Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, Feb. 9, 2016

Geneva Area Recreational, Educational, and Athletic Trust v. Joseph W. Testa, Tax Commissioner of Ohio, Case no. 2014-1778
Ohio Board of Tax Appeals

Pamela Argabrite v. Jim Neer et al., Case no. 2015-0348
Second District Court of Appeals (Montgomery County)

City of Cleveland v. Troussaint D. Jones, Case no. 2015-0381
Eighth District Court of Appeals (Cuyahoga County)

State of Ohio v. Rafael Gonzales, Case nos. 2015-0384 and 2015-0385
Sixth District Court of Appeals (Wood County)

Is Ashtabula County Olympic Training Facility Entitled to Real Estate Tax Exemption?

Geneva Area Recreational, Educational, and Athletic Trust v. Joseph W. Testa, Tax Commissioner of Ohio, Case no. 2014-1778
Ohio Board of Tax Appeals


  • For purposes of exempting real estate taxes, does a charitable institution’s 99-year renewable lease mean the land “belongs to” the institution?
  • If a community multi-sport complex also conducts fee-for-service transactions for the use of the facility, is it disqualified from claiming it’s used exclusively for charitable purposes?

In 2010, the Geneva Area Recreational, Educational, and Athletic Trust, operating as SPIRE, sought a real property tax exemption for a state-of-the-art sports complex and vacant surrounding land in Harpersfield Township, in Ashtabula County. SPIRE claimed it met the qualifications for tax exemption as a charitable institution under two state statutes, R.C. 5709.12 and R.C. 5709.121.

SPIRE was formed in 2008 and its articles of incorporation indicate it was created exclusively for charitable purposes, with a mission to “unlock the full potential of the human spirit through athletics, academics and service.” SPIRE’s real estate includes 45 acres of constructed facilities including a 215,000-foot indoor field and court building with a full-sized artificial turf field on one side, and a multi-sport surface on the other large enough for six full-sized basketball courts. It also has another facility with an Olympic-sized indoor track and another that contains an Olympic-size swimming pool. There is an outdoor track and football stadium which seats more than 6,000 spectators. SPIRE also sought exemption for 118 acres of undeveloped property that might be developed into dormitories, a hotel, and office space. Geneva Area City Schools use the facilities throughout the year for its athletic programs and the site is designated by the U.S. Olympic Committee as a training site for USA Track and Field and a Paralympic training site for USA Wheelchair Basketball.

In 2012, Tax Commissioner Joseph Testa noted that SPIRE leased the land for $1 per year for 99 years from Roni Lee, LLC, a private, for-profit company. Ronald Clutter and his wife Tracy Clutter, are the owners of Roni Lee, and Ronald Clutter was one of three initial directors of SPIRE and chief executive officer of the Geneva Area Recreational, Educational, and Athletic Trust. Testa denied the tax exemption finding Roni Lee benefits from the extensive improvements made to the land and its lease with SPIRE could allow it to revert to Roni Lee before the 99-year expiration. He also concluded the primary goal of SPIRE is “to develop an elite sports training facility to develop Olympic and professional caliber athletes,” and that it operates on a for-profit business model.
SPIRE appealed the decision to the Ohio Board of Tax Appeals (BTA), which in September 2014 upheld the tax commissioner’s determination. SPIRE appealed to the Ohio Supreme Court, which agreed to the case.

Sports Complex Use Is Charitable, SPIRE Asserts
Real property used exclusively for charitable purposes, whether the property belongs to a charitable or non-charitable institution, is exempt from taxation under R.C. 5709.12(B), attorneys for SPIRE argue. Additionally, real property belonging to a charitable institution is considered used exclusively for charitable purposes if it is made available under the “direction or control” of a charitable institution. That type of property is exempt from taxes under R.C. 5709.121(A), and SPIRE qualifies for the exemption, they state. They contend the tax commissioner and the BTA wrongly concluded that because fees are charged for activities at the facilities, SPIRE does not operate as a charity. They also find fault in the BTA’s conclusion that the property didn’t “belong to” SPIRE, but rather to the for-profit Roni Lee.

SPIRE notes that neither R.C. 5709.12 nor R.C. 5709.121 define “charitable institution” but Ohio case law has determined that if an institution is “operated without any view to profit and exclusively for a charitable purpose” it is a charitable institution. SPIRE argues the BTA ignored evidence of its charitable mission including many free services: its use for Geneva High School graduations; free wellness programs for the military and military funerals: and free use to USA Track and Field and Paralympians. In addition, the organization runs SPIRE Academy which provided 30 high school student athletes with reduced tuition in partnership with a nearby private school that provided room, board, and in-school instruction. Free training and coaching also was provided at SPIRE facilities.

Before the BTA, SPIRE’s chief executive officer testified the organization adopted the policy to offer services, facilities, and programs to all individuals without regard for their ability to pay, which qualifies it as a charitable institution. Although the BTA rejected SPIRE’s written charitable policy as evidence because it couldn’t determine when it was created or adopted, the attorneys contend the BTA has recognized unwritten charitable policies in other cases where it granted exemptions. While the BTA found SPIRE presented “no concrete evidence” of providing free or reduced priced services, the attorneys counter that sufficient evidence was presented to demonstrate it operated with a charitable purpose since it first opened.

Not only did the BTA reject SPIRE’s claim to be a charitable institution entitled to exemption under R.C. 5709.12, it also didn’t analyze if it qualified for exemption under R.C. 5709.121, the attorneys assert. They argue SPIRE meets the three-part test for exemption under the law:

  • The property is made available to use under SPIRE’s direction and control.
  • The property is used in furtherance of SPIRE’s charitable mission. Even if income is generated on the premises to offset SPIRE’s operating costs, the BTA has granted exemptions for other institutions that generate income, they argue.
  • The property is operated without a view to profit. While SPIRE charges fees, which has been permitted by the BTA in other cases, its fees do not come close to covering operating costs, which is made up by charitable donations, they conclude.

Property Used at Market Rates, Commissioner Contends
Attorneys for the tax commissioner suggest only a minor portion of SPIRE activities are free and that it’s exclusively used for fee-for-service transactions at market rates, which disqualifies it for a tax exemption. They argue the BTA found SPIRE lacked the “essential elements” of being a charity – providing service to the general public without regard to ability to pay – and that no concrete evidence was presented to show it provided services at reduced fees. They also point to the tax commissioner’s finding that SPIRE had no fee-waiver policy or plan to provide goods or services on a sliding scale based on consumer’s financial need. They also cited the online membership price chart that indicated no discounts for local residents or discounts based on income, and argued there wasn’t a way for potential users to know if need-based discounts were available.

The attorneys also state they found it “particularly remarkable” that SPIRE claimed to provide tuition reductions to the high school athletes attending the SPIRE Academy, but at no time during the admission process did they ask the students or families to provide any documentation showing financial need. Citing the Ohio Supreme Court’s 1966 Planned Parenthood Ass’n. v. Tax Commissioner decision, the attorneys propose that charitable goods and services must be provided to the general public without a view to profit, or without the hope or expectation of gain of profit, in order to be deemed a charity. They contend the majority of SPIRE services and rental charges are based upon market rates and don’t benefit the general public or a segment of the population with a particular need.

Regarding the exemption under R.C. 5709.121, they argue SPIRE does not show its lease limits control by Roni Lee, because the Clutters control both the company and the non-profit trust that operates SPIRE. They also noted Ron Clutter contributed $26 million to the trust and is its “sole contributor.” They point to the BTA’s finding of a lack of internal controls that would prevent the Clutters’ from a having a conflict of interest.

“Through control of both entities, the Clutters may be able to alter or terminate the lease at any time,” the brief filed by the tax commissioner states.

Because SPIRE’s core activities aren’t charitable, and Roni Lee isn’t a charitable organization, the facility doesn’t qualify for a tax exemption, they argue. They counter that SPIRE failed to meet any of the three elements needed to qualify under the statute.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Geneva Area Recreational, Educational, and Athletic Trust: Ryan Ellis, 440.997.6175

Representing the Tax Commissioner of Ohio from the Ohio Attorney General’s Office: David Ebersole, 614.466.5967

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Are Police Liable for Injuries Caused by Fleeing Suspect?

Pamela Argabrite v. Jim Neer et al., Case no. 2015-0348
Second District Court of Appeals (Montgomery County)


  • To establish that a police officer’s conduct was a proximate cause of injuries to innocent third parties stemming from a high-speed pursuit, does a plaintiff need to prove the officer’s conduct was “extreme or outrageous”?
  • Based on Ohio’s “no proximate-cause rule,” is a pursuing police officer’s conduct extreme and outrageous when the officer violates the pursuit policy of his or her law enforcement agency?

Gregory Stites, a Miami Township police officer, heard a report on July 11, 2011, that a witness had seen a number of men stealing a television from an unoccupied house and putting the TV into a white Chevrolet Caprice. Stites and another officer had been investigating a series of burglaries in the area and suspected that Andrew Barnhart, who owned a white Caprice, might be involved.

Stites and his supervisor, Sergeant Rex Thompson, each drove to Barnhart’s grandmother’s house to check for the car. While Stites waited on the street, Barnhart entered the driveway in the Caprice. Thompson soon pulled in behind Barnhart. As Barnhart started to get out of his car, he saw Thompson walking up to him. Barnhart got back into his car and repeatedly drove backwards into the sergeant’s vehicle and forward into the garage door until he could maneuver off the driveway and around the side of the house into a yard. Thompson chased after a passenger who had jumped out of the car as Barnhart fled.

Stites and another Miami Township police officer, Jim Neer, pursued Barnhart separately in their cars. Deputy Chief John DiPietro supervised the pursuit from the police department. According to one of the officers, Barnhart ran through a few red lights and crossed left of the center lines. Anthony Ball, a Montgomery County Sheriff’s Office deputy, heard about the chase, drove to the street mentioned in the radio transmissions, and saw Barnhart’s car coming from the other direction. He turned around and followed Barnhart ahead of the township officers until they eventually passed him. Sergeant Daniel Adkins from the sheriff’s office also heard about the burglary and drove around looking for Barnhart’s car but never saw it.

After about seven minutes on six miles of streets and state highways, Barnhart pulled into opposing traffic on State Route 741 just before noon and collided head-on with a vehicle in that lane. Barnhart died in the crash. The driver of the other car, Pamela Argabrite, was seriously injured.

Woman Hurt in Crash Sues for Injuries
In October 2012, Argabrite filed a lawsuit against Stites, Neer, DiPietro, Ball, and Adkins seeking damages for her injuries. The defendant claimed they were immune from liability as police department employees based on R.C. 2744.03(A)(6)(b) and they weren’t the “proximate cause” of the woman’s injuries. The proximate-cause rule requires a causal connection between the disputed conduct and an injury. The officers asked the court to forgo trial and grant summary judgment in their favor, which the court did.

Argabrite appealed to the Second District Court of Appeals. In January 2015, the appeals court affirmed the trial court’s ruling. Argabrite filed an appeal with the Ohio Supreme Court, which agreed to consider the issues.

Two Potentially Pivotal Appeals Court Decisions
In 2006, the Second District ruled in Whitfield v. Dayton that the conduct of police officers must be extreme or outrageous before proximate cause can be shown in a case alleging liability for injuries caused to third parties when the vehicle chased by police crashes. The court ruled the officers’ conduct wasn’t the proximate cause of the injuries that resulted from the fleeing suspect hitting another car.

In its opinion in this case, the Second District noted that the proximate-cause rule in Whitfield stems from Lewis v. Bland, a 1991 decision from the Ninth District Court of Appeals. Lewis stated that when a person injures a third party because he or she is fleeing police, “the officer’s pursuit is not the proximate cause of those injuries unless the circumstances indicate extreme or outrageous conduct by the officer.” Without the establishment of proximate cause, the officers couldn’t be held legally responsible for the injuries that occurred.

Injured Woman’s Assertions
Attorneys for Argabrite explain that state law gives police officers immunity from liability unless an exception applies. Immunity is removed, for example, when an officer’s “acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” Argabrite’s attorneys contend the courts in the state are disregarding this standard of liability enacted by the legislature in R.C. 2744.03 and instead are applying the “extreme or outrageous conduct” standard for proximate cause described in Lewis and Whitfield.

They argue the police involved in this case acted in a wanton or reckless manner and, therefore, the statute removes the officers’ immunity, and Argabrite should be able to sue for damages. Also, Argabrite’s attorneys note, the pursuit policies of both Miami Township and Montgomery County require officers to weigh the risk of the motor-vehicle chase to the public and the officers against the danger of letting the suspect go. In this situation, the conduct of the Miami Township officers Neer and Stites led to the collision between Barnhart and Argabrite, they maintain. According to a deposition and an affidavit filed in the case, Barnhart ran stop lights and stop signs, drove into oncoming traffic early in the chase before the crash, and was travelling at speeds up to 80 mph at times through residential areas. Knowing that Barnhart was wanted only for a property offense, the officers shouldn’t have put the public at risk, Argabrite’s attorneys assert.

They add in the brief to the Court that other jurisdictions have held officers accountable by imposing liability based on lesser standards. They argue the “extreme or outrageous” standard is too high of a burden for a person suing the police to meet and gives officers nearly total immunity.

Even so, they maintain, the officers should be found liable because their conduct was extreme and outrageous given that they pursued a suspect accused of a simple property crime and continued to chase him without the required authorization of their superior officers and when the public was in danger from the pursuit. At a minimum, Argabrite’s attorneys assert, the level of the officers’ misconduct should’ve have been a factual issue determined during a trial.

Officers’ Responses
Attorneys for the Miami Township officers (Neer, Stites, and DiPietro) counter that determining whether the police are immune from liability is a separate issue from discerning whether an act was the proximate cause of an injury. While an officer’s immunity may be removed based on a statutory exception, such as wanton or reckless misconduct, that lack of immunity doesn’t automatically make a police officer legally responsible for his or her actions, the attorneys maintain. “Proximate cause” is about the foreseeability of harm, they argue, and the rule in Lewis protects officers, who have a duty to apprehend offenders, from the potentially dangerous actions a fleeing suspect may inflict on others.

“[I]mmunity is breached should officers act in a reckless manner,” they write in the brief. “If the officer is not immune then the ‘no proximate cause’ rule is a defense to liability when the fleeing culprit unexpectedly collides with a third party during the course of a pursuit. Police officers are not the responsible parties for the accident unless their conduct was so extreme and outrageous that the unpredictable nature of the culprit is outweighed by the dangers created by law enforcement.”

The lower standard Argabrite argues for would restrict officers’ attempts to arrest fleeing suspects and would have “a chilling effect” on law enforcement, they contend. The injuries to Argabrite were caused by Barnhart’s actions, they maintain. In addition, they dispute Argabrite’s version of the events that day. The officers testified traffic was light, the road conditions were dry, and they used caution driving through intersections.

The officers’ attorneys also maintain that probable cause existed to allege that Barnhart had committed burglary, vehicular assault, and felonious assault, all more serious than a lesser property crime, which justified the pursuit. Also, they argue, any violation of the department’s policies doesn’t determine whether the officers’ chase caused the accident.

Stressing that the officers’ conduct wasn’t extreme or outrageous and wasn’t the proximate cause of the crash that harmed Argabrite, they conclude that the no proximate-cause rule in Lewis should remain a defense for the state’s law enforcement officers in these types of cases.

Attorneys from the Montgomery County Prosecutor’s Office, which is representing the county sheriff’s officers (Adkins and Ball), make similar arguments in a brief to the Court and maintain that their officers were entitled to summary judgment. They ask the Court to affirm the Second District’s decision.

Friend-of-the-Court Briefs
Amicus curiae briefs supporting Argabrite’s position have been submitted by the Ohio Association for Justice and the Ohio Employment Lawyers Association. The Ohio Prosecuting Attorneys Association has filed an amicus brief supporting the police officers.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Pamela Argabrite: Kenneth Ignozzi, 937.223.8888

Representing Jim Neer and Gregory Stites: Edward Dowd, 937.222.2333

Representing John DiPietro: Lawrence Barbiere, 513.583.4200

Representing Anthony Ball and Daniel Adkins: Laura Mariani, 513.225.5757

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Can Prosecutor Appeal Verdict if Judge Accepts No Contest Plea?

City of Cleveland v. Troussaint D. Jones, Case no. 2015-0381
Eighth District Court of Appeals (Cuyahoga County)


  • Can a prosecutor appeal a final verdict after a no contest plea has been entered?
  • Can an appeals court vacate a plea for noncompliance with the procedural rules for accepting a no contest plea?

In June 2013, an Ohio State Highway Patrol trooper pulled over Troussaint D. Jones for drifting out of his lane on Interstate 480. The trooper ordered Jones out of his vehicle and attempted to perform field sobriety tests, but Jones argued with the officer and the test wasn’t completed. The trooper asked Jones if he had been drinking, and Jones responded he hadn’t, and that he was upset about being pulled over. He maintained he drifted because he dropped his cell phone while trying to answer it. The trooper informed him he was driving with a suspended license, and Jones replied that he believed his suspension had been completed.

The officer charged Jones in Cleveland Municipal Court on four counts: operating a vehicle under the influence (OVI); OVI with a prior conviction and refusal to submit to a chemical test; driving under a 12-point suspension; and driving over marked lanes.

Jones initially pleaded not guilty to the charges, but in September 2014 agreed to plead no contest. However, the trial court judge would not accept the plea because the arresting officer wasn’t available and the judge wanted to inquire into the difference “between intoxicated and angry.”

In October, Jones and the officer offered their details in the court of the arrest. The judge questioned the assistant city prosecutor and Jones’ attorney, and told them Jones could enter a no contest plea or she might give Jones “the benefit of the doubt.” The prosecutor clarified the city wouldn’t agree to any reductions in charges. Jones’ attorney then stated Jones would plead no contest, but the judge didn’t directly ask Jones to state his plea.

The judge then found Jones guilty of the city ordinance “Physical Control of Vehicle While Under the Influence,” instead of OVI. The judge found Jones not guilty of OVI with a prior conviction. She found him guilty of driving with the suspension and driving over marked lines. He was sentenced to 60 days in jail, with 55 days suspended, fined $400, placed on one year probation, and ordered to attend other programming.

The city prosecutor appealed the ruling to the Eighth District Court of Appeals in November 2013. The Eighth District reversed the trial court, ruling it improperly amended the OVI charge to physical control. The appellate court also held the trial court failed to comply with Traffic Rule 10, the procedure for accepting a plea in traffic cases. The two-judge majority of the three-member panel voted to remand the case to the trial court for further proceedings. However, the second judge concurred in judgment only, citing different reasons for sending the case back to the trial court. The dissenting judge concluded the appellate court was without jurisdiction to hear the case because the prosecution can’t appeal a final verdict even if the trial court reaches the wrong conclusion, and only Jones could appeal the verdict.

Jones appealed the Eighth District’s ruling, and the Supreme Court agreed to hear the case.

City Has No Right to Appeal, Jones’ Attorneys State
Attorneys for Jones characterize the Eighth District’s decision as “groundbreaking,” because they can’t find any other decision where a prosecutor was granted permission to appeal and actually overturned a final criminal verdict. They also believe this is the first time an appellate court found at the request of the prosecutor that the trial judge incorrectly advised the defendant of his rights when pleading no contest. They argue the right to appeal a final verdict and to challenge the explanation of the plea by the judge rests solely with defendants such as Jones.

They argue the prosecutors incorrectly state that state law, R.C. 2945.67, provided the right to appeal by claiming they were appealing the trial court’s authority to amend the charges from OVI to physical control. They counter that the prosecutors actually challenged the final verdict of the court finding Jones guilty of physical control, and R.C. 2945.67 specifically bars prosecutors from challenging the final verdict. Further, they argue the Ohio Supreme Court in its 1978 State ex rel. Sawyer v. O’Connor decision states prosecutors don’t have the right to appeal a verdict “no matter how erroneous.” They note the Supreme Court explained the rule not allowing prosecutors to challenge the final verdict is required by the Ohio and U.S. constitutions to protect against double jeopardy.

They argue the Eighth District reversal is incorrect because the lead decision has the sequence of events wrong. They argue Jones pleaded no contest to all charges and then the trial judge reduced the OVI to physical control on her own. The lead opinion found the judge didn’t follow the rules for amending a charge prior to Jones accepting a plea. However, Jones’ attorneys note the record indicated that the judge did not specifically state she was going to reduce the charge for Jones but rather “give him the benefit of the doubt.” At that point the city prosecutor stated the city wouldn’t agree to reduce the charges and that Jones could plead guilty to the charges against him or the city would go to trial. Jones’ trial attorney then stated Jones would plead no contest, and at that time, the judge found him not guilty of DUI but guilty of physical control.

“This distinction makes a huge difference. Taken in that order, the trial court’s verdict, even if wrong or improper, cannot be appealed,” states the brief filed by Jones’ attorneys.

Regarding compliance with Traffic Rule 10, the attorneys suggest the trial court substantially complied with the law because it “adequately explained the effect of the no contest plea” to Jones to the point he understood that pleading no contest would lead to a verdict. However, even if the upreme Court finds the trial court didn’t properly follow the procedures, it is only the right of the accused to challenge the rules, they argue. Further, they state that neither Jones nor the prosecutors challenged the procedure on appeal, but the Eighth District on its own decided the rules weren’t followed and vacated the plea. They argue the plea can only be vacated if Jones can establish he was harmed by the misstep, which he wouldn’t argue since he benefitted from the judge’s decision.

“The Eighth District’s decision in this case is truly unprecedented and, carried to its logical conclusion, would allow the state to seek to vacate any plea, that, in its view, did not comply with procedural rules even over the objection of the defendant – the very person those procedural rules were designed to protect,” the brief states.

Legal Process Correctly Challenged, City Contends
Attorneys for the City of Cleveland argue the prosecutor followed the law in appealing the decision, arguing they agree with Jones that the city has no legal right to appeal a final verdict. However, they contend that’s not what was appealed, but rather the city appealed the issue whether a trial court could amend a charge over the objection of the prosecutor and then accept the plea. They note the lead decision in the Eighth District found the trial court failed to follow the criminal procedure that forbids a judge from changing the “name or identity of the crime charged.” They also question if Jones actually entered a plea because it was made by his attorney and didn’t follow the procedural rules. Because the judge couldn’t change the charge and didn’t accept the plea, the attorneys contend there was never a “final verdict” and that they are challenging a legal question, which they can do under R.C. 2945.67.

They also argue that complying with the procedures in Traffic Rule 10 are important and Jones had no opportunity to know the effect of his pleading no contest, especially since he wasn’t told he was being charged with physical control until after he pleaded no contest.

“Here, the trial court did not address the defendant personally, did not inform him of the effect of his no contest plea to any of the four charges and did not determine that he made that plea voluntarily,” states the city’s brief.

They cite the Eighth District concurring judge’s opinion in finding that the plea procedure was wrong because the judge had no authority to amend the charge. The Eighth District didn’t consider it violation of double jeopardy by sending the case back for a second sentencing because physical control isn’t a “lesser included” charge of OVI.

Citing the Sawyer decision, they note that if a defendant pleads guilty or no contest to a lesser included offense of the one they are charged with, the state can’t then again seek to charge the person with the greater offense or that would be double jeopardy. Because physical control is not a lesser charge to OVI, seeking a new sentencing or trial for Jones is not double jeopardy because the charges are not related, they argue. Additionally, pointing to the 1978 U.S. Supreme Court’s U.S. v. Scott decision, they argue retrial is permissible without violating double jeopardy because Jones sought termination of the charges based on grounds other than the state’s failure of proof of his guilt. The OVI charge was dropped against him not because the city wasn’t able to prove its case, but because the judge unilaterally changed the crime with which he was charged, they conclude.

Friend-of-the-Court Brief
An amicus curiae brief supporting Cleveland’s position has been submitted by the Ohio Attorney General’s Office, which argued the city was deprived of the right to have a criminal trial conducted according to the procedures established by rules, state law, and the state and federal constitutions. The brief suggests that changing the charges was the equivalent of dismissing the original OVI charge and the prosecutors have a right to appeal that decision. It also contends that double jeopardy isn’t an issue if the Court find Jones entered the plea after the charges were amended, and because the OVI charged was dropped before the city presented any evidence of Jones’ guilt.

The Court agreed to allow the city and attorney general to split time to make oral arguments with the city using 12 minutes and the attorney general three minutes.

- Dan Trevas

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Troussaint D. Jones: Cullen Sweeney, 216.443.7583

Representing the City of Cleveland: Bridget Hopp, 216.664.4839

Representing the Ohio Attorney General: Samuel Peterson, 614.466.8980

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Must Weight of Actual Cocaine Be Determined to Impose Greater Penalty?

State of Ohio v. Rafael Gonzales, Case nos. 2015-0384 and 2015-0385
Sixth District Court of Appeals (Wood County)

ISSUE: When prosecuting cocaine offenses involving mixed substances under R.C. 2925.11(C)(4)(a) through (f), must the state prove that the weight of the cocaine meets the statutory threshold, excluding the weight of any filler materials used in the mixture?

On July 26, 2012, Rafael Gonzales and a confidential informant for law enforcement had a phone conversation in which they agreed to meet so Gonzales could purchase cocaine. In a Wood County store parking lot, Gonzales inspected two kilograms (4.4 pounds) of cocaine, and he and the informant agreed on a price and location to make the sale.

Gonzales met the informant at a local motel and presented $58,000 in cash for the two kilograms. An undercover officer pretending to be a truck driver brought the drugs to the room. After the money was counted, Gonzales left with the two cocaine bricks.

Police then arrested Gonzales. He was indicted for cocaine possession, and the indictment included a specification, which would increase the penalty for the crime if it was proven he had 100 grams or more of cocaine.

Statute at Issue

The relevant part of R.C. 2925.11 states:

(A) No person shall knowingly obtain, possess, or use a controlled substance or a controlled substance analog. …

(C) Whoever violates division (A) of this section is guilty of one of the following: …

(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The penalty for the offense shall be determined as follows: …

(f) If the amount of the drug involved equals or exceeds one hundred grams of cocaine, possession of cocaine is a felony of the first degree, the offender is a major drug offender, and the court shall impose as a mandatory prison term the maximum prison term prescribed for a felony of the first degree.

Ohio’s Good Samaritan Law

R.C. 2305.23 states:
No person shall be liable in civil damages for administering emergency care or treatment at the scene of an emergency outside of a hospital, doctor’s office, or other place having proper medical equipment, for acts performed at the scene of such emergency, unless such acts constitute willful or wanton misconduct.

Nothing in this section applies to the administering of such care or treatment where the same is rendered for remuneration, or with the expectation of remuneration, from the recipient of such care or treatment or someone on his behalf. The administering of such care or treatment by one as a part of his duties as a paid member of any organization of law enforcement officers or fire fighters does not cause such to be a rendering for remuneration or expectation of remuneration.

Expert Testimony and Lab Findings Excluded
Analysts tested the bricks and determined that one package contained cocaine. However, the analyst wasn’t available to testify, and the court wouldn’t admit the test results. The state retested the substance four days before trial and gave the results to Gonzales’ lawyers. But the trial court excluded the new test results and report, and testimony from the new report’s author, because a rule for criminal proceedings typically requires disclosure of an expert witness’ report 21 days in advance. Instead, the confidential informant and law enforcement officials testified at the November 2013 trial that one of the exhibits containing some of the seized substance was cocaine.

The jury found Gonzales guilty of possessing cocaine, a first-degree felony, and of the specification that the amount was 100 grams or greater. Because he was convicted of the major drug-offender specification, the trial court sentenced him to the mandatory 11-year prison term.

Increased Sentence for Having 100 Grams of Cocaine Overturned
Gonzales appealed to the Sixth District Court of Appeals, which upheld his conviction for possession but reversed the major drug-offender specification. The court noted that exhibits originally submitted indicated that one brick contained manufactured cocaine, which the state refers to as a “mock kilo,” surrounding a plastic bag filled with real cocaine, while the other brick consisted of manufactured cocaine and a concealed tracking device. However, the court concluded that the state didn’t establish the weight of the pure cocaine, which was necessary to prove the specification that he had 100 grams or more of the drug. The court returned the case to the trial court to have Gonzales’ sentence reduced from 11 years to a one-year maximum term for possession.

The Sixth District notified the Ohio Supreme Court that the decision conflicts with a case from the Second District Court of Appeals. The Supreme Court agreed that a conflict exists between the appeals courts and also accepted an appeal from the state.

Total Weight of Substances Is What’s Counted, Prosecutors Believe
Attorneys from the Wood County Prosecutor’s Office assert that as long as a detectible amount of cocaine was contained in the package involved in the drug sale, then the aggregate, or total, weight of the substance, not of the pure cocaine alone, is used to determine whether the statutory quantity is met to allow a court to impose the longer, enhanced sentence. The prosecutors maintain that the legislature, when enacting amendments to the law in 2011, intended to make the form of the cocaine irrelevant as it did with many other drugs. In the brief to the Court, they write that “the drafters made a probable slight faux pas.”

They contend that the other side is asking for an analysis of the purity of the cocaine. However, in their view, all that’s required is an examination of the total amount of the substance sold. Eight appellate districts have reinforced this position in earlier cases involving powder cocaine possession, they argue, and they cite other cases involving different drugs to support this perspective as well.

“As the [cited] cases illustrate, things like cutting agents, moisture, or stalks – depending on the drug involved – have all been included in the weight of the drug involved for prosecution, conviction, and sentence,” they stress. “And … purity of the drug involved is never required to be proven at trial because – quite frankly – the statute doesn’t require it.”

The weight of the “drug involved” in this case was greater than 100 grams and contained some definitive amount of cocaine, which met the requirements of the law for a conviction on the major drug-offender specification, they conclude.

Cocaine Alone Must Be at Least 100 Grams, Defendant Asserts
Attorneys for Gonzales insist that the state must prove a defendant possessed at least 100 grams “of cocaine,” not a combination of cocaine and other substances. “Cocaine” is defined in R.C. 2925.01(X), and the definition doesn’t include filler materials added to the drug, they maintain. Those fillers, they argue, can’t then be counted when weighing the grams “of cocaine,” as required in R.C. 2925.11(C)(4)(f), the penalty provision of the relevant law.

They note that the statutory definition of “marihuana” includes, and the former definition of “crack cocaine” included, mixtures of illegal drugs and other materials. Therefore, they stress, the legislature knew how to draft a definition for drugs mixed with other materials, but lawmakers decided not to do so with cocaine.

“This further confirms that inclusion of the words ‘of cocaine’ was not a faux pas since ‘cocaine’ does not include ‘filler material,’” they write in the brief to the Court. “In sum, possessing cocaine mixed with filler material is a felony, but the offense level is enhanced only by the weight ‘of cocaine,’ which necessarily does not include filler by definition.”

Nothing about the statute’s language is unclear, and the Court must conclude that the legislature chose its words deliberately, they contend.

Given their view that the statute’s language is plain, Gonzales’ attorneys assert the state offered no evidence proving the cocaine’s weight or expert testimony to support the state’s view. The law simply requires the state to determine the weight of the actual cocaine within a mixture, they maintain, adding that labs are capable of running these analyses. If the cocaine alone weighs at least 100 grams, then a court can impose the enhanced sentence for the major offender specification, they note. In this case, that evidence wasn’t presented, and the case should be sent back to the trial court for resentencing as the Sixth District ruled.

Additional Filings
Amicus curiae briefs supporting the position of the Wood County Prosecutor’s Office have been submitted by the Ohio Attorney General and collectively by the Ohio Prosecuting Attorneys Association and Cuyahoga County Prosecutor’s Office. The Ohio Public Defender’s Office has filed an amicus brief supporting Gonzales.

Following a request granted by the Court on Feb. 3, the prosecutor’s office will share its allotted time for oral argument with the attorney general’s office.

- Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2015-0384 and 2015-0385).

Representing the State of Ohio from the Wood County Prosecutor’s Office: David Harold, 419.354.9250

Representing Rafael Gonzales: Andrew Mayle, 419.334.8377

Representing the Ohio Attorney General’s Office: Eric Murphy, 614.466.8980

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