State v. MooreState v. Moore
Steven H. Eckstein, 1208 Bramble Avenue, Washington Court House, OH 43160, for defendant-appellant
O P I N I O N
S. POWELL, P.J.
{¶ 1} Defendant-appellant, Norman E. Moore, appeals from the decision of Fayette County Court of Common Pleas denying his motions to dismiss and to suppress in a case where the trial court ultimately found Moore guilty of single counts of gross sexual imposition and rape after he entered a plea of no contest to both charges. For the reasons outlined below, we affirm.
{¶ 3} On April 7, 2017, the Fayette County Grand Jury returned an indictment charging Moore with one count of gross sexual imposition. It is undisputed that this indictment was based Jane‘s allegations regarding Moore‘s conduct she had reported to the Fayette County Sherriff‘s Office on April 4, 2017. Moore was thereafter arrested on April 12, 2017. The following week, on April 17, 2017, Moore appeared at his arraignment and entered a plea of not guilty to the single charged offense of gross sexual imposition against Jane. Since being arrested on April 12, 2017, there is no dispute that Moore had remained incarcerated in the Clinton County Jail at all times relevant.
{¶ 4} On April 19, 2017, a search warrant was issued for Moore‘s cell phone. The search warrant was supported by an affidavit submitted by Sergeant Ward who averred that Jane had since reported to him that Moore had repeatedly for the past nine months: (1) placed his hand inside her pants and touched her vagina, as well as her breasts and
{¶ 5} Sergeant Ward further averred that the most recent incident occurred on April 3, 2017, during which Jane alleged Moore had called her into his bedroom and “pulled up her shirt and was messing with her ‘boobs.‘” The search of Moore‘s cell phone led to the discovery that Moore had conducted an internet search for “Step Dad Fucks Step Daughter Porn Video” on April 3, 2017, the same day Jane alleged Moore had pulled up her shirt and was “messing” with her breasts, as well as two previous internet searches on March 30, 2017 for “step dad fucking step dau (sic).” Several images relating to stepfathers and stepdaughters were also discovered on Moore‘s cell phone, none of which contained any nudity.
{¶ 6} On April 21, 2017, Jane submitted to a forensic interview regarding her and her sister Jill‘s interactions with Moore. As part of this interview, Jane provided further, specific details regarding Moore‘s interactions with both her and her sister. This included statements from Jane that Moore had over the past nine months touched her buttocks, breasts, and vagina. “[S]tarted on the outside and then went in.” Jane also stated that Moore had told her Jill had sent nude photographs of herself to Moore, but that Jane herself did not send nor did she receive any photographs from Moore. A follow up interview with Jane revealed still further incidents between Jane and Moore starting sometime in the summer of 2015, including cunnilingus and digital penetration of Jane‘s vagina.
{¶ 7} On April 23, 2017, Jill also submitted to a forensic interview regarding her and her sister Jane‘s interactions with Moore. During this interview, Jill stated that she was just nine years old when Moore started to sexually abuse her. This included playing a “game” where Moore would tell Jill “to hide and he would come find her and touch her” on her chest
{¶ 8} Jill further stated that when she was between 11 and 12 years old that Moore would touch her daily, including digital penetration of her vagina. Jill alleged the sexual abuse finally stopped after she started her period sometime after she turned 13 years old. Although not clear, the record indicates Jill had previously complained about Moore‘s sexual abuse, which, according to Jill, eventually resulted in Moore being “put out of the house by Children‘s Service[.]” Unfortunately, Jill stated that she later recanted her accusations against Moore telling “them it was a lie, because her mom was hurt and she felt bad.”
{¶ 9} Based on these new, specific allegations, on June 30, 2017, the Fayette County Grand Jury returned a 65-count indictment charging Moore with multiple counts of gross sexual imposition and rape resulting from his repeated, overt sexual abuse of his two stepdaughters, Jane and Jill. As alleged in the indictment, the nine charges involving Jane occurred between October of 2016 through April of 2017, whereas the 56 charges involving Jill occurred between September of 2007 through December of 2009.
{¶ 10} Approximately two weeks later, on July 10, 2017, Moore appeared at his arraignment and entered a plea of not guilty to all 65 charged offenses. Due to the filing of this new 65-count indictment, and in the interests of justice to “pursue only one case at this time,” the state thereafter dismissed without prejudice the original indictment filed on April 7, 2017. The matter was then scheduled for a jury trial on August 22, 2017, which at Moore‘s request was rescheduled for September 27, 2017.
{¶ 11} On September 25, 2017, two days before the jury trial was scheduled to begin, Moore filed a motion for leave to file a motion to suppress outside of the trial court‘s time guidelines. That same day, before the trial court had an opportunity to rule on Moore‘s
{¶ 12} On September 26, 2017, the trial court held a hearing on Moore‘s motion for leave, during which Moore made an additional oral motion for a continuance of the jury trial scheduled to begin the next day, September 27, 2017. Over the state‘s objection, the trial court granted Moore‘s motions for leave and for a continuance upon finding it was necessary to continue the jury trial to address Moore‘s motions to dismiss and to suppress. The trial court then scheduled a hearing on Moore‘s motions for October 3, 2017, whereas the jury trial was rescheduled for October 19, 2017. Moore then executed a written waiver of his right to speedy trial, thereby waiving his speedy trial rights up to and including when the jury trial was scheduled to begin on October 19, 2017.
{¶ 13} On October 3, 2017, the parties appeared before the trial court for the hearing on Moore‘s motions. No testimony or evidence was presented at this hearing, only arguments from both parties. At the conclusion of this hearing, the trial court issued a decision from the bench denying Moore‘s motion to suppress. In so holding, the trial court found Moore had “failed to establish a procedural defect” in the issuance of the search
{¶ 14} As it relates to the trial court‘s decision on Moore‘s motion to dismiss, the trial court took the matter under advisement noting that it would issue a decision on the matter in due course after accepting additional memoranda from both parties outlining their respective positions. Thereafter, at a subsequent hearing, the trial court issued its decision from the bench denying Moore‘s motion to dismiss. In so holding, the trial court found “the re-indictment started the clock over because it did not, it had other facts and allegations, contained in indictment number 1.” Although stating it would “be reducing that to a written form,” the trial court never issued a written entry denying Moore‘s motion to dismiss.
{¶ 15} On October 18, 2017, the day before the jury trial was scheduled to begin, Moore entered into a plea agreement with the state, wherein he agreed to plead no contest to single counts of rape and gross sexual imposition regarding his repeated, overt sexual abuse of his two stepdaughters, Jane and Jill. In exchange for Moore‘s no contest plea, the state agreed to dismiss the remaining charges and recommend Moore be sentenced to a total of eight years in prison, four years for each count. After conducting the necessary
{¶ 16} Upon finding Moore guilty, the trial court then sentenced Moore to the recommended total aggregate eight-year prison term. The trial court also notified Moore that he would be subject to a mandatory five-year period of postrelease control, that he
{¶ 17} Moore now appeals, raising two assignments of error for review.
{¶ 18} Assignment of Error No. 1:
{¶ 19} THE TRIAL COURT ERRED IN DENYING MOORE‘S MOTION TO DISMISS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY SECTION 10, ARTICLE I [OF] THE OHIO CONSTITUTION.
{¶ 20} In his first assignment of error, Moore argues the trial court erred by denying his motion to dismiss wherein he alleged a violation of his right to a speedy trial. We disagree.
{¶ 21} Cases involving subsequent or multiple indictments, such as the case here, can be problematic with respect to the issue of speedy-trial rights. State v. North, 12th Dist. Butler No. CA2016-06-119, 2017-Ohio-492, ¶ 24, citing State v. Vasquez, 10th Dist. Franklin No. 13AP-366, 2014-Ohio-224, ¶ 23. The Ohio Supreme Court has issued several opinions to clarify when the speedy-trial timetable runs on multiple indictments. For instance, in State v. Adams, 43 Ohio St.3d 67, 65-69 (1989), the Ohio Supreme Court held that where “new and additional charges arise from the same facts as did the original charge and the state knew of such facts at the time of the initial indictment, the time within which trial is to begin on the additional charge is subject to the same statutory limitations period that is applied to the original charge.” (Internal quotation marks omitted.)
{¶ 22} However, as the Ohio Supreme Court later explained in State v. Baker, 78 Ohio St.3d 108 (1997), syllabus, “[i]n issuing a subsequent indictment, the state is not
{¶ 23} Relying on the Ohio Supreme Court‘s holding in Baker, Moore initially argues that because the trial court granted him 188 days of jail-time credit from the time he was arrested on April 12, 2017 for the original April 7, 2017 indictment rather than starting the calculation of his jail-time credit when the June 30, 2017 indictment was issued, the trial court “found” the two cases “related” yet failed to apply the applicable try-by date as it relates to the original April 7, 2017 indictment. The trial court, however, made no such finding. Instead, as the trial court found when issuing its decision from the bench denying Moore‘s motion to dismiss, “the re-indictment started the clock over because it did not, it had other facts and allegations, contained in indictment number 1.” There is nothing in the record to indicate the trial court somehow “changed its mind and found the two indictments related” as Moore now suggests. This is true despite the fact the trial court never issued a written entry denying Moore‘s motion to dismiss.3 Simply stated, despite no written entry being issued, it is clear the trial court denied Moore‘s motion to dismiss for the reasons stated on the record, which did not include a finding that the two cases were in any way related. Moore‘s argument to the contrary lacks merit.
{¶ 25} Moore‘s application of the Ohio Supreme Court‘s holding in Baker is flawed. As noted above, the Ohio Supreme Court in Baker held as part of its syllabus, “[i]n issuing a subsequent indictment, the state is not subject to the speedy-trial timetable of the initial indictment, when additional criminal charges arise from facts different from the original charges, or the state did not know of these facts at the time of the initial indictment.” (Emphasis added.) Due to the Ohio Supreme Court‘s use of the conjunctive “or,” even if we were to agree with Moore that the state knew of the facts giving rise to the subsequent June 30, 2017 indictment at the time the original April 7, 2017 indictment was issued, which we do not, there is no question that the 65 charges of rape and gross sexual imposition brought in the June 30, 2017 indictment arise from facts that are markedly different than the single gross sexual imposition charge brought as part of the original April 7, 2017
{¶ 26} Unlike the original April 7, 2017 indictment charging Moore with a single count of gross sexual imposition for his conduct on April 3, 2017 in “messing” with Jane‘s breasts, the June 30, 2017 indictment charged Moore with 65 counts of gross sexual imposition and rape resulting from his repeated, overt sexual abuse of his two stepdaughters, Jane and Jill. Again, as alleged in the June 30, 2017 indictment, the nine charges involving Jane occurred between October of 2016 through April of 2017, whereas the remaining 56 charges involving Jill occurred between September of 2007 through December of 2009. These 65 charges are wholly separate and apart from Moore‘s conduct in “messing” with Jane‘s breasts on April 3, 2017 giving rise to the issuance of the original April 7, 2017 indictment.
{¶ 27} Therefore, in applying the Ohio Supreme Court‘s holding in Baker to the case at bar, because the charges giving rise to the June 30, 2017 indictment arise from facts wholly different from the charge brought in the original April 7, 2017 indictment, it is clear that the state was not subject to the speedy-trial timetable of the original April 7, 2017 indictment. Moore‘s claim otherwise lacks merit. Accordingly, because we find no error in the trial court‘s decision denying Moore‘s motion to dismiss, Moore‘s first assignment of error is overruled.
{¶ 29} THE TRIAL COURT ERRED IN DENYING MOORE‘S MOTION TO SUPPRESS IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.
{¶ 30} In his second assignment of error, Moore argues the trial court erred by denying his motion to suppress the search of his cell phone. In support of this claim, Moore argues the search warrant affidavit submitted by Sergeant Ward in this case was insufficient to establish the requisite probable cause necessary for the issuance of the search warrant. We disagree.
{¶ 31} Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 15, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence in order to resolve factual questions and evaluate witness credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. This court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence. State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶ 10. “‘Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.‘” State v. Runyon, 12th Dist. Clermont No. CA2010-05-032, 2011-Ohio-263, ¶ 12, quoting Burnside at ¶ 8.
{¶ 32} In determining whether a search warrant was issued upon a proper showing of probable cause, reviewing courts must examine the totality of the circumstances. State v. J.A.C., 12th Dist. Warren Nos. CA2017-04-044 and CA2017-04-045, 2018-Ohio-361, ¶ 19, citing State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, ¶ 13. As it relates to whether
{¶ 33} On appeal, rather than conducting a de novo review as to whether the search warrant affidavit provided sufficient probable cause, see State v. Cobb, 12th Dist. Butler No. CA2007-06-153, 2008-Ohio-5210, ¶ 24, it is this court‘s limited duty to ensure the judge or magistrate issuing the search warrant had a substantial basis for concluding probable cause existed based on the information contained within the four corners of the affidavit filed in support of the search warrant. State v. Quinn, 12th Dist. Butler No. CA2011-06-116, 2012-Ohio-3123, ¶ 21. In reaching such a decision, this court must afford great deference to the trial court‘s decision “and doubtful or marginal cases in this area should be resolved in favor of upholding the warrant.” State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, ¶ 14. This court should therefore “not invalidate [warrants] by interpreting [affidavits] in a hypertechnical, rather than a commonsense, manner.” Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317 (1983).
{¶ 34} Moore argues the trial court erred by denying his motion to suppress because
{¶ 35} Moore nevertheless argues the trial court‘s decision denying his motion to suppress was in error since the search warrant affidavit stated only that he had “tried” to get Jane to send him photographs of her via cell phone and merely “asked” Jane to watch pornography on his cell phone. Therefore, according to Moore, it is “obvious” that he “failed” in his efforts to get Jane to send him the requested photographs via cell phone or to get Jane to watch pornography on his cell phone, thereby leaving little doubt that his cell phone did not contain any evidence of the commission of gross sexual imposition.
{¶ 36} Moore is putting the cart before the horse. As noted by the state, “it is only after obtaining the mobile telephone that it could be determined if evidence was or was not on the mobile telephone.” We agree. Therefore, because the allegations included within Sergeant Ward‘s search warrant affidavit were sufficient to establish probable cause to issue a search warrant for Moore‘s cell phone as part of the investigation into Moore‘s
{¶ 37} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.