STATE OF OHIO, Plaintiff-Appellee/ Cross-Appellant v. JOSEPH D. FRICKE, Defendant-Appellant/ Cross-Appellee
Appellate Case No. 26126
Trial Court Case No. 2011-CR-3041 (Criminal Appeal from Common Pleas Court)
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 29th day of April, 2016.
2016-Ohio-2747
FAIN, J.
AMENDED O P I N I O N
H
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee/Cross-Appellant
BRADLEY S. BALDWIN, Atty. Reg. No. 0070186, Baldwin Valley Law, LLC, 854 East Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant/Cross-Appellee
{¶ 2} We conclude that the conviction is supported by evidence sufficient to establish the elements of each offense, and that it is not against the manifest weight of the evidence. We further conclude that the trial court did not err by overruling Fricke’s motion to suppress or his motion for a new trial. Finally, we conclude that the trial court erred with regard to merger for the purposes of sentencing. Accordingly, the judgment of the trial court is Affirmed in part and Reversed in part, and this cause is Remanded for further proceedings.
I. The Alleged Offenses
{¶ 3} The victim, C.C. was a nineteen-year-old student attending a local university. On August 27, 2011, C.C. was in her dormitory; she consumed a mixed drink and approximately one and one-half shots of vodka. At about 11:00 p.m., C.C. and her roommates went to two different houses on campus. During that time, she took a few sips of beer.
{¶ 4} After midnight, C.C. and her roommates went to a bar, where C.C. began a
{¶ 5} C.C. left the bar with Fricke, and got into a vehicle with him and four others. At 2:46 a.m., C.C. sent a text message to her friend B.R. that stated, “[i]n car.” The vehicle stopped at a house where Fricke picked up his car. At 2:52 a.m., C.C. sent a text message to another friend stating, “7i don’t knoe where I am.” She texted the friend again a minute later stating, “Im i7n a car i7 don’t know.” C.C. began to feel “super drunk,” and she began to feel scared, and thought she should exit the car. However, when she looked at the door handle, she was unable to remember how to operate it.
{¶ 6} After arriving at Fricke’s residence, Fricke prepared a drink of vodka and orange juice. C.C. drank some of the mixed drink. As they went downstairs to Fricke’s room, C.C. had trouble negotiating the stairs. She plugged her cell phone into a charger on the bedside table, and noticed that the television, which Fricke had turned on, was a blur.
{¶ 7} At 5:03 a.m., Fricke’s cell phone made a call to C.C.’s phone. The call went to voice message, and recorded C.C. saying, “[g]et off of me,” “ow,” “I don’t like this,” and “stop.” Her voice was slurred. The message also recorded Fricke saying, “[w]hy are you pushing me away.” C.C. had no memory of what was occurring at the time the voice message was created.
{¶ 8} Around noon on August 28th, Fricke woke C.C., and drove her back to her
{¶ 9} When she awoke, C.C. felt “really strange.” Tr. 378. She took a shower and had trouble standing. She noticed that a tampon she had inserted the night before was gone. She also had bruising on her legs, and a cut on her lip. At that time, C.C. was “very confused. She had no idea what had happened to her the night before.” Tr. 244. The roommates decided to take her to the hospital.
{¶ 10} C.C. arrived at Miami Valley Hospital at 6:41 p.m., where she was examined by a sexual assault nurse examiner. The nurse noted that C.C. had vaginal tenderness. She also had a tear in the rectal area that was consistent with penetration. The nurse took vaginal and rectal swabs. The nurse additionally took blood and urine samples. According to the nurse, blood and urine samples are not normally taken during a sexual assault exam. In this case, the nurse took the samples because C.C’s symptoms were consistent with a “drug facilitated assault.” Tr. 316.
{¶ 11} The Miami Valley Crime Lab later detected semen on the vaginal swabs, as well as the tampon that the nurse had collected. The lab determined that Fricke’s
{¶ 12} The university police were dispatched to the hospital, where they took the initial report. They identified the telephone number that had left the voice message as Fricke’s. The investigation was given to the Kettering Police Department. Later the investigating officer found that Fricke had an ongoing case in the Montgomery County Common Pleas Court, and was able to locate Fricke’s address from that case information. When it was determined that Fricke’s address was located in the City of Dayton, Kettering police contacted the Dayton Police Department regarding the case.
{¶ 13} C.C. was able to identify Fricke’s house to Dayton Police Detective William Swisher. On August 31, 2011, Dayton Police Detectives Jerome Dix and Swisher went to Fricke’s residence to speak with him. The detectives were in an unmarked police car when they arrived at the home. They spoke to Fricke’s roommate, who advised them that Fricke was not home but that he was returning home. Prior to Fricke’s return, a Montgomery County Sheriff’s Deputy arrived in a marked cruiser. The Deputy informed the detectives that he was there to serve a protection order on Fricke. The Deputy parked away from the residence.
{¶ 15} At that point, the Deputy returned to the residence, and advised Fricke that he was there to serve a protection order. The order was served, and the Deputy walked away. Dix continued to speak to Fricke. The Deputy then approached Swisher and informed him that he also had an arrest warrant for Fricke. When Dix was informed of the warrant, he informed Fricke that he was going to stop the interview because Fricke was going to be taken into custody on the warrant.
{¶ 16} Fricke was transported to the Safety Building by Officer Matthew Kennard. Kennard placed Fricke in interview room 1. Approximately twenty minutes later, Swisher arrived and escorted Fricke to interview room 2, because it had recording capabilities. Fricke asked to contact his lawyer. Fricke was permitted to use two
{¶ 17} Kennard began the booking process, asking Fricke only basic identifying questions, such as name, age and weight. During that process, Kennard placed a phone call to Dix, and asked him what specific charges to use in booking. When Kennard repeated the charges back to Dix, Fricke informed Kennard that he wanted to speak with the detectives. Kennard then informed Dix that Fricke wanted to speak to him. Kennard went to the interview room to inform Fricke that the detectives would return. At that point, Fricke informed Kennard that there were two pills on the floor of the interview room. The pills were collected, and later identified as .5 mg Lorazepam.
{¶ 18} Swisher and Dix then returned, and began to speak with Fricke. They reminded him that he did not have to speak to them until he had spoken tо his attorney. Fricke advised that he had prior experience being interviewed by the university police. The detectives then executed a pre-interview form with Fricke. Fricke indicated that he understood his rights, and signed the form.
II. Course of the Proceedings
{¶ 19} Fricke was indicted on one count of Rape (drugs/intoxicants) in violation of
{¶ 20} Fricke appealed. The State filed a cross-appeal, contending that the trial court erred with regard to the merger of the convictions of Rape and Contaminating a Substance for Human Consumption. This court affirmed the trial court’s judgment. See, State v. Fricke, 2015-Ohio-3389, 40 N.E.3d 705 (2d Dist.). The State has applied to reconsider the issue of merger, pursuant to App.R. 26(A), noting that during the pendency of the appeal, the Supreme Court of Ohio issued its decision clarifying merger issues in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892. The State argues that the decision in Ruff mandates reversal of the trial court’s decision to merge the convictions. By decision and entry dated November 5th, 2015, Fricke was given time to respond to the aрplication for reconsideration, and did so. We granted the State’s application for reconsideration by decision and entry dated April 20, 2016. This amended opinion follows.
III. The Trial Court Did Not Err in Overruling Fricke’s Motion to Suppress, Because Fricke Was Not in Custody when He Made the Statements in Question
APPELLANT’S MOTION TO SUPPRESS WAS IMPROPERLY OVERRULED BECAUSE HIS STATEMENTS WERE OBTAINED DURING A CUSTODIAL INTERROGATON WITHOUT BEING AFFORDED MIRANDA WARNINGS.
{¶ 22} Fricke contends that the statements made to Dix while at his residence should have been suppressed because he was subjected to a custodial interrogation without being advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
{¶ 23} We begin by noting that this issue was not specifically addressed in his motion to suppress. Instead, the motion dealt with statements made after Fricke was transported to the Safety Building.1 Thus, thе trial court did not address this issue in its decision.
{¶ 24} Under Crim.R. 47, a motion, including a motion to suppress evidence, must “state with particularity the grounds upon which it is made and shall set forth the relief or order sought.” If a motion to suppress fails to state a particular basis for relief, that issue is waived and cannot be argued on appeal. See, e.g., State v. Cullins, 2d Dist. Montgomery No. 21881, 2007-Ohio-5978, at ¶ 10; State v. Carter, 2d Dist. Montgomery No. 21999, 2008-Ohio-2588, at ¶ 20. Thus, we conclude that the issue of Fricke’s statements made in his yard was waived.
{¶ 26} Although Fricke was seated in the cruiser for a few minutes, the door was left open, and his feet were out. No one attempted to question him while he was seated there. Instead, the questioning occurred outside the cruiser. Fricke was not handcuffed, and he was informed that he was free to leave. He was questioned in a public place, outside his residence. There is no evidence that he was physically or verbally intimidated by any actions of the police. Nor was there any evidence of coercion or trickery. While Fricke spoke to Dix, the other officers were at least twenty feet away. Fricke’s roommates were in the residence. In short, there is no evidence that Fricke was in custody at the time Dix questioned him, or that a reasonable person would have believed himself to be in custody, nor was there evidence of coerciоn.
{¶ 27} Accordingly, the First Assignment of Error is overruled.
{¶ 28} Fricke’s Second Assignment of Error provides:
APPELLANT’S MOTION TO SUPPRESS WAS IMPROPERLY OVERRULED BECAUSE THE AFFIDAVIT FOR THE SEARCH WARRANT LACKED PROBABLE CAUSE.
{¶ 29} Fricke contends that the trial court should have granted his motion to suppress evidence obtained during the execution of the search warrant for his residence. He claims that the affidavit in support of the search warrant did not establish probable cause because it omitted relevant evidence that C.C. had been drinking alcohol throughout the evening, that she only drank part of the drink at his house, and that there was no toxicology or DNA evidence. Fricke argues that this information makes it more likely that C.C. was merely intoxicated from alcohol rather than a drug. He further argues that the fact that she was drinking with others would indicate that other individuals had the opportunity to place a foreign substance in her drinks. He also argues that her prior drinking made her a less credible source.
{¶ 30} In “determining the sufficiency of probable cause in an affidavit submitted in support of a search warrant, ‘[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons
{¶ 31} In this case, the affidavit in support of the search warrant does reference the fact that C.C. drank “some of the drink” рrepared at Fricke’s residence; thus indicating that she did not consume all of the drink. Thus, this claim is without merit. There is no evidence that DNA or toxicology evidence existed at the point the affidavit was prepared. However, the affidavit does set forth the fact that C.C. felt she had been drugged. Furthermore, although the affidavit does not indicate C.C. had been drinking prior to meeting Fricke, it does state that C.C. and Fricke were drinking together at a bar, indicating that she consumed alcoholic drinks. While it is possible that someone else put a drug in one of her earlier drinks, that issue goes to Fricke’s defense rather than the sufficiency of the affidavit.
{¶ 32} The affidavit indicated that C.C. and Fricke were together at a bar, and that they left the bar together, and went to his residence. C.C. drank part of an alcoholic drink
{¶ 33} “A search warrant affidavit that is facially sufficient may nevertheless be successfully attacked if the defendant can show by a preponderance of the evidence that the affiant made a false statement intentionally, or with reckless disregard for the truth.” State v. Stropkaj, 2d Dist. Montgomery No. 18712, 2001 WL 1468905, *2 (Nov. 16, 2001). The Supreme Court of Ohio has recognized that omissions can be deemed false statements if they are intended to mislead, or made with reckless disregard to the fact that they may mislead the issuing magistrate. Id.
{¶ 34} We conclude that the trial court did not err in overruling the motion to suppress. Fricke failed to demonstrate any omission, let alone an omission that would mislead the magistrate. Furthermore, there is sufficient evidence in the affidavit upon which the trial court could rely in finding probable cause to issue the search warrant.
{¶ 35} Fricke’s Second Assignment of Error is overruled.
V. There Is Evidence in the Record to Support Fricke’s Convictions,
{¶ 36} Fricke’s Third and Fourth Assignments of Error state:
APPELLANT’S CONVICTIONS WERE BASED UPON INSUFFICIENT EVIDENCE PRESENTED AT TRIAL.
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 37} Fricke contends that the conviction is not supported by the evidence. Specifically, he claims the State failed to present evidence sufficient to demonstrate he placed Lorazepam in C.C.’s drinks. He further contends that the conviction is against the manifest weight of the evidence. He argues that C.C. was not a credible witness.
{¶ 38} A sufficiency-of-the-evidence challenge questions whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1992), paragraph two of the syllabus.
{¶ 39} When a conviction is challenged as being against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all
{¶ 40} The evidence in this case supports a finding that C.C. was in Fricke’s presenсe from the time she met him in the bar until he returned her to her dormitory. Fricke offered her a drink at the bar, following which she began to feel drunk quickly. C.C. testified that she began to feel “super drunk” all of a sudden when she was in the car with Fricke. At that point, she began to feel disoriented. She testified that she was unable to recall how to operate the door handle in the car when she considered getting out of the vehicle. C.C. then went to Fricke’s home, where he made her another drink,
{¶ 41} There is DNA evidence supporting a finding that Fricke had vaginal and anal intercourse with C.C. She had vaginal tenderness, and anal tearing. She was also bruised all along her legs, and had a cut to her lip. While C.C. did not remember having sex, the voice mail left by Fricke’s cell phone on C.C.’s cell phone contains statements by C.C. saying stop, and a male voice, which Fricke admitted was his, asking why she was pushing him away.
{¶ 42} Fricke contends that the evidence demonstrates that C.C. was impaired due to drinking prior to meeting him. However, there is evidence in the record upon which the jury could find to the contrary. There is evidence that the next day she only had a small trace of alcohol in her urine, and that there would have been more if she had ingested a large аmount of alcohol. Further, C.C. testified that she did not feel drunk until she drank the drink Fricke gave her at the bar. C.C.’s friend corroborated this testimony.
{¶ 43} Evidence was presented that Fricke had a prescription for Lorazepam 1 milligram pills, and that he had previously had a prescription for .5 milligram pills. He admitted that he did not like taking the drug, and that he did not take it every day as prescribed. Thus, the jury could infer that he had extra pills on hand. Furthermore, the evidence showed that Fricke was a paramedic, and had completed a nursing program. Thus, the jury could infer that he was familiar with the effects of the drug. Indeed, the fact
{¶ 44} There is also evidence in the record that after Fricke was initially contacted by university police via his cell phone, he sent a text message to a friend that he was “freaking out,” and that he thought “that girl is crying rape or something.” Furthermore, at the time the police executed the search warrant of Fricke’s room, they did not find any Lorazepam, despite the fact that his other prescription medication was present, as well as other medications and supplements. Finally, the police recovered Lorazepam in the interview room that Fricke was placed in while awaiting his interview.
{¶ 45} We conclude that the rеcord contains evidence upon which the jury could reasonably rely in concluding that Fricke put Lorazepam in C.C.’s drink. There is evidence upon which a reasonable juror could rely in finding that Fricke possessed Lorazepam with the purpose to administer it to, and with the intent to impair, C.C., and that he did so by placing it in one or both of the drinks he supplied her with the purpose of rendering her incapable of resisting his sexual advances.
{¶ 46} We next turn to Fricke’s claim that the convictions are against the manifest weight of the evidence. Fricke contends that C.C. was not credible, because she did not initially tell the police about the drink he served her at the bar, and because she had been drinking before meeting him. He furthеr argues that she was drugged after he dropped her off at her dorm.
{¶ 47} With regard to the drink at the bar, the State presented the testimony of the bartender, who stated that she had sold a drink that was, as testified to by C.C., red
{¶ 48} With regard to Fricke’s claim that C.C. was impaired due to drinking, we again note that there was little alcohol in her urine the next day, and both she and her friend testified that she was not impaired due to the drinks she had ingested. Finally, C.C.’s testimony was that she did not become impaired until after the drink at the bar, and that the effects of that drink hit her rapidly. She further testified that once she ingested the drink at Fricke’s house she quickly became so impaired that she had difficulty walking and had vision impairment. There was evidence that Lorazepam is an immediate release drug, and that its effects are felt rapidly. Thus, C.C.’s testimony, which the jury was free to believe, supports a finding that the drug was administered with the drinks given to her by Fricke. From our review of the evidence, we conclude that this is not the exceptional case where a jury has lost its way, resulting in a manifest miscarriage of justice.
{¶ 49} Fricke’s Third and Fourth Assignments of Error are overruled.
VI. The Trial Court Did Not Abuse its Discretion by Overruling Fricke’s Motion for a New Trial
{¶ 50} Fricke’s Fifth Assignment of Error provides as follows:
THE TRIAL COURT ABUSED ITS DISCRETION BY OVERRULING APPELLANT’S MOTION FOR A NEW TRIAL.
{¶ 51} Fricke contends that he is entitled to a new trial because of alleged
{¶ 52} Crim.R. 33(A)(2) permits a new trial when a defendant can demonstrate juror misconduct and prejudice stemming therefrom. State v. Hopfer, 112 Ohio App.3d 521, 543, 679 N.E.2d 321 (2d Dist. 1996). A trial court‘s ruling on such a motion will be reversed only for an abuse of discretion. State v. Herb, 167 Ohio App.3d 333, 2006-Ohio-2412, 855 N.E.2d 115, ¶ 6 (9th Dist.).
{¶ 53} The trial court was free to determine whether to credit the affidavit of DeGroff. The State did not place any affidavit into the record opposing the affidavit, but did dispute the claim in a memorandum in opposition to the motion for new trial. Of course, the trial judge was present when the foreman answered the court’s question regarding the use of the Lorazepam. There is nothing in this record to indicate that the trial court abused its discretion when determining the motion.
{¶ 54} Furthermore, Fricke is seeking to introduce the statement of a juror concerning the jury’s deliberative process. However, Evid.R. 606(B) provides that a juror is generally incompetent to testify about the jury‘s internal deliberations related to the verdict. State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d 54 (1990). The purpоse of this rule is to protect the finality of verdicts and to insulate jurors from harassment by
{¶ 55} The Fifth Assignment of Error is overruled.
VII. Based on the Facts in this Case, the Offenses of Contaminating a Substance for Human Consumption and Rape by Means of Impairing the Victim’s Judgment by Administering any Drug, Intoxicant, or Controlled Substance Are Not Allied Offenses of Similar Import
{¶ 56} The State’s sole assignment of error states:
CONTAMINATING A SUBSTANCE FOR HUMAN CONSUMPTION AND RAPE UNDER
R.C. 2907.02(A)(1)(a) AND (A)(1)(c) ARE NOT ALLIED OFFENSES OF SIMILAR IMPORT. THE TRIAL COURT ERRED WHEN IT MERGED THOSE OFFENSES FOR SENTENCING.
{¶ 57} At trial, the State conceded that for purposes of sentencing, the two counts of Rape merge. The State elected to proceed to sentencing on Count I, Rape (drugs/intoxicants), in violation of
{¶ 58} The merger of offenses is governed by
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{¶ 59} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which is the case this court utilized in analyzing the merger issue, offenses are considered to be of similar import whеn “it is possible to commit one offense and commit the other offense by the same conduct[,] [and] when the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” Johnson at ¶ 48 – 49.
{¶ 60} However, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Supreme Court of Ohio has held that offenses do not merge, and a defendant may be convicted and sentenced for multiple offenses, if any of the following are true: “(1) the offenses are dissimilar in import or significance * * *, (2) the offenses were committed separately, [or] (3) the offenses were committed with separate animus or
{¶ 61} Fricke was convicted of
{¶ 62} The evidence in this case proved that Fricke placed Lorazepam in C.C.’s drink. By knowingly placing the drug in the drink, with knowledge that C.C. was likely to ingest the drink, Fricke completed the element of deceptively and/or surreptitiously administering a drug or controlled substance. By using Lorazepam to substantially impair C.C. and prevent resistance to sexual conduct, Fricke completed the offense of knowingly mingling a chemical substance with a drink. The State’s case was based upon the theory that Fricke contaminated C.C.’s drink with a substance that he knew she would ingеst, and which he knew would impair her ability to resist any sexual conduct. The
{¶ 63} In our original opinion, we found that “when Fricke committed this element of Rape, he completed the offense of Contamination, and he did so with a common animus – to reduce his victim’s ability to resist his sexual advances. We conclude that these offenses correspond to a sufficient degree that the commission of one offense (the Rape) will result in the commission of the other (Contamination).” Fricke, 2015-Ohio-3389, at ¶ 60.
{¶ 64} However, given the holding in Ruff, we must re-examine the “dissimilar import” aspect of Fricke’s offenses. Under Ruff, if the harm that results from each offense is separate and identifiable, then the convictions do not merge. Fricke placed Lorazepam into the victim’s drink in an amount greater than a therapeutic dose. The victim drank the beverage, and became so highly drugged that she was unable to maintain consciousness. Indeed, she remained asleep for most of the following day, and still had the drug in her system the next evening when she was examined at the hospital. We conclude, then, that one of the harms caused by the administration of the drug – other than being unable to resist the Rape offense – was the victim’s inability to maintain consciousness. Because this is a harm separate from having been raped, we conclude that the trial court erred by merging the convictions for sentencing.
{¶ 65} The State’s sole assignment of error is sustained.
VIII. Conclusion
DONOVAN, P.J., and WELBAUM, J., concur.
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Mathias H. Heck Kirsten A. Brandt Bradley S. Baldwin Hon. Timothy N. O’Connell