State v. Riley, Case No. 16CA29

• Decision Date: 27 June 2017
• Docket Number: Case No. 16CA29
• Citation: 2017 Ohio 5819
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. DENNIS RILEY, Defendant-Appellant.
• Court: Ohio Court of Appeals

2017 Ohio 5819

STATE OF OHIO, Plaintiff-Appellee, v. DENNIS RILEY, Defendant-Appellant.

Case No. 16CA29

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

June 27, 2017

DECISION AND JUDGMENT ENTRY

APPEARANCES:

William L. Burton, Marietta, Ohio, and George J. Cosenza, Parkersburg, West Virginia, for appellant.

Kevin A. Rings, Washington County Prosecuting Attorney, and Jeremy B. Wolfe, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that denied a "motion to dismiss" filed by Dennis Riley, defendant below and appellant herein. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN APPROVING THE BEHAVIOR OF THE POLICE OFFICER IN THE CASE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FINDING THE

RELATIONSHIP CREATED BY ELLENWOOD WITH THE MINOR VICTIM AND OTHER BEHAVIOR BY ELLENWOOD CREATED EVIDENCE THAT WAS ' . . . MARGINALLY, IF AT ALL, IMPEACHABLE."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY REFUSING TO FIND THAT THE BEHAVIOR OF THE OFFICER AND THE MINOR VICTIM WAS RELEVANT AND MATERIAL AND, THUS, DISCOVERABLE."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO ISSUE A RULING SUPPRESSING/ADDRESSING DEFENDANT'S CONVERSATION WITH COUNSEL."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY USING EVIDENCE IN ITS DECISION UNKNOWN TO THE DEFENSE AND, APPARENTLY, GARNERED FROM THE TRIAL COURT'S IN-CAMERA INSPECTION OF NON-DISCOVERABLE EVIDENCE."

SIXTH ASSIGNMENT OF ERROR:¹

"THE TRIAL COURT ERRED BY A PERSONAL ATTACK ON COUNSELS' POSITION, DESPITE THE FACT THAT THE POSITION WAS BASED UPON THE UNCONTROVERTED OPINION OF DOCTOR MICHAEL D. LYMAN."

SEVENTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED BY TAKING AN ABSURD, ILLEGAL, AND TRAGIC TACK THAT THE DEFENDANT'S ULTIMATE GUILTY PLEA CAN BE USED TO DETERMINE THE QUALITY OF THE INVASION OF HIS DUE PROCESS RIGHTS THAT OCCURRED BEFORE THE PLEA."

{¶ 2} On January 29, 2016, a Washington County grand jury returned an indictment that charged appellant with three counts of sexual battery, in violation of R.C. 2907.03(A)(7). Appellant entered not guilty pleas.

{¶ 3} On April 21, 2016, appellant filed a motion to suppress all recorded and unrecorded statements that the investigating officer, Robert Ellenwood, overheard between appellant and defense counsel while the officer was present in appellant's home.² Appellant alleged that the officer was not lawfully on appellant's premises and that the officer did not have the right to eavesdrop on or record a conversation between appellant and defense counsel.

{¶ 4} Appellant and the state subsequently reached a plea agreement, and appellant withdrew his motion to suppress Officer Ellenwood's statements. In particular, appellant agreed to plead guilty to one count of sexual battery, and the state agreed to dismiss the remaining two counts. The plea agreement recommended that appellant receive an 18-month prison term and that he be designated a Tier II Sex Offender.

{¶ 5} The trial court held a change of plea hearing³ and determined that appellant voluntarily, knowingly, and intelligently entered his guilty plea. The court subsequently found appellant guilty of sexual battery.

{¶ 6} On July 1, 2016, the court held a sentencing hearing.⁴ At the sentencing hearing,the court imposed the 18-month sentence recommended in the plea agreement.

{¶ 7} After the sentencing hearing, and before the trial court filed its sentencing entry, appellant learned of a news article that reported that Officer Ellenwood had been charged with telephone harassment. The article also reported that Officer Ellenwood engaged in text messaging with the underage victim of a sex crime whose case he was investigating, but that the Marietta Police Department indicated that nothing criminal in nature existed about the texts.

{¶ 8} Based upon this information, appellant filed a motion to stay execution of his sentence, a motion to dismiss, and a motion to issue subpoenas. In his motion to dismiss, appellant raised two basic arguments. First, appellant argued that the trial court should allow him to withdraw his guilty plea. Appellant asserted that the state failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and, thus, he could not have knowingly and intelligently entered his guilty plea. Appellant claimed that the state failed to disclose the existence of text messages between Officer Ellenwood and the victim. Appellant argued that the text messages contain evidence of an inappropriate, intimate relationship between Officer Ellenwood and the victim. Appellant asserted that the officer's conduct undermines his credibility as a witness, as well as the credibility of the information that he obtained from the victim. Appellant contended that the officer likely used the relationship "to dissuade [the victim] from recanting her accusations." Appellant thus argued that the evidence concerning Officer Ellenwood's conduct would have allowed him to impeach the officer at trial and that the evidence constituted material evidence under Brady. Appellant argued that the state's failure to disclose the evidence concerning Officer Ellenwood entitled him to withdraw his guilty plea and have his sentence vacated.

{¶ 9} Second, appellant contended that if the trial court permitted him to withdraw his guilty plea, the court then must dismiss the indictment. Appellant asserted that "the behavior of Officer Ellenwood was so insidious and poisonous, both he and the accuser in this case should be prohibited from testifying," thus making "a new trial * * * impossible." Appellant claimed that the officer's conduct tainted and rendered unreliable all of the state's evidence. Appellant therefore argued that the court must dismiss the indictment.

{¶ 10} Among the documents appellant submitted to support his argument is a copy of a Marietta Police report regarding the alleged inappropriate relationship between Officer Ellenwood and the victim. The report indicates that Officer Ellenwood's wife contacted the Marietta Police Department and "reported several hundred text messages being exchanged between [Ellenwood] and [the victim]." The Marietta Police Chief requested the Sheriff's Office to investigate. Sheriff detectives then met with the victim and the victim's mother, and they permitted the detectives to analyze the victim's phone. The analysis of the victim's phone did not reveal any text messages that would lead anyone to believe she and Officer Ellenwood were in a relationship. Also, children services case worker interviewed the victim, and the victim denied any type of inappropriate relationship with Ellenwood. Ellenwood also denied any type of inappropriate relationship. The sheriff's office closed the case as "unfounded."

{¶ 11} Appellant also submitted the affidavit of Michael D. Lyman, a self-described "expert witness in the area of police procedures." Lyman opined that "at least 95% of the 517 text messages exchanged between * * * Ellenwood and the alleged 16-year-old victim * * * were unnecessary, inappropriate, and served no legitimate law enforcement of investigative purpose." He further opined that "because the investigation was ongoing during the time of the 517 text messages * * * it is likely that the overly-personal and inappropriate nature of the 517 text messages created an atmosphere whereby [the victim] was more subject to suggestion than she would have been had Officer Ellenwood maintained a proper, objective, and professional relationship with her. Thus, the reliability of any testimony provided by her should be viewed as highly questionable as it may have been improperly influenced by the police."

{¶ 12} Subsequently, the trial court conducted an in camera inspection of the evidence regarding the investigation into the relationship between Officer Ellenwood and the victim to determine whether a Brady violation had occurred. After its review, the court overruled appellants' motions. The trial court found that the information relating to the investigation into the relationship between Officer Ellenwood and the victim is not relevant or material evidence pertaining to the criminal charges against appellant. The court determined that "[a]ll of the behavior alleged by the defense to be inappropriate occurred after the investigation, arrest, indictment, and pre-trial offer" and that the communications between the officer and the victim were not criminal. The court found that the text messages reveal that "the officer counseled the victim toward recovery from [appellant]'s behavior, encouraging her to read books, watch movies, go to church, make good choices, seek counseling to help her address what she was experiencing." The court did not find the material to contain any exculpatory evidence and that it contains "marginally, if at all, impeachable" evidence. The court thus determined that none of the information constitutes relevant, material, or discoverable evidence. The court concluded that the information failed to establish that a manifest injustice occurred so as to permit appellant to withdraw his guilty plea or so as to warrant a dismissal of the charges. This appeal followed.

I

{¶ 13} Because appellant's first three assignments of error raise related issues, for ease of discussion we consider them together. In his first, second, and third assignments of error, appellant in essence, asserts that the trial court abused its discretion by denying his request to withdraw his guilty plea.⁵ Appellant basically asserts that the trial court erred by determining that the state's failure to disclose the investigation regarding Officer Ellenwood's relationship with the victim did not violate Brady. Appellant disagrees with the trial court's determinations that the officer did not...