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Lemons v. State

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 16, 2017

ANTHONY LEMONS PLAINTIFF-APPELLANT
v.
STATE OF OHIO DEFENDANT-APPELLEE

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-839878

          ATTORNEYS FOR APPELLANT David B. Malik Sara Gedeon, Jennifer Branch Alphonse A. Gerhardstein Gerhardstein & Branch Co., L.P.A., Kevin M. Spellacy McGinty, Hilow & Spellacy Co., L.P.A.

          ATTORNEYS FOR APPELLEE Michael DeWine Ohio Attorney General BY: Debra Gorrell-Wehrle Assistant Attorney General Criminal Justice Section

          BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.

         ON RECONSIDERATION [1]

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, PRESIDING JUDGE

         {¶1} Plaintiff-appellant, Anthony Lemons, appeals the trial court's judgment declaring that he was not a wrongfully imprisoned individual under R.C. 2743.48(A). Lemons raises two assignments of error for our review:

1. The trial court erred when it concluded that [he] was not a wrongfully imprisoned individual on May 2, 2016.
2. The trial court erred when it denied [him] leave to amend his complaint on November 20, 2015.

         {¶2} After review, we overrule Lemons's first assignment of error, but sustain his second assignment of error. We therefore reverse the judgment of the trial court and remand for further proceedings.

         I. Procedural History and Factual Background

         {¶3} In October 1995, a jury convicted Lemons of murder for the death of Eric Sims and attempted murder of Jude Adamcik. The trial court sentenced him to 15 years to life in prison. This court affirmed his convictions. See State v. Lemons, 8th Dist. Cuyahoga No. 71644, 1998 Ohio App. LEXIS 125 (Jan. 15, 1998) (for factual background).

         {¶4} In December 2013, the criminal trial judge - the same judge who presided over the jury trial - granted Lemons a new trial pursuant to newly discovered exculpatory evidence. The judge found that "undisclosed evidence compels the court to grant defendant a new trial" under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The judge explained that Lemons received police reports from a public records request that had not been provided to him in discovery before his 1995 trial. The court stated that the "evidence includes critical information that throws doubt upon the credibility of eyewitness Adamcik who testified for the state at trial."

         {¶5} Specifically, the criminal trial judge found that Lemons was not told that police showed Adamcik a photo array of six individuals who were known to go by the nickname of "Tone" on January 8, 1995, which was nearly eight months after Sims's murder in April 1994, and that Adamcik did not identify Lemons that day. Instead, on January 8, 1995, Adamcik told police that she would rather see the individual in person. Police then showed Adamcik the same photo array the following day, on January 9, and that is when she chose Lemons as Tone. The criminal trial judge noted that Adamcik admitted at trial that she was shown photos on more than one occasion, but not that she was unable to identify the shooter when first looking at the photos.

         {¶6} The criminal trial judge then noted that the state never disclosed to Lemons that several days after Adamcik identified him in an April 1995 physical lineup, Adamcik stated to one of the detectives that she was positive she identified the correct person because after she chose him in the lineup, she noticed his shoes and they were the same shoes that he had been wearing on the night of the murder. The state also did not tell Lemons that the detectives seized Lemons's shoes after Adamcik's claim, and subsequently discovered from a Nike representative that the shoes Lemons had been wearing in the lineup could not have been the same shoes that he was wearing at the time of the murder because the shoes had not been manufactured until at least January 1995. The criminal trial judge further noted that although Adamcik testified at trial that the shooter was wearing certain tennis shoes, no testimony was elicited from her about her claim of recognizing those shoes at the lineup over a year later.

         {¶7} Adamcik passed away of natural causes in November 1996. Because she was the state's only witness at Lemons's trial that linked him to the crimes, the state filed a notice of dismissal without prejudice on January 24, 2014. On that same date, the state moved for leave to dismiss the indictment without prejudice. The state informed the court that it wished to continue its investigation into Sims's murder to look for discoverable evidence that could lead to reprosecution. Lemons also moved to dismiss his criminal case, but with prejudice.

         {¶8} On March 5, 2014, the trial court denied Lemons's motion to dismiss. On March 13, 2014, the trial court denied the state's motion to dismiss and set the case for trial.

         {¶9} On August 29, 2014, the state renewed its motion to dismiss the case without prejudice. The state informed the trial court that it would continue to further investigate Sims's murder. The trial court denied the state's motion to renew its motion to dismiss and set another date for trial.

         {¶10} On December 2, 2014, the state again sought permission to dismiss the indictment without prejudice, which would allow for further criminal investigation. On December 23, 2014, the trial court denied the state's motion to dismiss and ordered the state to proceed immediately to trial. When the state was unable to proceed, the trial court entered a judgment of acquittal due to insufficient evidence pursuant to Crim.R. 29.

         {¶11} On February 3, 2015, Lemons filed a civil complaint against the state - the case that is now before us on appeal - seeking a declaration that he was a wrongfully imprisoned individual as defined by Ohio's wrongful imprisonment statute. Under R.C. 2743.48(A), a "wrongfully imprisoned individual" is an individual who establishes each of the following requirements:

(1) The individual was charged with a violation of a section of the Revised Code by an indictment or information, and the violation charged was an aggravated felony or felony.
(2) The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony or felony.
(3) The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty.
(4) The individual's conviction was vacated, dismissed, or reversed on appeal, the prosecuting attorney in the case cannot or will not seek any further appeal of right or upon leave of court, and no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation against the individual for any act associated with that conviction.
(5) Subsequent to sentencing and during or subsequent to imprisonment, an error in procedure resulted in the individual's release, or it was determined by the court of common pleas in the county where the underlying criminal action was initiated that the charged offense, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.

         {¶12} In his original complaint, Lemons asserted that he was a wrongfully imprisoned individual due to an error in procedure that occurred "subsequent to sentencing and during or subsequent to imprisonment" that resulted in his release under the first prong of R.C. 2743.48(A)(5), as well as due to his actual innocence under the second prong of R.C. 2743.48(A)(5).

         {¶13} On March 10, 2015, Lemons filed an amended complaint. In it, he no longer alleged that he was a wrongfully imprisoned individual due to an error in procedure that occurred "subsequent to sentencing and during or subsequent to imprisonment" that resulted in his release from prison.

         {¶14} Five days before trial, on November 12, 2015, Lemons moved to amend his complaint again, this time to reinstate his allegations that he was released from prison due to procedural errors that occurred "subsequent to sentencing and during or subsequent to imprisonment." The trial court denied his motion, and the matter proceeded to a bench trial on the issue of whether Lemons was actually innocent under R.C. 2743.48(A)(5).

         {¶15} After a three-day trial, the trial court determined that Lemons did not establish by a preponderance of the evidence that he was actually innocent of murdering Sims and attempting to murder Adamcik. It is from this judgment that Lemons now appeals.

         II. R.C. 2743.48

         {¶16} The wrongful imprisonment statute, R.C. 2743.48, was added to the Revised Code in 1986 by Am.Sub.H.B. No. 609 "to authorize civil actions against the state for specified monetary amounts in the Court of Claims by certain wrongfully imprisoned individuals." Doss v. State, 135 Ohio St.3d 211, 2012- Ohio-5678, 985 N.E.2d 1229, ¶ 10. "The statute was designed to replace the former practice of compensating those wrongfully imprisoned by ad hoc moral-claims legislation." Id., citing Walden v. State, 47 Ohio St.3d 47, 547 N.E.2d 962 (1989). The Ohio Supreme Court explained in Walden that when the General Assembly enacted the current statutory scheme, it "intended that the court of common pleas actively separate those who were wrongfully imprisoned from those who have merely avoided criminal liability." Id. at 52.

         {¶17} The Ohio Revised Code provides a two-step process where "a person claiming wrongful imprisonment may sue the state for damages incurred due to the alleged wrongful imprisonment." State ex rel Jones v. Suster, 84 Ohio St.3d 70, 72, 701 N.E.2d 1002 (1998), citing Walden. The first action, in the common pleas court, seeks a preliminary factual determination of wrongful imprisonment. Id. The second action, in the Court of Claims, provides for damages. Id.

         {¶18} A claimant must establish the five factors under R.C. 2743.48(A) by a preponderance of the evidence before he or she can be declared a wrongfully imprisoned individual. Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 11, citing Doss.

         A. R.C. 2743.48(A)(4)

         {¶19} Before we get to Lemons's arguments, we want to briefly address one issue regarding R.C. 2743.48(A)(4) that the states raises. The state contends that Lemons was not a wrongfully imprisoned individual because he could not meet the requirements of R.C. 2743.48(A)(4), which provides:

The individual's conviction was vacated, dismissed, or reversed on appeal, the prosecuting attorney in the case cannot or will not seek any further appeal of right or upon leave of court, and no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney, city director of law, village solicitor, or other chief legal officer of a municipal corporation against the individual for any act associated with that conviction.

(Emphasis added to highlight the language at issue.)

         {¶20} The state maintains that because Lemons's convictions were not vacated, dismissed, or reversed on appeal; rather, they were vacated and dismissed by the trial court, Lemons cannot meet the requirements of subsection (A)(4), and therefore, he does not fall within the definition of a wrongfully imprisoned individual.

         {¶21} We disagree with the state's interpretation of R.C. 2743.48(A)(4). Subsection (A)(4) was added to the wrongful imprisonment statute when the statute was first amended in 1989.[2] See Am.H.B. No. 623, effective March 17, 1989. The original text of subsection (A)(4), and indeed up until September 2012, read in pertinent part: "The individual's conviction was vacated or was dismissed, or reversed on appeal[.]"

         {¶22} In 2012, subsection (A)(4) was amended to its current version. See Am.H.B. No. 487, effective September 12, 2012. The 2012 amendment notes to R.C. 2743.48 explain the various amendments to the different subsections of the statute, all separated by a semicolon, without explaining the amendment to subsection (A)(4). But the 2012 amendment notes conclude with a semicolon followed by: "and made stylistic changes." Thus, it reads in relevant part: "The 2012 amendment [lists many explicit changes to different subsections; and]; made stylistic changes."

         {¶23} We interpret the legislative notes to mean that the General Assembly amended the original wording from, "[t]he individual's conviction was vacated or was dismissed, or reversed on appeal" to "[t]he individual's conviction was vacated, dismissed, or reversed on appeal, " as a mere stylistic change. And the original enactment makes it clear that "on appeal" modifies only the word reversed ("reversed on appeal"), and not the previous words, vacated and dismissed. Thus, a wrongfully imprisoned individual is someone whose conviction was vacated by a court of law at any level or dismissed by a court or the state, or was reversed on appeal. Lemons's convictions were vacated and dismissed by the trial court, and thus, he meets the requirements of R.C. 2743.48(A)(4).

         B. Actual Innocence under R.C. 2743.48(A)(5)

         {¶24} It is well established that "when a person claiming compensation for wrongful imprisonment has obtained a judgment of acquittal, that judgment is not to be given preclusive effect, because an acquittal is a determination that the state has not met its burden of proof. It is not necessarily a finding that the accused is innocent." Doss, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, at ¶ 14, citing Walden, 47 Ohio St.3d 47, 547 N.E.2d 962. Thus, R.C. 2743.48(A)(5) requires an affirmative showing of innocence beyond proof of an acquittal. Id.

         {¶25} To establish that he was actually innocent under the wrongful-imprisonment statute, Lemons had to prove by a preponderance of the evidence that "the charged offense, including all lesser-included offenses, either was not committed by [him] or was not committed by any person." Doss at ¶ 21, citing R.C. 2743.48(A)(5).

         {¶26} Turning to the instant case, Lemons first argues that he established that he was actually innocent of the offenses by a preponderance of the evidence. Lemons claims that the trial court's judgment - concluding that he did not establish that he was actually innocent - is against the manifest weight of the evidence.

         1. Standard of Review

         {¶27} The manifest weight standard in a civil case is the same as it is in a criminal case. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17. In Eastley, the Supreme Court explained:

Weight of the evidence concerns "the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the [factfinder] that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief"

(Emphasis sic.) Id. at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).

         {¶28} When conducting a manifest weight review, this court "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered." Id. at ¶ 20. "In weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact." Id. at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984), fn. 3.

         {¶29} App.R. 12(C)(1), titled: "Judgment in civil action or proceeding when sole prejudicial error found is that judgment of trial court is against the manifest weight of the evidence, " provides that:

In any civil action or proceeding that was tried to the trial court without the intervention of a jury, and when upon appeal a majority of the judges hearing the appeal find that the judgment or final order rendered by the trial court is against the manifest weight of the evidence * * *, and have not found that the appellee is entitled to judgment or final order as a matter of law, the court of appeals shall reverse the judgment or final order of the trial court and either weigh the evidence in the record and render the judgment or final order that the trial court should have rendered on that evidence or remand the case to the trial court for further proceedings.

         {¶30} Thus, we must review the entire record to determine whether the trial court's judgment, finding that Lemons did not prove by a preponderance of the evidence that he is actually innocent, is against the manifest weight of the evidence.

         2. Bench Trial

         {¶31} Lemons presented the following evidence to the bench.

         a. Harold Salters

         {¶32} Salters did not testify at Lemons's criminal trial. Salters testified that he had been interviewed by police several times in 1995, but said that back then, he was smoking crack cocaine and drinking beer "day in and day out." Salters stated that when police found him in 1995, he told them that he was getting high with Chris (he did not know his last name) on the day of Sims's murder. It was morning and they had gone to a convenience store to get some beer. When Salters came out of the store, Chris was talking to a woman. Salters could not recall if the woman was white or black. The woman got into their car and they were going to drive her to Salters's apartment, which was behind Sims's apartment. Salters said that instead of going to Salters's apartment, Chris drove past it and went to Sims's apartment.

         {¶33} Salters testified that he sat on Sims's couch while Chris went to the back with Sims and the "young lady." Salters believed they were getting high. Salters agreed that he could have been with Chris's brother, Merrill, that day, but he always believed it had been Chris. Salters denied that he ever introduced the "young lady" to anyone named "Tone." He further stated that although those days were "cloudy, " he could remember that Lemons was not in Sims's apartment on the day of Sims's murder. He said that he did not know Lemons, nor had he even met Lemons before 2012 (when he first spoke with Lemons's attorney).[3]

         b. John Thompson

         {¶34} Thompson testified that in April 1994, he lived with Adamcik. Thompson did not testify at Lemons's criminal trial. Thompson did not recall ever being interviewed by police regarding Sims's murder, but he admitted on cross-examination that he did speak to Detective Kovacic one time in January 1995.

         {¶35} Thompson testified that Adamcik told him on the night of the murder in April 1994 that "[a] friend of hers at an apartment complex" was shot. Adamcik told Thompson that the shooter's nickname was "Tone" and that she thought Tone lived somewhere near 197th Street. Thompson said that Adamcik also told him that Tone shot at her too and that she dove behind a couch and waited for Tone to leave. Thompson said that Adamcik was "freaked out" and "scared that Tone * * * would find her." Thompson said that he told Adamcik to call the police.[4]

          {¶36} Thompson testified that Adamcik was unemployed when he met her, but that she was a "strawberry, " which he explained meant that she "trade[d] services of sex for drugs or money." Thompson stated that at that time, Adamcik was also addicted to crack cocaine.

         {¶37} On cross-examination, Thompson agreed, when the state showed him a police report from January 1995, that he was interviewed by Detective Kovacic.

         c. Detective Denise Kovach

         {¶38} Detective Kovach was called as if on cross-examination. She was the state's representative witness at Lemons's criminal trial and sat through the entire trial. She was one of three detectives who worked on the Sims's murder case, along with detectives Cudo and Kovacic.

         {¶39} Detective Kovach agreed that Adamcik did not initially identify Lemons as the shooter when they showed her a photo array on January 8, 1995, because Adamcik stated that she wanted to see an in-person lineup. Detective Kovach explained that the next day the detectives showed Adamcik photos of Chris and Merrill Flakes. After viewing photos of Chris and Merrill Flakes, Adamcik asked the detectives to see the photo array from the previous day. When Adamcik viewed the photo array for the second time on January 9, 1995, she chose Lemons as the shooter.

         {¶40} Detective Kovach agreed that Adamcik first told police that she believed Tone lived in the Cliffview apartment complex. A few days later, after she identified Lemons in the photo array, Adamcik insisted to police that the shooter was not a local man because she had never seen him before that night.

         {¶41} Detective Kovach agreed that Adamcik told the detectives on January 26, 1995, that on the night of the murder, Salters and his friend, Merrill Flakes (although Adamcik did not know Salter's friend's name at the time of the interview, she later identified him), took her to Sims's apartment, obtained drugs from a male named Tone, and then left before the shooting. Detective Kovach agreed that police learned during the investigation that Merrill Flakes's nickname was "Tone, " and that Merrill lived at Cliffview Apartments.[5] Further, Detective Kovach agreed that other witnesses told police that Chris and Merrill Flakes were at Sims's apartment at the time of the murder, including Debbie and Nancy Jenkins, and Salter's brother, Billy Youngblood.

         {¶42} Detective Kovach reviewed several old police reports of police interviews that took place in early 1995, after Adamcik identified Lemons in the photo array. Detective Kovach agreed that Adamcik's statement that she gave to police evolved as more evidence was discovered. She further agreed that Adamcik's testimony at trial - that she actually gave oral sex to Tone - contradicted her previous statements (first that she and Tone were just talking in the bathroom and then that Tone wanted oral sex in the bathroom, but he left before it happened because the victim was knocking on the door).

         {¶43} Detective Kovach also agreed that Adamcik's testimony at trial contradicted her earlier statements regarding how long she stayed in the car, why she went into the house, how she ended up in the bathroom, whether she heard Salters and Merrill say something as they were leaving, and whether she actually saw Salters and Merrill leave.[6]

         {¶44} Detective Kovach agreed that she and the other detectives discovered through several witnesses that Adamcik was a well-known prostitute, or a "strawberry, " who went by the nickname, "Snow White."[7]

         {¶45} Detective Kovach testified that she and the other detectives never considered the Flakes brothers as suspects. They always believed the Flakes brothers might have been at Sims's apartment at the time of the ...


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