Phillips v. Court of Common Pleas

• Decision Date: 10 February 2012
• Docket Number: No. 10–4280.,10–4280.
• Citation: 668 F.3d 804
• Parties: James PHILLIPS, Petitioner–Appellant, v. COURT OF COMMON PLEAS, HAMILTON COUNTY, OHIO, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

668 F.3d 804

James PHILLIPS, Petitioner–Appellant,

v.COURT OF COMMON PLEAS, HAMILTON COUNTY, OHIO, Respondent–Appellee.

No. 10–4280.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 10, 2012.Decided and Filed: Feb. 10, 2012.

ARGUED: Ravert J. Clark, Cincinnati, Ohio, for Appellant. Philip R. Cummings, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellee. ON BRIEF: Ravert J. Clark, Cincinnati, Ohio, for Appellant. Philip R. Cummings, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellee.Before: SILER and GRIFFIN, Circuit Judges; TARNOW, District Judge. ^*

OPINION

GRIFFIN, Circuit Judge.

James Phillips appeals the district court's denial of his pretrial petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. After the state trial court granted Phillips's motion for a mistrial, the State of Ohio sought to retry him. He moved to dismiss the indictment on double jeopardy grounds, but the state court denied his motion. This habeas petition followed. We affirm.

I.

James Phillips was indicted in the Hamilton County Court of Common Pleas on two counts of Unlawful Sexual Conduct with a Minor, in violation of Ohio Rev.Code § 2907.04(A), and one count of Gross Sexual Imposition, in violation of Ohio Rev.Code § 2907.05(A)(1). The indictment alleged that one count of Unlawful Sexual Conduct with a Minor occurred on an undetermined date in May 2006. It alleged further that a second count of the same offense and one count of Gross Sexual Imposition occurred on an undetermined date in June 2006. A bill of particulars identified the same dates.

The prosecution's theory was that Phillips, a neighbor and family friend of thirteen-year-old D.B. and her foster mother, on two occasions engaged in unlawful sexual conduct with D.B., the second time using a threat of force. According to the prosecution, the first incident took place while D.B. was at Phillips's house using his computer. After engaging in sexual conduct, Phillips used a digital camera to take photographs of D.B. topless. During the second incident, again at Phillips's house, Phillips fondled D.B. over her objection. D.B. later reported both incidents to her foster mother and to police. Phillips's defense at trial was that D.B. made everything up to protect her foster mother, whom Phillips had allegedly threatened.

A visiting judge presided over the trial. The state's first witness was David Ausdenmoore, a computer forensics expert with the Cincinnati Police Department. Ausdenmoore testified regarding his forensic examination of two computers, a separate hard drive, and a digital camera, all seized from Phillips's residence. He found five photographs of a topless D.B. in the deleted space of the digital camera's memory card. Each was electronically imprinted with a date of December 18, 2005. He also examined the internet history from December 1, 2005, to July 26, 2006, for one of the seized computers. According to the computer's clock, which Ausdenmoore testified was “pretty accurate,” the first internet usage during that period was on December 18, 2005, the same date indicated on the photographs. The computer contained various user profiles, including “Shadow Roth,” a name later established to be one D.B. frequently used as an internet login. The computer's internet activity log for the night of December 18, 2005, showed that the user Shadow Roth accessed various websites throughout the night. Some websites required the visitor to self-identify, and the visitor identified using D.B.'s name.

The next witness was D.B. She testified that she lived with her foster mother from the time she was two-and-a-half years old, and that she used to be friendly with Phillips. According to D.B., the first incident occurred as she was getting ready for bed and Phillips visited her home after work. D.B. told Phillips that her computer was not working and asked to use his. He obliged, and they left with the permission of D.B.'s foster mother. Before arriving at Phillips's home, Phillips stopped to purchase cigarettes, beer, and food. During the drive, Phillips made remarks of a sexual nature, and D.B. engaged in the conversation but felt uncomfortable. The two later drank beer, smoked marijuana, and watched pornography. At some point during the night, while D.B. was lying on Phillips's bed, he began touching her breasts. She tensed up, he told her to relax, she did, and he continued. D.B. removed her shirt and Phillips took pictures of her topless. The two later engaged in sexual intercourse. At some point during the night, D.B. used Phillips's computer to access various websites, at times using her name and “Shadow Roth” as login names.

D.B. testified that this occurred in May 2006. The prosecutor asked whether it was possible that the incident occurred on December 18, the date indicated on the photographs and internet history, but before she could answer, she was interrupted by an objection that the court sustained. At sidebar, defense counsel reminded the court that the indictment and bill of particulars alleged that the first incident occurred sometime in May 2006, not on December 18, 2005, that he had prepared a defense around the May 2006 date, and that it would be unfair to allow the line of questioning to continue. The prosecutor responded that he was permitted under the Ohio Rules of Criminal Procedure to amend the indictment at any time to conform it to the evidence. When the court asked why he had not amended the indictment upon receiving the forensic report including the December 18 date, the prosecutor said that he first became aware of the December 18 date the morning of the first day of trial.

Following a discussion with the parties in chambers, the court made its final ruling on Phillips's objection and the prosecutor's implicit motion to amend the indictment. It noted that an amendment would prejudice Phillips in the following way: if the indictment had alleged a December 18 date, Phillips would have investigated and prepared a defense for that date, but now it was too late because trial had already begun. Even though the prosecutor had disputed the existence of prejudice, stating that defense counsel had the photographs and internet history well before trial, the court found prejudice and noted that the prosecutor, too, had received the pictures and internet history earlier, and that it was his duty to amend the indictment before trial. The court stated that it would not allow an amendment and would not permit the prosecutor to question D.B. further regarding the date of the first incident. It also would not grant a mistrial because neither party wanted one. It would, however, reconsider amending the indictment if the prosecutor filed a motion citing some authority.

The prosecutor completed his direct examination of D.B. On cross-examination, defense counsel elicited damaging testimony, including inconsistencies between D.B.'s trial testimony and her initial statement to police, and an admission that she would lie to protect her foster mother if she had to.

The following day, the prosecutor filed a motion to amend the indictment to allege that the first offense occurred on an undetermined date between December 2005 and May 2006. Citing Ohio Criminal Rule 7(D) and some cases, the prosecutor asserted that the court had improperly conflated the analysis under the Rule and considered whether Phillips would be prejudiced when it determined whether to allow an amendment, rather than determining the existence of prejudice only when considering whether to grant a mistrial. At a hearing the next day, defense counsel again argued that the opportunity to amend had long passed. He argued further that an amendment was not warranted under Rule 7(D) because there had been no variance or defect in the indictment, and that the prosecutor was merely using the Rule as a subterfuge to fix a problem inherent in his case. Noting the court's earlier-stated reluctance to continue the trial with the same jury after a lengthy recess to allow Phillips to explore other defenses, Phillips's counsel argued that he was forced to seek a mistrial in order to further investigate the new date.

The prosecutor pointed out in response that the computer forensics report indicating the December 18, 2005, date on the photos and internet history was created at the request of defense counsel, and that he (the prosecutor) had not paid it any attention when he received it. He admitted that he should have reviewed the report but failed to do so, and that in hindsight he would have reviewed it and amended the indictment earlier. He insisted, however, that Rule 7(D) allowed him to amend the indictment even at this late stage in the proceedings.

The court granted the prosecutor's motion to amend. It stated that failing to amend the indictment until mid-trial was not part of a “deliberate ploy on the part of the prosecutor,” but was “basically a failure to look at [the] case with the thoroughness that might have been required or not perceiving in a busy schedule the difference of certain facts in the case.” It was “a matter of negligence, as far as [the court could] see, at worst, a matter of negligence or [inadvertence].” The court found, nevertheless, that Phillips had been prejudiced by the amendment because he was deprived of the opportunity to investigate the earlier date prior to trial and formulate a defense as to the new dates. Continuing the trial with the same jury was not feasible. It advised that it would grant a mistrial at Phillips's request. Defense counsel made a motion, and the court granted it.

The indictment was amended to allege that the offense charged in count one took place on an indeterminate date between December 1, 2005, and May 31, 2006. Phillips moved to dismiss the indictment, arguing that a retrial would violate the prohibition on double jeopardy because, by amending the indictment mid-trial, the prosecutor had...