IN THE SUPREME COURT OF OHIO

STATE OF OHIO CASE NO. 08-2226

Plaintiff/Appellant ON APPEAL FROM THE MONTGOMERY COUNTY COURT OF V. APPEALS, SECOND APPELLATE DISTRICT DEA'SHAWN D. SPEARS COURT OF APPEALS Defendant/Appellee CASE NO. 22443

APPELLEE'S MEMORANDUM IN OPPOSITION TO JURISDICTION

MATHIAS H. HECK, JR. PROSECUTING ATTORNEY By KELLY D. CRAMMER (0079994) Assistant Prosecuting Attoniey Montgomeiy County Prosecutor's Office Appellate Division P.O. Box 972 301 West Third Street, Suite 500 Dayton, Ohio 45422 (937) 225-4117

Counsel for Appellant, State of Ohio

SHAWN P. HOOKS (0079100) HOLZFASTER, CECIL, MCKNIGHT & MUES 1105 Wilmington Avenue Dayton, Ohio 45420 (937) 293-2141 (937) 293-0914, facsimile

Counsel for Appellee, Dae'Shawn D. Spears

HOLZFASTER, CECIL, McKNIGHT & MU S . Attorneys at Law

Cl.ER!K OF COt^RT SLiPiREW G^MM i Ungo TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE DOES NOT RAISE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR INVOKE A QUESTION OF GREAT PUBLIC GENERAL INTEREST ...... 1

Statement of the Case and Facts ...... 2

Arguinent ...... 3

Response to Proposition of Law No. 1:

The demonstrated use of a weapon in the commission of a crime and the absence of that weapon at the scene of the crime is not, when standing alone, sufficient evidence to constitute the corpus delicti of tampering with evidence ...... 3

Response to Proposition of Law No. 2:

Appellate courts have jurisdiction to raise errors sua sponte when the error is obvious and outcome determinative ...... 5

Conclusion ...... 7

Certificate of Service ...... 7

HOLZFASTER, CECIL, McKNIGHT & MUES Attorneys at Law ii TABLE OF AUTHORITIES

Case Law

C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298, 313 N.E.2d 400...... 6 Hungler v. Cincinnati (1986), 25 Ohio St.3d 338, 496 N.E.2d 912 ...... 6 State v. 1981 Dodge Rarn (1988), 36 Ohio St.3d 168, 522 N.E.2d 524 ...... 6 State v. Haynes (0' Dist. 1998), 130 Ohio App.3d 31, 719 N.E.2d 576 ...... 4, 6 State v. Hopfer (2"d Dist. 1996), 112 Ohio App.3d 521, 679 N.E.2d 321 ...... 3 State v. Like (2"dDist. 2008), 2008-Ohio-1873, Montgomery App. No. 21991 ...... 4 State v. Miranda (1916), 94 Ohio St. 364, 114 N.E. 1038 ...... 3 State v. Nobles (2"' Dist. 1995), 106 Oliio App.3d 246, 665 N.E.2d 1137 ...... 3 State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332 ...... 6

Statutes and other provisions

App. R. 12(A)(1)(b) ...... 5 App. R. 16 ...... 5 App. R. 21 ...... 5 Crim. R. 52(B) ...... 6 R.C. 2921.12(A)(1) ...... 4

HOLZFASTER, CECIL, McKNIGHT & MUES Attorneys at Law iii EXPLANATION OF WHY THIS CASE DOES NOT RAISE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR INVOKE A QUESTION OF PUBLIC OR GREAT GENERAL INTEREST.

This case does not raise any substantial constitutional questions. The State asserts that the Court of Appeals erred by finding insufficient facts to constitute a corpus delicti of tampering with evidence. As can be imagined the decision and holding was very fact-sensitive. The decision was based on the entire record, and the Court of Appeals held that evidence that a gun was used in the coinmission of a crime was no longer at the scene was insufficient to form the coipus delicti of tampering with evidence. It held that it was plain error to allow Mr. Spears' alleged statement that he had thrown away the gun with those facts alone.

The State is seeking to broaden the defmition of tampering with evidence to basically eradicate the mens rea requirement. In essence, the State advocates that unless an individual consciously leaves a gun at the scene of a crime he or she is automatically guilty of tampering with evidence in addition to the underlying crime that the gun was used to connnit. Without some evidence of the intent of the individual when he or she removed the gun, there simply is not sufficient evidence to allow the use of a confession. The State argues that it is a minimal burden to establish the corpus delicti requirement, but it is seeking in this case to eliminate the burden attogether. It argues that courts are misapplying the standard, but fails to cite cases that would make this "a reoccurring trend in recent case law". No constitutional question is invoked by this case.

Additionally, this case does not present a question of great and public interest any more than any other felony case. The State argues that the fact that the decision raised an issue sua sponte elevates this case to one of great general interest. In essence the State is asking for an opportunity to address the issues in this Court to correct perceived mistakes made by the Court of

HOLZFASTER, CECIL, McK1VIGHT & MUES Attorneys at Law Appeals. If this was sufficient to elevate a case to one of great and public interest every case with any perceived eiTor would be ripe for review by this Court.

STATEMENT OF THE CASE AND FACTS

Da.e'Shawn Spears was charged with several crimes, among them was tampering with evidence. Appellant's statement of facts discusses the facts of the underlying crimes at length, but does not focus on the facts that are relevant to this appeal. Mr. Spears' conviction for tampering with evidence followed a three-day juiy trial. The State offered the testimony of

Anthony Parker to prove that Mr. Spears tampered with evidence by knowingly removing the firearm with the purpose of iinpairing its value or availability as evidence in the investigation.

Mr. Spears allegedly told Parlcer that he was guilty of the crimes, but that the State did not have any evidence. He also allegedly indicated to Parker that he had thrown the gun away. The

State's evidence in support of the charge, independent of the confession, consisted solely of the absence of the weapon from the scene of the shooting.

While the statements made to Parker were not specifically objected to, Mr. Spears' sole assignment of error on appeal were that all of his convictions were against the manifest weight of the evidence. The Court of Appeals dealt with the other crimes, finding that there was sufficient evidence for a conviction. It held, however, that there was insufficient evidence to support a conviction for tanipering with evidence. It found the only evidence that dealt with the charge of tampering with evidence was Mr. Spears' alleged statement that he had thrown the gun away and the fact that the weapon used in the commission of the crime was absent from the crime scene.

The Court of Appeals noted that while the statement's admissibility was not specifically raised on appeal the admission of the statement constituted plain error because the "discovery of a dead body with bullet wounds and the absence of the gun that inflicted those wounds are insufficient

HOLZFASTER, CECIL, McIfNIGHT & MUES 2 Attorneys at Law evidence of tampering with evidence to permit the use of the defendant's statements about the disposal of the gun." Slip. Op. 8.

ARGUMENT IN OPPOSITION TO THE STATE'S PROPOSITIONS OF LAW

Response to Proposition of Law No. 1:

The demonstrated use of a weapon in the commission of a crime and the absence of that weapon at the scene of the crime is not, when standing alone, sufficient evidence to constitute the corpus delicti of tampering with evidence.

The fact that a weapon that was used in the commission of a crime is absent from the ciime scene is not sufficient to constitute the corpus delicti of tatnpering with evidence. "It has long been established as a general rale in Ohio that there inust be some evidence outside of a confession, tendhig to establish the corpus delicti, before such confession is admissible." State v.

Miranda (1916), 94 Ohio St. 364, 114 N.E. 1038, syllabus. "By the corpus delicti of a crime is meant the body or substance of the crime, included in wluch are usually two elements: (1) the act; (2) the criminal agency of the act." Id. Accordingly, "this rule does not require evidence, other than the confession, showing that the accused committed the crime but, rather, requires some evidence that a crime was, in fact, committed." State v. Hopfer (2"d Dist. 1996), 112 Ohio

App.3d 521, 561, 679 N.E.2d 321. "It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged." Maranda, 94 Ohio

St. 364, 114 N.E. 1038, at paragraph two of the syllabus. "[T]here must be sotne proof, not necessarily direct and positive, usually but circumstantial, tending to prove the fact that a crime was coinmitted." State v. Nobles (2"d Dist. 1995), 106 Ohio App.3d 246, 262, 665 N.E.2d 1137

(quoting Maranda, 94 Ohio St. at 371, 114 N.E. 1038).

HOLZFASTER, CECIL, McKNIGHT & MUES 3 Attorneys at Law Tampering with evidence is defined as follows: "No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall...alter, destroy, conceal, or remove any document, record, or thing, with the purpose to impair its value or availability as evidence in such proceeding or investigation." R.C. 2921.12(A)(1). There must be some "inference that the gun was taken to impair its value or availability as evidence."

State v. Like (2d Dist. 2008), 2008-Ohio-1873, Montgomery App. No. 21991.

The decision does not, contrary to the State's argument, impose a greater burden on the

State. It is requiring the State to put forth some evidence tending to prove some material element of the crime charged. In this instance the material element needed would be the rationale for reinoving the weapon. The State also argues that more evidence was admitted to support the corpus delicti of the crime. There were no witnesses or any other evidence, however, which accounted for the gun after the shooting. The evidence submitted all dealt with the gun both before and at the time of the shooting. Mr. Bailey was able to state that he observed Mr. Spears rmu7ing from the scene of the crime, but he did not account for the gun at the time. The only evidence even remotely dealing with the gun after the shooting, other than the statement, was the testimony that the police officers were unable to locate the gun at the scene. Even this is not necessarily evidence that the gun was not present at the scene, rather it proved that it had not yet been found. State v. Haynes (4`" Dist. 1998), 130 Ohio App.3d 31, 35, 719 N.E.2d 576.

The State is really arguing that the Court of Appeals misapplied the facts of the case, and this does not iise to the appropriate level for this Court to take jurisdiction over this issue. There is no evidence that appellate courts are broadening the burden of the State. Likewise, there is nothing to indicate that the burden is out of State's reach. It does, however, mean that there is not sufficient evidence of tampering with evidence in all cases where a weapon has not been

HOLZFASTER, CECIL, McKNIGHT & MUES 4 Attorneys at Law found at the scene of a crime wlren a weapon was used. To hold otherwise would effectively inean that there is a presumption of tampering with evidence if a weapon is not found at the crime scene, thus, eliminating the presuinption of innocence that is so cherished by our society and so ingrained in the Constitution and the Bill of Rights.

Response to Proposition of Law No. 2:

Appellate courts have jurisdiction to raise errors sua sponte when the error is obvious and outcome determinative.

A reviewing court has the jurisdiction and authority to raise issues, sua sponte, when the en-or is obvious and outcome determinative. In this case the State's argument is baseless, however, because the issue was raised generically in Mr. Spears' brief. His sole assigmnent of error dealt with the sufficiency of evidence to support his convictions. This automatically placed the issue of whether or not there was sufficient evidence to convict him of tampering with evidence. It is true that he did not argue that the statements at issue should have been excluded, but the Court of Appeals was acting within its power to raise the issue in the decision.

The State concedes that a lower court can raise errors sua sponte if the error is obvious and outcome determinative in its memorandum, but it asserts that no errors could be obvious if they had not been raised before. A court of appeals is to make a determination of the appeal on its merits consideiing "the assignments of error set forth in the briefs under App.R. 16, the record on appeal under App.R. 9, and, unless waived, the oral arguinent under App.R. 21..." App. R.

12(A)(l)(b). In this instance, the Court of Appeals considered the eiror that was raised and reviewed the record to determine that there was insufficient evidence to convict Mr. Spears of tanpering with evidence.

The State argues that the specific issue of the admissibility of the statements was not raised, and should not have been considered. It goes on to concede that this Court has found that

HOLZFASTER, CECIL, McKNIGHT & MUES 5 Attorneys at Law appellate courts do have discretion to raise errors that were not raised or briefed on appeal. State v. 1981 Dodge Rarn (1988), 36 Ohio St.3d 168, 169-170, 171, 522 N.E.2d 524; Hungler v.

Cincinnati (1986), 25 Ohio St.3d 338, 496 N.E.2d 912; C. Miller Chevrolet, Inc. v. Willoughby

Hills (1974), 38 Ohio St.2d 298, 313 N.E.2d 400. It argues that this should only be done to prevent a maiufest miscaLriage of justice, and that it must be obvious and outcome determinative. hi this instance that is precisely what took place.

Under Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights maybe noticed although they were not brought to the attention of the court." "The judgment of a trial court will be reversed under the plain error rule only if (1) error has occurred and, (2) but for that error, the result of the trial would clearly have been otherwise." Haynes, 130 Ohio App.3d 31,

34, 719 N.E.2d 576 (citing State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332). The rule should be applied with utmost caution and should be invoked only to prevent a clear miscarriage of justice. Id. Courts have held that the failure to object to a defendant's confession without sufficient evidence of the corpus delicti can constitute plain error. Haynes, 130 Ohio

App.3d 31, 36, 719 N.E.2d 576. In the present case the failure to obj ect was plain error because

eiror did occur, as discussed above, and if it had not occurred Mr. Spears would not have been

convicted of tampering with evidence.

Contrary to the State's argunient that there cannot be "obvious" error if it had not been

raised before the lower court raised it in its decision there are times where courts and parties

simply make mistakes and ignore obvious errors. It is true that in a perfect world this would not

be the case, but in a perfect world there would be no need for the plain error rule. Mistakes

happen. Even wlien multiple parties and courts examine an issue obvious errors are missed.

HOLZFASTER, CECIL, McK1VIGHT & MUES 6 Attorneys at Law This is the whole reason for giving reviewing courts discretion to consider mistakes that were both obvious and outcome detenninative.

CONCLUSION

Accordingly, Mr. Spears would ask this Honorable Court to not accept jurisdiction on the

State's arguments. First, there is no substantial constitutional issue or question of public or great general interest that the State's memoranduin involces. The State simply argues that the Cotu-t of

Appeals misapplied the facts in reaching its decision. Additionally, the two propositions of law that are advanced by the State have been addressed nuinerous times by this Court.

Respectfully submitted,

Sh n P. Hooks; reg. #0079100 Hofzfasteir, Ce 1/c ight & Mues 1105 Wilmiuon Av ue Dayton, OH (937) 293-2141 (937) 293-0914 fax Attomey for Appellant, Dea'Shawn D. Spears

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that a copy of the foregoing was served by regular U.S. Mail upon the following individual on this same day of filing:

Kelly Crammer Montgomei y County Prosecutor's Office Appellate Division P.O. Box 972 Dayton, Ohio 45422

S AWN P. H S, 0079100 olzfaster, Cec Crught & Mues Attorney for Appellant, Dea'Shawn D. Spears

HOLZFASTER, CECIL, McKNIGHT & MUES 7 Attoraeys at Law