Wednesday, May 14, 2025
State of Ohio v. Kenneth Brown, Case No. 2024-0474
Third District Court of Appeals (Henry County)
NC Enterprises LLC v. Norfolk and Western Railway Company et al., Case No. 2024-0776
Ninth District Court of Appeals (Summit County)
Disciplinary Counsel v. Gregg A. Rossi, Case No. 2024-1722
Mahoning County
State of Ohio v. Elijah B. Roberts, Case No. 2024-0854
First District Court of Appeals (Hamilton County)
Could Drug Dealer Be Tried For Corrupt Activity in County Where Others Sold Drugs?
State of Ohio v. Kenneth Brown, Case No. 2024-0474
Third District Court of Appeals (Henry County)
ISSUE:
- Is being part of a gang that sells illegal drugs enough to qualify as part of an “enterprise” when another gang member sells drugs to a buyer who then resells the drugs on her terms?
- Can a member of a drug-selling gang in Lucas County be tried for engaging in a pattern of corrupt activity in Henry County if the member was not involved in the sale of drugs in Henry County?
BACKGROUND:
A federal drug task force extensively investigated three homes on Tecumseh Street in Toledo. A federal agent described the street as an “open-air drug market.” Law enforcement identified four men as the prime drug dealers: Kenneth Brown, Anthony Lawrence, Michael Lawrence, and Omar Lawrence. Investigators observed Brown and the others engaged in daily interactions of meeting drivers on the street, going into one of the houses, obtaining drugs, and then selling the drugs to the drivers. Brown and others were seen going to the other two houses, where they stashed drugs and retrieved them.
Alexandria Armijo was a Lucas County drug dealer. After being caught by investigators for selling cocaine, she agreed to assist in their efforts to make arrests on Tecumseh Street of the men who sometimes referred to themselves as Tecumseh Street Gangsters. Before her arrest, Armijo didn’t know one of her customers was a confidential informant. That informant first purchased cocaine from her when he lived in Lucas County, but then moved to Henry County. Armijo agreed to deliver drugs to him in Henry County.
Drug Ring Indicted in Henry County
The informant then helped an undercover agent arrange a large cocaine purchase from Armijo, who didn’t have that amount of cocaine or the money to purchase it. She went to Tecumseh Street and received $1,550 worth of cocaine from Anthony Lawrence. She later testified that Lawrence “fronted” her the cocaine, allowing her to leave without paying for it if she returned after making the sale. She sold the drugs and later paid Lawrence. She testified that Lawrence trusted her on a few occasions to receive the drugs upfront and pay him later. She also said she never bought drugs from Brown, one of the other dealers, and didn’t know who he was.
In 2021, a Henry County grand jury indicted several people for engaging in a pattern of corrupt activity, violations of R.C. 2923.32(A)(1) and R.C. 2923.32(B)(1). Brown, Armijo and the three Lawrences were among those charged. After the Henry County Prosecutor’s Office presented its case, Brown requested that the Henry County Common Pleas Court acquit him because the prosecutor failed to prove the county was the proper venue to conduct the trial. The trial court denied the request. Brown renewed the request after he presented his case.
The jury began to deliberate and sent the judge a question regarding the county where Brown should be tried. The judge directed the jury to continue to deliberate and the jury found Brown guilty of engaging in a pattern of corrupt activity. He was sentenced to 10 to 15 years in prison. Brown appealed his sentence to the Third District Court of Appeals, which affirmed his conviction.
Brown appealed to the Supreme Court of Ohio, which agreed to hear the case.
Trial Conducted in Wrong County, Offender Argues
Brown admitted he and three others sold drugs from Tecumseh Street in Toledo. However, the charge against him was based on one sale on credit to Armijo by Lawrence, Brown notes. Armijo chose the amount of drugs to buy, the amount she delivered to her customers, and the price she sold them for, he observes. No one in Toledo controlled her work or provided her any help to make the sale, which she considered to be her sale of the drugs to her customer, Brown argues. Her independent actions are not part of any “enterprise” that would connect her to him and permit him to be charged in Henry County, Brown argues. If he were to be charged with a drug-related crime, the venue would have to be Lucas County, Brown asserts.
Brown argues engaging in corrupt activity requires members of an “enterprise” to act in concert and with a common purpose. He maintains that relationship must be more substantial than a general shared interest in making money. Brown made money selling drugs in Toledo, and Armijo did as well. He argues there is evidence of an enterprise among him and the other distributors on Tecumseh Street, but that enterprise doesn’t extend to Henry County, where he was tried, he argues. Armijo’s actions were for her own benefit, and she played no role in extending his enterprise, Brown maintains. He claims the lower courts are conflating the concept of an act that is “mutually beneficial,” which is working with Lawrence to sell drugs with a “common purpose.” To prove a common purpose, there had to be some evidence that Lawrence had a role in the subsequent sale of drugs by Armijo, Brown asserts. There is no proof Lawrence knew or cared that Armijo was going to resell the drugs, and Lawrence’s only interest was being repaid by Armijo after making her sale, Brown argues. The fact that she sold the drugs two counties away doesn’t illustrate the Tecumseh Street sellers were involved in an enterprise that extended to Henry County, where the charges against him were tried, Brown concludes.
Dealer Properly Charged, Prosecutor Asserts
A pattern of corrupt activity charge requires two or more incidents of corrupt activity that are related to the affairs of the same enterprise, the Henry County prosecutor explains. The office notes that in its 2015 State v. Beverly decision, the Supreme Court found an enterprise doesn’t require a distinct structure but can be an “association-in-fact enterprise” that functions with a common purpose. No evidence of a direct agreement among members of the enterprise is necessary, and members of the same conspiracy may not know the identities of others, the office notes. Brown was a member of a drug trafficking organization and worked regularly with Lawrence with the common goal of making money by selling drugs. Brown’s existence in the enterprise demonstrates that he benefits from the sale of drugs by the enterprise, the prosecutor asserts.
Under the venue statute, R.C. 2901.12(H), an offender, as part of a course of criminal conduct in different jurisdictions, may be tried for all offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred, the prosecutor explains. Armijo’s actions of buying the drugs from Lawrence on credit, selling them in Henry County, and then returning to pay Lawrence demonstrated she was an association-in-fact member of the enterprise that included Brown as an active member, the prosecutor argues. Because Brown regularly engaged with Lawrence in drug activity, and Lawrence “fronted” drugs to Armijo to sell, then a jury could find they all acted with a common purpose, which included engaging in a pattern of corrupt activity that extended into Henry County, the prosecutor concludes.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting the prosecutor’s position was submitted by the Ohio Prosecuting Attorneys Association. The Ohio Attorney General’s Office also filed an amicus brief supporting the prosecutor and will share oral argument time with the prosecutor.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Henry County Prosecutor’s Office: Gwen Howe-Gebers, prosecutor@henrycountyohio.gov
Representing Kenneth Brown from the Ohio Public Defender’s Office: Stephen Hardwick, stephen.hardwick@opd.ohio.gov
Representing the Ohio Attorney General’s Office: T. Elliot Gaiser, thomas.gaiser@ohioago.gov
Did Adjacent Property Owner Establish It Could Take Parcels Through Adverse Possession?
NC Enterprises LLC v. Norfolk and Western Railway Company et al., Case No. 2024-0776
Ninth District Court of Appeals (Summit County)
ISSUES:
- Is maintaining a property’s lawn sufficient to establish adverse possession of the property?
- Does adverse possession require erecting a structure on the property or making a change to it that exists for 21 years, apart from lawn maintenance?
- Does the 21-year timeframe to establish an adverse possession claim begin only when the person or entity seeking to take the property engages in a legally sufficient use?
BACKGROUND:
Norfolk Southern Railway Company (the successor of Norfolk and Western Railway Company) is the titled owner of two narrow parcels of land in Tallmadge. In December 1997, NC Enterprises purchased about 34 acres of property alongside and to the north of the Norfolk Southern parcels. The two parcels consist of .4 and 1.04 acres.
In August 2021, NC Enterprises filed a complaint in Summit County Common Pleas Court to formally take the Norfolk Southern parcels by claiming adverse possession. To acquire title to a property by adverse possession, Ohio case law requires proof of “exclusive possession and open, notorious, continuous, and adverse use” of the property for 21 years.
The president of NC Enterprises stated that the company believed the two narrow parcels were part of the property it had purchased. NC Enterprises treated the parcels as if it owned them. Over the years, the company hired services for landscaping and maintenance; planting trees; re-grading the land; and installing barriers, a catch basin, and piping to prevent flooding. The company stated that at a minimum, it spent $155,087 on improvements, maintenance, and upkeep of the parcels.
The real estate property manager for Norfolk Southern said he couldn’t identify anyone who visited the parcels between January 1998 and July 2020 to maintain the property. Norfolk Southern did pay property taxes totaling $155,449 throughout the time period, and it listed the parcels for sale in April 2020.
NC Enterprises requested summary judgment in the lawsuit, arguing it had established ownership of the parcels because it performed upkeep with landscaping services since 1998, built a fence in 2000, and made other significant improvements beginning in 2017. Norfolk Southern opposed the motion, stating the activities weren’t enough to establish adverse possession.
In March 2023, the trial court granted summary judgment to NC Enterprises. Norfolk Southern appealed to the Ninth District Court of Appeals, which in April 2024 upheld the trial court decision.
Norfolk Southern appealed to the Supreme Court of Ohio, which accepted the case.
Landscaping Parcels Doesn’t Count Toward 21-Year Requirement, Railway Argues
Norfolk Southern points to Ohio appeals court decisions ruling that mere property maintenance, such as mowing grass, cutting weeds, and performing minor landscaping, isn’t sufficient to acquire property through adverse possession. The railway argues that from 1998 to 2000, NC Enterprises only had landscaping done on the parcels – specifically, “mowing, weeding, trimming bushes, shrubs, and trees, edging, mulching, planting, and providing spring and winter cleanups.” Those limited activities weren’t enough to count as part of the 21-year timeframe required before making an adverse possession claim, the railway asserts.
To establish adverse possession and to start the 21-year clock, Norfolk Southern contends a permanent structure must be built on the property or improvements made to the land. NC Enterprises did nothing like that on the parcels until September 2000, when it erected a fence to deter theft, Norfolk Southern maintains. The railway argues September 2000, not 1998, is the earliest the 21-year clock could have started. The railway also maintains that it first disputed NC Enterprises’ claim in July 2020, a year before NC Enterprises filed its lawsuit, in response to the company’s letter stating it was making an adverse possession claim on the parcels.
The railway cites the Supreme Court of Ohio decision in Grace v. Koch (1998). Norfolk Southern contends that the Court disregarded actual improvements made to the property because the improvements hadn’t been on the property for 21 years. The railway brief maintains that the Court declined to add other “legally insufficient activities” to the years the improvements were on the property when determining whether the 21-year period had been met. Norfolk Southern asserts that legally sufficient uses or improvements must exist for 21 years on a property to establish adverse possession. NC Enterprises didn’t meet this standard, the railway concludes.
Adverse Possession Depends on All Care Provided, Nearby Property Owner Responds
NC Enterprises counters that its care and maintenance of the property as a whole must be considered. NC Enterprises reiterates that for 22 years, encompassing more than 500 occasions, it spent a total of at least $155,087 performing work on the parcels and making improvements. That work included maintaining a drainage dry well, hauling stone and brick for the work, re-grading the property, and mowing and planting grass.
The company contends there is no bright-line rule to determine what constitutes adverse possession. To establish it depends on the unique factual circumstances of each case, including the nature, character, and location of the land, and the uses suitable for the land, the company argues. It maintains that the determination doesn’t depend solely on whether a structure is built on, or changes are made to, the property. NC Enterprises notes, as an example, that the narrow corridor of the parcels isn’t suitable for constructing a building.
In this case, the narrow parcels sit between two businesses, NC Enterprises explains. Its brief maintains that the company’s care and maintenance of the parcels displayed an “exercise of dominion and control” reflecting the expected conduct of a titled owner of a property. That contrasts with Norfolk Southern’s complete lack of activities on the property, NC Enterprises asserts. The railway never used the parcels during the timeframe, it never sent an employee to check on the property, and it failed to maintain the parcels, the company concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Norfolk Southern Railway Company: Matthew Harper, mdharper@eastmansmith.com
Representing NC Enterprises LLC: Frank Mazgaj, fmazgaj@hcplaw.net
Suspension Recommended for Attorney Who Drafted NDA Connected to Assault Case
Disciplinary Counsel v. Gregg A. Rossi, Case No. 2024-1722
Mahoning County
Attorney Gregg Rossi of Youngstown faces discipline for professional misconduct involving a nondisclosure agreement (NDA) he drafted for a friend accused of assault. The Board of Professional Conduct found that Rossi made a false statement to a court about the NDA and engaged in conduct prejudicial to the administration of justice. The board recommends to the Supreme Court of Ohio that Rossi be suspended from practicing law for six months with conditions for reinstatement.
Rossi objects to the board’s suggested sanction, arguing for a public reprimand or a stayed suspension. Rossi’s objections require the Supreme Court to hear the disciplinary case during oral arguments.
Friend Charged With Assault
In December 2021, John Yerkey was charged in Mahoning County Court No. 5 with the assault of Theresa Dean. Yerkey and Dean were in a romantic relationship. Rossi represented Yerkey in the case.
Rossi and Yerkey had known each other professionally and personally for many years. Yerkey, a chiropractor, referred clients to Rossi and used Rossi as his attorney for several matters. Yerkey also rented a house from Rossi.
As a condition of bond in the assault case, the court ordered Yerkey to have no contact with Dean. A few days later, on Christmas Eve, Dean texted a Christmas message to Yerkey and said she was willing to talk. Rossi reminded Yerkey on several occasions of the no-contact order.
In February 2022, Yerkey texted Rossi saying the court was asking Dean for text messages about their relationship. Yerkey also said Dean might be interested in an agreement to prohibit both of them from sharing photos, data, and communications regarding their relationship.
Attorney Drafts Non-Disclosure Agreement
At Yerkey’s request, Rossi drafted an NDA for the time period from May 2021 to February 2022. The agreement included a requirement that Dean ask the prosecutor to dismiss the charges. The NDA stated that breaches of the agreement would incur a $1,000 penalty. Dean later testified that Yerkey had suggested the NDA and she thought it would protect both of them. She said Yerkey had implied he would share private information with her employer, which could harm her professionally.
She also noted that Rossi never discussed the NDA with her, and he didn’t tell her she could enlist the advice of an attorney. She signed the NDA at Rossi’s office after hours. Afterward, Dean informed the prosecutor’s office that she could no longer talk about the case. The prosecutor filed a motion to obtain the NDA. In the response, Rossi wrote, “The terms and conditions of this Agreement were negotiated between Teresa Dean and undersigned counsel and entered into, providing mutual release and non-disclosure agreement with respect to the alleged incident.”
Dean eventually hired an attorney and resumed cooperation with the state. Yerkey was found guilty of assault and sentenced.
Board Finds Attorney Violated Two Ethics Rules
The professional conduct board found that Rossi made a false statement to the court regarding the NDA. Rossi’s statement indicated that he negotiated the agreement when he didn’t, the board determined. Instead, information was obtained from Yerkey, who by communicating with Dean was violating the no-contact order and potentially violating victim’s rights laws, the board report stated. The board also noted that texts from Rossi to Yerkey said the attorney couldn’t recommend violating the order, but mentioned Yerkey could benefit in the long run if he were on good terms with Dean. The assistant prosecutor said that had he known of a violation, he would’ve asked the court to revoke Yerkey’s bond. The judge stated that she would have scheduled a hearing on the issue if such allegations were made.
The board determined that Rossi’s conduct was prejudicial to the administration of justice. Among the reasons, the NDA was drafted in part to influence the case against Yerkey, the attorney failed to explain the NDA to Dean, and the attorney didn’t suggest she find legal counsel before signing. The conduct also led to additional motions, hearings, and delays in the case, the board report concluded.
Among the aggravating circumstances weighing against Rossi, the report noted the multiple ethics violations, a dishonest or selfish motive, and Rossi’s refusal to acknowledge the misconduct. Rossi’s lack of a prior disciplinary record, his cooperative attitude during the disciplinary proceedings, and evidence of the attorney’s good character and reputation were found to be mitigating factors.
Attorney Disputes That NDA Restricted Victim
Rossi maintains that the NDA was designed to protect the professional reputations of both Yerkey and Dean. The attorney contends that the NDA didn’t require Dean to refuse to cooperate with the prosecutors, only that she request dismissal. In addition, Rossi argues, the statement had no effect on the outcome of the criminal case, given that Yerkey was found guilty.
Rossi also states that the Court has tempered the presumed actual suspension for an attorney’s dishonest conduct in certain circumstances that apply in his case. He argues there was no course of misconduct. Instead, there was one misstatement in a court filing, he maintains. In addition, he points to the mitigating evidence. He explains that he has served as an attorney for 34 years with no prior discipline and he has an excellent reputation in the community.
He contends that he is an experienced attorney who made a mistake. He argues for a public reprimand, citing other disciplinary cases where that sanction was imposed. However, if the Court determines a suspension is appropriate, a stayed suspension would be adequate to protect the public, he contends.
Disciplinary Counsel Questions Attorney’s Claims Regarding NDA
The Office of Disciplinary Counsel, which filed the complaint against Rossi, responds that just his conduct regarding the NDA was enough to warrant an actual suspension. The NDA was designed to silence a victim in a criminal case, the disciplinary counsel argues. The office notes that attorneys can use NDAs, but contracts that interfere with the reporting of crimes are void on public policy grounds. If the NDA truly weren’t meant to thwart the prosecution, Rossi could have informed his client or Dean of that fact, or drafted an NDA with that specific exclusion, or told the trial court or prosecutor that Dean could participate in the prosecution, but Rossi took none of these steps, the disciplinary counsel maintains.
The disciplinary counsel argues that Rossi has shown no awareness of the harm he caused or any regret for his conduct. He also testified he did nothing wrong in securing the NDA. He has minimized his behavior by suggesting it was inconsequential because Yerkey was eventually found guilty in court, the disciplinary counsel asserts.
If Rossi had only lied about negotiating the NDA with Dean, his mitigating factors weighed against the ethics violation would be enough to support a fully stayed suspension, the disciplinary counsel states. However, Rossi interfered with the administration of justice by drafting an NDA designed to silence the victim and by encouraging Yerkey to violate the no-contact order, the disciplinary counsel argues.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Gregg A. Rossi: John Juhasz Jr., jbjuhasz@gmail.com
Representing the Office of Disciplinary Counsel: Joseph Caligiuri, joseph.caligiuri@sc.ohio.gov
Were Evidence Admission Errors Enough To Warrant New Trial?
State of Ohio v. Elijah B. Roberts, Case No. 2024-0854
First District Court of Appeals (Hamilton County)
ISSUE: Did an appeals court wrongly grant a new trial after finding the trial judge improperly admitted the defendant’s statements and prior acts as evidence?
BACKGROUND:
The Hamilton County Prosecutor’s Office maintains the First District Court of Appeals wrongly granted Elijah Roberts a new trial for the 2019 murder of his mother. The prosecutor argues that even if the appeals court was correct in finding statements made by Roberts to a sheriff’s deputy were inadmissible at his trial, as well as evidence that Roberts stole his aunt’s car in Georgia to drive to his mother’s home in Cincinnati, the remaining evidence of his guilt is overwhelming. Roberts argues the inadmissible evidence resulted in his conviction and he is entitled to a new trial.
Roberts lived with his aunt, Regina Williams, in Georgia during the summer of 2019. On July 29, 2019, Wiliams called the police to report that she saw Roberts drive away in her car without permission and noted that her dining room curtains were smoldering. Williams called Roberts’ mother, Tracey Epperson, in Cincinnati. Because Epperson paid her son’s phone bill, she could track his phone. Williams and Epperson communicated throughout the day but were unable to locate Roberts.
Epperson made handwritten notes as she tried to call Georgia jails and hospitals to find her son. Two days later, on July 31, Epperson took a day off from work to locate Roberts. She also went grocery shopping at a Kroger and then picked up a sandwich from Jimmy John’s around 2:30 p.m. When she returned home, she was allegedly attacked by Roberts as she came in the door with her groceries and sandwich. She was strangled to death with the strap of her own purse, and her head was covered with a plastic Kroger bag.
Officer Questions Driver Who Pulled Off Road
Around 7 p.m. on July 31, Whitney Lushin, a deputy sheriff in Tipton County, Indiana, spotted a Honda SUV with Ohio license plates pulled off to the side of a two-lane highway in a grassy area. Lushin conducted a welfare check on the motorist and found Roberts, who said he pulled over to connect his phone to the car’s Bluetooth. Lushin recorded his encounter with Roberts on his body camera, and when Lushin asked his name, Roberts gave him a false name. During further questioning, Roberts gave Lushin his actual name and date of birth. The deputy determined he had a suspended driver’s license, and the vehicle was registered to Epperson. Roberts said he was driving from Ohio to Wisconsin, which made Lushin suspicious. Roberts was on a rural highway about two and a half hours from Cincinnati and not on a road connecting to the northern portions of Indiana and Wisconsin.
Lushin could see a woman’s wallet and a cellphone in the vehicle. Roberts denied Lushin consent to search the car but gave him the cellphone. Lushin asked Roberts why his mother would allow him to take the car to Wisconsin with her wallet in it. Roberts said she was unloading groceries at the time, and his mother left it there.
Lushin removed Roberts from his car and made him stand beside his police cruiser. Lushin called a K-9 unit to search the vehicle and retrieved the wallet. He found Epperson’s driver’s license and credit cards in it. He asked Roberts to dial his mother on his cellphone to let her know he had her car. The deputy noticed that Roberts didn’t have his mother’s phone number stored in his phone and asked him about it. Roberts replied he recently reset his phone. Lushin tried to call Epperson twice, but she didn’t answer. He asked a local dispatch center to call her, and they tried unsuccessfully 11 times. He asked the dispatcher to call the Cincinnati Police Department to conduct a welfare check on Epperson.
After the K-9 search, Roberts was arrested and taken to Tipton County Jail. At no time did Lushin read Roberts his Miranda rights.
Police Discover Dead Mother
About two hours after Lushin initially approached Roberts, Cincinnati police went to Epperson’s apartment. Police knocked on the door for 15 minutes, but she didn’t answer. An officer noticed the door was unlocked but didn’t enter the apartment. The next afternoon, police returned and found Epperson’s body just inside the apartment doorway. She had the purse strap around her neck and the Kroger bag over her head. Her body was surrounded by Kroger bags and smashed fruit. Police concluded she had been caught off guard while walking into her apartment. Investigators believe she had been dead for three to 12 hours. Next to her body was the Jimmy John’s sandwich, and police found a receipt for it in the apartment. They also found Williams’ car parked near Epperson’s home.
Police discovered Roberts was arrested in Indiana. He was returned to Ohio and charged with aggravated murder, aggravated robbery, tampering with evidence based on resetting his phone, and receiving stolen property for the theft of his aunt’s car.
Prior to his trial, Roberts sought to suppress the statements he made to Lushin and Cincinnati police as well as any evidence found in the SUV in which he was traveling. At the hearing, Lushin explained the encounter and when he removed Roberts from the vehicle. The Hamilton County Common Pleas Court found that any statements Roberts made after 43 minutes of questioning by Lushin were inadmissible. Roberts also sought to exclude the statements from Williams that Roberts took her car without permission and that her curtains were smoldering. She stated she didn’t know if Williams had tried to set them on fire.
The trial court found his aunt’s statements could be used as “other acts” evidence. The judge stated he would instruct the jury that the information couldn’t be used to determine if it was in Roberts’ character to commit crimes but only to prove his intent, motive, or preparation in going to his mother’s in Cincinnati.
At the trial, the police testified they took nail clippings from Epperson but never conducted DNA testing on them. They found Roberts’ DNA in Williams' car, but DNA samples from Epperson’s apartment and the plastic bag included Epperson’s DNA and an unknown individual. The coroner’s office testified the DNA sample quantities were too small to get a match for the second person.
Another officer testified that police found Epperson’s apartment keys in Roberts’ backpack and the Kroger receipt in the car he was driving. They also found receipts from North and South Carolina, showing where Roberts was traveling the day after he took his aunt’s car and the day before Epperson was murdered. The officer found a receipt from a McDonald’s within two miles of Epperson’s home and video of Roberts in the McDonald’s the night before the murder. Video from Kroger revealed Epperson leaving the store alone.
Roberts was convicted of all counts and sentenced to life imprisonment with parole eligibility after 25 years. He appealed to the First District, which found that any statement made to Lushin after 16 minutes of questioning should have been suppressed along with information about stealing the car in Georgia. The appeals court ordered a new trial.
The prosecutor’s office appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.
Challenged Evidence Didn’t Impact Trial, Prosecutor Asserts
The prosecutor’s office explains that the First District was concerned with three statements Roberts made to Lushin: that his mother gave him permission to use the car; that he was with his mother while she was unloading groceries; and that he reset his phone. The prosecutor asserts the First District was wrong to exclude that evidence, even if Roberts had not been read his Miranda rights at that time. The prosecutor also maintains the First District was wrong to require the trial court to exclude evidence of the stolen car in Georgia. The office argues the theft proved he had the means to get to Cincinnati to kill his mother.
But even if that evidence is excluded, the prosecutor argues there is overwhelming circumstantial evidence proving that Roberts murdered Epperson. The receipts indicate his travel path and location at the McDonald’s, his aunt’s car was parked near his mother’s apartment, and his mother’s possessions were found in her car as he fled to Indiana, the prosecutor notes. The Jimmy John’s receipt and Kroger video provide the approximate times she returned home and prove she was alone when she arrived at her apartment.
All of the evidence presented indicates Roberts was the killer, the prosecutor concludes, and a second trial isn’t justified.
Improper Evidence Was Harmful, Offender Asserts
Roberts supports the First District’s finding that admitting improper evidence wasn’t harmless. The harmless-error rule was created to forgive technical mistakes at the trial level, but when an error impacts the verdict, it isn’t harmless, he notes. He argues the First District correctly determined the responses he gave to Lushin occurred during a custodial arrest, and Lushin was required to read him his rights before questioning. His responses to Lushin’s questions were highly incriminating, he notes. The statements place Roberts with his mother at the time she was carrying groceries into the house, which is the time police estimated she was killed.
Those statements are the only evidence placing him near his mother at the time of her murder and undoubtedly had a significant impact on the jury, Roberts asserts. He argues that other information introduced at trial showed he and his mother had a loving relationship, that she sent him money and paid his rent and phone bill. His DNA wasn’t found on the interior of his mother’s apartment or the bag on her head, and police found the patio door to Epperson’s apartment was open, leaving a point of entry for an unknown assailant, Roberts maintains.
The statements from his aunt provided no evidence he used her car for the purpose of strangling his mother, and the information about the smoldering curtains was prejudicial, he argues. That information was wrongly introduced to indicate he would commit crimes against his family members and harm them, he asserts.
Without this information, the case against Roberts is not overwhelming, he argues, and a new trial is warranted.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting Roberts’ position was submitted by the Ohio Public Defender’s Office.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Philip Cummings: phil.cummings@hcpros.org
Representing Elijah B. Roberts: Michael Trapp, mjtrapp@netzero.net
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