State v. LaPrairieState v. LaPrairie
GRADY, P.J.:
{¶ 1} Defendant, Brian LaPrairie, appeals from his convictions and sentences for involuntary manslaughter, child endangering, having weapons under disability, and trafficking in marijuana.
{¶ 2} On December 27, 2008, at approximately 10:00 a.m.,
{¶ 3} After the ambulance left for the hospital, Officers Hiles, Knapp, and another officer who had arrived, Holcomb, reentered Defendant‘s residence to talk to Defendant. Officers Knapp and Holcomb spoke with Defendant, who said he and the child had got up at 9:00 a.m., ate a bowl of cereal, and then told Defendant that she vomited. While Defendant was cleaning that up, he noticed the child was on the floor, shaking. After Defendant attempted unsuccessfully to get the child to respond, he called 911. Defendant reported that the child had a seizure two days earlier, on Christmas, was fine after about one minute, but that she had hit her head on the toilet when she vomited, and that he caused bruises to the child‘s chest and stomach while Defendant was trying to wake her up.
{¶ 5} The medical staff at the hospital determined that Juliana Berry suffered numerous inflicted injuries, including a skull fracture with swelling of the brain, retinal hemorrhages, a lacerated liver, contusions of the chest and extremities, broken ribs, and injuries to her abdomen, which were the result of severe trauma similar to a car accident and not the result of falls or playground accidents. Juliana Berry died on December 29, 2008 from injuries resulting from blunt force trauma to the head.
{¶ 6} Defendant was indicted on two counts of felonious assault,
{¶ 7} Defendant timely appealed to this court from his conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT IN FAILING TO FIND INVOLUNTARY MANSLAUGHTER, WITH PROXIMATE CAUSE OF CHILD ENDANGERING AND THE SAME CHILD ENDANGERING ARE ALLIED OFFENSES OF SIMILAR IMPORT AND THUS THE CONVICTIONS BE MERGED AT SENTENCING.”
{¶ 9} Counts Four and Five of the indictment, to which Defendant pled guilty, state:
{¶ 10} “COUNT IV: BRIAN H. LaPRAIRIE, from February 2008 through December 27, 2008, in Greene County, Ohio, did recklessly abuse Juliana Ameena Berry, a child under 18 years of age, contrary to and in violation of
{¶ 11} “COUNT V: BRIAN H. LaPRAIRIE, on or about December 29, 2008, in Greene County, Ohio, did recklessly cause the death of Juliana Ameena Berry as a proximate result of BRIAN H. LaPRAIRIE‘S committing or attempting to commit a felony, to wit: Endangering Children, the elements of which are that the Defendant did recklessly abuse Juliana Ameena Berry, a child under 18 years of age, and said violation resulted in serious physical harm to Juliana Ameena Berry, all of which is contrary to and in violation of
{¶ 12} Prior to Defendant‘s guilty pleas, and as part of its plea bargain agreement with Defendant, the State amended its bill of particulars to specify that the conduct forming the Endangering Children offense alleged in Count Four occurred on December 27, 2008, the date on which Julianna Berry was removed from Defendant‘s home and taken to the hospital, where she subsequently died on December 29, 2008. Count Five alleged that the Involuntary Manslaughter occurred on December 29, 2008. Nevertheless, the predicate Endangering Children felony that resulted in Juliana
{¶ 13} At his sentencing, Defendant moved that his convictions be merged pursuant to
{¶ 14} “(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.
{¶ 15} “(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.”
{¶ 16} Confronted with the prospect that the criminal conduct in both Count Four and Count Five occurred on December 27, 2008, and that both involved the felony offense of Endangering Children, which was the offense alleged in Count Four and the predicate offense alleged in Count Five, the State argued:
{¶ 17} “We intend to present evidence in that regard to show that, in fact, there are two separate offenses here. There is, if you will, a separate animus. The first being the injuries to the head that actually caused her death and that was the predicate
{¶ 18} “So, in effect, what we‘re saying is that they‘re [sic] separate animus, which is one of the tests that the Supreme Court and the Courts of Appeal always look at when they determine whether or not these offenses are similar.” (Tr. at 6-7.)
{¶ 19} The State offered the testimony of Dr. Lee Lehman, a forensic pathologist and the Chief Deputy Coroner of Montgomery County, who testified concerning an autopsy he performed on the body of Julianna Berry on December 29, 2008. Dr. Lehman testified that he signed Julianna Berry‘s death certificate, in which he opined that the cause of her death was “[b]lunt force trauma to the head due to Battered Baby Syndrome.” (Id. at 6.) Dr. Lehman testified that the trauma involved “severe blows to the back of her head resulting in skull fracture, brain injury, brain swelling, cardiopulmonary arrest, a lack of oxygen, and death.” (Id. at 7-8.) He further testified that the trauma involved more than three severe blows which were recent in time. (Id. at 8.)
{¶ 20} Dr. Lehman testified that Julianna Berry also suffered multiple injuries to her chest and abdomen, that the right side
{¶ 21} Dr. Lehman further opined that the multiple blows that caused the injuries to the child‘s chest and abdomen were separate and apart from the fatal blows to her head he described. (Id. at 10.) However, he could not determine when any of those injuries occurred. (Id. at 11.) Dr. Lehman stated that “[s]ome of her injuries were fresh, as I said before, that it [sic] had no healing visible, and there are injuries obviously older.” (Id. at 12.) Dr. Lehman‘s testimony concluded with the following colloquy:
{¶ 22} “BY MR. HALLER: (Prosecuting Attorney)
{¶ 23} “Q The injuries to the abdomen and the chest, the mesentery, the liver, is it more probable than not that those occurred about the same time as the head injuries, or was it before that?
{¶ 25} The trial court addressed Defendant‘s motion for merger and the State‘s arguments contra, applying the tests in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, and State v. Rance (1999), 85 Ohio St.3d 632. The court held that Endangering Children,
{¶ 26} Having found that Endangering Children,
{¶ 27} The judgment of conviction from which Defendant appeals was journalized on January 7, 2010. On December 29, 2010, the Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Johnson overruled Rance and held: “When determining whether two offenses are allied offenses of similar import subject to merger under
{¶ 28} “Under
{¶ 29} “In determining whether offenses are allied offenses of similar import under
{¶ 30} “If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).
{¶ 31} “If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.
{¶ 32} “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶ 33} The defendant in Johnson was convicted of both felony murder,
{¶ 34} “Johnson was convicted of felony murder under
{¶ 35} “The offenses were based upon the following conduct. In the incident at issue, Johnson was in a room alone with Milton while the boy‘s mother was in a different room watching television. The mother heard Johnson yelling, heard a ‘thump’ or ‘stomping,’ and went to investigate. She found Johnson yelling at Milton for mispronouncing a word while reading, and she observed Johnson push Milton to the floor. The mother left the room. Shortly thereafter, she heard another loud ‘thump’ or ‘stomp.’ When she went to the room, she saw Milton shaking on the floor. Neighbors testified that they had heard the boy crying and heard Johnson ‘whooping’ the boy and yelling, ‘Do you want pain? You want pain? I‘ll give you pain!’
{¶ 36} “Milton‘s death was a result of injuries sustained from blunt impact to the head. Medical experts testified as to older injuries indicative of multiple incidents of child abuse.
{¶ 37} “We agree with the court of appeals that the state relied upon the same conduct to prove child endangering under
{¶ 38} “Johnson‘s beating of Milton constituted child abuse under
{¶ 39} Defendant LaPrairie likewise beat Julianna Berry to
{¶ 40}
{¶ 41} The Supreme Court has held that, as it is used in
{¶ 42} The State argued that the Child Endangering offense that forms the predicate to the Involuntary Manslaughter offense in Count Five, which involved blunt force trauma to the child‘s head, was committed with an animus separate from the animus with which the Child Endangering offense in Count Four, which involved different, non-lethal injuries, was committed. However, the record fails to demonstrate that Defendant‘s purpose or immediate motive differed with respect to any of the injuries he inflicted. All were the result of multiple severe blows delivered separately to different parts of the child‘s body. One was fatal while the others were not. While the child‘s ordeal is heart-rending, no separate animus is demonstrated to distinguish one Child Endangering offense Defendant committed from the other.
{¶ 43} The State‘s contention more logically pertains to the alternative grounds in
{¶ 44} Having found that the two offenses to which Defendant pled guilty are not allied offenses per
{¶ 45} As a final matter, we note that Johnson declined to apply the preemptive exception to the merger rule of State v. Brown regarding offenses for which the General Assembly intended to protect different societal interests, which the trial court applied in the present case. Johnson involved the offenses of Endangering Children and Felony Murder, with Endangering Children as the predicate felony offense. The present case involves Child Endangering and Involuntary Manslaughter, with Child Endangering as the predicate offense to Involuntary Manslaughter. The only distinction between Felony Murder,
{¶ 46} Johnson was, as we have said, decided almost a year after the trial court‘s decision on the allied offenses question in the present case. The court acted correctly in applying the Rance/Cabrales test. Nevertheless, because Johnson was decided prior to our review of the error assigned in the present appeal, we are bound to follow and apply Johnson, which overruled Rance. In so doing, we necessarily find that the trial court erred when it found that the Child Endangering and Involuntary Manslaughter offenses of which Defendant was convicted are not allied offenses per
{¶ 47} The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 48} “THE TRIAL COURT ERRED IN DENYING DEFENDANT‘S MOTION TO SUPPRESS.”
{¶ 50} Consent is not an exception to the
{¶ 51} When a consent is given following some form of illegal police action, the illegal action may be considered along with other circumstances in determining whether they combined to result
{¶ 52} “While there is a sufficient overlap of the voluntariness and fruits tests that often a proper result may be reached by using either one independently, it is extremely important to understand that (i) the two tests are not identical, and (ii) consequently the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.” LaFave, Search and Seizure (Fourth Ed.), §8.2(d), p. 76.
{¶ 53} In State v. Cheadle (July 14, 2000), Miami App. No. 00CA03, we stated:
{¶ 54} “A warrantless entry and search of a private residence is presumptively unreasonable under the
{¶ 55} “One such exception to the warrant requirement is an entry or search based upon exigent circumstances. This exception is founded on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant. Welch v. Wisconsin, supra. In such emergency situations, police may have an urgent need to enter a home in order to protect persons or property, render emergency aid to injured persons, or prevent the imminent destruction of evidence. Katz, Ohio Arrest, Search and Seizure (1999), Chapter 10, pp. 177-187.”
{¶ 56} Addressing the exigency involving the need to render emergency aid to injured persons, the United States Supreme Court has held:
{¶ 58} “Brigham City1 identified one such exigency: ‘the need to assist persons who are seriously injured or threatened with such injury.’ 547 U.S., at 403, 126 S.Ct. 1943. Thus, law enforcement officers ‘may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.’ Ibid. This ‘emergency aid exception’ does not depend on the officers’ subjective intent or the seriousness of any crime they are investigating when the emergency arises. Id., at 404-405, 126 S.Ct. 1943. It requires only ‘an objectively reasonable basis for believing,’ id., at 406, 126 S.Ct. 1943, that ‘a person within [the house] is in need of
{¶ 59} “Brigham City illustrates the application of this standard. There, police officers responded to a noise complaint in the early hours of the morning. ‘As they approached the house, they could hear from within an altercation occurring, some kind of fight.’ 547 U.S., at 406, 126 S.Ct. 1943 (internal quotation marks omitted). Following the tumult to the back of the house whence it came, the officers saw juveniles drinking beer in the backyard and a fight unfolding in the kitchen. They watched through the window as a juvenile broke free from the adults restraining him and punched another adult in the face, who recoiled to the sink, spitting blood. Ibid. Under these circumstances, we found it ‘plainly reasonable’ for the officers to enter the house and quell the violence, for they had ‘an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning.’ Ibid.” Michigan v. Fisher (2009), ___ U.S. ___, 130 S.Ct. 546, 175 L.Ed.2d 410, Slip. Op. No. 09-91, p.3.
{¶ 60} We glean from Fisher and the authorities it cites that, when relying on the emergency aid exception to the warrant requirement, the state assumes the burden to prove by clear and convincing evidence that officers were presented with a compelling need to enter a home or other private premises in order to provide
{¶ 61} In a motion to suppress, the trial court assumes the role of the trier of facts, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses. State v. Clay (1972), 34 Ohio St.2d 250. Accordingly, in our review, we are bound to accept the trial court’s findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court’s conclusion, whether they meet the applicable legal standard. State v. Satterwhite (1997), 123 Ohio App.3d 322.
{¶ 62} The trial court’s findings of fact, in pertinent part, include the following:
{¶ 63} “The Court finds the testimony of the witnesses to be credible and finds the facts to be as follows. On December 27, 2008 at approximately 10:00 a.m. a dispatch was made from the Fairborn Police Department to officers to proceed to 233 Pat Lane in the City of Fairborn, Greene County, Ohio, the nature of which was an injury to a child. Officer Hiles and Officer Knapp of the
{¶ 64} “Officer Knapp went to his vehicle and obtained a consent to search form and re-entered the house where Officer Hiles and Officer Holcomb were still continuing to discuss the emergency circumstances with the Defendant after having entered the home the second time.
{¶ 65} “At approximately 10:52 a.m. Brian LaPrairie consented to a search of the residence. The consent form was signed by the Defendant and identified as State’s Exhibit 1. The Court notes that no promises or threats were made before, during, or after the execution of the consent to search form. At this time the
{¶ 66} Defendant concedes that Fairborn police officers had a legal justification to initially enter his home, as they were the first to respond to his 911 call for emergency medical assistance for two year old Juliana Berry. We agree that the exigent circumstances/emergency aid exception to the warrant requirement clearly justified the officers’ initial entry into Defendant’s home. Mincey. Defendant argues, however, that the officers’ conduct in reentering his home and/or remaining inside his home after the child had been removed violated his
{¶ 67} After the child had been removed from the home and transported to the hospital, Officers Hiles and Knapp re-entered Defendant’s home to talk to Defendant and investigate what had happened to the child. While Officers Hiles and Knapp were inside
{¶ 68} The trial court found that when the officers reentered Defendant’s home “they were not pursuing a criminal investigation but concluding the ongoing emergency.” However, the right of the officers to act for an emergency purpose must be strictly circumscribed by the exigency that existed. Mincey v. Arizona. To act as they did, officers must have had an urgent need to render aid to an injured person inside because of an “emergency threatening life or limb.” Id., 437 U.S. at 393. Furthermore, the need must be one based on objectively verifiable facts, and not a mere reasonable and articulable suspicion. Otherwise, the presumption that their warrantless entry was illegal is not overcome.
{¶ 69} The urgency that permitted officers to first enter
{¶ 70} Officer Hiles testified that officers reentered Defendant’s home to question him because emergency medical personnel would have done that had they been able to remain on the scene. (T. at 26.) However, the record fails to demonstrate that the officers either determined what information paramedics wished to know or that the officers asked Defendant any questions concerning the child’s pertinent past or present medical information. Neither did the officers make any effort to pass such information along to the paramedics or others who were responsible for treating and transporting the child to the hospital.
{¶ 71} Officer Knapp conceded that when officers reentered the home after the child had been removed, there was then no medical emergency for officers to act upon by going inside. (T. at 46.)
{¶ 72} Upon reentering Defendant’s home, Officer Hiles told Defendant that incidents such as this they treat as a crime scene. (Tr. at 18.) Officer Hiles testified “well, there’s a death of a child, we have to investigate what happened.” (Id. at 18-19.) When asked if the second time police went into Defendant’s home they were there to get criminal information, Officer Knapp responded: “possibly. I don’t know. We didn’t know what was going on.” (Id. at 58.)
{¶ 73} When considering the emergency aid exception to the warrant requirement, “[a]ny conduct within by the officer which is in any way inconsistent with the purported reason for the entry is a just cause for healthy skepticism by the court.” LaFave, §6.6(a). At least by the time Defendant was presented with a consent form, the officer’s continued and uninvited presence in Defendant’s home had no tangible connection with an alleviation
{¶ 74} The ultimate question is whether the illegality that the officers’ presence involved rendered Defendant’s consent to search less than knowing, intelligent, and voluntary. Concerning that issue, the trial court found:
{¶ 75} “The Defendant knowingly, intelligently, and voluntarily understood and signed the form and gave his consent to search. While the Court notes that the Defendant was upset emotionally during this time period, there is no evidence that this condition created any disability to the proper execution of the consent to search.”
{¶ 76} We have held that even when a consent is not the product of some more specific coercion or duress, and therefore was voluntary in the usual sense, evidence seized in a search performed after the consent was given remains subject to suppression when
{¶ 77} In the present case, the officers’ initial entry into Defendant’s home was, as we have held, justified by the emergency aid exception to the warrant requirement and therefore was not illegal. However, after that emergency had clearly dissipated and the officers then reentered Defendant’s home, and then remained there, uninvited, in order to perform a criminal investigation, their continued presence was illegal. Absent some significant time, space, or event that intervened between that primary
{¶ 78} The consent form Defendant signed contains two notices that he may refuse to give his consent. Such notices may render a consent voluntary, in the usual sense. However, in order to be sufficiently significant to avoid the primary constitutional taint arising from the officers’ illegal entry or presence on the premises as a matter of law, an intervening event should not itself be an element of the consent to which the taint attaches. The consent therefore remained tainted by the primary illegality when the consent was obtained by officers. Neither was the primary illegality itself avoided by the consent that was obtained, which appears to have been the purpose of obtaining it. Because the consent was tainted, the warrantless search and seizures performed on the authority of the consent were illegal. The trial court therefore erred when it denied Defendant’s motion to suppress evidence.
{¶ 79} The second assignment of error is sustained.
Conclusion
{¶ 80} Having sustained the first assignment of error, in part, we will remand the case to the trial court to determine the applicability of the
{¶ 81} Having sustained the second assignment of error, we will reverse Defendant’s convictions for Having Weapons Under Disability and Trafficking in Marijuana and will remand the case for further proceeding on those charges, consistent with our Opinion.
{¶ 82} The judgment of conviction from which the appeal was taken will otherwise be Affirmed.
FAIN, J., concurs.
FROELICH, J., concurring in part and dissenting in part:
{¶ 83} I agree with the majority that suppression is required “unless the taint of the unconstitutional entry has been dissipated” before the consent to search was given.
{¶ 84} I also agree that such dissipation “ordinarily involves some showing that there was some significant intervening time, space, or event.” I disagree that on the record before us we can determine, as a matter of law, whether the taint had dissipated. The trial court did not make factual findings on this question since it found, incorrectly (we now hold), that the reentry and remaining in the house was constitutional as an exception to the warrant requirement.
{¶ 85} I concur on the remand for the court to determine the applicability of
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