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State v. Garn

Court of Appeals of Ohio, Fifth District, Richland

May 19, 2017

STATE OF OHIO Plaintiff-Appellee
v.
MICHAEL GARN Defendant-Appellant

         Appeal from the Richland County Common Pleas Court, Case Nos. 2015CR0197 and 2015CR0637

          For Plaintiff-Appellee BAMBI COUCH PAGE Prosecuting Attorney, By: DANIEL M. ROGERS Assistant Prosecuting Attorney Richland County Prosecutor's Office.

          For Defendant-Appellant RUSSELL S. BENSING.

          Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J.

          OPINION

          HOFFMAN, J.

         {¶1} Defendant-appellant Michael Garn appeals his convictions entered by the Richland County Court of Common Pleas on numerous counts including: unauthorized use of LEADS, dereliction of duty, tampering with evidence, sexual battery and menacing by stalking. Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE.[1] [2]

         {¶2} At all times relevant, Appellant was employed as a police officer with the Mansfield Police Department. As part of his job responsibilities, Appellant was assigned to traffic enforcement detail, including the STEP detail (Selective Traffic Enforcement Program) as an overtime detail.

         {¶3} Appellant was certified in the use of the Law Enforcement Automated Database System (LEADS), and completed recertification tests, scoring high percentages. Appellant testified at trial he ran LEADS searches routinely as part of his traffic enforcement duties. Appellant testified he understood LEADS could not be used for an unlawful purpose or for personal gain.

         {¶4} On February 26, 2015, in Case No. 2015CR197, the Richland County Grand Jury indicted Appellant on 17 counts of LEADS violations, 14 counts of dereliction of duty, one count of burglary, one count of trespass, one count of attempted gross sexual imposition, one count of attempted sexual battery, one count of menacing, two counts of tampering with evidence, one count of sexual battery, and one count of public indecency. On July 10, 2015, the Richland County Grand Jury indicted Appellant on one count of menacing by stalking, in violation of R.C. 2903.211 (A)(1), in case number 2015 CR 637. On July 24, 2015, the trial court joined 2015 CR 197 with the indictment in 2015 CR 637.[3]

         {¶5} On March 25, 2016, Appellant moved the trial court to dismiss the LEADS violation charges as being unconstitutionally vague. The State filed a response to the motion. Via Judgment Entry of March 31, 2016, the trial court denied Appellant's motion to dismiss the LEADS violations.

         {¶6} Following a jury trial, Appellant was convicted of 12 counts of unauthorized use of LEADS, in violation of R.C. 2913.04(C), a fifth degree felony (Counts 3, 5, 6, 9-17); 11 counts of dereliction of duty, in violation of R.C. 2921.44(E), a misdemeanor of the second degree (Counts 19, 22-29, 31); one count of tampering with evidence, in violation of R.C. 2921.12(A)(1), a third degree felony (Count 37); and one count of sexual battery, in violation of R.C. 2907.03(A)(1) (Count 39).[4] Appellant was also convicted of one count of menacing by stalking, in violation of R.C. 2903.211(A)(1), in Case No. 2015 CR 637.

         {¶7} The trial court entered sentence on April 20, 2016, imposing a twelve month prison term on Counts 3, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, and 17. The trial court found counts 19, 22, 23, 24, 25, 26, 27, 28, 29, and 31 merged with Appellant's sentence on other counts. The trial court imposed a thirty-six month prison term on count 37 (tampering with evidence), and a 60 month prison term on count 39 (sexual battery). The trial court ordered the sentences on counts 3, 15, 16, 37, 39 and the sentence imposed in case number 2015 CR 637 run consecutively, and the other remaining counts run concurrently. The trial court classified Appellant a Tier III sex offender for his conviction on a sexually oriented offense. Via separate Sentencing Entry in 2015 CR 637, the trial court sentenced Appellant to eighteen months in prison on the conviction for menacing by stalking, to run consecutive to Appellant's sentence in 2015 CR 197, for a total sentence of 12 ½ years in prison. [5]

         {¶8} Appellant appeals, assigning as error:

I. APPELLANT'S CONVICTIONS FOR VIOLATION OF THE LAW ENFORCEMENT AUTOMATED DATABASE SYSTEM (LEADS) STATUTE AND FOR DERELICTION OF DUTY IN THAT REGARD VIOLATED HIS RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION, ON THE GROUNDS THAT THE STATUTE IS UNCONSTITUTIONAL.
II. THE DEFENDANT'S CONVICTION FOR VIOLATION OF THE LEADS STATUTE IS BASED UPON INSUFFICIENT EVIDENCE, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
III. THE TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF KRYSTAL SAWYER'S PRISON DISCIPLINE RECORD REGARDING A FALSE ALLEGATION OF SEXUAL ACTIVITY, TO THE PREJUDICE OF DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND TO PRESENT A DEFENSE UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
IV. THE DEFENDANT'S CONVICTION FOR TAMPERING WITH EVIDENCE IS BASED UPON INSUFFICIENT EVIDENCE, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF DEFENDANT'S RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
V. THE DEFENDANT'S CONVICTION FOR MENACING BY STALKING IS BASED UPON INSUFFICIENT EVIDENCE, AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF DEFENDANTS RIGHT TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

         I.

         {¶9} In the first assigned error, Appellant maintains his convictions for LEADS violations are unconstitutional as the statute is void for vagueness. Specifically, Appellant asserts the statute fails to provide notice of proscribed behavior, and the statute impermissibly allows the executive branch to determine what constitutes a violation of law.

         {¶10} R.C. 2913.04 (C) and (D) read,

(C)No person shall knowingly gain access to, attempt to gain access to, cause access to be granted to, or disseminate information gained from access to the law enforcement automated database system created pursuant to section 5503.10 of the Revised Code without the consent of, or beyond the scope of the express or implied consent of, the chair of the law enforcement automated data system steering committee.
(D)No person shall knowingly gain access to, attempt to gain access to, cause access to be granted to, or disseminate information gained from access to the Ohio law enforcement gateway established and operated pursuant to division (C)(1) of section 109.57 of the Revised Code without the consent of, or beyond the scope of the express or implied consent of, the superintendent of the bureau of criminal identification and investigation.

         {¶11} The trial court's March 31, 2016 Judgment Entry overruling Appellant's motion to dismiss states,

Notice in cases charged under this statute comes, not from the statute, but from work place manuals, policies and, to some extent, common sense. An employee should be on notice that committing crimes or engaging in conduct that has a negative impact on the company while using a work computer would be against the implied consent granted by his or her workplace.
This Administrative Code section in and of itself specifies the extent of consent officers have for use of LEADS. [Citing OAC Ann. 4501:2-10-06(C)]
It is clear from this Administrative Code section that LEADS is to be used for the administration of criminal justice and not for personal use. Further, as pointed out by the Defendant, there are policies and guidelines that agencies participating in LEADS must adhere to that are published in the NCIC operating manual, DJIS security policy, LEADS operating manual, LEADS security policy, newsletters, and administrative messages from LEADS. [Citing OAC Ann. 4501:2-10-03(C)(3).] Whether these policies are subject to change does not alter the basic fact that these databases are for law enforcement purpose only and personal use for any reason goes beyond the express consent of the chair of the law enforcement automated data system steering committee and/or the superintendent of the bureau of criminal identification and investigation.

         {¶12} Appellant was convicted of twelve counts of unauthorized use of the LEADS database, in violation of R.C. 2913.04(C) and (D). In support of his argument the statute is unconstitutionally vague, Appellant cites the testimony of various law enforcement officers at trial as to arbitrary compliance and standards of practice. We note Appellant did not renew the motion to dismiss the charges following the trial court's denial of his motion to dismiss on March 31, 2016. As the trial court overruled Appellant's motion prior to trial, the subsequent trial testimony offered in support of Appellant's argument cannot be considered.[6]

         {¶13} Legislative enactments are afforded a strong presumption of constitutionality. State v. Collier (1991), 62 Ohio St.3d 267, 269. When possible, statutes are to be construed in favor of conformity with the Ohio and United States Constitutions. Id. A party asserting a statute is unconstitutional must prove the statute is unconstitutional beyond a reasonable doubt. Id.

         {¶14} The critical question in all cases as to void for vagueness is whether the law affords a reasonable individual of ordinary intelligence fair notice and sufficient definition and guidance to enable him to conform his conduct to the law. City of Norwood v. Horney, 110 Ohio St.3d 353, 380, 853 N.E.2d 1115 (2006).

         {¶15} Statutes which do not fairly inform a person of what is prohibited will be found unconstitutional as violative of due process. State v. Carrick, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, ¶ 14, citing State v. Reeder, 18 Ohio St.3d 25, 26, 479 N.E.2d 280 (1985) and Connally v. Gen. Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Columbus v. Thompson, 25 Ohio St.2d 26, 266 N.E.2d 571 (1971). However, "'[impossible standards of specificity are not required. * * * The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'" Id. at ¶ 14, quoting Jordan v. De George, 341 U.S. 223, 231-232, 71 S.Ct. 703, 95 L.Ed. 886 (1951).

         {¶16} A facial challenge requires "the challenging party * * * show that the statute is vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'" Carrick, supra, 131 Ohio St.3d 340, 2012-Ohio-608, 965 N.E.2d 264, at ¶ 15, citing State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991), quoting Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Stated another way, "the challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law." Id. Appellant "must prove, beyond a reasonable doubt that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged." Id., citing United States v. Harris, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); 25 Ohio Jurisprudence 3d, Criminal Law, Section 8, at 106 (1981). See, In re L.Z., Licking App. No. 15CA36, 2016-Ohio-1337.

         {¶17} We find the statute is not void for vagueness. Appellant, a law enforcement officer, could and should have understood his duties and responsibilities with regard to utilizing the LEADS system for legitimate law enforcement purposes. Appellant knew or should have known the acts which would be against the expressed or implied consent of the law enforcement automated data system steering committee and/or the superintendent of the bureau of criminal identification and investigation. The evidence demonstrates Appellant was LEADS certified, and successfully completed retesting, scoring high averages. The Ohio Administrative Code sections cited by the trial court herein provide adequate notice of what Appellant is required to do or prohibited to do under the statute.

         {¶18} In State v. Johnson, 8th Dist. Cuyahoga No. 59190, the Eighth District held a previous version of R.C. 2913.04 was constitutional and not void for vagueness. The statute was less specific than the version at issue herein.[7]

         {¶19} We further find the statute does not violate the separation of powers doctrine. The statute prohibits a person from knowingly gaining access to the LEADS system without the consent of or beyond the scope of express or implied consent of the chair of the LEADS steering committee or the superintendent of the bureau of criminal identification and investigation. We disagree with Appellant's argument the statute allows the executive branch to define the elements of the crime.

         {¶20} The legislature clearly prohibited a person from knowingly gaining access to the LEADS system either beyond the scope of consent of the chair of the LEADS steering committee or the superintendent of the bureau of criminal identification and investigation. As both the chair and superintendent govern the use of the LEADS system, the statute does not allow them to define the elements of the crime; rather, to oversee the use of and administration of the LEADS system. Whether the policies are subject to change does not alter the fact the databases were for law enforcement purposes only, and personal use for any reason is beyond the consent either expressed or implied.

         {¶21} The first assignment of error is overruled.

         II, IV and V.

         {¶22} The second, fourth and fifth assigned errors raise common and interrelated issues; therefore, we will address the arguments together.

         {¶23} Appellant maintains his convictions for violations of the LEADS statute, tampering with evidence and menacing by stalking are not supported by the ...


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