Summary
In Gover, the defendant was arrested after a police officer observed him emptying his pockets of coins, costume jewelry, and other items that had earlier been part of a restaurant display that apparently resembled, but was not, a safe.
Summary of this case from Chessman v. StateOpinion
No. 92-1028
Submitted April 21, 1993 —
Decided August 11, 1993.
APPEAL from the Court of Appeals for Hamilton County, No. C-910314.
In December 1988, a jury convicted Anthony Gover, appellee, of safecracking, a third-degree felony. As a result of this conviction, appellee, was incarcerated in a state penal institution.
The incident underlying this conviction occurred on September 13, 1988, when appellee entered Smackwater Jacks restaurant. Later that day, appellee was seen by the restaurant's manager, Michael Lee Mastruserio, crouched on the floor, with his pockets bulging. Apparently, appellee then walked out of the restaurant's front door. Mastruserio was suspicious of the appellee's behavior, followed him outside, and asked appellee to stop. Instead of complying with this request, appellee fled the scene. Mastruserio pursued him for two blocks until the manager spotted a police car and hailed it for assistance. Responding to this request, the officer in the car joined in the pursuit. The officer observed the appellee running through a park, emptying his pockets.
After the officer apprehended the appellee, the officer returned to the area where the defendant had emptied his pockets. Coins, costume jewelry, foreign currency and the appellee's identification card were found there. The officer then showed the jewelry and currency to Mastruserio, who identified them as part of a display in a private dining area at the restaurant. Apparently, the items were kept in a safe, which was housed within a vault. The door of this safe was open and bolted to the wall of the vault. A clear Plexiglas cover was placed on the front of the safe so the items inside could be seen. When Mastruserio and the police officer returned to the restaurant, they discovered that the Plexiglas cover on the safe was broken and that various items that had been contained inside the safe were missing.
After appellee was convicted of safecracking, he appealed his conviction to the Court of Appeals for Hamilton County. In a split decision, the court of appeals reversed appellee's conviction by holding that appellee, though having stolen the contents of the restaurant's safe, had not committed safecracking because the Plexiglas-covered safe in the restaurant was not technically a "safe," nor was the private dining area a "vault," under the safecracking statute, R.C. 2911.31. State v. Gover (1990), 67 Ohio App.3d 384, 587 N.E.2d 321. Appellee had been incarcerated until his conviction was overturned.
On October 11, 1990, appellee filed a petition for determination of wrongful imprisonment with the Hamilton County Common Pleas Court. The trial court determined that the appellee had been wrongfully imprisoned. Upon appeal, the Court of Appeals for Hamilton County affirmed the trial court's decision.
On September 23, 1992, this court granted appellant's motion to certify the record.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Stephen J. Wenke, Assistant Prosecuting Attorney, for appellant.
Dave R. West, for appellee.
Lee I. Fisher, Attorney General, and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus curiae, Lee I. Fisher.
Appellee failed to prove that he was a "wrongfully imprisoned individual" pursuant to R.C. 2743.48. We, therefore, reverse the decision of the court of appeals, and remand this cause for further consideration by the trial court.
A claimant seeking damages as a result of being wrongfully imprisoned must prove that he or she is a "wrongfully imprisoned individual" as defined in R.C. 2743.48. The statute provides:
"(A) As used in this section, a `wrongfully imprisoned individual' means an individual who satisfies each of the following:
"(1) He was charged with a violation of a section of the Revised Code by an indictment or information prior to, or on or after, September 24, 1986, and the violation charged was an aggravated felony or felony.
"(2) He 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 he was found guilty was an aggravated felony or felony.
"(3) He was sentenced to an indefinite or definite term of imprisonment in a state penal or reformatory institution for the offense of which he was found guilty.
"(4) The individual's conviction was vacated or was 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 the chief legal officer of a municipal corporation against the individual for any act associated with that conviction.
"(5) Subsequent to his sentencing and during or subsequent to his imprisonment, it was determined by a court of common pleas that the offense of which he was found guilty, including all lesser included offenses, either was not committed by him or was not committed by any person."
The requirement that "no criminal proceeding * * * can be brought * * * against the individual for any act associated with that conviction" is of critical importance. This statutory language is intended to filter out those claimants who have had their convictions reversed, but were committing a different offense at the time that they were engaging in the activity for which they were initially charged. When the General Assembly enacted Ohio's wrongful imprisonment legislation, it "intended that the court of common pleas actively separate those who were wrongfully imprisoned from those who have merely avoided criminal liability." Walden v. State (1989), 47 Ohio St.3d 47, 52, 547 N.E.2d 962, 967.
Thus, claimants seeking compensation for wrongful imprisonment must prove that at the time of the incident for which they were initially charged, they were not engaging in any other criminal conduct arising out of the incident for which they were initially charged. The claimant must prove this element of the claim by a preponderance of the evidence, as required by Walden v. State, supra.
In the present case, Gover, while not committing the offense of safecracking with respect to his conduct on September 13, 1988, was nevertheless committing other criminal offenses during his visit to Smackwater Jacks. While the prosecutor in Hamilton County incorrectly chose to seek an indictment alleging safecracking, it appears that appellee might also have been charged with burglary under R.C. 2911.12, a second-degree felony. If only a minor misdemeanor charge could have arisen out of the appellee's conduct, that, of course, would be a different case because such an offense is not punishable by a term of imprisonment.
The record is devoid of any evidence that the trial court considered whether the appellee committed other offenses on September 18, 1988. We, therefore, remand this cause for further consideration.
Judgment reversed and cause remanded.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, RESNICK and F.E. SWEENEY, JJ., concur.
WRIGHT, J., dissents.
While I am not enamored with the draftsmanship of R.C. 2743.48, I do not believe it is appropriate for this court to amend the statute by judicial fiat. The plain language of the statute provides that a wrongly incarcerated person cannot recover if, inter alia, another criminal proceeding " can be brought * * * for any act associated with that conviction." (Emphasis added.) The only sensible understanding of this provision is that an individual cannot recover under R.C. 2743.48 if the state may bring new charges against him or her in the future. Nowhere in the statute can one find the suggestion that if, for example, someone is wrongfully convicted and incarcerated for armed robbery, R.C. 2743.48 does not allow him to recover if he "might also have been" convicted of trespass, loitering or some other offense on the date and time in question.
Gover, of course, cannot now or in the future be charged with a lesser offense arising out of the alleged acts leading to the safecracking charge. The Double Jeopardy Clause of the Fifth Amendment prohibits such reprosecution. Cf. Saylor v. Cornelius (C.A. 6, 1988), 845 F.2d 1401. It is indeed part of the purpose of the Fifth Amendment to prevent the sort of frivolous prosecution we see in this case.
The majority errs by treating R.C. 2743.48(A)(4) as if it says " might have been brought * * * for any act associated with that conviction." This fallacious interpretation allows the majority to find relevant the observation that Gover "might also have been charged with burglary" for his alleged conduct. To the contrary, the fact is that whatever Gover originally could have been charged with is not relevant to our analysis today.
I think we should stick with the plain language of R.C. 2743.48 and not insert a "wild card" into subdivision (A)(4), especially without any real discussion of this newly created requirement of consideration of its ramifications.
I would affirm the court of appeals and thus must respectfully dissent.