State v. Jesse Branham
| Decision Date | 08 October 1987 |
| Docket Number | 11-85-9,87-LW-3845 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Jesse BRANHAM, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal appeal from Common Pleas Court.
William T. Hunt, Paulding, for appellant.
Kelly Ormsby, III, Prosecuting Attorney, Paulding, for Appellee.
This is an appeal from a judgment of conviction and sentence entered in the Common Pleas Court of Paulding County, Ohio in which defendant-appellant was found guilty in a trial to the court of Breaking and Entering in violation of R.C.2911.13, a felony of the fourth degree, Theft of property of a value less than $300 in violation of R.C.2913.02, a misdemeanor of the first degree, and Possession of Criminal Tools in violation of R.C.2923.24, a felony of the fourth degree.
The defendant raises two assignments of error as follows:
The record in this case establishes that shortly before 4:00 A.M on October 19, 1984, the victim, who owned a farm in Paulding County, received a phone call from a neighbor alerting him to a suspicious vehicle in the vicinity of one of the victim's barns. Having had some recent trouble involving the theft of gasoline from his farm equipment located in the barns, the victim arose and upon entering his vehicle to investigate, observed the tailights of another vehicle as it pulled away from one of the barns.
As the victim pursued this vehicle onto the highway, a deputy sheriff happened to be on the road and subsequently stopped both vehicles. The other vehicle proved to be an older model pickup truck driven by the defendant who denied being on the victim's property or any other wrongdoing. However, upon closer examination, the pickup truck was observed to be missing a gasoline tank cap and was carrying a cut piece of garden hose along with a plastic gallon jug and another container in the back.
Upon making these observations, the deputy remained with the defendant and sent the victim back to his barns to investigate. The victim promptly returned indicating that gasoline caps were removed from the farm equipment and signs of freshly spilled gasoline were present on the equipment and on the ground near the equipment. At this point the deputy accompanied both the defendant and the victim back to the barns for further investigation.
Upon arriving at the barns, the deputy confirmed the observations of the victim and further noticed a distinctive shoe print in the area of the equipment which appeared to match the work boots worn by the defendant. The deputy confiscated the boots and took several photographs of the scene and the defendant's truck. However, the defendant, who still denied any wrongdoing, was released without arrest at this time.
Approximately one month later, on November 21, 1984, the defendant was indicted by the Paulding County grand jury on charges of Breaking and Entering, Felony Theft (by reason of an alleged prior theft conviction), and Possession of Criminal Tools, all felonies of the fourth degree. Summons on this indictment was served upon the defendant on November 24 1984. The Theft charge was subsequently reduced to a misdemeanor of the first degree pursuant to a defense motion.
Upon waiving a jury, the defendant was brought to trial on all three charges before the Common Pleas Court of Paulding County on September 9, 1985, some three hundred twenty-five days after the date of the crime on October 19, 1984.
Three days before the trial, on September 6, 1985, the defendant filed a motion to dismiss the charges, essentially stating that he had been arrested on October 19, 1984, that more than 270 days had passed without bringing him to trial as required by R.C. 2954.71, and therefore that the charges, being the two felonies and a misdemeanor, should be dismissed pursuant to R.C. 2945.73. The motion was argued briefly immediately prior to the trial on September 9, 1985 and overruled by the court at that time from the bench. However, this ruling was not journalized until the judgment entry of conviction was filed on September 13, 1985.
The motion to dismiss is now the basis of the defendant's first assignment of error and raises the following issues (1) whether the brief detention of the defendant by the deputy sheriff on the date of the offense constituted an "arrest' for purposes of commencing the two hundred seventy day limit of R.C. 2945.71, or whether that time period did not commence until service of summons on the subsequent indictment; (2) where the judgment entry disposing of defendant's motion to suppress is dated February 22, 1985 but not filed with the clerk of courts until March 4, 1985, which is the proper date for determination of the period during which the time limits of R.C. 2945.71 are tolled pursuant to R.C. 2945.72 ?; and (3) what time period under R.C. 2945.71 is applicable to the Theft charge which originated as a felony, but was subsequently reduced to a misdemeanor by the court prior to trial and tried together with felony charges arising from the same incident?
The full chronology pertinent to the defendant's first assignment of error is set forth as follows:
At the outset, our determination of the issues raised in the first assignment of error is governed by certain statutes and rules of procedure. R.C. 2945.71 is entitled "Time within which hearing or trial must be held' and provides in pertinent part as follows:
R.C. 2945.72 is entitled "Extension of time for hearing or trial' and provides in pertinent part as follows:
R.C. 2945.73 is entitled "Discharge for delay in trial' and provides in pertinent part as follows:
"(B) Upon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.'
Finally, in order to properly compute the number of days involved in bringing the defendant to trial, we are guided by Crim. R. 45(A) as follows in pertinent part:
* * *'
(1)
The defendant herein argues that he was in fact "arrested' when he was detained by the deputy sheriff at the scene on October 19, 1984, thereby commencing the time limits of R.C. 2945.71 on that date. If he is correct, then even considering any delay attributable to his own motions, the trial clearly exceeded the two hundred seventy day limit of R.C. 2945.71 and he must be discharged pursuant to R.C. 2945.73. However, for the reasons set forth below, we do not agree that the defendant was arrested on October 19, 1984.
The evidence at trial established that the deputy sheriff initially saw the defendant's and the victim's vehicles approaching him on the highway in apparent "racing type driving.' The deputy then stopped the lead vehicle, driven by the defendant, "to get his identification and registration.' (Tr. 30.) At that point the victim approached the deputy and related his observations, whereupon the deputy instructed the victim to return to his barns to investigate and report back.
While the victim was gone, the deputy proceeded to obtain personal information from the defendant such as his name, address, social security number and date of birth. However, the defendant could not produce a driver's license and the deputy did advise him of "his Constitutional rights under the Miranda rule' at that time. (Tr. 31.) Also during this time, the deputy and the defendant each moved their vehicles from the road to a nearby township Fire House and were at that location when the victim returned.
Upon hearing the report of the victim, the deputy requested the...
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