State v. Michael Spencer, 98-LW-4157
| Decision Date | 04 November 1998 |
| Docket Number | 98-LW-4157,97CA2536 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. MICHAEL SPENCER, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
William K. Shaw, Portsmouth, Ohio, for appellant.
Jay S Willis, Special Prosecutor, Portsmouth, Ohio, for appellee.
DECISION
Michael Spencer appeals his conviction in the Scioto County Court of Common Pleas. Spencer pled no contest to two counts of filing a false or fraudulent sales tax return, in violation of R.C. 5739.30(A). On appeal, Spencer argues that the trial court admitted testimony which violated Crim.R. 41 at the hearing on his motion to suppress. We disagree because the testimony was incorporated into the affidavit, pursuant to Crim.R. 41, and any error on the part of the trial court was harmless beyond a reasonable doubt. Spencer also asserts that the trial court erred in overruling his motion to suppress evidence because the affidavit which provided the basis for the warrant failed to substantially state the offense, set forth the factual basis between the property to be seized and the alleged criminal activity, or provide specificity in the items to be seized. We disagree, because the affidavit provided a substantial basis for the issuing judge's conclusion that it was fairly probable that the business records were stored at Spencer's business. Spencer also asserts that the trial court erred in finding business records for his convenience store seized from his car dealership admissible because the warrant was facially invalid. We disagree, because the plain view exception to the warrant requirement allowed the agents to seize business records from other businesses. Spencer contends that the agents' misconduct precluded the trial court from applying the good faith exception to the exclusionary rule. We disagree, because Spencer produced no evidence that the agents acted without good faith.
Spencer also asserts that, because the felony and misdemeanor charges against him arose from the same conduct, R.C. 2945.73(D) required the trial court to dismiss the felony counts of his indictment when it dismissed misdemeanor charges for lapse of speedy trial time. We disagree, because the Scioto County Grand Jury indicted Spencer with the charges contemporaneously and the elements of the offenses are sufficiently dissimilar to withstand constitutional scrutiny. Spencer further contends that the state failed to provide him with a speedy trial for the felony counts of the indictment. We disagree because the state provided Spencer with a trial within two hundred and seventy days of his indictment. Spencer argues that the trial court erred in overruling his motion for selective prosecution without holding an evidentiary hearing. We disagree, because Spencer failed to show sufficient facts to raise a reasonable doubt as to the prosecutor's motive and purpose. Spencer also argues that the trial court lacked jurisdiction. We disagree, because the record contains evidence to show that Spencer committed an element of the offense in Scioto County. Finally, Spencer asserts that the trial court erred in failing to reconsider his motion to suppress evidence. We disagree, because the Criminal Rules do not recognize such a motion.
Accordingly, we affirm the decision of the trial court.
During 1995, the Scioto County Sheriff's Department ("SCSD") investigated a report that Spencer and his brother Richard engaged in food stamp fraud, liquor law violations, and the receipt and sale of stolen Pepsi. The SCSD contacted the Ohio Department of Taxation ("ODT") and the Ohio Bureau of Criminal Identification and Investigation ("BCI") to help investigate. As a result of the investigation, the Scioto County Grand Jury indicted Spencer on April 29, 1996, with twelve counts of failing to remit tax in violation of R.C. 5739.12(A); twelve counts of filing a false or fraudulent sales tax return, in violation of R.C. 5739.30(A); and twelve counts of filing a false or fraudulent return with intent to defraud, in violation of R.C. 5703.26. Spencer was served with a summons and a copy of the indictment on April 29, 1996, and entered a plea of not guilty the next day.
On July 22, 1996, Spencer challenged the jurisdiction of the trial court to hear the proceedings and requested findings of fact. The trial court overruled the motion and found that Crim.R. 12(E) did not require it to issue findings of fact because the motion presented a purely legal question.
On July 22, 1996, Spencer also moved to dismiss the misdemeanor counts of the indictment, alleging the state denied him a speedy trial. The trial court overruled Spencer's motion on August 28, 1996. The following day, on August 29, 1996, Spencer renewed the motion to dismiss on speedy trial grounds, and the trial court dismissed the misdemeanor counts on September 17, 1996.
On September 9, 1996, Spencer filed a motion to dismiss for selective prosecution, asserting that the Scioto County Grand Jury indicted him in retaliation for a lawsuit he filed in federal court against the law enforcement officials who conducted the investigation. In support of his motion, Spencer attached a copy of the civil complaint which he filed on May 7, 1996, alleging that the SCSD, the ODT, and the BCI conspired to deprive him of his civil rights. The complaint requested that the federal court: (1) declare that the search and seizure of Spencer's property violated his First, Fourth, Fifth, and Fourteenth Amendment rights; (2) order the defendants to return the seized property; and (3) order the defendants to pay Spencer compensatory and punitive damages. Spencer also attached the state's motion to dismiss/stay his civil rights action and the affidavit of Susan Shaw, who researched the records of the Scioto County Clerk of Courts for assessments of tax liens involving sales taxes. Shaw averred that in the years 1995 and 1996, no one in Scioto County with tax assessments was criminally prosecuted, and that a random check of records in other calender years yielded the same result. The state filed a memorandum in opposition to Spencer's motion to dismiss for selective prosecution and submitted evidence of criminal prosecutions for tax assessments throughout the state.
The trial court scheduled an oral hearing on the selective prosecution motion for November 5, 1996. By its own motion, the trial court continued the hearing date indefinitely. On January 2, 1997, without conducting an evidentiary hearing, the trial court overruled Spencer's motion for selective prosecution.
Spencer moved to dismiss the felony charges, arguing that because the trial court dismissed the misdemeanor charges, R.C. 2945.71 and the double jeopardy clause barred further prosecution. The trial court overruled the motion, finding that R.C. 2945.71 incorporated the double jeopardy clause but that the elements of the misdemeanor and felony counts differed sufficiently to withstand a double jeopardy analysis under Blockburger v. United States (1932), 284 U.S. 299. On January 17, 1997, Spencer filed an interlocutory appeal with this court, which we dismissed on April 4, 1997.[1]
Spencer moved to suppress the business records for his Fastop convenience store that agents seized from his car dealership, Wheels Auto ("Wheels"). At the hearing on the motion, ODT agents Richard Richardson and Jack Dunkle testified that they investigated whether Spencer failed to collect and remit tax on Pepsi products at his convenience stores, Fastop, Quickstop, Hilltop, and Spencer's Market. Richardson and Dunkle purchased Pepsi products from Spencer's stores on different occasions and were not charged tax. The agents also discovered that Spencer received a large number of cases of Pepsi products per day and reported an unusually high amount of nontaxable sales to the ODT. ODT records also showed that Wheels paid $51,000 more in tax to Scioto County than to the state. Richardson testified that he believed the discrepancy in payment indicated possible criminal activity.
Richardson testified that on March 15, 1996, he completed affidavits for search warrants for each of Spencer's convenience stores, averring that each store sold him Pepsi products without charging him tax. Richardson also completed an affidavit to obtain a search warrant for Wheels, in which he stated that the discrepancy between the tax records for Scioto County and the state was $51,000.
Richardson and Dunkle testified, over Spencer's objection, that they presented the affidavits to the Portsmouth Municipal Court Judge, who placed them under oath and asked them about their investigation. Dunkle and Richardson testified about their purchase of Pepsi products and produced records showing the discrepancy in tax reports from Wheels Auto. The judge directed Richardson to write on the affidavits for each of the convenience stores that Pepsi Co. verified that the cost to manufacture Pepsi products exceeded the cost at which Spencer sold them, that Spencer had ownership interests in other businesses under investigation, and that Richardson believed that Spencer carried out illegal practices throughout the various business locations. The judge then issued the warrants.
On March 16, 1996, Richardson and Dunkle returned to the Portsmouth Municipal Court to request that it re-issue the warrants. Richardson testified at the suppression hearing that he feared that the affidavit for Wheels implied that Spencer stole money. He therefore revised the affidavit to reflect his belief that Spencer failed to remit sales tax. The revised affidavit stated that Richardson believed that Spencer possessed:
DOCUMENTS, BOOKS, LEDGERS, RECORDS, FILES, SALES CORRESPONDENCE, ACCOUNT PAYABLE (sic) AND EQUIPMENT: JOURNALS OF RECEIPTS,...
To continue reading
Request your trial