State v. Curtis T. Hamilton

• Decision Date: 31 August 1991
• Docket Number: 91-LW-0514,474
• Parties: State of Ohio, Plaintiff-Appellee, v. Curtis T. Hamilton, Defendant-Appellant Case
• Court: Ohio Court of Appeals

State of Ohio, Plaintiff-Appellee, v. Curtis T. Hamilton, Defendant-Appellant

No. 474

91-LW-0514 (4th)

Court of Appeals of Ohio, Fourth District Adams

August 31, 1991

Mr Randall M. Dana and Mr. George H. Lancaster, Jr., Columbus Ohio, for Appellant. (1)

Mr Robert D. Castor, Assistant Prosecuting Attorney, West Union, Ohio, for Appellee.

Stephenson J.

This is an appeal from a judgment entered by the Adams County Court of Common Pleas upon a jury verdict finding Curtis T. Hamilton, defendant below and appellant herein, guilty of breaking and entering, in violation of R.C. 2911.13(A), and attempted theft, in violation of R.C. 2923.02(A). Appellant assigns the following errors:

"ASSIGNMENT OF ERROR I

APPELLANT HAMILTON WAS DEPRIVED OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTHøAMENDMENTS TO THE UNITED STATES CONSTITUTION, AS A RESULT OF COUNSEL'S ACTIVE REPRESENTATION OF CONFLICTING INTERESTS WHICH ADVERSELY AFFECTED COUNSEL'S PERFORMANCE.

ASSIGNMENT OF ERROR II

APPELLANT HAMILTON WAS DEPRIVED OF DUE PROCESS OF LAW, THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AND THE RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE IN VIOLATION OF ARTICLE I, SECTION 16 AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN DEFENSE COUNSEL REFUSED TO PRESENT EVIDENCE ON BEHALF OF APPELLANT HAMILTON. ALTHOUGH COUNSEL BELIEVED SUCH EVIDENCE TO BE FALSE, COUNSEL SHOULD HAVE BEEN REQUIRED TO GIVE A SPECIFIC FACTUAL BASIS FOR HIS BELIEF.

ASSIGNMENT OF ERROR III

THE PROSECUTION FAILED TO INTRODUCE SUFFICIENT EVIDENCE TO PROVE THAT APPELLANT HAMILTON COMMITTED THE OFFENSE OF ATTEMPTED THEFT THEREBY FAILING TO CARRY ITS BURDEN OF PROOF AS TO ALL ESSENTIAL ELEMENTS OF THE CRIME OF ATTEMPTED THEFT BEYOND A REASONABLE DOUBT IN VIOLATION OF OHIO REVISED CODE SECTION 2901.05(A), ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION. ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED IN CONVICTING AND SENTENCING APPELLANT HAMILTON ON BOTH BREAKING AND ENTERING AND ATTEMPTED THEFT IN VIOLATION OF THE PROHIBITIONS AGAINST DOUBLE JEOPARDY CONTAINED IN ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND OHIO REVISED CODE SECTION 2941.25.

ASSIGNMENT OF ERROR V

THE TRIAL COURT ERRED IN OVERRULING APPELLANT HAMILTON'S MOTION TO SUPPRESS EVIDENCE OBTAINED AS A RESULT OF AN ILLEGAL ARREST, SEARCH AND SEIZURE THEREBY DEPRIVING APPELLANT OF THE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES IN VIOLATION OF ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

ASSIGNMENT OF ERROR VI

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE RELATING TO A FIGHT THAT OCCURRED BETWEEN APPELLANT HAMILTON AND HIS WIFE THEREBY DEPRIVING APPELLANT OF DUE PROCESS OF LAW IN VIOLATION OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION."

In the early morning hours of December 6, 1986, Captain Bob's Carryout, located on U.S. Route 52, in Adams County, was broken into. One William D. Spires, who lived near the carryout, was awakened by a loud car. He looked out a window and observed a light colored car parked in front of the carryout. Spires woke up his wife, Linda Fields, to watch the car while he went to start his own car to go investigate. Fields believed the car in front of the carryout to be a yellow Dodge, similar to a Dodge Dart she had owned previously. Fifteen minutes after she began watching, Fields watched the car leave the carryout and head east on U.S. Route 52 towards Portsmouth.

Spires called the Adams County Sheriff's Department at 4:43 A.M. and further called one George Robert Gaffin, the owner of Captain Bob's. When Gaffin arrived at the carryout, he found the door pried open, the lights on, and merchandise disturbed--e.g. beer sitting on the counter and cigarettes on the floor. Gaff in asserted that merchandise would not ordinarily be left in such condition when the carryout closed. Gaff in also found a pry bar lying inside the screen door to the carryout.

Deputy Steve Thatcher of the Adams County Sheriff's Department went to Captain Bob's in response to the call made by Spires. Thatcher observed that the pry bar had a shoe print on it and secured it for testing by the Bureau of Criminal Investigation (BCI). Spires arrived at the scene and described the car to Thatcher. Thatcher then radioed the dispatcher and told her to alert Scioto County about the car.

Officer Bud Deaton of the Portsmouth Police Department, having been advised of the breaking at Captain Bob's, observed appellant's car, a yellow 1974 Dodge Dart Swinger, come into Portsmouth heading east on U.S. Route 52. Deaton followed appellant's car, which was being driven by appellant's wife, Barbara Hamilton, and turned on his pursuit lights. Although there is some question as to how far appellant's wife drove the car after Deaton turned on his lights, she eventually stopped in their (the Hamilton's) driveway on Kinney's Lane in Portsmouth. Appellant was frisked and placed in the back of the cruiser of Sergeant Bernard Potts, a member of the Portsmouth Police Department, who had also arrived at the scene. This occurred between 5:30 A.M. and 6:00 A.M. on December 6, 1986. The Adams County Sheriff's Department was then notified.

Potts then transported appellant to the Scioto County jail to wait the arrival of a deputy from the Adams County Sheriff's Department. Potts testified that he told the jailer to make sure to hang on to appellant's shoes because they may be evidence--i.e., to compare to the shoe print left on the pry bar. The jailer seized appellant's shoes at that time. Lieutenant Doug Conley, of the Scioto County Sheriff's Department, confirmed Potts' testimony. Appellant asserted that his shoes were seized at his residence.

Appellant was subsequently indicted on two counts, to wit: breaking and entering, a violation of R.C. 2911.13(A) and attempted theft, a violation of R.C. 2923.02(A). Appellant filed a motion to suppress on March 2, 1987, wherein he asserted that the police illegally seized, inter alia, his shoes. A suppression hearing was held-on April 24, 1987, but because appellant refused to answer certain questions, the hearing was continued until he agreed to answer the questions. The hearing was subsequently concluded on July 9, 1987. The court denied appellant's motion on July 10, 1987.

The case went to trial on March 11, 1988. After a three day trial, the jury returned a guilty verdict on both counts.

Before we address appellant's assignments of error, we must first determine whether or not appellant's appeal is moot. On September 29, 1989, appellee filed a motion to dismiss the appeal on the ground that issues pertinent to the appeal were moot. The issue of mootness in the criminal case context was discussed in State v. Johnson (1988), 43 Ohio App. 3d l, as follows:

"The law regarding moot criminal cases is not in dispute. State v. Wilson (1975), 41 Ohio St. 2d 236, 70 O.O. 2d 431, 325 N.E. 2d 236, certiorari denied sub nom. Wilson v. Ohio (1975), 423 U.S. 936, hold that after a defendant has fully satisfied his penalty and there is no 'evidence' that the defendant will suffer any collateral disability or loss of civil rights as a result of the conviction, the appeal is moot and must be dismissed. The majority of the Supreme Court rejected the position of the dissent which would have allowed an appeal due to collateral `disgrace and legal discredit of a conviction.' State v. Wilson, supra, at 239, 70 O.O. 2d at 433, 325 N.E. 2d at 238-239 (Celebrezze, J., dissenting)."

Appellee asserts that since the entry of conviction, appellant has served the entirety of his sentence and was released from prison before the case was argued before this court. Appellee further argues that appellant's conviction in the case sub judice will subject him to no further collateral disabilities than he already suffers from prior felony convictions.

Appellant argues, on the other hand, that he will indeed suffer further collateral disabilities from the conviction in the case at bar. Appellant also argues that appellee presented evidence to this court which cannot be considered because it was not part of the record of the court below--i.e., evidence that appellant had fully served his sentence and had been released. See State v. Ishmail (1978), 54 Ohio St. 2d 402 (reviewing court cannot add matter to the record before it, which was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter).

We find Ishmail, supra, to be clearly distinguishable from the case at bar. On this issue, the court in Johnson, supra at 3, n. 1, stated the following: "While it is certainly true that State v. Ishmail, supra, prohibits a reviewing court from adding matter to the record from the trial court and then deciding the appeal on the basis of the new matter, nothing in that case refers to the situation where an appellate court is deciding an issue of mootness. That issue goes to the duty and authority of the appellate court to hear the cause, which is distinct from deciding a cause on the merits as was done in State v. Ishmail, supra."

Appellant attempts to distinguish the above language by arguing that in Johnson the court allowed the defendant to produce new evidence concerning collateral disabilities whereas the case sub judice involves the state introducing new evidence. We find such a distinction to be illusory.

The paramount issue is...