Ninth District Opinions for July 17, 2013

The Court of Appeals for the Ninth Appellate District released two opinions on July 17, 2013. My summaries of the opinions appear below. 

State v. Howard, 2013-Ohio-3120 affirmed Mr. Howard's conviction by the Summit County Common Pleas Court for trafficking in heroin, a first degree felony. Mr. Howard listed one assignment of error. He argued that the trial court erred in admitting into evidence a firearm found in the purse of a co-defendant of Mr. Howard's.

The Court of Appeals noted that while Mr. Howard had objected to the introduction of the firearm, he didn't object to testimony related to the firearm. Further his attorney questioned witnesses about the firearm during the trial. Given the evidence that wasn't objected to, the Court of Appeals found that the introduction of the firearm outweighed the probative value of the firearm. It also found that even if the firearm shouldn't have been introduced its introduction was harmless error. 

In its argument to the Court of Appeals the State argued that firearms found on or near the person of a drug dealer is always relevant. The Court of Appeals specifically declined to adopt such a position although it noted that there was case law from other jurisdictions adopting such a position. 

State v. Armbruster, 2013-Ohio-3119 affirmed the conviction of Mr. Armbruster by the Summit County Court of Common Pleas for the illegal manufacturing of methamphetamine and forfeiture specifications connected to that charge. On appeal Mr. Armbruster argued that the trial court erred in not granting his motion to suppress evidence seized by a Norton Police Department officer from a motel room where Mr. Armbruster was cooking meth. 

The evidence was seized when the officer went to the motel on a tip that Mr. Armbruster was operating a meth lab at the motel. He went up to the room and smelled the odor of cooking meth. The Court of Appeals noted that there is an exigent circumstance that allows a police officer to enter a dwelling without probable cause if he or she has a reasonable belief that a person in the dwelling is in need of immediate aid. This exception has been used to justify searches of dwellings in which there is an active meth lab because of the danger of explosion and fire that such labs pose to the occupants in the dwelling, police officers investigating the meth lab, and people who are nearby. The Court of Appeals found that this exception existed in this case. 

Do the Ohio Rules of Evidence Apply to Pretrial Motions to Suppress?

by Judge James L. Kimbler

I recently had occasion to re-visit a issue that comes up from time to time and that is whether the Ohio Rules of Evidence apply to pre-trial motions to suppress evidence in criminal cases. This issue involves the Ohio Supreme Court decision of State of Ohio v. Boczar, 113 Ohio St. 3d 148, 2007 Ohio 1251. In that decision, Justice Lundberg Stratton wrote the following in paragraph 19:

"Evid.R. 101(C)(1) provides that the Rules of Evidence do not apply to "[d]eterminations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid.R. 104." Further, Evid.R. 104(A) provides that "[p]reliminary questions concerning * * * the admissibility of evidence shall be determined by the court * * *. In making its determination it is not bound by the rules of evidence except those with respect to privileges." Therefore, the Rules of Evidence do not apply to suppression hearings."

As of April 18, 2010, this decision has been cited for this point of law in the following Ohio Court of Appeals decisions:

State v. Ulmer, 2010 Ohio 695, at P. 10.

State v. Norman, 2009 Ohio 5458 at P. 82.

State v. Keene, 2009 Ohio 1201 at P. 46.

State v. Dubose, 2008 Ohio 4983 at P. 60.

State v. Ingram, 2007 Ohio 7136 at P. 61.