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Tuesday, March 12, 2013

State of Ohio v. Julian Steele, Case nos. 2011-2075 and 2011-2178
First District Court of Appeals (Hamilton County)

Willis Boice et al. v. Village of Ottawa Hills et al., Case no. 2012-0413
Sixth District Court of Appeals (Lucas County)

Sandy Parrish, Administrator, et al. v. Michael E. Jones et al., Case no. 2012-0623
Fourth District Court of Appeals (Ross County)

State of Ohio v. Tyran L. Davis, Case no. 2012-0830
Ninth District Court of Appeals (Summit County)


Court to Review Reversal of Police Officer’s Conviction for Abduction Based on Wrongful Arrest, Detention of Juvenile

State Disputes Appeals Court’s Finding That Jury Instruction Was Fatally Defective

State of Ohio v. Julian Steele, Case nos. 2011-2075 and 2011-2178
First District Court of Appeals (Hamilton County)

ISSUES:

BACKGROUND:  Cincinnati police detective Julian Steele was assigned to investigate a series of robberies in the city’s Northside neighborhood in which the victims described their assailants as two young black men. Steele received a tip that two young black men were seen being picked up by a blue Cadillac near the scene of one of the crimes.  Steele traced the license number to Alicia Maxton, and determined that three teenage males, two of whom were Maxton’s sons, were currently staying at her residence.

Without obtaining a warrant, Steele and several uniformed police officers under his direction went to the school attended by Maxton’s sons and the other juvenile, forcibly removed all three from school in handcuffs, and transported them to the police station where they were questioned.  After interrogating  Maxton’s 17-year-old son,  Ramone Maxton, Steele placed him under arrest and charged him with involvement in the robberies.  As a result of those charges Ramone was held in a juvenile detention facility for nine days, after which time the charges were dismissed and he was released by order of the assistant prosecutor assigned to the case. 

The Hamilton County  prosecutor’s office subsequently investigated Steele’s conduct in the case and filed a multi-count criminal complaint against him alleging that Steele had intimidated Ramone into signing a false confession by threatening to jail his mother and have his siblings placed in foster homes; had used the coerced confession to charge and incarcerate Ramone; and had then told several persons that he “knew” Ramone was not involved in the robberies, but had taken him into custody in order to obtain the “cooperation” of Alicia Maxton.  The complaint went on to allege that Steele approached Alicia shortly after her son’s arrest and told her he was sure Ramone was innocent, but it would take time to secure his release,  and made it plain that to get Steele’s cooperation in obtaining Ramone’s release from custody, Alicia would have to engage in a sexual liaison with Steele.

A grand jury indicted  Steele on multiple felony counts of abduction, witness intimidation, extortion, and sexual battery.  At trial, Ramone and Alicia Maxton repeated their allegations against Steele and other witnesses testified that Steele had told them he had never believed Ramone was involved in any of the robberies. Steele  did not testify on his own behalf and called no witnesses.

At the close of evidence, the prosecutor and defense attorney reviewed and agreed without objection to several instructions the judge would give to the jury regarding the elements of the crime of abduction.  These  included an instruction that to convict Steele of abduction,  the jurors must find beyond a reasonable doubt that Steele had not acted  within the legal “privilege” granted to peace officers to arrest a person when they have probable cause to believe that person has committed a crime. After receiving the stipulated instructions, the jury returned a verdict acquitting Steele of abducting or committing sexual battery against Alicia, but found him guilty on two counts of abduction and one count of intimidation based on the coerced confession and incarceration of Ramone. The judge sentenced Steele to five years in prison and five years of community control sanctions.

Steele appealed. On review, the First District Court of Appeals upheld his conviction for intimidation, but sua sponte (on its own initiative) vacated both abduction convictions and ordered a new trial on those counts.  The appellate panel  based its ruling on a finding that the instruction the trial judge had given to the jury on the element of “privilege” did not address the special circumstances faced by  working police officers, and would potentially expose an officer to a criminal charge of abduction any time he or she made an arrest in good faith if a court later found that there had not been probable cause to support that action.  The state sought and was granted Supreme Court review of the ruling reversing Steele’s abduction convictions.  The court also agreed to hear Steele’s cross-appeal of the First District’s ruling upholding his conviction for intimidation.

Attorneys for the state point out that the “privilege” instruction given by the trial judge repeated the exact language of the statutory definition of that term that is set forth in R.C. 2901.01(A)(12) and repeated in Volume 4 of Ohio Jury Instructions. They argue that even if the trial court’s instruction should have addressed the possibility of a good-faith error by a police officer, Steele did not object to the instruction at trial, and therefore the instruction was only grounds for reversal as a “plain error,” that is, an error so egregious that the outcome of the trial “clearly would have been different” had a different instruction been given.  They assert that the court of appeals finding of plain error cannot be supported by the trial record, because no evidence or testimony was presented to the jury even suggesting that Steele ever believed he had probable cause to arrest or incarcerate Ramone, whereas multiple witnesses testified that Steele indicated as early as the morning after he took Ramone into custody that he did not believe the boy was involved in any crime, but was only holding him to coerce his mother.

Attorneys for Steele urge the court to affirm the First District’s judgment, which they say correctly found that the trial court’s instruction on privilege failed to acknowledge prior decisions in which federal courts have granted broad immunity to police officers from false arrest claims in cases where an officer acted incorrectly, but did so based on a mistaken belief that there was probable cause to make an arrest.  In this case, they point out, one of the other youths arrested with Ramone had confessed to involvement in several of the robberies under investigation, and Steele claimed that his statements to witnesses that Ramone was probably innocent were based on information that Steele obtained after he made the initial decision to take Ramone into custody. In any case, they assert, the trial court’s instruction was defective because it did not tell the jurors to consider whether Steele subjectively believed Ramone may have been involved in the robberies, but merely instructed them to find him guilty if they found that there was insufficient probable cause to support a lawful arrest.

With regard to the intimidation charge, Steele’s attorneys argue that the intent of the legislature when it enacted the intimidation statute was to deter criminals from frightening their victims or witnesses out of giving truthful testimony by threatening them with violence or other harm. They assert that because the process of a police interrogation routinely involves officers making misleading statements and “threatening” that a suspect’s failure to tell the truth will result in negative consequences, upholding Steele’s conviction for intimidation under the circumstances of this case sets a standard that could potentially expose an officer to criminal charges any time he or she interrogates a prisoner aggressively. 

The state responds that nothing in the intimidation statute excludes police officers from its provisions, and points to numerous sections of the criminal code in which the legislature has specifically exempted the conduct of law enforcement personnel from prosecution under those statutes.  They assert that if the legislature had intended to exclude police from the intimidation statute, it could and would have done so by putting explicit language to that effect in the law.

Contacts
Representing the State of Ohio as special prosecutor: Daniel Breyer, 513.831.6155

Representing Julian Steele: Gloria L. Smith, 614.228.2154

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Does Zoning That Increases Size of a ‘Buildable’ Residential Lot Constitute a Regulatory Taking of Owner’s Vacant Land?

Where Lot Was Within Buildable Size Limit When Owner Purchased Property

Willis Boice et al. v. Village of Ottawa Hills et al., Case no. 2012-0413
Sixth District Court of Appeals (Lucas County)

ISSUE: When a residential lot met the minimum square-footage requirement for construction of a home at the time it was purchased by an owner, but a subsequent change in local zoning regulations renders the unimproved lot no longer large enough to build on, if the zoning authority denies the owner’s request for a variance that would allow a home to be constructed on the lot, does that denial constitute a total regulatory “taking” of the property that entitles the owner to compensation by the zoning authority?   

BACKGROUND: Willis and Annette Boice purchased two adjacent residential lots in the Village of Ottawa Hills in 1974. One of the lots contained a house in which the Boices lived for the next 30 years. The Boices maintained the second lot, which was approximately 33,000 square feet in size, as a wooded “side yard” that was partially occupied by part of their driveway.  Under the zoning regulations in effect in 1974, the minimum size of a lot on which a single-family home could be constructed in the Boices’ subdivision was 15,000 square feet.

In 1978, the village amended its zoning code. Among other changes, the amendments increased the minimum size of a “buildable” residential lot in the Boices’ subdivision to 35,000 square feet. The amended ordinance include a “grandfathering” provision which stated that “the lawful use of a building or structure or of any land or premises existing at the time of the effective date of this ordinance ... may be continued although such use does not conform to provisions (of the amended ordinance).” The Boices did not make any plans to construct a residence on the second lot prior to the adoption of the 1978 zoning change,  and did not pursue any steps to explore building on that land  or to seek a variance from the 1978 zoning ordinance between 1978 and 2004.

In 2004, the Boices decided to move to a smaller home. In preparing to list their property for sale, they applied to the village manager for a letter indicating that their second lot qualified as a stand-alone parcel on which a home could be constructed. The manager denied that request, citing the 1978 ordinance that set the minimum buildable lot size at 35,000 square feet. The Boices filed an appeal with the village zoning commission, asking for either a variance to build on their undersized lot pursuant to the “grandfather” provision of the 1978 ordinance, or in the alternative for approval of a new dividing line between their two lots that would increase the size of the unimproved lot to 35,000 square feet.

After a hearing at which several surrounding property owners  argued that allowing a new home to be built on the Boices’ second lot would remove green space and otherwise have negative impacts on the neighborhood, the zoning commission denied either a variance from the 1978 minimum lot size requirement or  a new lot split that would render the unimproved lot buildable.

The Boices appealed to the Lucas County Court of Common Pleas, seeking either reversal of the commission’s ruling or a finding that the village’s action had deprived them of an economically beneficial use of the second lot, and was therefore a regulatory taking of that property for which they were entitled to be compensated.  The common pleas court held that because different appraisers had all set a current market value on the unimproved lot that was higher than the price the Boices had paid for it in 1974, the village’s refusal to certify the lot as buildable had not deprived the Boices of any return on their investment in the property, and therefore was not a complete regulatory “taking” for which the Boices must be compensated by the village.

The Sixth District Court of Appeals reviewed and approved the judgment of the trial court, finding it significant that the Boices had never planned to construct a house on the second lot themselves, and holding that therefore the village’s refusal to approve the lot as buildable had not deprived the Boices of an investment-backed expected  use of the property.

The Boices sought and were granted Supreme Court review of the Sixth District’s ruling.

Attorneys for the Boices argue that because their vacant lot is in an area zoned exclusively for residential use, the village’s refusal to allow a house to be built on that property deprives them of any economically viable use of the lot, and is therefore a compensable total taking under Ohio law. They assert that the theoretical “market values” placed on their undeveloped lot by different  appraisers are all meaningless because even the village’s witnesses could not identify a realistic scenario in which a buyer would purchase a 33,000 square foot lot in the middle of a residential neighborhood for any purpose other than to build a home. They also contend that even a person who purchased both lots together could not make any viable use the second lot to construct a swimming pool, gazebo or any other secondary structure that would enhance the adjacent home, because local zoning regulations restrict such structures to the area behind a residence that is not visible from the street.

They urge the court to extend to this case its holding  in Negin v. Zoning Appeals Board of Mentor (1982) that when a residential building lot is limited by government regulation such that the only potential use for land is to sell it to adjoining property owners, the property has been rendered useless for any practical purpose, and the landowner is entitled to compensation for a total regulatory taking.

Attorneys for Ottawa Hills, supported by amicus curiae (friend of the court) briefs from the Ohio Municipal League and the Ohio Attorney General’s Office, urge the court to affirm the Sixth District’s decision denying the Boice’s taking claim. They cite state and federal court decisions which have held that a compensable total taking occurs only when the action of a government body deprives an owner of all economically beneficial uses of its property. In this case, they point out, even the Boice’s appraiser set a market value of $38,000 on the undeveloped lot as a non-buildable property, and therefore established that, at worst, the 1978 change in zoning had caused the Boices to suffer a reduction but not a total loss of value of their property.

They also urge the court to reject  the Boices’ claim that, simply because their second lot was within the zoning limit for a buildable property at the time they bought it, that fact gave them an ongoing “vested right” to build on that lot at any time in the future, notwithstanding intervening changes in zoning regulations. They assert that this claim is contrary to established Ohio and federal case law holding that in order to establish a right to a “non-conforming use” of land after a regulatory change, an owner must demonstrate that he or she was already legally using the subject property for that purpose prior to the regulatory change.  In this case, they say, it is undisputed that the Boices not only were not using their second lot as a separate home site prior to the adoption of the 1978 ordinance, but they made no effort to adopt such a use of the property for the next 26 years. Accordingly, the village asserts, the only “established use” for which the Boices were legally entitled to continue employing their second lot under the grandfather provision of the 1978 ordinance was as an unimproved green space adjacent to their home.

Contacts
Representing the Village of Ottawa Hills: Sarah A. McHugh, 419.241.5175

Representing Willis and Annette Boice: Marvin A. Robon, 419.897.6500

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Must Court Consider Content of Plaintiff’s Written Pleadings As Well As Opening Statement Before Granting Directed Verdict?

When Defendant Moves For Directed Verdict After Plaintiff’s Opening Statement

Sandy Parrish, Administrator, et al. v. Michael E. Jones et al., Case no. 2012-0623
Fourth District Court of Appeals (Ross County)

ISSUE: When ruling on a defendant’s motion for a directed verdict at the close of the plaintiff’s opening statement, is a trial court required to consider not only the content of the opening statement, but also the allegations contained in the plaintiff’s written pleadings?

BACKGROUND: In the course of being treated for Guillaine-Barre Syndrome at the Adena Regional Medical Center in Chillicothe, Karen Parrish was placed on an anti-coagulant medication because she was at high risk of developing potentially life-threatening blood clots. After her condition improved, Parrish was discharged from the hospital and transferred to the Chillicothe Nursing and Rehabilitation Center (CNRC) for continuing therapy. 

At the time of the transfer, Parrish’s attending physician at the hospital, Dr. Michael Jones, completed a continuity of care form that listed the medications she should continue to receive at CNRC.  That form did not list any anti-coagulant or other deep vein thrombosis medication. The CNRC nursing staff reviewed the continuity of care form with the facility’s medical director, Dr. Christopher Skocik, on the day of Parrish’s admission, which was a Friday. Because Dr. Skocik’s scheduled day to personally visit and evaluate the center’s patients was not until the following Thursday, he did not immediately assess or interview Parrish.  Three days after her admission to CNRC, Parrish was found unresponsive by the staff and rushed back to the hospital, where resuscitation efforts were unsuccessful, and she was pronounced dead.  The cause of death was determined to be a pulmonary embolism caused by blood clots that had lodged in her lungs, blocking the flow of blood to her heart.

Karen’s husband and the  administrator of her estate, Sandy Parrish, filed a medical malpractice suit against the hospital, Dr. Jones, CNRC, Dr. Skocik and his corporate medical practice, Family Medicine of Chillicothe. During pretrial depositions, Dr. Kenneth Writesel, an expert retained by Dr. Jones, indicated that he would testify at trial that Dr. Skocik’s failure to immediately assess and observe Karen’s condition upon her admission to CNRC and make necessary adjustments to her medications was the primary cause of her fatal injuries.  Two experts retained by Dr. Skocik, Drs. Charles Cefalu and John Wald, indicated that they would testify that Karen’s death was primarily the result of Dr. Jones’ failure to include an anticoagulant or other deep vein thrombosis medication in the continuity of care order he transmitted to CNRC.

The case went to trial in the Ross County Court of Common Pleas in January 2011. During his opening statement, Parrish’s attorney told the jury that they would hear testimony establishing  that the negligent failure of Karen’s care-givers to maintain a regimen of anticoagulant medication had resulted in her injuries, suffering, and death.  He noted that the jurors would hear testimony from Dr. Writesel, a defense expert who would state his opinion that it was substandard care by Dr. Skocik that was primarily responsible for the plaintiff’s damages.

At the close of the plaintiff’s opening statement, counsel for Dr. Skocik and Family Medicine of Chillicothe moved for an immediate directed verdict dismissing all of Parrish’s claims against them. They based that motion on the argument that the sole negligent cause of injury Parrish had identified in her opening statement was failure to continue providing her with anticoagulant treatment. They asserted that because prescribing all medications necessary for her proper continuing treatment after release from the hospital was the exclusive duty of Dr. Jones, Parrish had not identified a duty owed to her by Dr. Skocik that he had failed to meet.  After briefly considering arguments by the parties, the trial court granted a directed verdict dismissing all claims against Dr. Skocik and his medical practice. 

The trial proceeded with Dr. Jones as the sole defendant. Because Dr. Skocik had been dismissed from the suit, the jury did not hear testimony by his expert, Dr. Writesel, setting forth his opinion that negligence by Dr. Jones had been the primary cause of Karen’s death. Dr. Jones was permitted to present testimony by his experts stating their opinion that it was negligence by Dr. Skocik, and not Dr. Jones, that was  responsible for Parrish’s injuries and death. The jury returned a verdict in favor of Dr. Jones.  Parrish moved for a new trial, arguing that the dismissal of Dr. Skocik as a defendant had resulted in a highly irregular and unjust trial based on an error of law. The trial court overruled that motion and entered judgment in favor of Dr. Jones.

Parrish appealed the directed verdict in favor of Dr. Skocik and the denial of his motion for a new trial.  On review, the Fourth District Court of Appeals denied the motion for a new trial on Parrish’s claims against Dr. Jones, but reversed the trial court’s directed verdict in favor of Dr. Skocik on the basis that the trial judge should have considered not only the Parrish’s opening argument but also the content of her complaint, which the court found had asserted facts sufficient to defeat a motion for directed verdict.  After remanding the estate’s claims against Dr. Skocik and his practice to the trial court for further proceedings, the Fourth District certified that its ruling on the directed verdict issue was in conflict with a 1993 ruling by the Tenth District in a similar case, Blankenship v. Kennard.

The Supreme Court agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Dr. Skocik assert that the Fourth District’s ruling that the trial judge should have considered both the content of Parrish’s opening argument and the content of the plaintiff’s pleadings before granting a directed verdict incorrectly relied on two Ohio Supreme Court cases, Vest v. Kramer (1952) and Archer v. City of Port Clinton (1966), that were decided before 1970, when Ohio adopted its Rules of Civil Conduct, which include Civil Rule 50(A), the rule that authorizes entry of a directed verdict in favor of a defendant at the conclusion of a plaintiff’s opening statement.

They argue that the holdings in Vest and Archer were premised on the “code pleading” protocols followed by Ohio courts prior to the adoption of the Civil Rules, and contend that the legal reasoning underlying those decisions became obsolete after the adoption of Civ.R. 50(A) and the current  “notice pleading” process allowed trial judges to immediately grant a directed verdict against a plaintiff who failed to set forth allegations sufficient to support a justiciable claim in their opening statements.

Attorneys for Parrish respond that nothing in the language of Civ.R. 50(A) or any other provision of the Ohio Civil Rules imposes a requirement that  plaintiffs must set forth every element of their claims against a defendant in their opening statements, or indicates an intent to abandon the long-established precedents of Vest and Archer that a court considering a motion for directed verdict after an opening statement must consider the factual allegations in a plaintiff’s pleadings as well as the content of his opening statement, and must construe the content of those materials liberally in favor of the non-moving party.

In this case, they assert, the trial court erred not only by granting a directed verdict without considering the factual allegations against Dr. Skocik set forth in Parrish’s complaint, but also in failing to grant  Parrish’s attorneys an opportunity to supplement, explain or expand on their opening statement before ruling on a defense motion for an immediate dismissal based on the alleged insufficiency of that statement.

Contacts
Representing Dr. Christopher Skocik and Family Medicine of Chillicothe Inc.: Kevin W. Popham, 614.485.1800

Representing Sandy Parrish: Kenneth S. Blumenthal, 614.220.9200

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Did Court’s Refusal to Instruct Jury on Voluntary Manslaughter Prejudice Defendant Despite Acquittal on Murder Charge?

Where Defendant Convicted Under Different Theory of Murder Based on Same Conduct

State of Ohio v. Tyran L. Davis, Case no. 2012-0830
Ninth District Court of Appeals (Summit County)

ISSUE:  When a defendant accused of a single homicide is indicted for both purposeful murder and felony murder during the commission of felonious assault, and the trial court denies a defense request to instruct the jury on voluntary manslaughter as a lesser included offense of the purposeful murder count, if  the jury subsequently finds the defendant not guilty of purposeful murder, but guilty on the  felony murder count, does the defendant’s acquittal on the purposeful murder charge preclude a finding on appeal that he was prejudiced by the trial court’s improper denial of the requested voluntary manslaughter instruction?

BACKGROUND: Tyran Davis of Akron was arrested and charged with murder for the 2010 shooting death of Steven Myers during an altercation between two groups of people at the Wilbeth-Arlington Homes housing complex. Witnesses testified that Myers had struck Jasmein Downing, Davis’ pregnant girlfriend, in the face with his fist shortly before Davis shot Myers 10 times.

Davis was indicted for purposeful murder under R.C. 2903.02 (A) and (B), and also for murder during the commission of the violent felony of felonious assault under R.C. 2903.11(A).  At trial, Davis’ attorney moved the court to instruct the jury on voluntary manslaughter as a lesser included offense of the purposeful murder count.  The judge denied that motion, ruling that the evidence did not support a finding that Davis acted in a “sudden passion” or “fit of rage” when he shot Myers, and therefore an instruction on voluntary manslaughter was not appropriate. Davis did not request a jury instruction on any lesser included offense under the felony murder count.

The jury returned a verdict of not guilty on the purposeful murder charge, but found Davis guilty on the felony murder count.  He was sentenced to a prison term of from eighteen years to life.

Davis appealed, arguing that his fair trial rights had been prejudiced by the trial court’s refusal to give the requested jury instruction on voluntary manslaughter, because the evidence presented at trial would have supported a jury finding that he had committed manslaughter rather than felony murder if the jury had been given the option of considering the lesser offense. 

In a 2-1 decision, the Ninth District Court of Appeals ruled that, even if the trial court erred in denying Davis’ motion for a jury instruction on voluntary manslaughter, he was not prejudiced by that error because the jury acquitted him on the purposeful murder count for which he had requested the alternative manslaughter instruction.

Davis sought and was granted Supreme Court review of the Ninth District’s decision.

Attorneys for Davis assert that because both theories of murder for which he was charged arose from the same conduct and circumstances, the trial judge’s refusal to give an instruction on voluntary manslaughter as an alternative to the purposeful murder count effectively prevented the jury from also considering whether Davis seeing Myers punch Davis’ pregnant girlfriend in the face hard enough to knock her to the ground was a provocation sufficient to trigger a “fit of rage,” and therefore support a conviction for manslaughter  rather than felony murder.

They urge the court to adopt the analysis of the dissenting member of the Ninth District panel, who wrote that in her view the evidence presented at trial was sufficient to support an instruction on voluntary manslaughter, and because the jury considered the two different murder charges brought against Davis at the same time, rather than  serially or as alternatives to one another, the judge’s improper denial of a manslaughter instruction  prejudiced the jury’s consideration of both murder counts.

Attorneys for the state respond that the trial judge was in the best position to evaluate the evidence, and he determined that a voluntary manslaughter instruction was not appropriate based on witness testimony that Davis had arrived at the scene of the crime some time before the shooting took place, had reportedly threatened Myers several minutes before the shots were fired, and had not actually  seen but had only been told about the punch that Davis later alleged had triggered him to fire 10 separate gunshots into the victim’s body in an “uncontrollable” fit of rage.

Even if the court should find that the jury should have been permitted to consider voluntary manslaughter, the state argues that Davis’ acquittal on the purposeful murder charge would have precluded his conviction for voluntary manslaughter rather than felony murder, because voluntary manslaughter requires a jury finding that the defendant acted “with a purpose” to cause the victim’s death, and in acquitting Davis of the purposeful murder count, the jury specifically found that Davis did not act with such a purpose.

Contacts
Representing Tyran Davis: Terrence K. Scott, 614.466.5394

Representing the state and Summit County prosecutor’s office: Richard S. Kasay, 330.643.2800

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.