to the fence, separating an adjoining grass field from the right of way of the Philadelphia, Baltimore & Washington Railroad. On this fence about opposite the cart track were muddy prints. This was 1,600 feet from the Casey home, to which point the ground was grass sod. Similar tracks were observed starting near the place where they disappeared at the northwest comer of the com field and proceeding toward the Delaware river, south of the first-mentioned tracks, but nearly parallel with the same, back to the wild cherry tree, thence from the wild cherry tree, parallel with the Delaware river, back to Myrtle avenue, appearing whomever the tracks in the opposite direction appeared. In some places these tracks overlapped those going in the opposite direction. Between the grass field and the plowed field above referred to, there was a branch or run emptying into the Delaware river. A short distance east of this, on the bank of the river, there was a board sign, and near the latter point were two deep impressions of footprints as if some one had jumped from the plowed field along the river down on the sand of the river shore. The sand had partly filled these tracks and their characteristics could not be determined. The ground, especially in the com field where the wild cherry tree stood, had been recently cultivated in the direction in which the tracks ¡were made, toward the northwest. At the time the tracks were made, the ground, being a clay loam, had been rendered by recent rain somewhat of the consistency of putty, so that the footprints were clearly molded in the earth, and the ground subsequently drying out (there being no rain between *148the time of the murder and the discovery of the tracks) had left the tracks clearly outlined.
As one witness put it, they were similar to butter prints. Said tracks disclosed the following characteristics: The tracks made by both the right and the left shoe each showed in the bottom of the same the print of a half sole, as well as the print of the nails across the lower part of the half sole, and on the right side of the right track, at the comer of the impression of the half sole about the center of the track, there was the imprint of a group of three nail heads which were more prominent than the others. There was also shown an impression of cleats on the outside edge of each heel. The impressions of two slits on the right and left sides of the uppers of both the right and the left shoes, at the wide part of the shoe near the sole, were disclosed in the tracks. The slits on both sides did not appear in the same track, but said slits were disclosed by examining a number of tracks, in some of which they showed on one side and in others on the other side, depending upon whether the track was made against one side of the furrow or the other.
A few days after the discovery of the wild cherry tree, and of the tracks, the shoes of the prisoner were obtained from him at his home in Chester, Pennsylvania. An examination of them disclosed that the shoes each had half soles secured with.nails. They had iron cleats on the outside edge of each heel. Two slits were cut in the sides of both shoes. Upon a comparison of the shoes with the said tracks, they were found to exactly correspond; not only as to size, but also as to all the above-named characteristics or peculiarities, including the group of three prominent nail heads at the comer of the half sole of the right shoe, above referred to. The prisoner stated that he had purchased the shoes in Indiana some time prior to the murder and that they had never since been out of his possession.
It was shown that the prisoner was familiar with the neighborhood where the murder was committed and knew the murdered people. It was also shown by the witness Edward Stevenson (in rebuttal to the prisoner’s testimony, that for several days prior to the murder he had not been working and had no money) *149that the morning following the murder the prisoner exhibited a roll of bank notes to said witness who was working in a field near Brandywine Springs, telling the latter to stop work and accompany him to a brewery and that he would pay him for his day’s work. It was also shown that the prisoner had previously pleaded guilty to a charge of burglary.
The defense was an alibi and a general denial of the charge. The prisoner positively contradicted the testimony of the six witnesses for the state who swore that they saw him during the afternoon or evening preceding the murder, in the neighborhood of the Philadelphia pike and Darley road, or Myrtle avenue. He stated that he was in the neighborhood the day before the murder, but had not been east of the Philadelphia pike since July fourth.
During the impaneling of the jury, Attorney General Gray, asked one of the jurors, upon his voir dire, the following question as a ground for challenge for cause: “Have you any objection to returning a verdict of guilty, in a case Where the punishment is death, if the evidence should so warrant, the evidence being circumstantial?”
Mr. Ball, for the prisoner, objected.
Pennewill, C. J.
A very old statute of this state provides > that certain questions may be propounded to a juror upon his voir dire before he is sworn in a capital case. We do not think it has been attempted until now to introduce a new question or broaden the scope of any that the law allows. We are clearly of the opinion that we should adhere to the practice and procedure in this regard that has prevailed for so many years, and permit only such questions to be asked the juror as the statute authorizes, and in the language of the statute. It is becoming more difficult all the time to select a jury in a capital case, and the difficulty would certainly be increased if we should relax the rule that has hitherto prevailed.
The question is disallowed.
Pennewill, C. J.
charging the jury:
Gentlemen of the jury: — Reese Roberts, the prisoner at the bar, is indicted for the murder of Robert Casey, Jr., on the nine*150teenth day of August of the present year in Brandywine Hundred in this county.
It is charged in the indictment that the prisoner on said day feloniously, wilfully and With express malice aforethought made an assault upon the said Robert Casey, Jr., with a blunt instrument commonly called a club, and by striking and beating the deceased upon the left side of the face and head gave unto him divers mortal wounds of which he the said Robert Casey, Jr., died.
The state contends that the prisoner on the night of the nineteenth day of August went to the home of Robert Casey, Jr., situated on the Philadelphia turnpike, and near the town of Claymont, and by striking and beating him, while in bed, with a limb or stick broken or wrenched from a wild cherry tree standing upon the bank of the Delaware river, killed and murdered the said Robert Casey, Jr., with express malice aforethought, and that the prisoner is , therefore, guilty of murder of the first degree.
The prisoner denies that he committed the crime charged against him, or that he had anything to do with the killing to the deceased. He claims that he was not at the home of Robert Casey, Jr., on the night of the nineteenth of August, and could not have committed the offense for which he stands indicted, or any other offense at the time and place stated.
This defense is, therefore, what is termed an alibi; which means that the accused was elsewhere at the time, and not at the scene of the crime when it was committed.
The prisoner being indicted for murder of the first degree, it becomes the duty of the court to state to you, as clearly as we are able to do, what constitutes that degree of murder, and we feel it incumbent upon us to tell you also what constitutes murder of the second degree, and manslaughter, because a statute of this state provides that: “A person indicted for murder may be found guilty of either degree of murder, dr of manslaughter. ”
Homicide, we may say, is the killing of one human being by another. Felonious homicide is of three kinds: Murder of the first degree, murder of the second degree and manslaughter. Mali ce is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of *151the second degree. Malice is a condition of the mind or heart. As here used this term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Whenever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought, or in perpetrating, or attempting to perpetrate a crime punishable with death. Express malice aforethought is where one person kills another with a sedate deliberate mind and formed design, which formed design, or purpose, may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, knowing it to be such, stealthily lying in wait, preconcerted plans, or the previous p rocurement or preparation of instruments, contrivances or other means for slaying the victim. These, however, are but some of the instances, given for the sake of illustration, in which the external or attending circumstances will evidence the sedate, deliberate mind and formed design to kill, for whenever in any other instance the attending circumstances evidence such a mind and design to do the act, and death ensues, it constitutes, in law, express malice aforethought, and murder of the first degree, under the statute, and is punishable with death as where one either from motives of hatred or revenge, or with a view to rob him of his money or get possession of any other thing about his person or dwelling, coolly and deliberately forms the design in his mind to kill another, and commits the act, either by lying in wait for him, or in any other manner, — it is murder with express malice aforethought, and of the first degree. If the jury are satisfied from the evidence that the prisoner killed the deceased with a sedate, deliberate and formed design and intention so to do, the length of time that such design or intention existed is immaterial and the *152killing under such circumstances would be murder of the first degree.
Murder of the second degree is where the killing was done with implied malice; that is, where the malice is not express, as in murder of the first degree, but is an inference or conclusion of law from the facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was done without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and reckless disregard of human life, the law implies malice and makes the offense murder of the second degree.
Malice is implied by law from every unlawful and cruel act committed by one person against another, for the law considers that he who does an unlawful and cruel act voluntarily, does it maliciously. Where the killing is shown to have been done with a deadly weapon, that is, with a -weapon likely to produce death, it is presumed to have been done maliciously.
Manslaughter is where one person unlawfully kills another without malice. For example, when one in a sudden affray, or fight, in the heat of blood, or in a transport of passion, inflicts the mortal wound without time for reflection or for the passions to cool.
This being a case of circumstantial evidence, it becomes necessary for the court to instruct you respecting the law applicable to evidence of such character.
Such law has been very clearly and correctly stated by this court in other cases, and we can see no reason to depart from the language heretofore approved and used by the court.
Circumstantial or presumptive evidence is receivable in both civil and criminal cases. In criminal matters the necessity of admitting it is indeed much more manifest than in civil matters. Crime usually seeks secrecy, and the possibility of proving the offense charged by direct or positive evidence is much more rare and difficult in criminal cases than in civil cases. Circumstantial *153or presumptive evidence is where some facts being proved, another fact follows as a natural conclusion from the facts actually proved, so as readily to gain the assent of the mind that it actually occurred.
It is the inference of a fact from other facts proved, and the fact thus inferred and assented to by the mind is said to be presumed; that is to say, it is taken for granted until the contrary is proved. And this is what is called circumstantial or presumptive evidence, and it is adopted the more readily in proportion to the difficulty of proving the fact by direct evidence and the obvious ease with which it can be disproved, or with which other facts can be proved, which are inconsistent with it, if it never really occurred.
The universal experience of those engaged in the administration of justice shows the absolute necessity of admitting circumstantial evidence, and relying on it, in forming our conclusions in regard to the guilt or innocence of accused persons. But while we say this we also say to you most emphatically, that circumstantial evidence, to warrant a conviction, must be entirely satisfactory, and of such significance, consistency and force, as to produce conviction in the minds of the jury, of the guilt of the accused beyond a reasonable doubt. The great rule on this subject is this: That when the evidence is circumstantial, the jury must be fully satisfied, not only that those circumstances are consistent with the prisoner’s having committed the act charged as constituting the crime, but they must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the prisoner was the party. They must be such as to exclude any other hypothesis or conclusion.
Or, to state the rule in a somewhat different way, where the evidence relied upon to prove the guilt of the accused is circumstantial, it is essential, first, that such circumstances be proved to the satisfaction of the jury beyond a reasonable doubt; second that such circumstances be in all respects consistent with the theory of the guilt of the accused; and, third, that such circumstances be inconsistent with any other reasonable theory than the guilt of the accused. In other words, there should not be a conviction upon circumstantial evidence unless such evidence be sufficient to exclude any reasonable inference or conclusion other *154than that the accused is guilty of the crime charged. In order to warrant a conviction upon such evidence it is not sufficient of course that the evidence establishes a suspicion, a possibility, or even a mere probability of the guilt of the accused, but it must establish such guilt to a reasonable and moral certainty, and beyond a reasonable doubt.
Where the evidence is convicting the jury should reconcile it if they can, but if they cannot do so, they should accept that part of it which they deem worthy of credit, and reject that which they deem unworthy of credit, having due regard to the intelligence or ignorance, and impartiality or bias of the witnesses, and their opportunity of knowing the facts to .which they testified.
In determining the credit to be given to a statement in writing made by the prisoner, the whole of what he said should be considered, but the jury may reject, as not entitled to belief, such parts of it as are contradictory to other parts of it, or in conflict with facts otherwise proved to the satisfaction of the jury. The jury may believe that part of the statement which charges the prisoner, and reject that which is in his favor, if under all the circumstances of the case they find sufficient grounds for so doing. The duty of the jury in respect to the statement of the prisoner, and in respect to his own testimony, and the testimony of other witnesses, is precisely the same. They should believe so much of such statement and testimony as they deem true and worthy of belief, and reject so much of the same as they deem false and unworthy of belief.
Gentlemen of the jury, you have listened very patiently and attentively to the presentation of this case, which has occupied several days, and it will now become your duty to determine from the evidence, applying thereto the law as we have stated it, whether the prisoner is guilty or not guilty. The case is important to the prisoner and also to the people — the state. It should receive from you the most careful and conscientious consideration, and we believe it will.
In conclusion we say, that in every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order *155to convict the prisoner it is incumbent upon the state to prove beyond such a doubt every material element or ingredient of the crime charged. If, after carefully considering and weighing all the evidence, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty.
But proof beyond a reasonable doubt does not mean that the guilt of the accused must be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proved to a moral certainty. To require more in dealing with human conduct, and the affairs of life, would be impracticable and therefore unreasonable. It is sufficient that any disputed fact in the case shall be established by that amount of competent and appropriate evidence which will satisfy a fair and unprejudiced "mind beyond a reasonable doubt.
Reasonable doubt in the legal sense, therefore, does not mean a vague, speculative or whimsical doubt, nor a mere possible doubt, but a substantial doubt, and such a doubt as intelligent, reasonable and impartial men may honestly entertain after a careful examination, and conscientious consideration, of all the evidence. If after carefully and conscientiously considering all the evidence in the case you believe that the guilt of the prisoner has been established beyond a reasonable doubt, your verdict should be guilty. If you are not satisfied beyond a reasonable doubt of the guilt of the prisoner, your verdict should be not guilty. Verdict, guilty.
Statement of Reasons for New Trial.
Upon taking the verdict of the jury, counsel for the prisoner made a motion to the court to set aside the verdict and that a new trial be granted. By leave of the court, he subsequently filed reasons in support of his motion, which were substantially, as follows: That the verdict was against the law and the evidence; that the court erred in admitting in evidence,on behalf of the state, the testimony of the witness Stevenson, in rebuttal, that it had come to the knowledge of the prisoner, since the trial, that two witnesses (naming them) will testify that on Sunday, August *156twenty-eighth last, it rained very hard for some time, at Claymont, and the ground there was very muddy; that the chief of police of the city of Wilmington will testify that he visited the home of Mrs. Baldwin, a witness on the part of the state, at Claymont, and that she said to him “she would be unable to recognize the man whom she saw looking in her window the night of the murder of Robert Casey, Jr., and Ann Casey, even if she should see him again;” that the said chief of police will testify that one of the jurors (naming him) stated to him, within a day or two after the trial, “if the defendant had been a man who could have proven a previous good character, he would not have voted for his conviction on the testimony as presented by the state at the trial;” that on account of three witnesses (naming them) having returned to Chester, Pennsylvania, where they live, after having given their testimony, at the trial, on behalf of the prisoner, the latter was unable to contradict the witness Stevenson, who testified that the prisoner was in the neighborhood of Brandywine Springs, on August twentieth last, and had in his possession and displayed a large sum of money, but that he will be able, if granted a new trial, to contradict the witness Stevenson, and prove that he, the prisoner, was during the whole day of August twentieth last in the city of Chester, Pennsylvania; that the coroner of New Castle County neglected and failed to hold an inquest in the cases of the late Robert Casey, Jr., and Ann Casey, deceased, at the instance and request of the Attorney General, and thereby prevented the prisoner from being plainly and fully informed of the nature and cause of the accusation against him) and deprived him from having compulsory process in due time for obtaining witnesses in his favor, contrary to section 7, article 1, of the Constitution of the State of Delaware.
(January 14, 1910.)
Pennewill, C. J.
delivering the opinion of the court:
The court have listened very attentively to the argument upon this motion, and have reached a conclusion in which we feel very clear; and we therefore can see no reason why the decision should be delayed.
*157,We think that in this case the verdict should not be set aside, nor a new trial granted for any reason or ground that has been assigned. We further say, that we are satisfied that the prisoner has had a fair trial, and that everything has been done, by his counsel, in his defense, that any counsel could possibly have done.
The motion for a new trial is refused.
Pennewill, C. J.
Reese Roberts, stand up.
Reese Roberts, you have been indicted by the grand jury, of this county, for the murder of Robert Casey, Jr., in the first degree; and upon that indictment, you have had a fair and impartial trial. Your counsel, with great zeal and fidelity, presented to the court and jury, every fact and argument which in his judgment were applicable for your defense. The jury, nevertheless, rendered a verdict of guilty. Therefore, it becomes the solemn duty of this court to pronounce the sentence of the law upon you for the commission of the heinous crime for which you were indicted. Have you anything to say why the court should not now pronounce the sentence of the law upon you?
The Prisoner: — Yes, sir; I am not guilty of the crime.
Pennewill, C. J.: — Is that all you have to say?
The Prisoner: — Yes, sir; I also ask the mercy of the court.
Pennewill, C. J.
The sentence of the law, as considered by the court, is that you, Reese Roberts, be now taken from the bar of this court, to the'New Castle County W"khouse, the public prison of this county, • the place from which you came, and be there safely and securely kept in custody, until Friday, the fourteenth day of April, 1911, and on that day between the hours of ten o’clock in the morning and three o’clock in the afternoon, you be taken to some convenient place of private execution, within the precincts of the said prison inclosure, and that you be then and there hanged by the neck until you be dead; and may God have mercy upon your soul.
You are now committed to the custody of the Board of Trustees of the New Castle County Workhouse until this sentence is carried into execution. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487285/ | Conrad, J.
charging the jury:
Gentlemen of the jury: — Edward Primrose, the prisoner at the bar, is charged in this indictment with murder of the first degree; it being alleged that he did on the seventh day of August, A. D. 1910, kill one August Frisby in Appoquinimink Hundred in this county, by shooting him with a pistol inflicting thereby a mortal wound from which the said Frisby died. It is contended by the defendant that he was shot at by the said Frisby, and that he, the said Primrose, in striving to prevent the said Frisby from shooting a third time, took hold of both of the hands of the said Frisby, and that while so holding the said Frisby, the pistol was discharged, the ball taking effect in the head of the said Frisby and killing him.
Homicide is the killing of one human being by another. Felonious homicide is divided into three classes; murder of the first degree; murder of the second degree and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the heart. Wherever the fatal act is done deliberately or without adequate cause, the law presumes that it is done with malice and the burden is on the prisoner to show from the evidence or by inference from" the circumstances of the case, that the act was not done with malice.
Murder of the first degree is where the killing was done with express malice aforethought. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways; as, for instance, by lying in wait for the deceased, or by antecedent menances or threats that disclose a purpose on the part of the prisoner to commit the act charged, or by a former *170grudge, ill-will, spite,hatred,or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the accused towards his victim at the time when the crime was committed.
Murder of the second degree is where the killing is done with implied malice. Implied malice is an inference or conclusion of the law from the facts found by the jury. Murder of the second degree is where there was no deliberate mind or formed design to take life, or to perpetrate a crime punishable with death,but where the killing nevertheless was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. And where the circumstances surrounding the case show that the killing was committed under the influence of a wicked or depraved heart, or with cruel and wicked indifference to human life, the law implies malice and makes the offense murder of the second degree.
When the killing is shown to have been done with a deadly weapon, malice is presumed, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon.
Manslaughter is usually committed where one in a sudden affray, in the heat of blood, or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. It is where one person unlawfully kills another without malice. In order to reduce the crime to manslaughter the provocation must be very great, so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved heart and is characterized by malice, manslaughter results not from malice, but from unpremeditated and unreflecting passion.
The burden of establishing self-defense rests upon the accused. If the deceased first attacked the accused, even though the attack was of such a character as to create in the mind of the accused, a reasonable belief that he was in danger of death or *171great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant. No one may take the life of another, even in self-defense, unless there is no other available means of escape from death or great bodily harm. In ascertaining whether the accused was in danger of injury at the hands of the deceased when he struck the mortal blow; and if in such danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses.
Where there is conflict in the testimony, it is the duty of the jury to reconcile such conflict if they can. If they cannot, they should accept such testimony as they consider under all the circumstances is most worthy of credit and belief, having of course regard to the ignorance or intelligence of the witnesses, their interest or bias, and the opportunity which they had of observing and knowing the things respecting which they testified.
As regards circumstantial evidence, the law has been laid down in this state as follows:
“Where the evidence relied upon to prove the guilt of the accused is circumstantial, it is essential first, that such circumstances be proved to the satisfaction of the jury beyond a reasonable doubt; second, that such circumstances be in all respects consistent with the theory of the guilt of the accused, and third, that such circumstances be inconsistent with any other reasonable theory than the guilt of the accused . In other words, there should not be a conviction upon circumstantial evidence unless such evidence be sufficient to exclude any reasonable inference or conclusion other than that the accused is guilty of the crime charged.”
The duty is upon the state to prove beyond a reasonable doubt every material ingredient of the crime charged. In every criminal case the accused is presumed to be innocent until his guilt is proven beyond a reasonable doubt. If after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty. But such a doubt must be as the *172word implies “reasonable,” not a mere fanciful, vague or speculative doubt, but such a substantial doubt as fair-minded and conscientious men would entertain under all the facts and circumstances in the case. If upon mature consideration of the evidence, you should not be able to determine how the fatal shot was fired, or by whom it was fired, or if you should not be satisfied from the evidence, beyond a reasonable doubt, that the shot was fired by the prisoner, you should acquit him. If you should find from the evidence that the prisoner without intending to injure him, attempted to disarm Frisby, or attempted to prevent Frisby from injuring him, and in the struggle the pistol was accidentally discharged and killed Frisby, you should acquit the prisoner. And if the jury are satisfied from the evidence that the deceased first attacked the prisoner, and that from the character of such attack, he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and that he had no reasonable means of avoiding or preventing his death or great bodily harm, other than by shooting his assailant, and that under such circumstances he shot Frisby, it was a justifiable act of self-defense and the prisoner should be acquitted.
The jury are the sole judges of the facts and circumstances of the case as disclosed by witnesses, and they may consider in connection therewith any evidence going to show the contrast in size and physical proportions between the accused and the deceased.
If you are satisfied that the prisoner killed the deceased unlawfully, but without malice, your verdict should be guilty of manslaughter. If you believe the prisoner killed the deceased maliciously, without justification or excuse, and without sufficient provocation to reduce the offense to manslaughter, your verdict should be guilty of murder of the second degree.
If the evidence satisfies you that the prisoner killed the deceased with express malice aforethought, being as heretofore explained to you, with a sedate deliberate mind and formed purpose, then your verdict should be guilty of murder of the first degree.
And finally, if you are not satisfied beyond a reasonable doubt of the guilt of the prisoner of either murder of the first *173degree, murder of the second degree or manslaughter, your verdict should be not guilty.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487286/ | Pennewill, C. J.
delivering the opinion of the court:
[1] It is admitted that these alleged confessions were obtained at the coroner’s inquest and after the prisoner was sworn as a witness, after it was known that a crime had been committed and not only that, but that suspicion rested upon the prisoner and he was practically charged then with the crime and had been incarcerated for it, and was taken from the jail to the coroner’s inquest there testifying under oath. We think that under the law that has been cited, and under the peculiar facts and circumstances of this case, the alleged confession is not admissible. We therefore sustain the objection.
The state further sought to show by W., a state detective, an admission made by one or both of the prisoners as to what they had done with the body of the boy after shooting him. Mr. Lay-ton was permitted to cross examine the witness as to whether or not any inducement was held out, which elicited the answer, “I said that the boys were to tell the truth and nothing but the truth in the matter.” Mr. Layton thereupon asked at this point to be *409permitted to produce a witness to contradict the above testimony, contending that,—
When a confession of the accused is offered against him, he has a right to cross-examine and call another witness on the preliminary question as to whether such confession was voluntary Com. v. Culver, 126 Mass. 464; Brown v. State, 70 Ind. 576; Lefevre v. State, 50 Ohio St. 584, 35 N. E. 52; Roesel v. State, 62 N. J. Law 216, 41 Atl. 408.
The state objected on the ground of irregularity. The objection was overruled and the request allowed. A witness thereupon being called testified that what the witness W. said to the prisoner at the time of the alleged confession was, “Tell us the truth; it will be better for you.”
Mr. Layton thereupon objected to the state proving by the witness W. what the prisoners stated to him in the alleged confession on the ground that,—
Confessions are held inadmissible obtained after persons in authority have said, “It will be better for you,” or like words. Rex v. Grifen, R. & R. C. C. 151; Rex v. Kingston, 4 Carr. & P. 387; Rex v. Enoch, 5 Carr. & P. 539; Sherrington’s Case, Lewin, C. C. 123; Rex v. Thomas, 6 Carr & P. 353; Rex v. Simpson, Moody, C. C. 410; Rex v. Garner, 1 Den. C. C. 329; Kelly v. State, 72 Ala. 244; Reg. v. Hatts, 49 L. T. (N. S.) 780; Ford v. State, 75 Miss. 101, 21 South. 524.
Pennewill, C. J.
[3] We think we cannot exclude this testimony now. We will hear you later, and if you convince us that it was improperly admitted we will instruct the jury not to consider it.
Pennewill, C. J.
charging the jury:
Gentlemen of the jury: — In this indictment Earl Hugo Brown, alias Hugo Williams, and James Sharp, the prisoners at the bar, stand charged with murder of the first degree for the felonious killing, with express malice aforethought, of John Rogers on the twenty-first day of June last in Georgetown Hundred in this county.
*410There are three counts in the indictment. The first charges that the prisoners feloniously, willfully and with express malice aforethought committed an assault upon one John Rogers, and that the said Williams, alias Brown, feloniously and with express malice aforethought killed the said John Rogers by shooting him in the head with a shotgun.
The second count charges that the said Williams, alias Brown, feloniously and with express malice aforethought, did kill and murder the said John Rogers.
The third count charges that James Sharp, at the time the said felony and murder was committed, feloniously, willfully and with express malice aforethought, was present, aiding, helping, assisting, abetting, procuring, commanding and counseling the said Earl Hugo Brown, alias Hugo Williams, in the commission of the felony and murder aforesaid.
The prisoner being indicted for murder of the first degree, it becomes the duty of the court to state to you, as clearly as we are able to do, what constitutes that degree of murder, and we feel it incumbent upon us to tell you also what constitutes murder of the second degree, and manslaughter, because a statute of this state provides that: “A person indicted for murder may be found guilty of either degree of murder, or of manslaughter.”
[4] Homicide, we may say, is the killing of one human being by another. Felonious homicide is of three kinds: Murder of the first degree, murder of the second degree, and manslaughter. Malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart. As here used this term is not restricted to spite or malevolence towards the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Whenever the fatal act is done deliberately or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence or by inference from the circumstances of the case, that the act was not done with malice.
*411Murder of the first degree is where the killing was done with express malice aforethought. Express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design, which formed design, or purpose, may be shown from the circumstances attending the act, such as the deliberate selection and use of a deadly weapon, knowing it to be such, stealthily lying in wait, preconcerted plans, or the previous procurement or preparation of instruments, contrivances or other means for slaying the victim.
Murder of the second degree is where the killing was done with implied malice; that is, where the malice is not express, as in murder of the first degree, but is an inference or conclusion of law from the facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse and without provocation, or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was done without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and reckless disregard of human life, the law implies malice and makes the offense murder of the second degree.
Malice is implied by law from every unlawful and cruel act committed by one person against another, for the law considers that he who does an unlawful and cruel act voluntarily, does it maliciously. Where the killing is shown to have been done with a deadly weapon, that is, with a weapon likely to produce death, it is presumed to have been done maliciously.
Manslaughter is where one person unlawfully kills another without malice. For example, when one in a sudden affray, or fight, in the beat of blood, or in a transport of passion, inflicts the mortal wound without time for reflection or for the passions to cool.
[5] A statute of this state provides that, “Every person who shall abet, procure, command, or counsel any other person, or persons, to commit any crime, or misdemeanor, shall be deemed an accomplice and equally criminal as the principal offender, and shall be punished in the same manner, and with the same punishment.” *412Rev. Code, 1852, amended to 1893, p. 975, c. 133, § 1. Therefore, if the jury is satisfied that either of the prisoners inflicted said mortal wounds, it is sufficient for the conviction of the other, who was, if you so find from the evidence, aiding and assisting in the felonious assault upon Rogers the one who actually inflicted them, because, in contemplation of law, it becomes the act of each and all of those who were co-operating and participating in the perpetration of the crime then and there committed.
[6] Confessions of guilt should not be received where they are not free and voluntary, but procured through the influence of threats or the promise of favor. Both their admissibility and value as evidence depend upon their being deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interests and safety unless impelled to do so by the promptings of truth and conscience. A confession of guilt reduced to writing, and signed by the person making it, if deliberately made and signed, without being influenced thereto by any threats or promises by others, should be regarded, in the absence of evidence to the contrary, as strong and convincing evidence in the case. The degree of credit due to a confession is to be estimated by the jury under the circumstances of the particular case. The whole of what the accused said on the subject at the time of making the confession should be taken together. The jury may believe that part which criminates the accused and reject that which is in his favor, or credit so much as is in his favor and discard that which is against him, if they see sufficient grounds, upon all the evidence, for so doing, for the jury are at liberty to judge of it, like any other evidence, from all the proven circumstances of the case.
[7] After the commission of a crime has been accomplished, no one engaged in it can, by any subsequent declaration or act of his own, not made or done in the presence of another, affect such other person. The confession, therefore, so subsequently made, is not admissible in evidence as such against any one but himself.
Gentlemen of the jury, you have listened very patiently and attentively to the presentation of this case, and it will now become *413your duty to determine from the evidence, applying thereto the law as we have stated it, whether the prisoners are guilty or not guilty. The case is important to the prisoners and also to the people — the state. It should receive from you the most careful and conscientious consideration, and we believe it will.
[8] In conclusion, we say that in every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoners it is incumbent upon the state to prove beyond such a doubt every material element or ingredient of the crime charged. If, after carefully considering and weighing all the evidence, you should entertain a reasonable doubt of the guilt of the prisoners, you should give them the benefit of such doubt, and your verdict should be not guilty.
[9] But proof beyond a reasonable doubt does not mean that the guilt of the accused must be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proved to a moral certainty. To require more in dealing with human conduct, and the affairs of life, would be impracticable and therefore unreasonable. It is sufficient that any disputed fact in the case shall be established by that amount of competent and appropriate evidence which will satisfy a fair and unprejudiced mind beyond a reasonable doubt.
Reasonable doubt in the legal sense, therefore, does not mean a vague, speculative or whimsical doubt, nor a mere possible doubt, but a substantia] doubt, and such a doubt as intelligent, reasona-' ble and impartial men may honestly entertain after a careful examination, and conscientious consideration of all the evidence. If after carefully and conscientiously considering all the evidence in the case you believe that the guilt of the prisoners has been established beyond a reasonable doubt, your verdict should be guilty. If you are not satisfied beyond a reasonable doubt of the guilt of the prisoners, your verdict should be not guilty.
This being an indictment for murder of the first degree you may find the prisoners guilty in manner and form as they stand indicted, that is, of murder of the first degree; or you may find them guilty of murder in the second degree, or of manslaughter, *414according as the law and the evidence may warrant. But unless you find the accused guilty of one of these three grades of homicide, you should render a verdict of not guilty.
You may find both of the prisoners guilty or you may find one of them guilty and the other not guilty, or you may find them both not guilty as the law and the evidence in your judgment shall warrant and justify.
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487289/ | Pennewill, C. J.:
The court are unanimously of the opinion that in the question propounded to the prosecuting witness, whom this witness is called to contradict, the ground was not properly laid; and we think the failure of the state to then object to the *105question because the ground was not properly laid, does not preclude it from objecting, now. The state did not thereby waive its right to object at this time. We sustain the objection to the present question.
Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The indictment in this casé contains two counts—the one charging that the prisoner at the bar, Bennett A. Williams, did violently and feloniously make an assault upon Laura Clichener, the prosecuting witness, and her the said Laura Clichener did violently, forcibly and against her will feloniously ravish and carnally know.
It is charged in the other count that a certain person unknown to the grand jurors made such felonious assault upon the prosecuting witness, and that the prisoner was present at the time of the commission of the felonious assault, abetting, procuring, commanding and counseling the said certain person to the grand jurors unknown.
The prisoner denies that he either committed any assault upon the prosecuting witness, or that he abetted, procured, commanded or counseled any person to commit the assault charged. The crime charged is that which is commonly known as rape, and is claimed by the state to have been committed by the prisoner about half-past ten o’clock on the night of the twenty-fifth of January of the present year, in Brandywine Park in this city and county.
[3-5] Rape is the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is, in legal contemplation an essential and indispensable element of rape. Upon proof of the carnal penetration the burden is upon the state to further prove to the satisfaction of the jury, beyond a reasonable doubt, that the penetration was consummated or effected by force and against the will of the prosecutrix, or by putting her in great fear and terror, before a conviction can be had. If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape *106in contemplation of law. If, however, such connection is had against the consent of the female, the law implies force.
[6] Formerly, in a prosecution for rape, it was necessary for the state to prove not only an actual penetration but also the actual emissio seminis, in order to constitute a carnal knowledge; but it is now the law of this state that in a prosecution for rape it is .not necessary to prove the emissio seminis, in order to constitute a carnal knowledge. The carnal knowledge is deemed complete upon proof of an actual penetravit.
[7] But while it is not necessary under the law for the state to prove more than an actual penetravit, and while the slightest penetration is sufficient, yet it must be shown beyond a reasonable doubt that there was an actual penetration, at least proof of some degree of entrance of the male organ within the labia pudendum, that is, the private parts of the female. And it must be also proved to the satisfaction of the jury beyond a reasonable doubt, that such penetration was made without the consent of the female. In cases where the evidence is conflicting, the jury should reconcile the conflict if they can, but if they cannot do so, they should accept that testimony which they think under all the facts and circumstances of the case is most worthy of credit and belief.
[8] The good reputation of the accused, when proved, is to be taken in connection with the other evidence in the case, and is to be given such weight as in the judgment of the jury it is entitled to.
[9] The reputation of the prosecuting witness for immorality and unchastity, when proved, is to be considered so far as it may have any bearing upon the question of consent of the prosecuting witness,-if you find that the accused did have sexual intercourse with her.
If you believe from the evidence in the case beyond a reasonable doubt that the prisoner did have sexual intercourse with the prosecuting witness, as alleged in the indictment, and that such sexual intercourse was had by force and against the will of the prosecuting witness, your verdict should be guilty. And in the event of such a verdict you may recommend the defendant to mercy if it seems proper to you to do so.
*107[10] A statute of this state provides that—“Every person who shall abet, procure, command or counsel any other person, or persons, to commit any crime, or misdemeanor, shall be deemed an accomplice and equally criminal as the principal offender, and shall be punished in the same manner, and with the same punishment.” Rev. Code 1852, as amended to 1893, p. 975, c. 133, § 1.
If, therefore, gentlemen of the jury, you should not be satisfied that the prisoner committed the felonious assault, or rape, charged, but do believe beyond a reasonable doubt, that such a crime was committed by some other person, and also believe beyond a reasonable doubt that the prisoner was present at the time abetting, procuring, commanding or counseling such other person in the commission of such crime, he would be as guilty as the person who actually committed the crime.
[11] In conclusion, we say that in any criminal case, the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, after carefully and conscientiously considering and weighing all the evidence in this case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt must enure to his benefit and your verdict should be not guilty. [12] But by such a doubt is not meant a vague, speculative or mere possible doubt, but a real, substantial doubt that remains after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487290/ | Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—Enoch Brooks, the prisoner, is charged in this indictment with the murder of George Cooper. It is charged by the state that the prisoner on the night of November 4, 1911, at a place near Blackiston Cross Roads, in this county, called the Old House, or Tile Yard, without any justification, cause or excuse, shot George Cooper three times, and that as the result of one of those shots he, the said Cooper, died a few days afterwards in a hospital in Philadelphia where he had been taken for treatment.
The prisoner does not deny that he shot the deceased, or .that he inflicted the fatal wound; but he claims that he fired the fatal shot in defense of his life, or to escape great bodily harm, from an imminent assault which he believed the deceased was about to commit upon him with a revolver, and from which the prisoner claims he could not escape.
[2-4] Inasmuch as the prisoner is charged with murder of the first degree, it is necessary for the court to define and explain *209to you, as clearly as we can, the two degrees of murder as well as manslaughter.
But we will say, first, that malice is an essential ingredient of the crime of murder of both degrees. Without malice there can be no murder either of the first or of the second degree. Malice is a condition of the mind or heart, and as here used the term is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Whenever the fatal act is done deliberately, or without adequate cause, the law presumes that it was done with malice, and the burden is on the prisoner to show from the evidence, or by inference from the circumstances of the case, that the act was not done with malice.
[5, 6] Malice is implied by law from every unlawful and cruel act committed by one person against another, for the law considers that he who does an unlawful and cruel act voluntarily does it maliciously. When the killing is shown to have been done with a deadly weapon, that is, with a weapon likely to produce death, it is presumed to have been done maliciously.
[7-11] Murder of the first degree is where the killing was done with express malice aforethought. Express malice aforethought exists when one person kills another with a sedate, deliberate mind and formed design, which formed design or purpose may be shown in many ways; as, for instance, by lying in wait for the deceased, or by antecedent menaces or threats that disclose a purpose on the part of the prisoner to commit the act charged, or by a former grudge, ill will, spite, hatred, or malevolence towards the deceased, or any other circumstances which disclose the purpose or intention of the accused toward his victim at the time when the crime was committed. The deliberate selection and use of a deadly weapon is a circumstance which, in the absence of satisfactory evidence to the contrary, indicates the existence in the mind of the person committing the act of a deliberate formed design to kill. All homicides with a deadly weapon are presumed to be malicious until the contrary appears by the evidence, and the burden of proof to the contrary lies on *210the accused. Where the killing by a deadly weapon is admitted or proved, malice aforethought is presumed, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, as the natural and probable consequences of the act are presumed by the law to have been intended by the person in using a deadly weapon. If the jury are satisfied from the evidence that the prisoner, when he killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial, and the killing under such circumstances would be murder, unless it was committed in lawful self-defense. No specific length of time is necessary to make an act a deliberate act in contemplation of law.
[12] Murder of the second degree is where the killing was done with implied malice; that is, where the malice was not express, as in murder of the first degree, but is an inference, or conclusion of law, from the facts proved. It is where there is no deliberate mind and formed design to take life, but where the killing, nevertheless, was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was done without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and reckless disregard of human life, the law implies malice and makes the offense murder of the second degree.
Where the homicide is proved the law presumes that it was done with malice, but it goes no further than to imply malice, and therefore the legal presumption goes no further from such fact than that it was murder of the second degree.
So you observe that malice is an essential ingredient of murder both of the first and second degree. In the one it must be express, and in the other it is implied. But the distinction between the two degrees which you will probably best appreciate and remember is this: In murder of the first degree there must be a sedate, deliberate mind and formed design to kill, although such design may have existed but for a moment; while in murder of the second degree there need not be such deliberation and design.
[13] Manslaughter is where one person unlawfully kills an*211other without malice. For example, it is committed when one in a sudden quarrel, in the heat of blood or in a transport of passion, without malice, inflicts a mortal wound, without time for reflection or for the passions to cool. In order to reduce the offense to manslaughter the provocation must be very great; so great as to produce such a transport of passion as to render the person, for the time being, deaf to the voice of reason. While murder proceeds from a wicked and depraved heart', and is characterized by malice, manslaughter results not from malice, but from unpremeditated and unreflecting passion.
But, if the mortal blow is not struck, or the wound be not given, during the conflict, nor until the party has afterwards had time to cool and for reflection, it will not be manslaughter, but murder of either the first or second degree, according to the premeditation and deliberation with which the act may afterwards be done," and the time which he may afterwards have to cool, and reason to recover, from the transport of passion occasioned by it.
[14] We have been asked to charge you in respect to the law of self-defense, and we will do so in conformity with what we believe to be the meaning and intent of the decisions of the court upon that subject. The burden of establishing self-defense to the satisfaction of the jury rests upon the accused.
[15-17] No looks or gestures, however insulting, no words, however opprobrious or offensive, can amount to a provocation sufficient to excuse or justify an assault. And in repelling or resisting an assault no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary, for that purpose, he becomes the aggressor. If the deceased first attacked the prisoner, even though the attack was of such a character as to create in the mind of the prisoner a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant.
No one may take the life of another, even in the exercise of the right of self-defense, unless there is no other available means *212of escape from death or great bodily harm. If the jury are satisfied from the evidence that the deceased first attacked the prisoner and that from the character of such attack, the prisoner had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and that he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased was a justifiable act of self-defense, and the prisoner should be acquitted.
[18] The law accords to every one the right to protect his person from assault and injury by opposing force to force, and he is not obliged to wait until he is struck by an impending blow. If a weapon be raised in order to shoot or strike, or the danger of other personal violence be imminent, the party in such imminent danger may protect himself by striking the first blow, for the purpose of repelling and preventing the attempted injury. But the opposing force or measure of defense must not be unreasonably disproportionate to the requirements of the occasion. Although so much force as is reasonably necessary may be used, yet if the violence used is greater than was necessary, under the circumstances, to repel the assault or avert the peril, the party using it is himself guilty of an offense. The law recognizes the right of self-defense for the purpose of preventing, but not of revenging, an injury to the person.
[19] Where one is assaulted upon a sudden affray and, in the judgment of the jury honestly believed, on reasonable and sufficient grounds, that he was in imminent danger of being killed or of receiving great bodily harm, he would have, in self-defense, the right to use a deadly weapon against his assailant. But, in exercising such right, in a manner likely to cause death or great bodily harm, to his assailant, he must be closely pressed by him, and must have retreated as far as he conveniently and safely could in good faith, with the honest intent to avoid the violence and peril of the assault. If these be so sudden, fierce or urgent as not to allow him to retreat, or to have other probable means of escape, then he may rightfully use a deadly weapon in his defense, but not otherwise.
[20] In further justification of his act of shooting, and as an *213element of Ms plea of self-defense, the prisoner contends that the deceased had the reputation of possessing a quarrelsome and violent nature, which reputation was known to the prisoner; and he seeks to excuse the manner and promptness in wMch he acted in his own defense, because of his fear arising from that knowledge, and from the deceased’s advantage in size and strength.
Upon tMs phase of the defense, the court follows the decisions recently made in other cases, and charges you that, if you find from the evidence that an actual assault was first made by the deceased upon the prisoner, it is then proper and material to the issue raised by the plea of self-defense for you to consider and determine whether the prisoner was, at the time of the shooting, in reasonable fear of death or of great bodily harm.
In determining what constitutes such reasonable fear, you may consider the conduct of the deceased just before the shooting, the violence of Ms assault, if any, the character of the weapon he employed, if any, his superior advantage of size and strength, if such existed, as well as the prisoner’s knowledge of his assailant’s reputation for being quarrelsome and violent.
[21] We have been asked by the state to charge you as to the degree of credit to be given by you to dying declarations.
In the case of State v. Frazier, 1 Houst. Cr. Cas. 186, the court, in speaking upon this subject, said:
“In such a situation, and in view of the death, which he, the deceased, fully apprehends, and believes in Ms own mind to be surely and inevitably approaching, and near at hand; the conscious solemnity of the occasion, and his duty to speak the truth, and notMng but the truth, is rightly assumed in law to invest his declarations, made under such circumstances, with as Mgh a sanction, and as much credibility, as if made under the obligations of an oath duly administered in a court of justice under ordinary circumstances.”
[22] The good character of an accused person, when proved, is to be taken in connection with all the other evidence in the case, and is to be given just such weight, under all the facts and circumstances of the case, as in the judgment of the jury it is entitled to.
*214[23] In conclusion, we say that in every criminal prosecution the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoner it is incumbent upon the state to prove beyond such a doubt every material element or ingredient of the crime charged. If, after carefully considering and weighing all the evidence, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty.
[24] But reasonable doubt, in the legal sense, does not mean a vague, speculative or whimsical doubt, nor a mere possible doubt, but a substantial doubt, and such a doubt as intelligent, reasonable and impartial men may honestly entertain after a careful examination and conscientious consideration of all the evidence.
We may say in conclusion, if you are satisfied beyond a reasonable doubt, from the evidence, that the prisoner killed the deceased with express malice aforethought, that is, with a sedate, deliberate mind and formed design to kill, and not in lawful self-defense, your verdict should be guilty in manner and form as he stands indicted, which is murder of the first degree.
But if you are not satisfied that the prisoner is guilty of murder of the first degree, but are satisfied that he killed the deceased maliciously, without justification or excuse, that is, under the influence of a wicked and depraved heart, or with a cruel and reckless disregard of human life, your verdict should be guilty of murder of the second degree. But if you are not satisfied that the prisoner is guilty of murder either of the first or second degree, but are satisfied that he killed the deceased unlawfully, in the heat of blood, or in a transport of passion, without time for reflection or for the passions to cool, your verdict should be guilty of manslaughter.
But if you are satisfied from the evidence that the prisoner killed the deceased in necessary and lawful self-defense, your verdict should be not guilty.
Verdict, guilty of murder in the second'degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487292/ | Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The indictment in this case charges that the prisoner, Walter Brown, did violently and feloniously make an assault upon Bettie Bowman, the prosecuting witness, and her, the said Bettie Bowman, did violently, forcibly and against her will feloniously ravish and carnally know.
The crime charged is that which is commonly known as rape, and is claimed by the state to have been committed by the prisoner on or about the fourteenth of October last, in a woods near the road leading from a paper mill to Milford Cross Roads, in Mill Creek Hundred, this county.
[1, 2] Rape is the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is in legal parlance an indispensable element of rape. In a trial for rape the burden is upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, that the carnal knowledge or sexual intercourse charged was consummated or effected by force *346and against the will of the prosecuting witness, or by putting her in great fear and terror, before a conviction can be had.
The prisoner denies that he committed an assault of any kind upon the prosecuting witness. He admits that he had sexual intercourse with her at the time and place alleged, but insists that such intercourse was had with her consent and not by force or against her will.
[3] If that be true he cannot be found guilty of the crime charged in the indictment, because rape, as we have said, is the carnal knowledge of or sexual intercourse with a woman, by force and against her will. If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape in contemplation of law.
The important question; therefore, for you to determine in this case, is whether the sexual intercourse which the prisoner had with the prosecuting witness was had with her consent or by force or against her will.
[4] In determining that question you should consider all the facts and circumstances as disclosed by the testimony. And in such connection you may consider all the facts preceding, attending and following the act of intercourse, including the conduct of the prosecuting witness, as indicating whether she resisted the prisoner’s intercourse with her or consented thereto.
[5] In cases where the evidence is conflicting, and the jury are unable to reconcile it, they should accept that testimony which they think, under all the circumstances, is most worthy of credit and belief. If after carefully considering all the testimony in this case you believe beyond a reasonable doubt that the prisoner did have sexual intercourse with the prosecuting witness by force and against her will, your verdict should be guilty; but on the other hand, if you believe that the sexual intercourse which the prisoner had with the prosecuting witness was had with her consent and not against her will, and by force, your verdict should be not guilty.
[6, 7] In conclusion, we say that in every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If after care*347fully and conscientiously considering and weighing all the evidence in this case, you should entertain a reasonable doubt of the guilt of the prisoner, that doubt should inure to his benefit and your verdict should be not guilty. Of course such a doubt should not be a mere speculative, fanciful or possible doubt, but a real substantial doubt that remains after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would entertain after considering all the evidence in the case.
Verdict, guilty, with a recommendation to mercy. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487293/ | Pennewill, C. J.,
delivering the opinion of the court:
II] We do not remember that this particular question has ever been presented before. From the slight examination we have given it, we find rulings both ways upon the question in different states. We think that where the purpose is to contradict, and the testimony is offered for that purpose only, the better practice is to call the attention of the witness to it, even though he be a party, just the same as would be done with any other witness. This leaves the law as to independent admissions unchanged. We are confining this to a case where it is proposed to contradict by the use of the witness’s testimony, something a party has said as a witness upon the stand.
Objection sustained.
Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The prisoner, Stanley Brelawski, is charged in this indictment with murder of the first degree. It is alleged that he did on the thirtieth day of March, of the present year, unlawfully and with' express malice aforethought kill one Stanley Pietras, in this city and county, by striking him with a . lighted lamp and thereby setting him on fire, and so burning him "that he died in about one week, from the shock of the extreme ibuming which he suffered.
It is not denied that the prisoner and the deceased were, at or about the time of the alleged crime, engaged in a fight or altercation with one another, and that the deceased had struck the prisoner once or twice on the head with another lamp which was unlighted.
The prisoner admits that he struck the deceased with a lighted lamp, but claims that he did it after the deceased had struck him with the same lamp, and claims that he was acting in necessary and lawful self-defense when he threw the lamp at the prisoner.
The state insists that the act was not committed in self-defense but without excuse or justification, and therefore unlawfully.
*419[2] The indictment in this case charges murder in the first degree, and under such an indictment the jury might, under the law of this state, render any one' of four verdicts, viz., guilty of murder of the first degree, guilty of murder of the second degree, guilty of manslaughter, or not guilty, according as the law and evidence should warrant.
The state in this case,, however, hás stated to you, and the court, that it does not ask from your hands a verdict of guilty of murder either of the first or second degree, but only of manslaughter.
Because of such statement it is unnecessary for the court to charge you at length respecting murder of the first and second degree. ■ But we think a brief reference to the law concerning those crimes may assist you in understanding what is meant by manslaughter.
[3] ' Murder of the first degree is where the killing was done with express malice aforethought; and express malice aforethought exists where the killing is done with a sedate, deliberate mind and formed design to kill.
[4] Murder of the second degree is where the killing was done with implied malice, and where there was no deliberate mind and formed design to take life, but where the killing was nevertheless done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter.
[5] Manslaughter is where one person unlawfully kills another without malice. For example, where one in a sudden affray, in the heat of blood, or in a transport of passion, without malice, inflicts a mortal wound; without time for reflection or for the passions to cool.
[6] The burden of establishing self-defense to the satisfaction of the jury rests upon the accused.
[7] In repelling or resisting an assault, no more force may be used than is necessary for the purpose, and if the person assailed use in his defense greater force than is necessary for that purpose he becomes the aggressor.
[8] If the deceased first attacked the accused, even though *420the attack was of such a character as to create in the mind of the accused a reasonable belief that he was in danger of death or great bodily harm, it was his duty to retreat, if he could safely do so, or to use such other reasonable means as were within his power to avoid killing his assailant.
No one may take the life of another, even in self-defense, unless there is no other available means of escape from death or great bodily harm.
If one is attacked and from the character of such attack, he had reasonable cause to believe, and did believe, that he was in imminent danger of death or great bodily harm, and he had no other reasonable means of avoiding or preventing death or great bodily harm, then the killing of the deceased would be a justifiable act of self-defense.
[9] If, on the other hand, the attack was of a trifling character and manifested no purpose or intention on the part of the assailant to inflict any serious injury, the repelling of such an attack by the use of a weapon likely to produce death, would not be an act of justifiable self-defense.
In ascertaining whether the accused was in any and in what danger of injury at the hands of the deceased when he struck the mortal blow, and, if in such danger, whether he took the proper precautions to avoid such danger, the jury should consider the facts and circumstances of the case as disclosed by the witnesses.
If you believe from the evidence that the burning which caused the death of Stanley Pietras was caused by his own act, and not by the prisoner, you cannot find the prisoner guilty of any crime.
[10] In conclusion we say, in every criminal case the defendant is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, therefore, after carefully considering and weighing all the testimony you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt, and your verdict should be not guilty.
But a reasonable doubt does not mean a vague, speculative *421or possible doubt, but a substantial doubt, and such a doubt as will remain in the minds of reasonable, fair-minded and conscientious men after a careful consideration of all the evidence in the case.
Verdict, guilty of manslaughter.
Defendant’s counsel thereupon filed motions in arrest of judgment and for a new trial; the grounds for which were as follows:
First, that the verdict was against the evidence.
Second, that the verdict was against the weight of the evidence.
Third, that the evidence was not sufficient to prove beyond a reasonable doubt that the defendant was guilty of manslaughter.
Fourth, that the evidence was not sufficient to convince the minds of reasonable men beyond all reasonable doubt that the defendant was guilty of manslaughter.
Fifth, that the verdict was against the law.
Pennewill, C. J.,
delivering the opinion of the court:
[11] While the preponderance of the testimony may have been, and probably was, in favor of the defendant, there was nevertheless some evidence produced by the state which, if true, was sufficient to establish the guilt of the prisoner. The testimony was, to some extent, conflicting upon the material and vital points, and the case was, therefore, a proper one to be determined by the jury upon the evidence. The jury have found against the defendant, and we would not be justified in disturbing their verdict no matter what our own opinion may be respecting the weight of the evidence.
The case of State v. Dill, 9 Houst. 495, 497, 18 Atl. 763, cited by defendant, can have no application to the question before the court, because the law declared in that case was in the charge to the jury and not upon an application to set aside the verdict of the jury.
The argument of defendant’s counsel could have been very properly made to the jury, and in fact was made; but it cannot be effective with the court, being based upon disputed facts, and its *422purpose being to show that the testimony produced by the defendant was more likely to be true than that produced by the state.
The motion to set aside the verdict, as well as the motion to arrest the judgment, is refused. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487294/ | Pennewill, C. J.,
delivering the opinion of the court:
A motion has been made for a new trial for reasons which may be summarized as follows:
1. That a certain juror had formed and expressed an opinion respecting the guilt of the defendant before he was called and examined upon his voir dire when he swore that he had not formed and expressed such an opinion.
2. That the court improperly permitted the state to show, in the cross-examination of a character witness produced by the defendant, that the witness had, since the commission of the act charged in the indictment, heard persons say the defendant threatened to shoot other persons before committing the homicide for which he was tried.
3. That the defendant at another trial would be able to show by a new witness, whose testimony could not be produced at the trial, that very damaging testimony given at the trial by a witness for the state, was false.
[1] Respecting the first ground we need only say, the court *105are not satisfied that the juror had, before the trial, formed and expressed an opinion touching the guilt of the prisoner. The only evidence presented to support the charge of the defendant is an affidavit made by Walter S. Burris, wherein it is averred that the juror said to the affiant the day before the trial:
“I am going to Wilmington to-morrow; I have nothing to do and want to hear the argument in the case of the State v. Naylor. I think Naylor has gotten himself in a pretty bad hole. From what I can hear he killed the boy all right.”
The juror, by affidavit, denies that he made such a statement. He admits, however, that he said to Burris, something to the effect that, “from what I could hear it looked as though Naylor killed the boy,’’ but he insists that he had not formed and expressed any opinion respecting the guilt or innocence of the prisoner. But independent of such denial, and assuming that the juror did make the statement contained in the affidavit, it does not appear to the court that the juror was disqualified from sitting in the case. The language he is alleged to have used does not convince us that he had formed and expressed an opinion touching the guilt or innocence of the prisoner.
In the case of State v. Harmon, 4 Penn. 588, 60 Atl. 870, a new trial was asked for because a juror had said, “from what people are saying it looks as though Harmon would be hanged.” Such language we think more strongly and clearly expressed an opinion than the words alleged to have been spoken by the juror in the present case, but the court refused to set the verdict aside.
In the case of State v. Robinson, 9 Houst. 404, 33 Atl. 57, the defense waived the right to have the juror asked the question whether he had formed and expressed an opinion, but asked for a new trial because he subsequently made statements showing, it was contended, that he had formed and expressed an opinion concerning the defendant’s guilt before the trial. The refusal of the court to grant a new trial in that case was based largely upon such waiver, but it was declared that the statements made by the juror would not be regarded as sufficient to disqualify him from serving on the jury if the question had not been waived; and the court intimated very strongly that if there was *106nothing to show that the statement made by the juror had influenced him in reaching the verdict, and he swore at the hearing of the motion for a new trial, that it had not influenced him, and that he had not in fact formed and expressed such opinion, the verdict would not be disturbed.
[2] In regard to the second ground we say: It is true that the defendant in proving his good character is confined to the time preceding the commission of the crime for which he is being tried; the evidence must be directed to proof of the defendant’s reputation as it existed before the accused was charged or generally suspected of the offense. The general rule has ever been that in a criminal case evidence tending to show the bad character of the defendant must be confined to the time of, and anterior to, the alleged commission of the offense for which the defendant is being tried. State v. Kinley, 43 Iowa, 294; Carter v. State, 4 Ala. App. 72, 59 South. 222; Robinson v. State, 5 Ala. App. 45, 59 South. 321.
If the matter testified to came to the knowledge of the witness after the commission of the homicide which was the subject of investigation, it is not competent testimony. The reputation which a defendant has made upon the subject of quietness and good citizenship available for or against him in a criminal cause when he puts his character in issue is that which he bore at and before the taking place of the act for which he is put upon trial, not a reputation subsequently acquired or created for or against him. A different view would put a premium on the manufacturing of evidence. Powers v. State, 117 Tenn. 373, 97 S. W. 815.
[3] It is equally true, that when a person testifies to the good character of the defendant he is liable to cross-examination, not for the purpose of discrediting the person whose reputation is involved, or of disproving the good reputation or character by proof of specific acts or facts, but such testimony is admissible for the sole purpose of testing the accuracy and candor of the witness himself. 16 Cyc. 1280, and cases there cited.
In none of the cases cited by the defendant, except Powers o. State, was the question involved similar to the one now before the *107court. In the other cases the question was practically like the one raised in State v. Viscome, 78 Vt. 486, 63 Atl. 877, where the defendant proved his good character, and “the state was permitted to show in rebuttal what people were saying about him after the homicide in respect of his reputation in this regard before the homicide.” This ruling was held upon appeal to be error.-
In the present case the question is whether the state may, after a witness has testified that the reputation of the defendant for peace and good order is good, in cross-examining such witness for the purpose of testing his accuracy, candor and trustworthiness, ask him if he had heard at any time that the defendant had threatened to shoot other persons. Counsel for the prisoner, in the direct examination, did not confine his question to the time preceding the homicide, and the witness answered: “His reputation is good.” The jury might believe from such answer that the witness testified to the reputation of the prisoner since as well as before the homicide, and it would seem not unreasonable that the state should be permitted to make its cross-examination as broad and comprehensive as the examination in chief. We express no opinion upon this point, however, and in view of the evidence it is not necessary that we should. We do say, however, that counsel for the defendant should limit his question respecting the defendant’s reputation to the time preceding the homicide, and in such case the state would certainly be precluded from inquiring about any statements subsequently made.
[4] But, in view of the evidence given at the trial, we think the cross-examination of the character witnesses which is urged as a reason for a new trial, was harmless and not prejudicial to the defendant, éven if it was not permissible under the law.
The state in presenting its case, and for the purpose of showing malice, introduced in evidence threats made by the defendant, and they were the same threats which the character witnesses admitted on cross-examination they had heard talked about. The threats were, therefore, before the jury from the testimony of witnesses who swore they heard the prisoner make them, *108which must have been more effective with the jury and more harmful to the prisoner than any hearsay testimony respecting the threats. Hence, we must conclude that the statements made about threats in the cross-examination of the character witnesses could not have influenced the jury in reaching their verdict, and were not prejudicial to the defendant’s cause.
[5, 6] The third reason urged for a new trial has given the court considerable trouble, and it was with much difficulty that we reached a conclusion. We were very much impressed at the trial with the importance, pertinency and strength of the testimony given by William Francis, a witness produced by the state, which tended very strongly, we think, to prove three material and important facts in the case, viz.: (1) That the small rifle used by the prisoner would carry a bullet as far as the deceased was distant from the defendant when the shot was fired—nearly three hundred yards; (2) that the defendant had knowledge of such carrying power; and (3) that the defendant could use the rifle very effectively in shooting at an object farther away than three hundred yards.
The defendant furnished practically all the testimony that was given in his behalf to disprove the last two points, and he was corroborated in disproving the first point by the two army officers who testified only as experts.
But it is contended on the part of the state that a new trial should not be granted on this ground because it does not appear that the defendant used due diligence in securing, at the trial, the testimony which he now claims he could not produce. We realize the importance of sustaining verdicts of juries honestly and fairly given, and know they should not be disturbed except for good and sufficient cause. Certainly they should not be set aside in order that new testimony may be presented if the failure to present it at the trial was owing to the loches of the defendant, or the failure on his part to exercise due diligence. We have carefully considered this point in the present case, and have reached the conclusion that the failure to introduce the testimony in question was not caused by the loches of the defendant. It appears from the affidavit filed by the defendant that the witness who is *109expected to furnish the new evidence was sick at the time of the trial; that the fact that he could furnish such evidence was not then known to the defendant, and if he had known it, it Would have been impossible to secure the attendance of the witness because he was at the time sick in the hospital at Famhurst, and physically unable to attend the trial.
There being nothing before the court which controverts the truthfulness of such averments, and being satisfied moreover that the new evidence which the defendant expects to present if a new trial is granted, is very material and exceedingly important to the prisoner, it is ordered by the court that the verdict rendered in this case be set aside, and á new trial granted.
This conclusion, we think, violates no settled principle of criminal law.
Mr. Bishop in his New Criminal Procedure (Volume 1, § 1279), which is cited and relied upon by the Attorney General, states the law applicable to the subject under consideration as follows:
“Newly discovered evidence, equally in criminal causes as in civil, is a common—perhaps the most common—ground of application for a new trial. The discovery must have been since the trial, the delay in the discovery must not have been from want of diligence, and ordinarily the purpose of the new evidence must not be to establish a defense before known. With rare exceptions, it must not be to the same matter with that heard on the trial, termed cumulative; yet such, when very conclusive, will suffice. It must presumably be forthcoming at the new trial, relevant, and so full and such in other respects as may probably change the result. Therefore, what serves merely to impeach a witness, or to show him hostile to the defendant, will generally be inadequate. And we have varying cases within the reasons of these propositions while not within their terms.”
In the present case the only testimony which tended to disprove much of the damaging testimony given by William Francis was that given by the defendant himself. But his interest in the result of the trial was so great that the jury might very well have disbelieved him entirely or have given his evidence no weight or consideration at all. Such being the case we think the new evidence which the defendant expects to use at the new trial would not be cumulative within the meaning of the law as laid down by Mr. Bishop. Neither would its effect be to impeach or merely contradict some other witness. If believed by the jury its effect *110would be to disprove, perhaps, the testimony offered by the state on three material and vital points, and without which the jury might very reasonably have rendered a different verdict in the case.
Motion to Vacate the Order Granting A N^ew Trial.
The state subsequently filed a motion to vacate the order granting a new trial. The basis of this motion was, omitting the caption, etc., as follows:
“That the jury duly impaneled to try Charles B. Naylor, the above named defendant, returned a verdict of guilty of murder in the second degree on the twelfth day of March, A. D. 1913; that the said Charles B. Naylor on the twenty-fifth day of March, A. D. 1913, filed certain reasons why he should be granted a "new trial, inter alla, newly discovered evidence, therein setting forth that the newly discovered evidence would be furnished by one George E. Naylor, then confined to the New Castle Hospital by illness; that on the fifth day of May, A. D. 1913, a new trial of the said Charles B. Naylor was ordered by the court upon the ground of the newly discovered evidence as in said reasons for a new trial set forth, and reference is hereby .made to the record in the case where the hereinbefore recited facts more fully appear; that the said George E. Naylor, the witness referred to in the said reasons for a new trial, and who was relied upon by the said defendant to establish the facts which he alleged had been newly discovered, died at the New Castle County Hospital on the seventeenth day of May, A. D. 1913, and the affidavit of James W. Foster, hereto attached, is referred to in support of the allegation of the death of the said George E. Naylor.”
On June fourth the motion coming on to be heard, the Attorney General was granted leave to file an affidavit in support of the motion, in which the affiant deposed:
“That he is superintendent of the New Castle County Hospital; that he remembers that on or about the nineteenth day of March, A. D. 1913, there was at the said hospital a person by the name of George E. Naylor; that the said George E. Naylor was the only person of that name at the said hospital during the said month of March; and that the said George E. Naylor, who was at the said hospital at the day and year last aforesaid, died at the said hospital on the seventeenth day of May, A. D. 1913.”
Mr. Hastings, of counsel for defendant, objected to the filing of the affidavit, because the time in which an affidavit could be filed, either in favor of or against a new trial, had expired, and for the further reason that the motion before the court was really a motion to rehear the motion for a new trial, and it was urged that the application was too late, under the rules of court.
*111The Attorney General, in reply, contended that the motion before the court was not an application for a rehearing of the motion for a new trial; that the affidavit offered was in support of the present motion and not in rebuttal to the affidavit previously filed by the accused when he made his motion for a new trial; that the court granted the new trial solely on the ground of after-discovered evidence which is absolutely and irretrievably gone, and therefore the only thing that induced the court to grant á new trial no longer exists; and assuming that the situation would warrant the vacating of the order, how can that matter be brought to the attention of the court except by an affidavit?
Pennewill, C. J., delivering the opinion of the court:
[7] It does not seem to the court that this motion now made by the Attorney General is an application for a rehearing or a renewal of the matter that has been decided by this court, but rather it is an application for the vacation of an order made by the court in respect to the matter. No objection is made to the motion, or the paper, other than the affidavit, and if the paper may be filed, we think the affidavit in support of the paper may also be filed.
We are passing now upon the right of the state to file the affidavit, and not upon the merits of the motion. We overrule the objection and allow the affidavit to be filed.
Brief of State on Motion to Vacate Order for a New Trial.
Motions for new trials are governed by the same rules in criminal as in civil cases. State v. Stain et al., 82 Me. 472, 489, 20 Atl. 72; Grayson’s Case, 6 Grat. (Va.) 723.
“It is a general rule of the law that all judgments, decrees, or other orders of the courts, however conclusive in their character, are under the control of the court which pronounces them during the term at which they are rendered or entered of record, and they may then be set aside, vacated, modified, or annulled by that court.” Bronson v. Schulten, 104 U. S. 410, 415, 26 L. Ed. 797; Irrigation Co. v. Gildersleeve, 174 U. S. 603, 609, 19 Sup. Ct. 761, 43 L. Ed. 1103; U. S. v. Linnier (C. C.) 125 Fed. 83, 86; Com. v. Weymouth, 2 Allen (Mass.) 144, 145, 79 Am. Dec. 776; U. S. v. Harmison, 3 Sawy. 556, 557, Fed. Cas. No. 15,308.
*112And this is the rule in both criminal and civil cases. U. S. v. Harmison, 3 Sawy. 556, 557, Fed. Cas. No. 15,308.
Further, the court has power to set aside a judgment in a criminal case and impose a heavier sentence, if done at the same term. State v. Daugherty, 70 Iowa, 439, 30 N. W. 685; Com. v. Weymouth, 2 Allen (Mass.) 144, 79 Am. Dec. 776; Rex v. Price, 6 East, 323.
“Because the trial of the case was at this term, as was the order granting the new trial—the term not yet having adjourned—it would be entirely proper to vacate the order granting a new trial, and then pronounce judgment on the verdict. U. S. v. Linnier (C. C.) 125 Fed. 83, 86.
“Where the newly discovered evidence would be incompetent on a new trial the motion for a new trial should be denied. As it would not be admitted it could not influence the verdict and hence a new trial will be useless.” 12 Cyc. 739, and note 61; Hutchins v. State, 151 Ind. 667, 52 B. E. 403; Wilkerson v. State (Tex. Cr. App.) 57 S. W. 956, 963.
“It [the evidence] must presumably be forthcoming at the new trial.” 1 Bishop’s New Crim. Proc. § 1279.
At common law a defendant had no indefeasible right to the benefit of a verdict in his favor in all cases. 1 Chitty’s Crim. Law, 651, citing; 2 Salk. 646; 12 Mod. 9; Sayer, 90; Hawk. B, 2, C, 47 s, 12; Bacon’s Ab. Trial, L, 9, ace. 1; Sid. 153; 1 Lev. 9, Cont.
We have seen that he had no rights that would prevent the court, at the same term, from altering a final judgment increasing the penalty.
The defendant having no rights which prevent the court from vacating its order for a new trial, and the conditions being such that, if presented on a motion for a new trial; the same would have been refused, the case should not be protracted to and through a new trial, there now existing no legal reason therefor.
Where the evidence, upon the theory of the subsequent production of which a new trial is granted, becomes impossible of production, the whole reason for granting a new trial fails, and, there then existing no reason for a new trial, the matter being brought to the attention of the court by a proper motion, and the order being within the control of the court, there is no further reason for its existence and it should be vacated.
*113Brief of Accused Opposing Motion to Vacate Order for A New Trial.
"A reargument or rehearing differs from a renewal in the following particulars: (1) It is not an independent proceeding, but is always to be heard on the same notice and the same papers upon which the original motion was heard; (2) although the time to move has elapsed and the court has no power to grant leave to renew, so as to enlarge such time, yet a motion for a rehearing may be entertained; (3) it is not appealable.
“Where there has been a decision upon a motion, the doctrine of res judicata does not go so far as to preclude a further inquiry and a rehearing where there has been a misapprehension of the fact, or where it appears that some decision or principle of law, which would have had a controlling effect, has been overlooked; but the power to grant a rehearing or reargument cannot be arbitrarily exercised, and if the judge grants it on insufficient grounds his action constitutes reversible error.
“A motion for reargument of a motion is generally addressed to the discretion of the court.
“On proper grounds a judge deciding a motion may grant a rehearing or reargument on the same papers only, and it is in this respect that reargument differs from renewal which may be upon the same or new papers." 28 Cyc. p. 16.
The order of the court on the hearing of a motion for a new trial is final, and cannot be set aside on motion unless it was inadvertently made, and it should furnish a basis upon which to determine the rights of the parties in subsequent trials.
An order granting a new trial, as a general rule, vacates a former judgment without any special order to set it aside, and sweeps away the verdict and leaves the case as though no trial had been had. 16 A. & E. Enc. of Law, 671, 672; Coombs v. Hibberd, 43 Cal. 452 (followed in Dorland v. Cunningham, 66 Cal. 484, 6 Pac. 135, Odd Fellows’ Sav. Bank v. Deuprey, 66 Cal. 168, 4 Pac. 1173, Lang v. Superior Court, 71 Cal. 491, 12 Pac. 306, 416, and Holtum v. Greif, 144 Cal. 521, 78 Pac. 11); State v. Police Board, 51 La. Ann. 747, 25 South. 637; Mathis v. State, 40 Tex. Cr. R. 316, 50 S. W. 368.
“It is a rulé widely governing in these cases, and reconciling multitudes of seeming conflicts in them, that, on whatever grounds the new trial is asked, the court will look through the entire proceedings which led to the verdict, consider in connection with them the new facts and reasons, and order the reversal if it deems there was injustice which probably may be corrected, otherwise refuse." Bishop, New Crim. Proc. § 1277.
Pennewill, C. J., delivering the opinion of the court;
[8] There is nothing before the court to show that the *114order setting aside the verdict and granting a new trial was mistakenly or inadvertently made. There has been no authority produced by the state showing that any court has vacated such an order, unless it appeared that it was made under a misapprehension or through a misunderstanding. The motion to vacate the order setting aside the verdict and granting a new trial is refused.
At a session of the Court of Oyer and Terminer, in New Castle County, October 2, 1913, Mr. Rodney, of counsel for the prisoner, moved to withdraw the plea of not guilty, he contending that the prisoner having been convicted of murder of the second degree in the former trial, and a new trial having been granted, the accused could withdraw the plea entered as a matter of right.
Mr. Wolcott stated that if counsel for the accused proposed to plead former acquittal of murder of the first degree inasmuch as the defendant had been found guilty of murder of the second degree, notwithstanding he had made a motion for a new trial and succeeded, and now meant to contend that the prisoner could not be found guilty of anything more than murder of the second degree, he was ready to concede that the prisoner could not now be convicted of a higher grade of offense than murder of the second degree; and he did not propose to ask for a conviction of murder of the first degree.
Pennewill, C. J.:—
[9] We think the defendant can be tried again under this indictment, but we recognize that under the law he cannot be convicted of murder of the first degree, and we will so instruct the jury at the trial. We think that ought to be satisfactory to the defense.
Mr. Rodney:—This case is entirely a case of new impression in this state, and the interests of the prisoner demand that he be given all legal defense which may be available for him; and the right certainly should be put in the hands of counsel for the prisoner to interpose any legal objection that they might have to the indictment.
Boyce, J.:—Have you any doubt, Mr. Rodney, that the prisoner can be tried under this indictment?
*115Mr. Rodney:—If permitted to withdraw the plea of not guilty, my purpose is to enter a plea of autrefois acquit, which goes to the point that the prisoner cannot be tried again for murder of the first degree, and move to quash as to the rest of the indictment. The motion to quash will be on entirely different grounds, which could not have arisen before.
Pennewill, C. J.:—
[10] We think it is admitted on both sides that this application is addressed to the discretion of the court.
Mr. Rodney:—No, sir.
Pennewill, C. J.:—We think it is, and we think that everything you can reasonably expect or ask will be accomplished when the court shall instruct the jury at another trial, if there is another trial, that the defendant cannot be convicted of murder of the first degree. We refuse your application.
Mr. Rodney:—Believing that the defendant had, as a matter of right, a right to withdraw his plea of not guilty, I ask that an exception be noted.
Pennewill, C. J.:—Let the exception be noted.
At a subsequent session of the Court of Oyer and Terminer, held in November, 1913, counsel for the accused again asked leave to withdraw the plea of not guilty and moved to quash the indictment. The court heard the application, but refused it, for the reasons set forth in the following opinion:
Pennewill, C. J., delivering the opinion of the court:
The indictment in this case is for murder of the first degree.
At a former trial the jury found the defendant not guilty of murder of the first degree, but guilty of murder of the second degree.
Thereupon the defendant moved that the verdict be set aside and a new trial granted. After argument and due consideration, the court granted the motion for the reasons set forth in the opinion.
. A motion is now made by the defendant that he be allowed to withdraw his plea of not guilty so that he may move to quash the indictment for the following reasons:
*116“ 1. That he is being tried under an indictment for murder in the first degree of which, by the judgment of the court, he cannot be convicted.
“2. The court having decided that the defendant cannot be convicted of murder of the first degree, the indictment must be considered as one of second degree which is contrary to the statute (Section 21 of Chapter 133 of Code, page 980) which sets out that ‘the different degrees of murder shall be distinguished in the indictment.'
“3. That the defendant is not able to go to trial with a definite knowledge of his rights under the indictment.
“ (a) As to the number of challenges, Section 16 of Chapter 133 of Code, page 979, sets out as follows:
“ ‘A person indicted for a crime punishable with death shall, at the trial, have right to challenge twenty jurors peremptorily, but no more, except for lawful cause; and a person indicted for any other crime, or misdemeanor, shall have right to challenge six jurors peremptorily, but no more except for awful cause. * * *
“ ‘On the trial of any indictment in the Court of Oyer and Terminer for a crime punishable with death, the prosecuting officer may, on behalf of the state, challenge peremptorily any jurors drawn not exceeding ten, and on the trial of any other indictment in said court, the state, by its prosecuting officer, may challenge peremptorily any jurors drawn not exceeding three. The right of challenge to any juror as he is called shall be first exercised by the prisoner. ’
“ (b) As to the competency of the jurors under Chapter 221, Volume 17, Laws of Delaware (Code, page 808), which sets out as follows:
“ ‘When a juror is called in a capital case he shall be first sworn or affirmed upon the voir dire and then asked, under the direction of the court, if he has formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar. If his answer be in the negative, he shall be sworn as a juror in said case, unless he has conscientious scruples against finding a verdict of guilty in a case where the punishment is death, even if the evidence should so warrant him, or unless he shall be peremptorily challenged, challenged for cause, or excused by consent of counsel on both sides. If his answer to said question be in the affirmative, he shall be disqualified to sit in said case, unless he shall say, upon his said oath or affirmation, to the satisfaction of the court, that he feels able, notwithstanding such an opinion, to render an impartial verdict upón the law and the evidence; in which event he shall be a competent juror, if not otherwise disqualified, challenged, or excused.'
. “4. The defendant is not able to go to trial under this indictment with a definite knowledge of the crime for which he may be convicted and if convicted, with a definite knowledge of the punishment which is specified by statute. Section 20 of Chapter 133 of the Revised Code, page 979, sets out as follows:
“ ‘Upon the trial of any person for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony and to find a verdict of guilty of assault against the person indicted, if the evidence shall warrant such finding; and when such verdict shall be found, the court shall have power to impose a fine on the person, so found guilty of an assault not exceeding three hundred dollars, and to imprison him for a term not exceeding three years.
“ ‘ {Provided that nothing in this section shall he construed so as to apply to capital cases)’ "
*117Having heard the argument that would be urged for quashing the indictment, and being of the opinion that the motion should be refused, it is unnecessary for the court to determine whether the defendant has a right to withdraw his plea of not guilty at the present stage of the case.
The application to quash is made by the defendant for the admitted purpose of ascertaining whether he might be convicted of simple assault in this case, and also of ascertaining his rights with respect to the challenging of jurors.
[11] The court is clearly of the opinion that the defendant in this case has a right to challenge twenty jurors peremptorily, and the state ten, just as though the defendant was being tried for murder of the first degree. We cannot escape this conclusion in view of the express terms of the statute.
[12] We further hold that a juror when called in this case shall first be sworn or affirmed on his voir dire.
[13] The statute which provides that “upon the trial of any person for any felony whatever, where the crime charged shall include an assault against the person, it shall be lawful for the jury to acquit of the felony and to find a verdict of guilty of assault,” etc., contains also the following provision: “Provided that nothing in this section shall be construed so as to apply to capital cases.”
Inasmuch as it is admitted by the state that the defendant, after being acquitted of murder of the first degree, cannot upon another trial upon the same indictment be convicted of that grade of murder, we think the case now against the defendant, and for which he is to be tried is not a capital case within the meaning of said statute; and we will charge the jury that said statute applies to the present case.
The court has, in at least one case, charged the jury that, upon a trial of a person for murder of the second degree, he might be convicted of assault if the evidence shall warrant such finding.
The accused was placed upon trial for the second time.
The facts and contentions appear in the charge of the court.
*118Pennewill, C. J., charging the jury:
Gentlemen of the jury:—It is charged in this indictment that the prisoner, Charles B. Naylor, did on the nineteenth day of January, 1913, willfully, feloniously and with express malice aforethought shoot, kill and murder one Earvil J. Francis, in Appoquinimink Hundred in this county.
While the indictment charges murder of the first degree, the defendant, as the Attorney General has informed you, is not being tried for that degree of murder. In this trial the state contends that the defendant is guilty of murder of the second degree, and not of the first degree. The state claims that on the day mentioned, the deceased, who was a boy about eighteen or nineteen years of age, had gone accompanied by his brother to the marsh where the prisoner had traps set for the catching of muskrats, and that after visiting their own traps and looking for ducks, the boys were retracing their steps when the prisoner without any justification, excuse or provocation shot at them twice with a small rifle from a distance of eight hundred and thirty-eight feet, the first shot striking and penetrating the side or stomach of the deceased, and inflicting a wound from the effects of which he died three days thereafter. The prisoner does not deny that he fired two shots on the day the boy was shot, when distant from him about eight hundred and thirty-eight feet, but says he did not believe that either of those shots could have inflicted the fatal wound because he fired them at such an elevation and direction that they could not have struck the boy, and also for the reason that the shots were discharged from such a small rifle that they could not have had sufficient power to reach the boy if the prisoner had endeavored to shoot him. He claims that he had no thought or intention of shooting or harming the deceased.
It does not appear that there had ever been any trouble between the two boys or their family and the prisoner; and the prisoner claims that he did not know who the boys were when he fired the two shots.
The prisoner does not contend that the boys had said or done anything which would have justified his shooting at them, but claims that he had been very much annoyed by dogs disturbing *119his traps at different times, and that he fired the shots solely for the purpose of causing the persons on the marsh to leave and keep away from his boat. He insists that the rifle he used had not sufficient force or carrying power to inflict any injury at the distance the boys were from him, and that he did not in fact shoot at them at all, or even see them at the time he shot, but fired at an elevation and in a different direction from that in which he supposed them to be when the shots were fired.
The defense, therefore, in this case is that there was no intention on the part of the defendant to kill or injure the boy, that the killing was entirely unintentional and accidental, and there was not only no malice in the heart of the defendant at the time, but that there was no criminal intent, or any such negligence as would justify a verdict of guilty of any crime.
The crime charged in this case against the prisoner by the state is murder of the second degree, and you may find any one of four verdicts, according as the evidence shall, in your judgment, warrant, viz.: Guilty of murder in the second degree, guilty of manslaughter, guilty of assault, or not guilty.
It becomes the duty of the court, therefore,-to instruct you respecting the law applicable to murder of the second degree, as well as manslaughter and assault.
[14-16] While it is not necessary for the court to instruct you respecting murder of the first degree, we will briefly define it in order that you may the more clearly understand what is meant by murder of the second degree. Murder of the first degree is where the killing was done with express malice aforethought; and express malice aforethought is where one person kills another with a sedate, deliberate mind and formed design. Malice is an essential element of murder of both degrees, for without malice there cannot be murder of either degree. Malice we may say is a condition of the heart, and is not restricted to spite or malevolence toward the particular person slain, but also includes that general malignity and general disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief. Malice is implied by law from every unlawful and cruel act committed by one person against another, however *120sudden it may be, for the law considers that he who does an unlawful and cruel act voluntarily, does it maliciously. If death ensues from an unlawful and cruel act of violence on the part of the. slayer, in the absence of adequate or sufficient provocation, the law implies that the act was done maliciously.
[17] Murder of the second degree is where the crime is committed with implied malice; that is, where the malice is not express, as in murder of the first degree, but is an inference or conclusion of law from facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse and without provocation or without sufficient excuse and provocation to reduce the offense to manslaughter. For example, where the killing was committed without design and premeditation, but under the influence of a wicked and depraved heart, or with a cruel and wicked indifference to human life, the law implies malice and makes the offense murder in the second degree.
[18] Where the killing is shown to have been done with a deadly weapon, such as a gun, it is presumed to have been done maliciously, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused, for the usual and probable consequences of the act are presumed in law to have been intended by the person using the deadly weapon. If death is produced by the use of a deadly weapon, great must be the provocation to reduce the killing from murder to manslaughter.
[19, 20] Manslaughter is the unlawful killing of another without malice. In order to reduce the crime to manslaughter the provocation must be very great; so great as to produce such a transport of passion as to render the person for the time being deaf to the voice of reason. While murder proceeds from a wicked and depraved heart and is characterized by malice, manslaughter results not from malice but from unpremeditated and unreflecting passion.
[21] ■ An assault is an unlawful attempt by violence to do an injury to the person of another with the means at hand of carrying the attempt into effect. . .
*121[22] We say to you that in a case where any one of several verdicts may be rendered, the right of the jury should not be exercised capriciously, but their verdict should be warranted by the evidence, as in other cases. If there be not evidence justifying any adverse verdict, they may and should acquit altogether. State v. Becker, 9 Houst. 412, 33 Atl. 178.
[23] We think it proper to say to you that no mere trespass on the premises of another, however annoying or provoking it may have been to him, could constitute in law a sufficient provocation to reduce the killing of such a trespasser or wrongdoer by the owner of the premises from murder to manslaughter when it is done with a deadly weapon or any other means likely to produce death.
[24] While this is true, yet, if you believe from the testimony that the person fired the shots solely, for the purpose of frightening supposed trespassers, with no intention to do harm or injury, and in firing the shots used the same degree of care which a prudent man would have used under like circumstances, your verdict should be not guilty.
[25, 26] As we have already said, where the killing is shown to have been done with a deadly weapon, it is presumed to have been done maliciously, in the absence of evidence to the contrary, and the burden of showing the contrary is on the accused. It is the duty of the jury, therefore, in such a case to determine from all the facts and circumstances disclosed by the evidence whether such presumption has been rebutted. In deciding this question you may and should carefully consider all such facts and circumstances because the presumption may be rebutted by either direct or circumstantial evidence. In order to convict the prisoner of any crime you must be satisfied either that there was a criminal intent, or that his negligence was so gross as that a criminal intent would be implied therefrom.
[27] Under a statute of this state it is made unlawful for any person, in jest or otherwise, intentionally to point a gun towards any other person at any time or place, and if any person commits such unlawful act and death results from the discharge of the gun so pointed, the person pointing the same shall be guilty of *122manslaughter, when such killing does not amount to murder. So that if you believe beyond a reasonable doubt that the defendant pointed the gun towards the deceased, and that he did it intentionally, and also believe that the death of the boy resulted from the discharge of the gun so pointed, and that the killing did-not amount to murder, your verdict should be, guilty of manslaughter.
[28] The good character of an accused person, when proved, is to be taken in connection with all the other evidence in the case, and is to be given just such weight under all the facts and circumstances of the case as in the judgment of the jury it is entitled to.
[29] When the testimony is conflicting the jury should endeavor to reconcile it. If it is not possible to reconcile it, they should give credit to that testimony which they consider most worthy of their belief.
[30-32] In every criminal prosecution the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. In order to convict the prisoner it is incumbent upon the state to prove beyond a reasonable doubt every material ingredient of the crime charged. If, after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the guilt of the prisoner, you should give him the benefit of such doubt and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague, speculative or possible doubt, but a reasonable, substantial doubt remaining in your minds after a careful consideration of all the evidence; and such a doubt as reasonable, fair-minded and conscientious men would entertain under the evidence.
Now, gentlemen, if you believe beyond a reasonable doubt that the defendant shot and killed the deceased, with implied malice, your verdict should be guilty of murder in the second degree. If you should believe the defendant shot and killed the deceased unlawfully, but without malice, your verdict should be guilty of manslaughter.
If you do not believe the prisoner is guilty of either murder *123of the second degree or manslaughter, but are satisfied beyond a reasonable doubt that he is guilty of an assault, you may so find under a statute of this state.
Finally, if you should not be satisfied beyond a reasonable doubt that the defendant killed the deceased maliciously or unlawfully, your verdict should be not guilty.
Verdict, guilty of manslaughter.
Remarks of the Court in Imposing Sentence.
Pennewill, C. J.:—
[33, 34] The jury have found you guilty of manslaughter, and we must take the verdict to mean just what the law defines the offense to be, viz.: That you are guilty of an act that was committed in the heat of blood, but without malice.
In view of your friendly relations with the deceased and his family before the shooting, it is difficult to conceive that you could have had any malice in your heart towards the boy that was slain. The jury have said you were not actuated by malice towards any one, but fired the fatal shot in a transport of passion, and before the blood had time to cool.
Because of your age, your family, and the good reputation you were able to prove, we are glad the jury could reach such conclusion.
But your unfortunate act was, according to the verdict, unlawful and inexcusable. And while we have some feeling of sympathy for you now in your present situation, there can be no excuse offered or found for the recklessness of the act which destroyed the life of a young man who was, you say, your neighbor and friend. It may seem inconceivable to you that the shot you fired from a small rifle at such a great distance could have struck and killed the deceased. But it did nevertheless, and you pointed and discharged the gun towards the place where the boys were at the time. You may not have known who they were; you may not have seen them at the very instant you shot, but you had seen two persons on the marsh, and in their direction you fired. The jury have said the shooting was not a reckless disregard of human life in the legal sense, but the result of sudden *124madness or rage. While that will be accepted as true, we think, and feel it our duty to say, that the shooting itself was a reckless and careless act which can be neither palliated or excused. We deeply regret the untimely death of Earvil Francis, as we believe you also do, and our sympathy goes out to his stricken and bereaved family. But our personal feelings, one way or the other, should not influence the court in determining the sentence that should be imposed. It must be based primarily on the verdict rendered in the case..
You are now sixty years of age, and we have no thought that you will ever commit a similar offense again. You have been taught a severe lesson no doubt, and have already suffered much and been severely punished for your crime. But for the benefit of others we think it proper to repeat and emphasize here one point briefly mentioned in the charge, viz.: That no one has a right to kill, shoot or strike another whom he finds trespassing upon his lands, no matter how annoying the trespass may be.
For such offense the law provides a different remedy, and to such remedy the law-abiding citizen will resort for the redress of wrongs. The feeling and thought is too general that a man may do what he pleases on his own premises, even to the extent of' taking human life or doing bodily harm. And the reckless use of firearms is entirely too common with very many people. The law recognizes this fact, and hence the statute which makes it unlawful for any person to point a pistol or gun at another in jest or otherwise at any time or place. For such an offense the penalty is manslaughter if death results and the killing does not amount to murder.. This statute is, in our opinion, a most excellent and necessary one, and we are strongly inclined to believe it had much to do with the verdict rendered in your case.
In view of the fact that the jury found the killing to be the result of sudden passion and not of malice, and of the fact that you have already been in the workhouse for almost a year, and of other facts and circuir stances to which we have referred, the sentence of the court is that you, Charles B. Naylor, pay a fine of four hundred dollars, that you be imprisoned for a term of three years commencing this day and ending on the seventeenth day of *125March, 1916, and pay the costs of prosecution; and you are now committed to the trustees of the New Castle County Workhouse until this sentence is executed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487295/ | Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The prisoner, Bessie I. McKinney, is on trial for manslaughter.
It is charged by the state that on the twenty-fifth day of January of .the present year, in the Village of Glasgow, in Pencader Hundred, New Castle County, the prisoner did feloniously and willfully make an assault upon one Delaware Reed by shooting him with a pistol in the upper left breast, thereby causing his death.
The prisoner does not deny that she shot and killed Delaware Reed, but claims that the shooting was in the necessary and lawful defense of her person; that she had to do it to save her own life, or at least to protect herself from great bodily harm.
[1] The indictment does not charge the prisoner with murder either of the first or second degree, and it is not necessary, therefore, for the court to instruct you with respect to such crimes. In order, however, that you may better and more clearly understand what manslaughter is, we may say that the essential and distinguishing ingredient of murder of either degree is malice, while in manslaughter there is no malice.
You doubtless understand in a general way what malice means, and what is implied when a person is said to be malicious. It is difficult to define the term in words, but it may be manifested in many ways. It is a state or condition of the mind or heart, and is most commonly shown by acts of revenge or cruelty.
Manslaughter is the unlawful killing of a person without any malice whatever, and that is the offense for which the defendant is indicted. While murder proceeds from a wicked, malignant and depraved spirit and is characterized by malice, manslaughter results from no malignity, but from unpremeditated and unreflecting passion.
The most common example of manslaughter is where two persons fight .upon a sudden affray, and one kills the other with a deadly weapon in the heat of blood or in a transport of passion *130without time for reflection or for the passions to cool. In such case the law, taking account of the infirmity of human nature, treats the offense as of less grade than either degree of murder; but it in no sense excuses the offender.
As we have already said, the prisoner admits that she shot the deceased, but claims that her act was not unlawful, but committed in the necessary defense of her person. This is her plea, her defense, and if it is proven to your satisfaction she is entitled to a verdict of acquittal.
[2, 3] But the burden of establishing self-defense rests upon the defendant. In repelling or resisting an assault no more force may be used than is necessary for the purpose. If a person is attacked by another, even though the attack be of such a character as to create in the mind of the person attacked a reasonable belief that he is in danger of death or great bodily harm, it is his duty to retreat if he can safely do so, or to use such other means as are within his power to avoid killing his assailant. .
[4, 5] But the law accords to every one the right to protect his person from assault and injury by opposing force to force, and he is not obliged to wait until he is struck by an impending blow; for if a weapon be raised in order to shoot or strike, or the danger of other personal violence be imminent the party in such danger may protect himself by striking the first blow for the purpose of repelling and preventing the attempted injury. Where one is assaulted upon a sudden affray, and in the judgment of the jury honestly believed on reasonable and sufficient grounds, that he was in imminent danger of being killed, or of receiving great bodily harm, he would have, in self-defense, the right to use a deadly weapon against his assailant. But in exercising such right of self-defense, in a manner likely to cause death or .great bodily harm to his assailant, he must be closely pressed by him, and must have retreated as far as he safely could, in good faith, with the honest intent to avoid the violence and peril of the assault. If in the present case the violence and peril were so sudden, fierce or urgent as not to allow the defendant to safely retreat, or have other probable means of escape, then she had a right to stand and use a deadly weapon in her defense.
*131[6] In every criminal case the accused is presumed to be innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. If, after carefully and conscientiously considering all the evidence in the case you should entertain a reasonable doubt of the guilt of the prisoner, that doubt must inure to her benefit, and your verdict should be not guilty. But such doubt must not be a vague, speculative or mere possible doubt, but a reasonable, substantial doubt which remains in your minds after a careful consideration of all the evidence; and such a doubt as reasonable, fair-minded and conscientious men would feel constrained to entertain under all the facts and circumstances of the case.
Verdict, guilty with a recommendation to the mercy of the court.
Remarks of the Court in Imposing Sentence.
Pennewill, C. J.:—This has been to the court a very distressing case. We strongly sympathize with the defendant in her trouble, and have nothing but pity for her children. In this as in many other cases the weak and innocent must suffer for the acts of the guilty. It is not an exceptional or uncommon case in that regard.
Undoubtedly the prisoner had great provocation for her act, and we would not have been surprised if the verdict had been different from what it was. Certainly it would have been easy, in the exercise of mercy, to let the prisoner go free. But such action, would perhaps have been based more upon sympathy than strictly upon the evidence.
The prisoner has had a fair trial and an able defense. No counsel could possibly have done more for his client, Mrs. McKinney, than your counsel has done for you. He has been zealous, alert and persistent from the beginning to the end. In no respect has he failed to do his full duty at every stage of the case.
But notwithstanding all his efforts, and a great deal of general sympathy for you, the jury found you guilty of manslaughter. The meaning of that verdict is, that no matter how *132great your provocation was it was not sufficient to justify or excuse the taking of a human life. It means that the fatal act was not committed in self defense but against the law. This verdict we have no right to disregard no matter what our personal feelings may be. And we are not prepared to say the verdict was an improper one under the evidence and the law.
The jury which decided your case was composed of unusually good men, and presumably they felt as much sympathy for you as others felt. But in the faithful discharge of their duties, painful as it must have been, they found you guilty.
When such a jury is able to overcome their feeling of compassion in a case like this, and render a verdict which they conscientiously believe is warranted by the evidence, the feeling is strong with the court that the jury should be commended and their verdict properly sustained.
We are now asked to probate the prisoner, which means that she shall not be punished at all. This application has been strongly and feelingly pressed upon the court, and even the jury that tried the case have, with one exception, joined in this request. We wish to say in this connection that when a jury have rendered their verdict in a criminal case their duty ends, and the law determines, within certain limitations, what the punishment shall be. We question that the jury in any case, after the verdict is rendered, should be requested to nullify their action by asking the court to discharge' the prisoner on sympathetic grounds. Such a request is very difficult for the jury to refuse, because it is nothing else than an appeal for mercy after their sworn duty has been discharged. And, moreover, it makes the duty of the court in imposing the sentence much more embarrassing and difficult to perform. When a jury have performed a disagreeable duty from no choice of their own but under the compulsion of the state, it seems to the court they should be free from any further appeal.
This court. has been very liberal, and properly so, in the probation of prisoners; but never yet has this power been exercised in a homicide case, and we are inclined to think it should not be. At any rate we are clearly of the opinion it should not be *133in the present case. It is quite possible that the effect might be very bad if those criminally inclined should know that a person convicted for taking a human life might practically go free and suffer no imprisonment or hardship at all. We have no disposition to do anything to make the commission of crime easier or more common than it already is.
While we cannot paroi the prisoner we are inclined to be as merciful as possible because of certain facts that impressed us very much in her favor at the trial. We might imprison her for ten years, but will impose the lightest sentence we can under the law. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487329/ | Layton, C. J.,
charged the jury, in part, as follows:
There is in the testimony some evidence that the prisoner at the time in question was intoxicated to some degree. The testimony relating to the intoxicated condition of the prisoner, in whatever degree, if any, it may have been shown to appear, is not to be considered by you, as in the circumstances of this case it is entirely immaterial. State v. Di Guglielmo, 4 Penn. 336, 55 A. 350; State v. Truitt, 5 Penn. 466, 469, 62 A. 790; State v. Hurley, Houst. Cr. Cas. 28; State v. Davis, 9 Houst. 407, 33 A. 55; State v. Adams,.6 Penn. 178, 65 A. 510; 1 Russ, on Crimes (9th Ed.) 12. See, also, State v. Hamburg, 4 W. W. Harr. (34 Del.) 62, 143 A. 47. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487351/ | Per Curiam.
Gentlemen of the jury, it is impossible almost for men on untutored horses to ride through a company of men standing elbow and elbow, two deep, without doing injury.1 It is no excuse for one to say he did no mischief, for, if harm was done, all are guilty.
Notwithstanding the charge, the jury acquitted Harris but found Russel guilty, whom the Court fined fifteen dollars.
Footnote by Wilson, “The Court cited a case out of [3] Wilson’s Reports, p. [403] about throwing a squib in the market.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483150/ | Shapiro v Syracuse Univ. (2022 NY Slip Op 06408)
Shapiro v Syracuse Univ.
2022 NY Slip Op 06408
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (301/22) CA 21-00604.
[*1]JOHN SHAPIRO, DAVID SWEET AND A.A., PLAINTIFFS-APPELLANTS-RESPONDENTS,
vSYRACUSE UNIVERSITY, DEFENDANT-APPELLANT, BOARD OF TRUSTEES OF SYRACUSE UNIVERSITY, DEFENDANT, CAMP GREYLOCK FOR BOYS, INC., CAMP GREYLOCK, INC., ALSO KNOWN AS MARHORN, INC., MICHAEL MARCUS, AND LUKAS HORN, DEFENDANTS-RESPONDENTS.
MEMORANDUM AND ORDER
Motion for reargument or leave to appeal to the Court of Appeals denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483153/ | S.P. v M.P. (2022 NY Slip Op 06414)
S.P. v M.P.
2022 NY Slip Op 06414
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND WINSLOW, JJ. (Filed Nov. 10, 2022.)
MOTION NO. (512/22) CA 21-00160.
[*1]S.P., PLAINTIFF-APPELLANT,
vM.P., DEFENDANT-RESPONDENT.
MEMORANDUM AND ORDER
Motion for leave to renew denied. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487311/ | Pennewill, C. J.,
charged the jury, in part:
In determining whether the prisoner was acting in self-defense, the jury may consider any threats made by the deceased against the defendant and known to the defendant before the cutting, as tending to show that such threats were operating on the mind of the defendant and causing him to fear the deceased, and apprehend injury at the time of the combat.
And threats made by the deceased against the defendant, that were unknown to the defendant, may be considered *598by the jury as tending to show who was the aggressor; that is, who began the fight. But such uncommunicated threats should not be considered unless it is uncertain from the evidence who began the fight. And, even though you believe the deceased began the fight, and was the aggressor, the defendant had no right, because of that fact, to take the life of the deceased unless the defendant at the time believed, and had reasonable cause to believe, that he was in imminent danger of suffering death or great bodily harm at the hands of the deceased.
Note by Reporter. — In the following cases the courts of this state have considered the admissibility of evidence of the reputation of the deceased for violence in homicide cases, or of the injured person in cases of aggravated assaults:
In State v. Thawley, 4 Harr. 562, though self-defense was relied on, evidence that deceased was a violent man, and in the habit of attacking others, was rejected on the ground that his character was not in issue. Harrington, J., however, expressed a doubt as to the correctness of the decision. In State v. Wiggins, 7 Penn. 128, 76 Atl. 632, State v. Short, 2 Boyce 491, 82 Atl. 239, and State v. Faino, 1 Marv. 492, 41 Atl. 134, evidence of reputation of the deceased for violence, when such reputation was known to the defendant, and self-defense was relied on, was admitted, and in State v. Lee, 1 Boyce 18, 74 Atl. 4, evidence of the reputation of the prosecuting witness for violence, when known to the defendant, was held admissible in a prosecution for assault with intent to commit murder.
To the same effect as the more recent Delaware cases, see Jones on Ev. {Blue Book) § 156; Wigmore on Ev. § 246.
The following cases in this state have considered the admissibility of evidence of prior threats made against the defendant by the deceased person in homicide cases:
In State v. Warren, 1 Marv. 489, 41 Atl. 190, though self-defense was relied on by the defendant, uncommunicated threats were rejected because they could have no effect on the defendant. In State v. Powell, 5 Penn. 24, 61 Atl. 966, however, where there was a question as to whether the defendant or the deceased person *599was the aggressor, and self-defense was, therefore, an issue, threats, though uncommunicated to the defendant, were held to be admissible as tending to show the feeling of the deceased toward the defendant, and, therefore, having some bearing on who began the affray. In State v. Harmon, 5 Boyce 296, 92 Atl. 853, self-defense was an issue in the case, but the court said:
"In determining whether the prisoner was acting in self-defense * * * you may consider any threats * * * made by Rickits [the deceased], against the prisoner and known to the prisoner before the cutting. But you should not consider any threats that were not communicated to the prisoner before he did the cutting, because threats are admissible in evidence only on the theory that they were operating upon the mind of the prisoner and causing him to fear the deceased and apprehend injury from him at the time the prisoner used his knife.”
State v. Powell apparently was not called to the attention of the court. In State v. Reese, 2 Boyce 434, 79 Atl. 217, self-defense was relied on and the defendant was permitted to show prior acts of violence by the deceased toward the defendant shortly before the shooting.
In State v. Short, 2 Boyce 491, 82 Atl. 239, where self-defense was relied on by the defense, evidence of specific acts of violence on the part of the deceased toward third persons, though known to the defendant, was held inadmissible.
See, also, as to the admissibility of both communicated and uncommunicated threats, Jones on Ev. (Blue Book) § 146; Wig-more on Ev. §§ 110, 111, and 247; State v. Walter L. Long, infra.
Verdict: Guilty of murder in the second degree;. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487314/ | After stating the crime of which the defendant had been convicted and asking, substantially as in State v. Roberts, 2 Boyce 154, whether he had anything to say why sentence should not then be imposed in accordance with the provisions of the statute, Pen-newill, C. J., imposed the following sentence:
The sentence of the law now imposed by the Court is that you, Harry Butler, be committed to the custody of the sheriff of this county and by him taken from the bar of this court and delivered to the trustees of the New Castle county workhouse, the place from which you came; that you be safely and securely kept in custody at said workhouse until Friday, the 26th day of February, A. D. 1926; that on that day you be delivered by said trustees of the New Castle county workhouse to the sheriff of Sussex county; that on said Friday, the 26th day of February, A. D. 1926, between the hours of 10 o’clock in the morning and 3 o’clock in the afternoon, you be taken to some convenient place of private *200execution, within the precincts of the prison inclosure of Sussex county, at Georgetown, and that you be then and there hanged by the neck until you be dead; and may God have mercy on yóur soul. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487466/ | Johns, J.
Verdict, guilty. Fined. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487467/ | Verdict, guilty of manslaughter and not guilty of murder. Sentence of the Court that the prisoner convict be burnt in the brawn of the left thumb with the letter M. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490300/ | MEMORANDUM OPINION
STEWART ROSE, Bankruptcy Judge.
This adversary proceeding was brought by the trustee to recover preferences pursuant to 11 U.S.C. 547. At the pre-trial conference, the parties agreed that there was no material dispute as to the facts and therefore submitted memorandum briefs in support of their respective positions.
The defendants are medical providers. The debtor, Mrs. Caraway, received medical and hospitalization services from the defendants. At the time of the services, she was covered by a medical and hospitalization insurance policy and executed the following document:
I hereby authorize payment directly to the [medical providers] of the medical-hospital insurance benefits otherwise payable to me but not to exceed the balance of the [medical providers’] regular charges for this period of hospitalization or treatment.
The defendants were eventually paid in excess of $13,000 but the payments occurred within the 90-day preference period, § 547(b)(4)(A).
*1001The plaintiff-trustee contends that the document executed by the debtor was not effective as an assignment of insurance benefits; consequently, payments from the insurance company to the hospital were preferential transfers of property of the estate and may thus be recovered from the medical providers. On the other hand the defendants claim the document in question was effective as an assignment; thus even though payments were made within the preference period, there was a relation back to the date the assignment was executed, which was outside the ninety days.
In briefs submitted to this Court on the issue of whether “authorization of payment” constitutes an assignment, both parties quoted authority holding this language may or may not be an assignment, depending on the specific facts in the case.1 However, after reviewing the briefs and § 547, this Court is of the opinion that the question of whether the “authorization” language is an assignment is not the operative issue.
Preference litigation is for the purpose of recovering for the estate a transfer made by or on behalf of the debtor to a *1002creditor. However, certain transfers are immune from the trustee’s power to avoid even though they occur within the otherwise applicable preference period. Section 547(c) lists seven exceptions to the trustee’s power to avoid preferential transfers. Subsection (2) appears to be controlling in this case.
Paraphrased, § 547(c)(2) states a transfer may not be avoided to the extent it was for debt incurred in the ordinary course of business or financial affairs of the debtor and the transferee, made in the ordinary course of business and made according to ordinary business terms. The facts in the case disclose the debt was incurred in just this manner. A person seeking medical treatment and who is covered by an insurance policy was asked to execute the standard form “authorization of payment”; the services were provided; and the bill was sent to the insurance company which, in the normal course of business, sent the medical provider a check. The transaction clearly arose in the ordinary course of business, and thus may not he avoided by the trustee.
Even if the ordinary course of business exception did not apply in this case, the medical provider would still have prevailed. As noted above, preference litigation is for the purpose of recovering transfers that occur during the applicable preference periods. Section 101(48) defines a transfer as “every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property” (emphasis added). Consequently, whether the authorization of payment language rises to the level of an assignment is not controlling. Rather the issue is whether this language effectuated a transfer.
Within the broad definition of transfer, there is no doubt that the words “I hereby authorize payment ...” are a transfer. Since an insurance policy is property and proceeds thereof are property, the right to direct receipt of payment of those proceeds is certainly an interest in property, although not necessarily a full-fledged assignment of a property interest. It is, therefore, a transfer of an interest in property. Based upon the proposition that the “assignment of payment” is a transfer occurring when the writing is executed, it is obvious that one of the criteria for avoidance of the transfer does not exist, namély that the transfer was for and on account of an antecedent debt, § 547(b)(2). As a result of this analysis, the trustee would not prevail because the transfer took place outside the 90-day preference period.
Based on the preceeding analysis the trustee’s preference argument fails on both grounds. Plaintiff-trustee’s complaint will be dismissed. An appropriate order should be drafted and submitted within ten days by prevailing counsel.
. Benton v. Albuquerque National Bank 103 N.M. 5, 701 P.2d 1025 (Ct.App.1985), considered the question of the validity of an assignment of a partnership interest. The court held the specific language in question must evidence an intent on the part of the maker to effectuate an assignment of some interest in property. In Kelly Health Care, Inc. v. The Prudential Ins. Co. of America, Inc., 226 Va. 376, 309 S.E.2d 305 (1983), the issue raised was whether a health care provider was an assignee and thus entitled to recover against the insurer. The majority held an assignment is a transfer, but a transfer is not necessarily an assignment. If the transfer is less than absolute it does not constitute an assignment. To effect an assignment the obli-gee must have intended, at the time of the transfer, to dispossess himself of an identifiable interest. Central Collection v. Columbia Medical, 300 Md. 318, 478 A.2d 303 (Ct.App.1984), considered whether the language in a hospital registration form constituted an assignment even though the form did not contain the words "assign”, "assignment” or "transfer”. The court held the language in the form would lead the reasonable person in the position of the parties to believe the health provider obtained an independent right to recover. In Greater Kansas City Baptist and Community Hospital Ass’n. v. Businessmen’s Assurance, 585 S.W.2d 118 (Mo. App.1979), the question raised was whether there was an assignment to the hospital by the insured of health insurance benefits. The court held that the health provider would not be denied a valid assignment simply because the words "assign” or "transfer” were not used and that where the facts indicate the clear intention of the parties to assign the right, such an assignment is valid. In re Moskowitz, 13 B.R. 357 (Bankr.S.D.N.Y.1981), was commenced to recover a preferential transfer voidable under § 547. After discussing the definitions of "transfer” and "property of the estate”, the court concluded that the proceeds paid over resulted in a diminution of the estate and that absent any words of assignment or designation of payment to the health provider, a cause of action did arise under § 547. However, the court did not consider the question of what words would be necessary to constitute such an assignment or designation of payment. In Cutting v. Mullaney, 191 Iowa 800, 181 N.W. 466 (1921), a case concerning the assignment of a judgment, the court held that an agreement simply authorizing the plaintiff to receive any and all money paid is not in the form of an assignment. Mere authority to receive money from the obligee did not entitle plaintiff to retain the monies received. In State Farm Mutual Ins. Co. v. St. Joseph’s Hospital, 107 Ariz. 498, 489 P.2d 837 (1971), an appeal arising from a tortious interference with contract action, the court held that the language in question did not constitute an assignment. The agreement did not create an interest in the property that rose to the level of an assignment. However, the fact that an assignment was not created did not mean the health providers had no interest in the lawsuit. They were prejudiced by the wrongful interference by the defendants, which in the normal course of affairs would have led to a settlement and collection of funds in favor of the health providers. General Life Insurance Co. v. Isabell, 523 S.W.2d 616 (Mo.App.1975), arose out of an interpleader action brought by the plaintiff seeking a declaratory judgment to determine the rights of the claimants to certain medical/hospital benefits. The controlling issue was whether the benefits were wages within the scope of a state statute and thus not capable of being assigned. The court stated that denial of the assignment would “frustrate the entire design for which the insurance coverage was intended.” 523 S.W.2d at 618. S & W Trucks, Inc. v. Nelson Auction Services, Inc., 80 N.M. 423, 457 P.2d 220 (Ct.App. 1969), was a conversion action based upon an alleged wrongful distribution of the proceeds of an auction. The court ruled that while the language of an assignment may be informal, the language must show an intention on the part of the transferor to transfer the right or interest. The court held the language in a series of letters was insufficient to indicate such an intention. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483178/ | People v Bennett (2022 NY Slip Op 06357)
People v Bennett
2022 NY Slip Op 06357
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., LINDLEY, NEMOYER, AND CURRAN, JJ.
754 KA 16-01581
[*1]THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
vSHANE M. BENNETT, DEFENDANT-APPELLANT.
LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA, D.J. & J.A. CIRANDO, PLLC, SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR DEFENDANT-APPELLANT.
JAMES B. RITTS, DISTRICT ATTORNEY, CANANDAIGUA (V. CHRISTOPHER EAGGLESTON OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Ontario County (Craig J. Doran, J.), rendered July 25, 2016. The appeal was held by this Court by order entered February 7, 2020, decision was reserved and the matter was remitted to Supreme Court, Ontario County, for further proceedings (180 AD3d 1357 [4th Dept 2020]). The proceedings were held and completed.
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the sentences imposed on the 10 counts of criminal possession of a weapon in the third degree and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Ontario County, for resentencing on counts 7 through 16 of the indictment.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of 6 counts of criminal possession of a weapon in the second degree (Penal Law § 265.03 [2], [3]), 10 counts of criminal possession of a weapon in the third degree (§ 265.02 [8]), and 1 count of criminal possession of marihuana in the fourth degree (former § 221.15). We previously held this case, reserved decision, and remitted the matter to Supreme Court for a ruling on defendant's motion for a trial order of dismissal, on which the court had reserved decision but failed to rule (People v Bennett, 180 AD3d 1357, 1358 [4th Dept 2020]). Upon remittal, the court denied the motion.
Defendant's contention that the evidence is legally insufficient to support the conviction of criminal possession of a weapon in the second and third degrees is preserved only with respect to the issue of possession (see generally People v Gray, 86 NY2d 10, 19 [1995]; People v Jackson, 159 AD3d 1372, 1373 [4th Dept 2018], lv denied 31 NY3d 1083 [2018]), and we reject the contention to that extent (see generally People v Danielson, 9 NY3d 342, 349 [2007]). Further, viewing the evidence in light of the elements of the crimes as charged to the jury (see id.), we conclude that the verdict is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although a different verdict would not have been unreasonable, we cannot conclude that the jury "failed to give the evidence the weight it should be accorded" (id.). To the extent there is conflicting testimony concerning defendant's ability to access the weapons in question, we conclude that it merely "presented an issue of credibility for the jury to resolve" (People v Boyd, 153 AD3d 1608, 1610 [4th Dept 2017], lv denied 30 NY3d 1103 [2018] [internal quotation marks omitted]).
Defendant contends that defense counsel was ineffective for failing to renew his request for a redacted copy of the confidential informant affidavit used in support of a search warrant application. We reject that contention. Any renewed request had little or no chance of success, inasmuch as defendant made no showing at the time of his initial request that he was entitled to that information (see generally People v Caban, 5 NY3d 143, 152 [2005]; People v Castillo, 80 NY2d 578, 583 [1992], cert denied 507 US 1033 [1993]; People v Wade, 38 AD3d 1315, 1315-1316 [4th Dept 2007], lv denied 8 NY3d 992 [2007]). Defendant also contends that defense [*2]counsel was ineffective for failing to assert specific arguments in support of his renewed motion for a trial order of dismissal. We reject that contention because the record establishes that defense counsel did, in fact, make specific arguments in support of the renewed motion. Even assuming, arguendo, that defense counsel had failed to do so, we note that there is no requirement that defense counsel reiterate the specific arguments raised on the original motion for a trial order of dismissal upon renewal of that motion in order to preserve those arguments for our review (see generally People v Meacham, 151 AD3d 1666, 1668 [4th Dept 2017], lv denied 30 NY3d 981 [2017]). Defendant's contention that he was deprived of effective assistance of counsel based on defense counsel's failure to call a certain witness to testify at trial involves matters outside the record and therefore must be raised pursuant to a CPL 440.10 motion (see People v Kaminski, 109 AD3d 1186, 1186 [4th Dept 2013], lv denied 22 NY3d 1088 [2014]; see also People v Griffin, 204 AD3d 1385, 1386 [4th Dept 2022]). To the extent that defendant's contention is reviewable on direct appeal, we conclude that it lacks merit. The alleged testimony of the proposed witness—i.e., that he told defendant that he could possess the firearms—is irrelevant because defendant's belief regarding the legality of his actions is not an element of or a defense to the weapons possession offenses (see generally Penal Law §§ 265.02 [8]; 265.03 [2], [3]).
Defendant further contends that we should modify the judgment pursuant to the newly enacted Marihuana Regulation and Taxation Act (Penal Law art 222) by applying it retroactively and vacating his conviction of criminal possession of marihuana in the fourth degree. We reject that contention and conclude that defendant's contention is not properly before us (see People v Hall, 202 AD3d 1485, 1485-1486 [4th Dept 2022], lv denied 38 NY3d 1134 [2022]). The proper mechanism for vacating his marihuana conviction is through the process detailed in CPL 440.46-a, which requires defendant to first "petition the court of conviction" for any such relief (CPL 440.46-a [2] [a]) and is not automatic. Should the court deny defendant's CPL 440.46-a motion, this Court may review the court's order denying the same on appeal therefrom (see Hall, 202 AD3d at 1486). In light of the procedure outlined by CPL 440.46-a, we reject defendant's contention that Penal Law article 222 should be applied retroactively to require vacatur of the marihuana conviction on direct appeal (see People v Ramos, 202 AD3d 410, 413 [1st Dept 2022], lv denied 38 NY3d 953 [2022], reconsideration denied 38 NY3d 1135 [2022]; see generally People v Vaughn, 203 AD3d 1729, 1730 [4th Dept 2022], lv denied 38 NY3d 1036 [2022]).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe. Finally, as we previously noted (see Bennett, 180 AD3d at 1358), and as the People correctly concede, the indeterminate terms of incarceration imposed on the criminal possession of a weapon in the third degree counts is illegal (see Penal Law §§ 70.02 [1] [c]; [2] [c]; 265.02 [8]; see also People v Goston, 9 AD3d 905, 907 [4th Dept 2004], lv denied 3 NY3d 706 [2004]). We therefore modify the judgment by vacating the sentences imposed on counts 7 through 16 of the indictment, and we remit the matter to Supreme Court for resentencing on those counts.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8483155/ | Ruffino v City of Buffalo (2022 NY Slip Op 06383)
Ruffino v City of Buffalo
2022 NY Slip Op 06383
Decided on November 10, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 10, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
813 CA 21-01550
[*1]STEPHANIE RUFFINO, PLAINTIFF-APPELLANT,
vCITY OF BUFFALO, ET AL., DEFENDANTS, AND MVP NETWORK CONSULTING, LLC, DEFENDANT-RESPONDENT. (APPEAL NO. 2.)
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (RICHARD J. ZIELINSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered October 18, 2021. The order granted the motion of plaintiff for leave to reargue her opposition to the motion of defendant MVP Network Consulting, LLC for summary judgment, and upon reargument, adhered to the prior order granting the motion of that defendant.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.
Entered: November 10, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 11-10-2022 |
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