Court News Ohio
Court News Ohio
Court News Ohio

Wednesday, July 13, 2016

State of Ohio v. Steven E. Cepec, Case no. 2013-0915
Medina County Common Pleas Court

Andrew Foley et al. v. University of Dayton et al., Case no. 2015-2032
U.S. District Court for the Southern District of Ohio, Western Division

Death Penalty

State of Ohio v. Steven E. Cepec, Case no. 2013-0915
Medina County Common Pleas Court

Steven E. Cepec appeals to the Ohio Supreme Court following his conviction for the 2010 murder of an acquaintance in Medina County.

Police Respond to 911 Call
Paul Munz called 911 the afternoon of June 3, 2010, from his home in Chatham Township. He lived with his uncle, Frank Munz. The uncle knew Cepec and had helped him with money and rides on occasion. On this day, Paul Munz heard Cepec talking with his uncle. Paul Munz then heard two loud thumps, a comment from his uncle, the sound of someone choking, and then someone walking through various rooms of the house.

Police were notified of a robbery in progress at the residences. A deputy from the county sheriff’s office approached the house and saw a man in the garage. The man turned when he heard a noise, spotted the officer, and fled on foot. Several officers pursued, and eventually found Cepec hiding under a bush and arrested him.

In the house, Frank Munz was lying on the kitchen floor bleeding. He died from repeated blunt impacts to his head, torso, and extremities caused by a hammer and from strangulation with a lamp cord. Paul Munz stayed hidden, locked in his bedroom, until police located him.

Jury Convicts on Multiple Counts
A grand jury indicted Cepec for aggravated murder with death penalty specifications, murder, aggravated robbery, and aggravated burglary. Cepec pled not guilty. Following a trial in February 2013, the jury found Cepec not guilty of one of the aggravated murder charges, but guilty of all the other offenses. The jury recommended the death penalty, and the court agreed that death was appropriate in this case.

Cepec filed an appeal with the Ohio Supreme Court, which hears all cases in which the death penalty is imposed. In his brief, Cepec asks the Court to reconsider his death sentence and presents seven claims of legal and procedural errors in his case.

Cepec’s Arguments
Among the assertions Cepec makes to the Court:

  • He describes a point in the trial when the judge privately asked the lawyers whether Paul Munz was developmentally challenged. After some dialogue, the trial continued. Cepec argues the trial court could only resolve that question by holding a hearing to evaluate whether Paul Munz, the primary witness in the case, was competent. By not doing so, the court deprived Cepec of a fair trial, he contends.
  • Cepec challenges the trial court’s questioning of his parole officer. The state asked the parole officer whether there were indications that Cepec could commit murder. Cepec’s lawyer objected, though the court decided after asking a few questions that the parole officer could give his opinion based on his years of experience. In his response, the parole officer mentioned Cepec’s past burglaries. Though the jury was told to disregard information about Cepec’s criminal history, Cepec asserts that instruction wasn’t enough to prevent prejudice against him and claims a mistrial is warranted.
  • Cepec also maintains he was denied the right to an attorney during an interrogation in which police discussed using a chemical that would show whether there were traces of blood on his hands. When Cepec asked “before you use it, can I have a lawyer here?,” the detective’s response was “No. I don’t think we need one for that.” Cepec argues the statements he made after this request were obtained in violation of his constitutional rights and should’ve been suppressed at trial.

State’s Positions
Representing the state, the Medina County prosecutor provides several counterarguments:

  • Rejecting the question about Paul Munz’s competency, the prosecutor contends the college-educated witness may be socially awkward, but he’s not incompetent. Paul Munz offered “clear and cohesive” testimony and was capable of recalling and explaining the events the day of his uncle’s murder, the prosecutor maintains. Noting that Cepec’s attorney failed to object at trial about the court’s discussion of Paul Munz’s competency, the prosecutor asserts that Cepec would still have been found guilty without the testimony.
  • On the issue of the parole officer’s testimony, the prosecutor cites case law stating that accidental mentions of a defendant’s past convictions when juries are later told to disregard the information doesn’t demand a mistrial. Though Cepec argues the court’s questioning of the parole officer amounted to “vouching” for him, the prosecutor maintains that the court was attempting to determine how to rule on the defense’s objection to the state’s inquiry about whether Cepec could commit murder.
  • The prosecutor also contends that Cepec didn’t make an unequivocal and unambiguous request for an attorney during the discussion about the blood-revealing chemical test, so his statements remain admissible. Even if the Court finds that Cepec’s statements after asking for an attorney shouldn’t have been allowed, the prosecutor stresses the error was harmless. Without the statements related to the test, the evidence of Cepec’s guilt was substantial and wouldn’t have changed the verdict, the prosecutor concludes.

- Kathleen Maloney

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

Representing Steven E. Cepec: Nathan Ray, 330.253.7171

Representing the State of Ohio from the Medina County Prosecutor’s Office: James Price Jr., 440.785.6584

Is Lawsuit Alleging Negligent Misidentification Actually a Defamation Claim?

Andrew Foley et al. v. University of Dayton et al., Case no. 2015-2032
U.S. District Court for the Southern District of Ohio, Western Division


  • What is the statute of limitations for negligent misidentification?
  • Does the doctrine of absolute privilege apply to claims of negligent misidentification and, if so, does it extend to the statements made to law enforcement officers implicating another person in criminal activity?
  • Is the doctrine of qualified privilege applicable to claims of negligent misidentification?

The U.S. District Court for the Southern District of Ohio has submitted the questions above to the Ohio Supreme Court for consideration. The federal court indicates the case before it requires interpretation of state laws to resolve the dispute. The Supreme Court agreed to review the issues.

College Students Knock on Wrong Door
In March 2013, Andrew Foley visited his brother Evan Foley at the University of Dayton, where Evan was a student. The Foleys and another student, Michael Fagans, went out and were walking home in the early morning hours of March 14. Along the way, they knocked on the door of a townhouse where they believed a friend lived.

Michael Groff opened the door. According to the federal court’s filing, Evan Foley asked for his friend, and Groff allegedly replied by shouting profanities and acting hostile. Evan Foley reported that he tried to apologize, but Groff slammed the door. Evan Foley knocked again, and then the three men left. While they were walking away, Groff opened the door and shouted to them that he had contacted the University of Dayton police.

Soon after, police Sergeant Thomas Ryan approached Evan Foley on the street and asked whether he knew why he was being stopped. Evan Foley responded that Groff said he had called the police. The officer arrested Evan Foley for burglary and took him to jail. The next day, after interviewing Groff and his roommate Dylan Parfitt, police arrested Andrew Foley and Fagans.

The criminal charges against Andrew Foley and Fagans were dismissed, and those against Evan Foley “were resolved,” according to court documents.

Civil Lawsuit Filed
On March 13, 2015, the Foleys and Fagans filed a civil lawsuit in federal court against the University of Dayton and multiple police department employees alleging violations of their constitutional rights under federal law and asserting several other claims under state law, including false arrest. They also sued Groff and Parfitt for “negligent misidentification” based on the report that the Foleys and Fagans committed a crime by refusing to leave the property when asked to do so.

On the negligent misidentification claim, the federal court noted that Ohio law has recognized this tort as different from a claim of defamation, which is damage to a person’s good reputation. The court determined, though, that there is no clear precedent in Ohio law for whether negligent misidentification’s statute of limitations is one year, like a defamation case, or four years, as for most general negligence claims. The court also stated that it’s unclear in Ohio law whether statements made to law enforcement in a negligent misidentification case are subject to absolute or qualified privilege.

Defamation vs. Negligent Misidentification
Groff and Parfitt argue in separate briefs that claims of negligent misidentification can’t be untangled from defamation. They maintain that state law sets out no specific statute of limitations for negligent misidentification lawsuits because these claims are so tied to defamation, and the law requires defamation suits to be filed within one year of an incident. Because this lawsuit stems from their statements to police, it’s a defamation case, Groff and Parfitt insist. They assert that Fagans and the Foleys have disguised a defamation lawsuit about statements to police as a negligent misidentification claim to take advantage of a longer statute of limitations, given that the suit was filed nearly two years after the arrests.

“[B]ecause one of the elements of a negligent misidentification claim is proving that the defendant communicated false information regarding the criminal nature of the plaintiff’s actions, the actual nature of the claim, regardless of the title given to it, sounds in defamation and it should be subject to the one year statute of limitations in R.C. 2305.11(A),” Parfitt’s brief states.

The Foleys and Fagans counter that the Ohio Supreme Court has recognized since a 1929 case decision that Ohioans can file civil claims for negligent misidentification. They cite appellate court case decisions in which giving false information to police alleging that someone has committed a crime has been defined as a negligence, not a defamation, claim. Noting that aspects of defamation and negligent misidentification lawsuits may overlap – just as either could overlap with allegations of invasion of privacy or infliction of emotional distress – Fagans and the Foleys argue these similarities don’t mean the claims can’t exist separately. Though there are parallels, they point out that negligent misidentification, for example, includes an arrest while defamation doesn’t require that. Groff and Parfitt have tried to ignore these distinctions, they maintain. They explain that negligence claims, including this one, are subject to either the two-year or four-year statute of limitations based on the nature of the injuries, as delineated in state law.

Does Privilege Pertain to Statements Given to Police?
Groff asserts that the statements he made to the police are absolutely privileged communications. He cites the 1994 case M.J. DiCorpo, Inc. v. Sweeney in which the Ohio Supreme Court ruled a person who provided an affidavit to a prosecutor accusing someone of criminal actions was protected by absolute privilege from civil liability because an affidavit is part of a judicial proceeding. In Groff’s view, DiCorpo applies to civil cases other than defamation and including negligent misidentification. And, he argues, making a report to the police is identical to submitting an affidavit to a prosecutor. It’s then up to law enforcement to look into the allegations and pursue criminal charges when appropriate, he notes. He maintains he didn’t call the police in bad faith and shouldn’t be exposed to civil liability for reporting the incident to police.

Parfitt agrees that DiCorpo extends beyond defamation suits but takes a more narrow view than Groff, stating that absolute privilege applies to only certain negligent misidentification claims, such as this one, that are based on the communication of allegedly false information to the police. He echoes Groff’s concerns that those filing reports with law enforcement will be dissuaded if they’re subject to civil liability for their statements.

If the Court determines absolute privilege doesn’t apply in this case, then Groff and Parfitt contend that qualified privilege, which requires a court to find that a person acted with actual malice in making a report to law enforcement, should apply.

Fagans and the Foleys respond that absolute and qualified privilege don’t apply to this lawsuit because it’s not a defamation claim.

“In the context of negligent misidentification, there is no immunity or privilege relating to the false or negligent misidentification of a person to law enforcement,” they write, asserting that the Ohio Supreme Court has never extended absolute privilege to a person who carelessly provides false information to police.

Individuals must act with due care when reporting information to law enforcement, they maintain. In this case, they stress, Groff and Parfitt “made statements to the University of Dayton Police not to aid an investigation, but to harass Respondents after a perceived slight.”

They add that the Court has limited absolute privilege to a few circumstances, including judicial proceedings in DiCorpo, but statements to police aren’t part of a judicial proceeding. As far as qualified privilege, no Ohio court has ever extended that privilege beyond defamation suits to negligent misidentification claims, they conclude.

- Kathleen Maloney

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

Representing Michael R. Groff: Timothy Heather, 513.721.5672

Representing Dylan Parfitt: Jane Lynch, 937.224.3333

Representing Evan and Andrew Foley, and Michael Fagans: Michael Hill, 216.696.3232

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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.

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