State v. Blackmon

• Decision Date: 28 September 1998
• Docket Number: No. CA98-01-008.,CA98-01-008.
• Citation: 719 NE 2d 970,130 Ohio App.3d 142
• Parties: The STATE of Ohio, Appellee, v. BLACKMON, Appellant.
• Court: Ohio Court of Appeals

130 Ohio App.3d 142

719 NE 2d 970

The STATE of Ohio, Appellee, v. BLACKMON, Appellant.

No. CA98-01-008.

Court of Appeals of Ohio, Twelfth District, Warren County.

Decided September 28, 1998.

COPYRIGHT MATERIAL OMITTED

Timothy A. Oliver, Warren County Prosecuting Attorney, and Gary A. Loxley, Assistant Prosecuting Attorney, for appellee.

Patrick D. Long, for appellant.

WILLIAM W. YOUNG, Presiding Judge.

In September 1997, defendant-appellant, Thomas Blackmon, was indicted by a grand jury for harassment by an inmate in violation of R.C. 2921.38(A). In December 1997, appellant filed a motion for continuance, citing a conflict with his scheduled trial and his observance of a religious holiday. The Warren County Court of Common Pleas denied the continuance, and appellant's jury trial commenced, as scheduled, in January 1998. Appellant was convicted as charged, and the trial court sentenced him to twelve months of incarceration, to be served consecutive to his current sentence. Appellant now appeals, raising three assignments of error. Finding each assignment of error to be without merit, we affirm appellant's conviction.

The record reveals the following facts pertinent to this appeal. After the 1993 prison riots in Lucasville, Ohio, appellant was transferred to the maximum security area of the Lebanon Correctional Institute ("LCI"). Thus, at all times pertinent to this appeal, appellant was an inmate at LCI. Appellant was subsequently transferred between several cells within LCI, but was eventually transferred to "cell 7."

Appellant testified that upon his arrival at cell 7, the plumbing was not operational. Specifically, the cell's toilet was backed up and the sink faucet was difficult for him to operate given the fact that his right hand is partially paralyzed. Appellant addressed these concerns to Richard Huggins, Inspector of Institutional Services, and requested a transfer to another cell. Instead, Huggins provided appellant with a bed pan for his bodily needs until the cell's plumbing could be fixed.

LCI Corrections Officer Guy Whitfield testified that during midafternoon on June 30, 1997, he escorted appellant to the prison showers. Whitfield testified that before being removed from a cell to take a shower, an inmate's hands are handcuffed and then fastened to a leather belt worn about the waist. Once the inmate is locked inside the shower, the handcuffs and leather belt are removed. On June 30, 1997, after showering and being rehandcuffed, appellant asked if he could speak with Huggins about the physical condition of his cell.

Huggins testified that appellant was escorted by Whitfield from the shower to the gate just outside Huggins's office, where appellant proceeded to complain about the physical condition of cell 7 and to request a transfer to another cell. Huggins testified:

"And he appellant said, `Am I going to have to do something to get moved back there?' And I said, `What you do is up to you. You'll have to make your own decisions about that.' At that point, he was holding, I believe, his towel and what I believed was * * * a shampoo bottle at the time. And, at that time, he kind of brought his hands up as far as the restraints would allow and squeezed the bottle in my direction."

Huggins testified that appellant sprayed him with a liquid from the plastic squeeze bottle and then threw the bottle in a trash can. Whitfield was ordered to immediately escort appellant to his cell.

Huggins testified that based on the odor, consistency, and color of the liquid, he concluded that appellant had sprayed him with urine. Huggins then took the following actions: (1) ordered Whitfield to retrieve the plastic squeeze bottle from the trash can, (2) proceeded to LCI's infirmary, where he requested that LCI nurse Rose Fisher ("Fisher") test the liquid in the plastic squeeze bottle to determine if it was, in fact, urine, (3) sealed the bottle in a plastic bag with the time, date, and appellant's name, (4) placed the bagged bottle in the infirmary refrigerator, and (5) contacted an Ohio State Trooper to request a transfer of the bottle to the Ohio crime lab for further testing.

Both Fisher and Ohio State Highway Patrol Crime Lab Supervisor, Paul Boggs, testified at trial about tests performed on the liquid in the plastic squeeze bottle. Fisher testified that she could smell an odor of urine about Huggins upon his entrance into the infirmary. Fisher then proceeded to perform a urinalysis on the liquid. Her test confirmed that the liquid contained in the bottle reacted as urine would react upon testing. Additionally, Fisher testified that it "looked like urine" and "smelt like urine." Boggs testified that the liquid had "a very characteristic odor of urine." During analysis at the crime lab, Boggs performed a "dip stick test" ¹ and tested the liquid for the presence of urea and creatinine.² Boggs's tests revealed that the liquid exhibited all of the proper characteristics of urine, and contained both urea and creatinine.

At trial, appellant presented testimony from several inmates who testified that the relationship between Huggins and appellant was strained, at best. Several of the inmates also testified that they would, on occasion, create a foul smelling mixture of raw eggs and sour milk in their plastic shampoo bottles. The inmates would frequently spray the mixture in the prison cell vents to keep mice and rats out of their cells. Boggs testified on cross-examination that animal products, such as milk and/or eggs, would also contain urea and creatinine.

In spite of the fact that no LCI correction officer that testified at trial could confirm that the inmates were ever served raw eggs, appellant testified that on June 30, 1997, he sprayed Huggins with a mixture of raw eggs and sour milk. Appellant testified that he committed this act so that Huggins would be forced to transfer him to a disciplinary cell with operational plumbing. Appellant steadfastly denied that any bodily substance was contained in the plastic squeeze bottle.

Appellant was indicted by a grand jury for a violation of R.C. 2921.38(A), which provides:

"No person who is confined in a detention facility, with the intent to harass, annoy, threaten, or alarm another person, shall cause or attempt to cause another person to come into contact with blood, semen, urine, feces, or other bodily substance by throwing the bodily substance at the other person, by expelling the bodily substance upon the other person, or in any other manner."

During deliberations, the jury requested that Fisher's testimony be read back to them. However, before the trial court could respond to the jury's request, the jury arrived at its verdict. The jury convicted appellant, and this appeal followed.

In his first assignment of error, appellant contends:

"The trial court erred in overruling appellant's motion to continue the trial date when said motion was based upon appellant's exercise of his religious rights under the First Amendment to the United States Constitution; Section 7, Article I, of the Ohio Constitution; and the Religious Freedom Restoration Act (42 USC 2000)."

Under this assignment of error, appellant alleges that he is a Sunni Muslim, and as such he is required to observe Ramadan in the month of January. Appellant contends that the trial court erred in requiring him to undertake a criminal defense during January 1998, the month of Ramadan. Specifically, appellant contends that the trial court's denial of his motion for continuance violated his right of free exercise under (1) the Ohio Constitution, (2) the First Amendment of the federal Constitution, and (3) the Religious Freedom Reformation Act ("RFRA"), Section 2000bb, Title 42, U.S.Code.

We begin by setting out the standard of review for a denial of a continuance. The Supreme Court of Ohio has repeatedly held that the decision to grant or deny a continuance "is a matter which is entrusted to the broad, sound discretion of the trial judge." State v. Unger (1981), 67 Ohio St.2d 65, 67, 21 O.O.3d 41, 43, 423 N.E.2d 1078, 1080. Therefore, an appellate court may not reverse the denial of a continuance unless a trial court has abused its discretion. As the Supreme Court has previously stated, an abuse of discretion connotes more than a mere error in judgment; it implies an arbitrary, unreasonable or unconscionable attitude. State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167, 170-171.

When evaluating a motion for a continuance, the trial court shall balance a number of neutral and generally applicable factors, including "the length of the delay requested; whether other continuances have been requested and received; the inconvenience to the litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors depending on the unique facts of each case." Unger at 67-68, 21 O.O.3d at 43, 423 N.E.2d at 1080.

In the instant case, when the trial court considered "other relevant factors" it was obligated to consider appellant's constitutional rights to the free exercise of religion. We shall begin our analysis of appellant's free exercise claims, first under the Ohio Constitution, followed by an analysis under the First Amendment, and finally, under RFRA.

I. Free Exercise Under the Ohio Constitution

Section 7, Article I of the Ohio Constitution provides that "all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience." Our analysis of appellant's claim that his religious rights were violated under the Ohio Constitution is governed by a three-part test first articulated by the United States Supreme Court and adopted by the Ohio Supreme Court in State v. Schmidt (1987), 29 Ohio St.3d 32, 34, 29 OBR 383,...