State v. Towns

2020 Ohio 5120

• Court: Ohio Court of Appeals
• Decided: October 30, 2020
• Docket: WM-19-023
• Status: Published

Opinion

[Cite as State v. Towns, 2020-Ohio-5120.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY

State of Ohio/City of Bryan Court of Appeals No. WM-19-023

Appellee Trial Court No. CRB1900417A

v.

Steven M. Towns DECISION AND JUDGMENT

Appellant Decided: October 30, 2020

*****

Mark R. Weaver and Ryan M. Stubenrauch, Special Prosecutors, for appellee.

Henry Schaefer, for appellant.

ZMUDA, P.J.

I. Introduction

{¶ 1} Appellant, Bryan Towns, appeals the judgment of the Bryan Municipal

Court, sentencing him to 180 days in jail, suspending the entire jail sentence, ordering

him to pay a fine and costs, and placing him on community control for a period of three years after a jury found him guilty of one count of disclosure by a public official. For the

reasons that follow, we find no error in the proceedings below, and we therefore affirm

the trial court’s judgment.

A. Facts and Procedural Background

{¶ 2} This case began upon the state’s filing of a complaint in the trial court on

June 20, 2019, charging appellant with one count of disclosure by a public official in

violation of R.C. 102.03(B), a misdemeanor of the first degree, and two counts of

unauthorized dissemination in violation of R.C. 2151.421(I)(2)(a), misdemeanors of the

fourth degree. These charges stemmed from appellant’s October 19, 2018 posting of

approximately 632 pages of documents related to cases of child abuse and neglect

handled by the Williams County Job and Family Services (the “Job and Family Services

report”), some of which contained confidential information, to the website of the

Williams County Sheriff’s Office. At the time of the posting of the Job and Family

Services report, appellant was the sheriff of Williams County. In that role, appellant had

prior dealings with the Williams County Job and Family Services, and was unsatisfied

with the way in which the agency was handling reports of child abuse and neglect.

{¶ 3} On July 12, 2019, appellant entered a plea of not guilty to the charges

contained in the complaint, and the matter proceeded to pretrial discovery and motion

practice. On September 26, 2019, appellant filed a motion to dismiss the state’s

complaint. In his motion, appellant argued that R.C. 102.03(B) and 2151.421(I)(2)(a) are

unconstitutional under the constitutions of the United States and the state of Ohio, both

2. on their face and as applied to appellant, because these statutes infringed upon his

freedom of speech and violated his rights to due process by imposing strict liability.

Additionally, appellant contended that the Ohio Ethics Commission is the entity

empowered to conduct investigations under R.C. 102.03(B) and that the state lacked

jurisdiction under the statute absent a referral of the matter from the Ohio Ethics

Commission. Appellant went on to note that this was the first time the state charged a

defendant with a violation of R.C. 102.03(B) without a referral from the Ohio Ethics

Commission, and urged the trial court to dismiss the matter based upon what appellant

deemed was selective prosecution on the part of the state. Finally, appellant asserted that

the trial court lacked jurisdiction over the two unauthorized dissemination counts because

R.C. 2151.23(A)(5) grants the juvenile court exclusive jurisdiction over cases involving

R.C. 2151.421(I)(2)(a).

{¶ 4} On October 10, 2019, the state filed a “motion for partial nolle prosequi,”

seeking leave of court to dismiss the counts of unauthorized dissemination under R.C.

2151.421(I)(2)(a). On that same day, the state filed its memorandum in opposition to

appellant’s motion to dismiss, in which it argued that neither R.C. 102.03(B) nor

2151.421(I)(2)(a) were unconstitutional. As to appellant’s free speech claim, the state

asserted that the First Amendment “does not entitle Defendant to release confidential

child abuse reports as a form of political speech.” The state further maintained that

constitutional challenges similar to appellant’s had already been rejected in Ohio, citing

cases from the Tenth District and the Eighth District in support.

3. {¶ 5} In addition, the state argued that R.C. 102.03(B) is not a strict liability

statute as appellant suggested in his motion to dismiss. Rather, the state maintained that

the lack of an express mens rea in the statute results in the application of a default mens

rea of recklessness.

{¶ 6} Next, the state insisted that the Ohio Ethics Commission does not hold

exclusive authority to prosecute all violations of R.C. 102.03(B). The state noted that a

grant of exclusive jurisdiction to the Ohio Ethics Commission is not provided in the

statute, and argued that “[i]f the General Assembly had intended to confer exclusive

jurisdiction over all prosecutions pursuant to R.C. 102.03, they would have expressly said

so.” The state went on to argue that “the Ethics Commission does not have any

adjudicative authority, it cannot impose fines or other punishment, and its proceedings

are not governed by R.C. Chapter 119.

{¶ 7} Finally, the state rejected appellant’s accusation of selective prosecution,

noting that appellant failed to meet his burden of pointing to others similarly situated who

were not prosecuted or demonstrating that the state acted in bad faith in selecting him for

prosecution.

{¶ 8} The trial court issued its decision on appellant’s motion to dismiss on

October 21, 2019. In its decision, the trial court found that it had jurisdiction to proceed

with the case, and further concluded that appellant’s motion to dismiss did not “state

sufficient legal grounds and is found not well taken and denied.” In a separate order

journalized the same day as its ruling on appellant’s motion to dismiss, the trial court

4. granted the state’s motion for partial nolle prosequi, thereby dismissing the charges for

unlawful dissemination.

{¶ 9} On October 22, 2019, the state filed a motion in limine, in which it sought to

prevent appellant from introducing evidence at trial that it claimed was irrelevant to the

proceeding, namely evidence pertaining to the following:

1. Statements and opinions of witnesses, including the Defendant,

concerning the performance, faults, perceived faults, failures, or perceived

failures of the Williams County Job and Family Services * * *, the

Williams County Prosecutor’s Office, the Ohio Attorney General’s Office,

or any other agency regarding their response or handling of complaints or

reported crimes that aren’t the subject of the above captioned case.

2. Any other evidence or testimony regarding the performance

and/or alleged failure to act by Williams County Job and Family Services

or any other agency with respect to previous reports or complaints of

alleged child abuse and neglect occurring in Williams County, Ohio.

{¶ 10} On October 31, 2019, appellant filed his response to the state’s motion in

limine. In his response, appellant argued that the evidence the state sought to exclude

was expressly permitted by Evid.R. 106, 404(B), 607, 608, 609, and 616, for the purpose

of demonstrating that the state’s witnesses were biased against appellant. In support,

appellant cited testimony of a witness that agents working for the Bureau of Criminal

Investigations (“BCI”) brought the current charges against appellant as a vendetta for

5. statements appellant made to a newspaper that were critical of the BCI. Because the

evidence would be admitted for the proper purpose of showing witness bias, appellant

argued that the evidence should not be excluded.

{¶ 11} On November 4, 2019, the trial court issued its decision on the state’s

motion in limine, in which it found in favor of the state without expressly addressing

appellant’s bias argument. Immediately thereafter, the matter proceeded to a two-day

jury trial.

{¶ 12} At trial, the state called ten witnesses. First, the state called Diana Hoover,

a licensed social worker in the field of child protection. As a former director of the

Hancock County Job and Family Services, Hoover oversaw cases of child abuse in which

law enforcement was involved. According to Hoover, the cooperation between entities

including job and family services agencies and local law enforcement is guided by a

memorandum of understanding governing the investigation of reports of alleged child

abuse and neglect. A copy of the memorandum of understanding bearing appellant’s

signature was admitted into evidence as plaintiff’s exhibit 10.

{¶ 13} Hoover testified that the memorandum of understanding to which appellant

subscribed regulates disclosure of confidential information. In particular, Hoover stated

that under the memorandum of understanding and Ohio law, reports of alleged abuse or

neglect from mandatory reporters are confidential, as are the names of the reporters. As

such, Hoover indicated that law enforcement officials are not permitted to release the

reports to the general public in any manner, including publishing the reports on the

6. internet or posting the reports onto the Facebook platform. However, Hoover

acknowledged on cross-examination that subscribers to the Williams County

memorandum of understanding are granted “professional discretion” to handle individual

cases in a manner they deem appropriate.

{¶ 14} For its second witness, the state called Pam Hablawetz. As a licensed

emergency room nurse at Community Memorial Hospital in Hicksville, Defiance County,

Ohio, Hablawetz is a mandatory reporter of child abuse. While reporting is ordinarily

directed to Child Protective Services, Hablawetz generally reports to local sheriff

departments since she works from 7:00 p.m. until 7:00 a.m., when Child Protective

Services is closed.

{¶ 15} On June 28, 2016, Hablawetz assumed responsibility for a case involving

an infant, in which she suspected child abuse due to bruising and injuries that she

observed on the baby’s body. In response, Hablawetz reported the suspected abuse to

appellant’s office. Tragically, the infant died one month later.

{¶ 16} Next, the state called deputy Ben Baldwin of the Williams County Sheriff’s

Office for its third witness. Baldwin was the deputy who spoke with Hablawetz on

June 28, 2016, when she reported her suspicion of child abuse. Baldwin testified that he

did not suspect a crime had been committed based upon his discussion with Hablawetz,

but he documented the conversation nonetheless. The police report Baldwin prepared

after his discussion with Hablawetz, which makes several references to a “nurse Pam,”

was subsequently admitted into evidence as plaintiff’s exhibit 1. During her testimony,

7. Hablawetz indicated that she was the only nurse named Pam that worked at Community

Memorial Hospital on June 28, 2016.

{¶ 17} After speaking with Hablawetz, Baldwin referred the matter to the on-call

investigator at the Williams County Department of Job and Family Services. Job and

Family Services subsequently sent Baldwin a letter referring to Baldwin by name and

indicating receipt of his report. According to the letter, which was admitted into evidence

as plaintiff’s exhibit 2, the agency did not complete an assessment or investigate the

matter further because it determined that the child’s injuries were accidental.

{¶ 18} For its fourth witness, the state called deputy clerk Hayley Schmidt of the

Williams County Sheriff’s Office. In her role as deputy clerk, Schmidt maintains records

and posts information on the office’s website, which she identified as

www.WilliamsCountysheriff.com. At appellant’s request, Schmidt sent an email

containing the Job and Family Services report to the website administrator, Dan Paul.

According to Schmidt, appellant prepared the report, which he “had been working on for

Job and Family Services and the city schools.” Thereafter, appellant asked Schmidt to

have the report posted on the Williams County Sheriff’s Office website. After Schmidt

forwarded the report to Paul, Paul posted the report on the website on October 18, 2018.

{¶ 19} On cross-examination, Schmidt acknowledged that appellant contacted her

two days after the report was posted on the website and directed her to take the report off

of the website so that it could be redacted.

8. {¶ 20} As its fifth witness, the state called deputy clerk Lisa Nye of the Williams

County Sheriff’s Office. In the months leading up to the posting of the report to the

sheriff’s office website, Nye was asked to make necessary redactions so that “[i]f it were

to be made available for a public records request, that it would be okay to go out.” Nye

testified that the report consisted of reports from Job and Family Services and medical

records. Nye took the report home with her from work, and made the appropriate

redactions over the course of a “couple of evenings.” Nye described the process that she

used to make the redactions as follows:

I sat at my dining room table with a white line marker, it’s like a dry

erase marker, like white out, but it’s a dry line, and I had binder clips and

things of that nature, and I would go through and I would look for names of

people who should not be put out into the public. And then if it was a

document that our office didn’t create, I put a binding clip on it, and that

was essentially what I did.

***

If it didn’t come from our office, I would not have said that it could

be released.

{¶ 21} Later in her testimony, Nye stated that she expressed concerns to appellant

about releasing certain portions of the report to the public. Because Nye and appellant

did not agree on which documents could be lawfully disclosed, appellant informed Nye

that he was going to have someone else review the report. Nye went on to state that she

9. informed appellant that “none of it can go * * * and I explained, I said well Job and

Family, I said rule of thumb with public records requests if you don’t create it you can’t

release it. And [appellant] did not – he felt like maybe that wasn’t actually accurate, and

so we left if at that.”

{¶ 22} On cross-examination, Nye acknowledged that appellant was concerned

about the redactions made to the report. As to appellant’s concern, Nye indicated that

appellant “wanted to make sure that if it went out, if anything * * * went out to the public

[it] was done correctly.”

{¶ 23} Following Nye’s testimony, the state called sergeant Andy Collert of the

Williams County Sheriff’s Office as its sixth witness. Collert testified that he posted a

letter regarding the Job and Family Services report to the Facebook page for the Williams

County Sheriff’s Office on the evening of October 19, 2018. Collert explained that he

did so at appellant’s request. Less than 24 hours after posting the letter, Collert received

a phone call from appellant, who asked Collert to take the post off of the Facebook page

because there were matters contained in the report that were not redacted properly.

{¶ 24} As its seventh witness, the state called Craig Meyers. At some point in

October 2018, Meyers’ wife, a social worker, alerted him to the posting of the Job and

Family Services report, which contained the names of Meyers and his wife, as well as

their address. Angered by the disclosure, Meyers called appellant to express his

displeasure. According to Meyers, appellant “apologized and said [he] didn’t know that

was out there, and would get with his office to take care of it.”

10. {¶ 25} For its final three witnesses, the state called BCI agents David Pauly, Chris

Hamberg, and Ryan Emahiser. Collectively, these agents were responsible for gathering

evidence and interviewing witnesses, including appellant, as part of the investigation in

this matter. Audio clips of two interviews, one conducted by Pauly and one conducted by

Hamberg, were played at trial and admitted into evidence. In these clips, appellant

acknowledged his role in publishing the Job and Family Services report to the Williams

County Sheriff’s Office website, and indicated that he directed Schmidt to have the report

posted.

{¶ 26} At the conclusion of Emahiser’s testimony, the state rested. Appellant then

moved for an acquittal under Crim.R. 29. In support of the motion, defense counsel

argued that the state failed to meet is burden to establish that appellant acted recklessly in

disclosing the unredacted confidential information in the Job and Family Services report.

In response, the state contended that its evidence establishing that appellant moved

forward with posting the report to the website after being warned of the confidential

information contained therein constituted recklessness sufficient to sustain convictions

for the charged offense. Upon hearing the parties’ arguments, the trial court denied the

Crim.R. 29 motion, and the matter proceeded to appellant’s case-in-chief.

{¶ 27} Appellant called himself to the stand as his lone witness. Appellant

testified that the Williams County Commissioners asked him to prepare the Job and

Family Services report sometime in 2017. Once he completed the report, he forwarded it

to the commissioners and “had [his] staff put it on the web page” after he reviewed it.

11. Prior to posting the report, appellant discussed the matter with another Ohio sheriff who

was his mentor. After discussing the report with his mentor, appellant believed the report

could be posted “so long as everything was [properly redacted].”

{¶ 28} The morning after the report was posted to the Williams County Sheriff’s

Office website, appellant learned that there was inappropriate material contained in the

report. Upon learning of the inappropriate disclosure, appellant “tried to do whatever I

could to remove it, because honestly, I don’t know how to do that, so I called Clerk

Schmidt, and we went and got a hold of Mr. Paul somehow, who was the website

coordinator, and I requested to get it down as soon as possible.”

{¶ 29} On cross-examination, appellant admitted that he released the Job and

Family Services report despite Nye’s concerns about the confidentiality of some of the

unredacted material contained therein.

{¶ 30} Following appellant’s testimony, the parties provided their closing

arguments and the trial court instructed the jury. After deliberating, the jury found

appellant guilty of disclosure by a public official. The trial court then moved

immediately to sentencing, ultimately ordering appellant to serve 180 days in jail and pay

a fine of $500. The court went on to suspend the jail sentence and place appellant on

probation for a period of three years.

{¶ 31} Thereafter, appellant filed his timely notice of appeal.

12. B. Assignments of Error

{¶ 32} On appeal, appellant assigns the following errors for our review:

I. There is insufficient evidence to support appellant’s conviction.

II. Appellant’s conviction was against the manifest weight of the

evidence.

III. The trial court erred when it denied appellant’s motion to

dismiss.

IV. The trial court erred when it granted the state’s motion in

limine.

V. The trial court erred when it did not order a mistrial when the

prosecutor made statements in closing contrary to the court’s liminal

motion and contrary to the evidence presented at trial.

VI. Cumulative error has denied appellant a fair trial.

VII. Ineffective assistance of counsel has denied appellant a fair

trial.

{¶ 33} For ease of discussion, we will address appellant’s assignments of error out

of order.

II. Analysis

A. Motion to Dismiss

{¶ 34} In appellant’s third assignment of error, he argues that the trial court erred

in denying his September 26, 2019 motion to dismiss the state’s complaint.

13. {¶ 35} We review a trial court’s denial of a motion to dismiss de novo. Whitehall

v. Khoury, 10th Dist. Franklin No. 07AP-711, 2008-Ohio-1376, ¶ 7, citing Akron v.

Molyneaux, 144 Ohio App.3d 421, 426, 760 N.E.2d 461 (9th Dist.2001). “A motion to

dismiss tests the sufficiency of the indictment, without regard to the quantity or quality of

evidence that may be produced at trial.” State v. Morrison, 9th Dist. Summit No. 24965,

2010-Ohio-6309, ¶ 17, citing State v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d

1165 (2d Dist.1989). “If the indictment is valid on its face, a motion to dismiss should

not be granted.” Id., citing State v. Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155,

835 N.E.2d 746, ¶ 37 (8th Dist.).

{¶ 36} In his motion to dismiss, and again on appeal before this court, appellant

contends that R.C. 102.03(B) and 2151.421(I)(2)(a) are unconstitutional under the Ohio

Constitution and the First Amendment to the United States Constitution, because they

infringe upon his right to free speech and they constitute improper strict liability criminal

offenses. Further, appellant asserted that R.C. 102.03(B) vests exclusive jurisdiction over

these investigations in the Ohio Ethics Commission and that the state lacked jurisdiction

without the matter being referred to it by the Ohio Ethics Commission. Additionally,

appellant argued that he was the victim of the state’s selective prosecution in this case.

For clarity’s sake, we will address each of appellant’s arguments in turn.

i. Free Speech

{¶ 37} We begin by addressing appellant’s free speech argument. In his brief,

appellant asserts that the prohibitions against disclosure of confidential information under

14. R.C. 102.03(B) and 2151.421 are unconstitutional as they infringe upon his right to

partake in political speech. In response, the state argues that appellant has no absolute

right to disseminate confidential information pertaining to child abuse or neglect, and

contends that appellant’s free speech argument “ignores the important privacy interests

and legislative intent behind them.”

{¶ 38} “The constitutionality of a statute or regulation is a question of law to be

reviewed de novo.” State v. Whites Landing Fisheries, LLC, 2017-Ohio-4021, 91 N.E.3d

315, ¶ 15 (6th Dist.), citing Thorp v. Strigari, 155 Ohio App.3d 245, 2003-Ohio-5954,

800 N.E.2d 392, ¶ 10 (1st Dist.). “When considering the constitutionality of a statute, [a

reviewing court] ‘presume[s] the constitutionality of the legislation, and the party

challenging the validity of the statute bears the burden of establishing beyond a

reasonable doubt that the statute is unconstitutional.’” Dayton v. State, 151 Ohio St.3d

168, 2017-Ohio-6909, 87 N.E.3d 176, ¶ 12, quoting Wilson v. Kasich, 134 Ohio St.3d

221, 2012-Ohio-5367, 981 N.E.2d 814, ¶ 18. Parties have a “heavy burden” when

attempting to rebut the presumption of constitutionality. Dayton at ¶ 12, citing Rocky

River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 10, 539 N.E.2d 103 (1989).

{¶ 39} Under Ohio Supreme Court precedent, it is a well-established notion that

“the free speech guarantees accorded by the Ohio Constitution are no broader than the

First Amendment, and that the First Amendment is the proper basis for interpretation of

Section 11, Article I of the Ohio Constitution.” Eastwood Mall, Inc. v. Slanco, 68 Ohio

St.3d 221, 626 N.E.2d 59 (1994), citing State ex rel. Rear Door Bookstore v. Tenth Dist.

15. Court of Appeals, 63 Ohio St.3d 354, 362-363, 588 N.E.2d 116 (1992), Zacchini v.

Scripps–Howard Broadcasting Co., 54 Ohio St.2d 286, 288, 376 N.E.2d 582 (1978), and

State v. Kassay, 126 Ohio St. 177, 187, 184 N.E. 521 (1932). Accordingly, we will look

to relevant First Amendment jurisprudence in addressing appellant’s free speech

argument.

{¶ 40} In Boehner v. McDermott, 484 F.3d 573 (D.C.Cir.2007), the United States

Court of Appeals for the D.C. Circuit addressed and rejected an argument related to the

one raised by appellant in this case. In Boehner, a cell phone conversation between

Representative John Boehner and several House Republican leaders was illegally

obtained by Alice and John Martin. The Martins delivered the tape, along with a letter

explaining the nature of its contents, to Representative James McDermott, the ranking

Democrat on the House Ethics Committee. “After conversing with the Martins,

[McDermott] accepted the envelope.” Id. at 576. After listening to the tape, McDermott

disclosed it to various newspapers, prompting Boehner to file a complaint against

McDermott seeking damages for violations of federal and state wiretapping statutes.

{¶ 41} At the trial court level, the District Court held that McDermott violated the

federal wiretapping statute, 18 U.S.C. 2511(1)(c), which makes intentional disclosure of

illegally intercepted conversations a criminal offense, when he disclosed the tape to the

newspapers. On appeal, the D.C. Circuit heard the case en banc to determine “whether

Representative McDermott had a First Amendment right to disclose to the media this

particular tape at this particular time given the circumstances of his receipt of the tape,

16. the ongoing proceedings before the Ethics Committee, and his position as a member of

the Committee.” Id. at 577.

{¶ 42} In its examination of the First Amendment question, the D.C. Circuit

looked to the United States Supreme Court’s decision in United States v. Aguilar, 515

U.S. 593, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995), for guidance. In Aguilar, the

Supreme Court held that the First Amendment did not give a federal judge, who obtained

information about an investigative wiretap from another judge, the right to disclose that

information to the subject of the wiretap. In so holding, the court noted that the judge

was not

simply a member of the general public who happened to lawfully acquire

possession of information about the wiretap; he was a Federal District

Court Judge who learned of a confidential wiretap application from the

judge who had authorized the interception, and who wished to preserve the

integrity of the court. Government officials in sensitive confidential

positions may have special duties of non-disclosure.

Id. at 605-06.

{¶ 43} Relying upon Aguilar, the D.C. Circuit in Boehner rejected McDermott’s

First Amendment argument, finding that “McDermott’s position on the Ethics Committee

imposed a ‘special’ duty on him not to disclose the tape in these circumstances,” and

concluding that “those who accept positions of trust involving a duty not to disclose

17. information they lawfully acquire while performing their responsibilities have no First

Amendment right to disclose that information.” Boehner at 579.

{¶ 44} Four years after Aguilar was decided, the United States District Court for

the District of Columbia issued its decision in U.S. v. Kim, 808 F.Supp.2d 44 (D.C.2011).

Kim involved the prosecution of an intelligence official who was charged with unlawfully

disclosing classified national defense information to a person not entitled to receive it.

The defendant raised a First Amendment challenge to his prosecution under U.S.C.

793(d), which was rejected by the court after the court found that the defendant’s security

clearance imposed upon him a duty not to disclose the information and he “expressly

waived in writing his right to disclose the national security information he obtained while

in his government position.” Id. at 57. The court went on to note that “[c]ourts have

uniformly held that government employees who sign such nondisclosure agreements lack

protection under the First Amendment.” Id., citing McGehee v. Casey, 718 F.2d 1137,

1143 (D.C.Cir.1983) (holding that CIA’s enforcement of secrecy agreement signed by

former employee does not violate the First Amendment) and Berntsen v. CIA, 618

F.Supp.2d 27, 29 (D.C.2009) (“[T]he CIA’s enforcement of its secrecy agreement, and

the corresponding prohibition on [defendant’s] publication of classified information, do

not implicate the first amendment.”).

{¶ 45} Similar to the federal judge in Aguilar, the congressman in Boehner, and

the intelligence official in Kim, appellant held a position of trust as the sheriff of

Williams County, which made him privy to sensitive, confidential information that is not

18. open to the public. Moreover, as was the case with the defendant in Kim, appellant

executed a document (i.e., the memorandum of understanding) waiving his right to

disclose the information he released in the Job and Family Services report. Under both

the memorandum of understanding and the Ohio Revised Code, reports of alleged abuse

or neglect from mandatory reporters, as well as the identities of the reporters, are

confidential and may not be disclosed to the public. The disclosure of this information

places the privacy and safety of children and mandatory reporters of child abuse and

neglect in jeopardy. Under Aguilar and its progeny, the statutory provisions proscribing

appellant’s disclosure of the contents of the Job and Family Services report do not violate

appellant’s freedom of speech rights under the First Amendment to the United States

Constitution or the coordinate rights contained in the Ohio Constitution.

ii. Due Process

{¶ 46} Next, we turn to appellant’s argument that R.C. 102.03(B) is

unconstitutional because it imposes strict criminal liability in violation of his right to due

process. We observe at the outset that appellant has included a dearth of explanation or

citation to case law in his brief in support of this due process argument. Further, we note

that the imposition of strict criminal liability does not constitute a per se infringement of

a defendant’s due process rights. See U.S. v. Murphy, 96 F.3d 846, 849 (6th Cir.1996),

quoting U.S. v. Goodell, 990 F.2d 497, 499 (9th Cir.1993) (“We observe, moreover, the

well-settled principle that ‘[a] statute may provide criminal liability without mens rea

consistent with due process if it is a regulatory measure in the interest of public safety.’”).

19. {¶ 47} With the foregoing in mind, we will proceed with an examination of the

merits of appellant’s argument regarding R.C. 102.03(B), which provides:

(B) No present or former public official or employee shall disclose

or use, without appropriate authorization, any information acquired by the

public official or employee in the course of the public official’s or

employee’s official duties that is confidential because of statutory

provisions, or that has been clearly designated to the public official or

employee as confidential when that confidential designation is warranted

because of the status of the proceedings or the circumstances under which

the information was received and preserving its confidentiality is necessary

to the proper conduct of government business.

{¶ 48} We recognize that R.C. 102.03(B) does not expressly specify a mens rea.

The question of whether a statute that is silent as to a mens rea imposes strict liability was

addressed by the Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 107, 2010-

Ohio-6301, 942 N.E.2d 347, ¶ 20-38. The court began by noting that “every criminal

offense is made up of (1) a voluntary act or failure to act when there is a duty and (2) a

culpable mental state for each element that specifies a mental state.” Id. at ¶ 16, citing

R.C. 2901.21(A). The court went on to recognize that “although the general rule for

criminal liability requires a culpable mental state, a guilty intent is not necessary for

every offense.” Id. at ¶ 17, citing State v. Morello, 169 Ohio St. 213, 158 N.E.2d 525

(1959). Nonetheless, the court cautioned that “strict liability for an offense is the

20. exception to the rule.” Id. at ¶ 18. Relying upon a former version of R.C. 2901.21(B),

the court held that strict liability is only applicable where the section defining the offense

does not specify a mens rea and also plainly indicates a purpose to impose strict liability.

Id. at ¶ 19. Where no such purpose is indicated, the default mens rea of recklessness

applies. Id.; see also R.C. 2901.21(C)(1) (“When language defining an element of an

offense that is related to knowledge or intent or to which mens rea could fairly be applied

neither specifies culpability nor plainly indicates a purpose to impose strict liability, the

element of the offense is established only if a person acts recklessly.”).

{¶ 49} As already noted, the express language of R.C. 102.03(B) does not specify

a mens rea for the offense of disclosure by a public official. Moreover, the statute does

not indicate a purpose to impose strict liability. Therefore, under the Ohio Supreme

Court’s decision in Johnson and the plain language of R.C. 2901.21(C)(1), the default

mens rea of recklessness applies and thus the state was required to demonstrate that

appellant acted recklessly in releasing the confidential material contained in the Job and

Family Services report in violation of R.C. 102.03(B). Significantly, recklessness was

the mens rea applied by the parties and the court at trial. Indeed, one of appellant’s

primary arguments in defense of the state’s charge under R.C. 102.03(B) was that his

release of confidential information was inadvertent rather than reckless.

{¶ 50} Because the state was required to prove that appellant acted recklessly in

order to sustain a conviction for disclosure by a public official under R.C. 1020.03(B), we

21. find no merit to appellant’s argument that R.C. 102.03(B) imposes strict liability and

therefore infringes upon his constitutional right to due process.

iii. Ohio Ethics Commission

{¶ 51} Next, we will address appellant’s argument that the trial court erred when it

failed to dismiss the state’s complaint and allow this matter to be processed by the Ohio

Ethics Commission following the procedure set forth in R.C. 102.06, which provides in

pertinent part:

(A) The appropriate ethics commission shall receive and may initiate

complaints against persons subject to this chapter concerning conduct

alleged to be in violation of this chapter or section 2921.42 or 2921.43 of

the Revised Code. All complaints except those by the commission shall be

by affidavit made on personal knowledge, subject to the penalties of

perjury. Complaints by the commission shall be by affidavit, based upon

reasonable cause to believe that a violation has occurred.

(C)(1)(a) If, upon the basis of the hearing, the appropriate ethics

commission finds by a preponderance of the evidence that the facts alleged

in the complaint are true and constitute a violation of section * * * 102.03

* * * of the Revised Code, it shall report its findings to the appropriate

prosecuting authority for proceedings in prosecution of the violation and to

the appointing or employing authority of the accused.

22. {¶ 52} Appellant contends that the foregoing statutory language requires

complaints alleging violations of R.C. 102.03 to originate exclusively with the Ohio

Ethics Commission, not a county prosecutor. In support of his contention, appellant cites

the Seventh District’s decision in In re Protest of Initiative Petitions Proposing Ohio

Sales Tax Reduction Act, 7th Dist. Harrison No. 04 HA 569, 2004-Ohio-4290, which

involved a protest filed by Brian Rothenberg, who wished to challenge a petition

proposing a statewide statutory initiative. After the Harrison County Prosecutor filed a

petition to determine the sufficiency of certain initiative part-petitions, the Ohio Secretary

of State moved to intervene. Ultimately, the trial court denied the Secretary’s motion,

and the Secretary appealed.

{¶ 53} On appeal, the Secretary argued, inter alia, that the trial court erred in

denying his motion to intervene. In response, Rothenberg argued that the Secretary could

not intervene because of “ethical considerations.” Id. at ¶ 10. Specifically, Rothenberg

argued that the Secretary’s intervention would contravene R.C. 102.03(D) because of a

conflict of interest.

{¶ 54} In rejecting Rothenberg’s ethical argument, the Seventh District indicated

that “[t]he proper way to raise an issue regarding whether a public official is acting

ethically is by filing a complaint with the Ohio Ethics Commission. It is the body which

‘shall receive and may initiate complaints against’ public officials who violated their

ethical duties.” Id. at ¶ 12, quoting R.C. 102.06(A). The court went on to explain the

process the Ohio Ethics Commission would follow under R.C. 102.06(B) and (C)(1)(a)

23. upon receipt of a citizen complaint, including launching an investigation into the

complaint and reporting any ethical violations to the prosecuting authority for further

proceedings. Id. In the final analysis, the Seventh District stated:

The statutes governing the ethical duties of Ohio’s elected officials appear

to give the Ethics Commission, not the courts, the authority to investigate

violations of those ethical duties. Those statutes do not give the courts the

ability to prevent those public officials from discharging their statutory

duties because an opposing party argues that the discharge of those duties

may result in an ethical violation.

Id. at ¶ 13.

{¶ 55} Having reviewed the Seventh District’s decision in In re Protest of

Initiative Petitions Proposing Ohio Sales Tax Reduction Act, we find it distinguishable

from the present case in several material respects. First, the claim against the public

official in that case was one alleging unethical conduct, not criminal conduct. Further,

the complaint sought to preempt the public official from taking future action, not

prosecute the official for action that he already took in violation of law. Given these

differences, we find that In re Protest of Initiative Petitions Proposing Ohio Sales Tax

Reduction Act is inapposite.

{¶ 56} Our review of the language of R.C. 102.06 reveals that R.C. 102.06(A)

uses permissive language indicating that the “appropriate ethics commission shall receive

and may initiate complaints against persons subject to this chapter concerning conduct

24. alleged to be in violation of this chapter.” (Emphasis added.) Further, R.C.

102.06(C)(1)(a) sets forth the procedure to be followed by the appropriate ethics

commission once it receives a complaint, investigates the facts set forth in the complaint,

and determines that the evidence establishes a violation of R.C. 102.03. Notably, the

statute does not speak to whether a county prosecutor may directly prosecute a public

official for alleged violations of R.C. 102.03, nor does it expressly require that the Ohio

Ethics Commission review a claimed violation of R.C. 102.03 prior to initiation of

criminal proceedings by the county prosecutor. To that point, we agree with the state’s

sentiment that “[i]f the General Assembly had intended to confer exclusive jurisdiction

over all prosecutions pursuant to R.C. 102.03, they would have expressly said so.”

{¶ 57} In sum, we find no merit to appellant’s argument that the trial court erred

when it failed to dismiss the state’s complaint for failure to follow the procedure set forth

in R.C. 102.06.

iv. Selective Prosecution

{¶ 58} Finally, we turn to appellant’s argument that the trial court erred in denying

his motion to dismiss because his is a victim of selective prosecution. Specifically,

appellant contends that “no other violation of R.C. 102.03(B) has been brought as a

criminal charge without first undergoing review of the Ethics Commission. Failing to

follow the standard protocol of first raising a complaint before the Commission

demonstrates that the Sheriff has been singled out for prosecution.”

25. {¶ 59} In State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166,

the Ohio Supreme Court set forth the following standard for adjudicating claims of

selective prosecution:

The decision whether to prosecute a criminal offense is generally left

to the discretion of the prosecutor. United States v. Armstrong, 517 U.S.

456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687. That discretion is, however,

subject to constitutional equal-protection principles, which prohibit

prosecutors from selectively prosecuting individuals based on “‘an

unjustifiable standard such as race, religion, or other arbitrary

classification.’” Id., quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct.

501, 7 L.Ed.2d 446 (1962). Although a selective-prosecution claim is not a

defense on the merits to the criminal charge itself, a defendant may raise it

as an “independent assertion that the prosecutor has brought the charge for

reasons forbidden by the Constitution.” State v. Getsy, 84 Ohio St.3d 180,

203, 702 N.E.2d 866 (1998); see also Armstrong at 463.

To support a claim of selective prosecution, “‘a defendant bears the

heavy burden of establishing, at least prima facie, (1) that, while others

similarly situated have not generally been proceeded against because of

conduct of the type forming the basis of the charge against him, he has been

singled out for prosecution, and (2) that the government’s discriminatory

selection of him for prosecution has been invidious or in bad faith, i.e.,

26. based upon such impermissible considerations as race, religion, or the

desire to prevent his exercise of constitutional rights.’” State v. Flynt, 63

Ohio St.2d 132, 134, 407 N.E.2d 15 (1980), quoting United States v.

Berrios, 501 F.2d 1207, 1211 (C.A.2, 1974).

Id. at ¶ 43-44.

{¶ 60} Upon our review of the record in this case, we find that appellant has

presented no evidence to establish a prima facie case of selective prosecution. As to the

first element, appellant has not pointed to any cases in which a public official, sheriff or

otherwise, escaped prosecution after disclosing confidential information concerning child

abuse or neglect. Regarding the second element, appellant does not argue that he is a

member of a protected class by virtue of his race, religion, or the like. Moreover,

appellant does not demonstrate that the state’s decision to prosecute him was the product

of a desire to prevent him from exercising his constitutional rights, apart from his claimed

constitutional right to disclose the information contained in the Job and Family Services

report, which we already rejected. With a prima facie case of selective prosecution

lacking in this case, we find no merit to appellant’s argument that the trial court should

have found that he was a victim of selective prosecution and dismissed the state’s

complaint.

{¶ 61} Having found no merit to appellant’s arguments in support of his motion to

dismiss the state’s complaint, we conclude that the trial court did not err in denying the

motion. Accordingly, we find appellant’s third assignment of error not well-taken.

27. B. Motion in Limine

{¶ 62} In appellant’s fourth assignment of error, he argues that the trial court erred

when it granted the state’s motion in limine, which sought to preclude appellant from

introducing evidence concerning various agencies’ handling of complaints or reported

crimes of child abuse or neglect in Williams County.

{¶ 63} We review a trial court’s decision on admissibility of evidence, including

decisions granting or denying motions in limine, for an abuse of discretion. Estate of

Johnson v. Randall Smith, Inc., 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35,

¶ 22. Abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 64} Under well-established Ohio law, “motions in limine do not preserve issues

for appeal because they are tentative, preliminary rulings about an anticipated evidentiary

issue and are subject to change during trial when the issue is presented in its full context.”

Bohl v. Aluminum Co. of Am., Inc., 8th Dist. Cuyahoga No. 108584, 2020-Ohio-2824,

¶ 39, citing State v. Grubb, 28 Ohio St.3d 199, 203, 503 N.E.2d 142 (1986), and State v.

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 59. To that point, the

Ohio Supreme Court in State v. Hill, 75 Ohio St.3d 195, 661 N.E.2d 1068 (1996),

explained that “the denial of a motion in limine does not preserve a claimed error for

review in the absence of a contemporaneous objection at trial.” Id. at 203, citing State v.

Brown, 38 Ohio St.3d 305, 528 N.E.2d 523 (1988), paragraph three of the syllabus.

28. {¶ 65} In this case, appellant did not offer the evidence precluded by the trial

court’s liminal ruling at trial. Therefore, he has forfeited his argument challenging the

trial court’s decision on the state’s motion in limine, and we find his fourth assignment of

error not well-taken.

C. Sufficiency and Manifest Weight of the Evidence

{¶ 66} In his first and second assignments of error, respectively, appellant argues

that his conviction was not supported by sufficient evidence and was against the manifest

weight of the evidence.

{¶ 67} In reviewing a record for sufficiency, “[t]he 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 (1991), paragraph two of the

syllabus.

{¶ 68} When reviewing a manifest weight claim, we sit as a “thirteenth juror.”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, we review

the entire record, weigh the evidence and all reasonable inferences, and consider the

credibility of witnesses. Id. Our role is to determine “whether in resolving conflicts in

the evidence, the [trier of fact] clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.

We reverse a conviction on manifest weight grounds for only the most “exceptional case

in which the evidence weighs heavily against the conviction.” Id. at 387.

29. {¶ 69} Here, appellant was convicted of disclosure by a public official in violation

of R.C. 102.03(B), which, as we noted above, provides:

(B) No present or former public official or employee shall disclose

or use, without appropriate authorization, any information acquired by the

public official or employee in the course of the public official’s or

employee’s official duties that is confidential because of statutory

provisions, or that has been clearly designated to the public official or

employee as confidential when that confidential designation is warranted

because of the status of the proceedings or the circumstances under which

the information was received and preserving its confidentiality is necessary

{¶ 70} At trial, appellant stipulated that he was a public official at the time of the

events giving rise to the charges in this case. Further, appellant did not contest that he

disclosed information acquired in the course of his official duties. Instead, appellant

disputed, both at trial and here on appeal, whether the information contained in the Job

and Family Services report was confidential and whether the evidence presented by the

state established that he acted recklessly in disclosing it.

{¶ 71} The confidentiality of the Job and Family Services report disseminated by

appellant was clearly established at trial. During its case-in-chief, the state introduced the

memorandum of understanding that prohibits signatories like appellant from releasing

information concerning reports of child abuse and neglect. Hoover testified that such

30. reports, including the Job and Family Services report, contain confidential information

including the names of mandatory reporters of child abuse and neglect, which may not be

disclosed under the memorandum of understanding and Ohio law. In his testimony,

Meyers made it clear that the Job and Family Services report released by appellant

contained referenced his address and identified his wife, a social worker, by name.

{¶ 72} In addition to the proscription against dissemination of information about

child abuse and neglect found in the memorandum of understanding, Ohio law also

precludes disclosure of such information. Indeed, R.C. 2151.421(I)1 provides the

following concerning disclosure of reports such as the Job and Family Services report:

(I)(1) Except as provided in divisions (I)(4) and (O) of this section, a

report made under this section is confidential. The information provided in

a report made pursuant to this section and the name of the person who made

the report shall not be released for use, and shall not be used, as evidence in

any civil action or proceeding brought against the person who made the

report. * * *

(2)(a) Except as provided in division (I)(2)(b) of this section, no

person shall permit or encourage the unauthorized dissemination of the

contents of any report made under this section.

1 Appellant asserts that R.C. 2151.421(I) is unconstitutional as a prior restraint on his freedom of speech. Having already rejected appellant’s free speech arguments, we find no merit to appellant’s argument here, and we therefore find that R.C. 2151.421(I) is binding upon appellant.

31. {¶ 73} The evidence introduced by the state at trial establishes that the Job and

Family Services report contained information regarding reports of child abuse and

neglect, including the name of at least one reporter. This information was plainly

confidential under R.C. 2151.421(I). Under R.C. 102.03(B), appellant was prohibited

from releasing information that is “confidential because of statutory provisions,” which

would include R.C. 2151.421(I).

{¶ 74} Further, appellant was prohibited from disclosing this information by the

memorandum of understanding, which clearly designates the information as confidential,

a status that is both warranted because of the sensitive nature of these proceedings and

necessary in order to ensure the safety of those involved in such proceedings, including

the mandatory reporters of child abuse and neglect who are conducting government

business. R.C. 102.03(B).

{¶ 75} Appellant attempts to avoid this conclusion by noting that he disclosed the

Job and Family Services report to the Williams County Commissioners prior to releasing

it to the public, thereby rendering the report a public record and vitiating its confidential

status. Restated, appellant argues that because he disclosed the report to the Williams

County Commissioners, he was therefore entitled to disclose the report to the public. We

reject this argument.

{¶ 76} The information released by appellant was confidential under the express

terms of both the memorandum of understanding and R.C. 2151.421(I). Appellant cannot

avoid that characterization and unilaterally render the information public simply by

32. providing it to another elected body. To hold otherwise would render advisory the

proscription against disclosure of reports containing sensitive information concerning

child abuse and neglect. Appellant’s logic would permit public officials to disregard

Ohio law and disseminate this information at their discretion, in direct contravention of

R.C. 2151.421(I) and, in this case, the memorandum of understanding executed by

appellant.

{¶ 77} Appellant also argues that the information contained in the Job and Family

Services report was published in local newspapers prior to its release, and was thus not

confidential. However, BCI agent Emahiser testified that he was unaware of any public

records available in the news or on the internet that identified “Nurse Pam from

Hicksville Hospital” by name, as did the Job and Family Service report. Appellant does

not point to any evidence to the contrary. Because there is no evidence that the news

reports referenced by appellant revealed the same confidential information contained in

the Job and Family Services report, appellant’s argument concerning news reports is

unfounded.

{¶ 78} Here, a prosecution for violation of R.C. 102.03(B) requires the state to

establish that the information disclosed by appellant was confidential under either R.C.

2151.421(I) or the memorandum of understanding. The evidence put forth by the state

establishes that the evidence was confidential under both the statute and the

memorandum. Therefore, we reject appellant’s argument that the state’s evidence was

33. insufficient to establish that the material disclosed in the Job and Family Services report

was confidential.

{¶ 79} Next, appellant argues that the state failed to provide sufficient evidence to

establish that he recklessly released the confidential information contained in the Job and

Family Services report.

{¶ 80} Under R.C. 2901.22(C),

A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that

the person’s conduct is likely to cause a certain result or is likely to be of a

certain nature. A person is reckless with respect to circumstances when,

with heedless indifference to the consequences, the person disregards a

substantial and unjustifiable risk that such circumstances are likely to exist.

{¶ 81} Appellant argues that he did not act recklessly in this case because he

“thought names and other sensitive information should be redacted,” and took action to

remove the Job and Family Service report from public view once he realized that

unredacted confidential information was contained therein. Appellant contends that his

efforts to redact the confidential information, which included directing Nye to make the

necessary redactions and consulting with his mentor about the release of the Job and

Family Services report, refute the notion that he acted recklessly in this case.

{¶ 82} In response, the state argues that appellant’s attempt to make necessary

redactions does not overshadow the reality that the posting of a report consisting of

34. several hundred pages of potentially confidential information posed a significant risk of

unlawful disclosure of confidential information. According to the state, appellant’s

persistence in releasing the report constituted a heedless indifference to this risk, and

amounted to recklessness on appellant’s part.

{¶ 83} Having thoroughly reviewed the record in its entirety, we make two

observations relevant to appellant’s recklessness argument. First, it is clear from the

evidence that appellant made some attempt to redact the confidential information from

the Job and Family Services report, and acted promptly to remove the report from the

internet once he was contacted by Meyers and informed that the report contained

confidential information. Second, Nye’s testimony establishes that appellant was aware

of concerns regarding the existence of confidential, nondisclosable information in the

report following his redaction efforts and prior to its release. Nye informed appellant that

the material could not be released, but appellant disagreed and decided to post it to the

internet anyway.

{¶ 84} The first observation above indicates that it was not appellant’s intent to

release confidential information to the public. However, the state was required to

establish recklessness, not intent, and the second observation reveals that appellant’s

effort to redact the confidential material was secondary to his desire to publicize what he

perceived to be shortcomings at Job and Family Services.

{¶ 85} Appellant’s decision to publish the Job and Family Services report ignored

Nye’s “rule of thumb” that appellant’s office could not release and therefore should not

35. release records that were created by another agency. It is clear that appellant made a

calculated decision to publish a report containing sensitive, confidential information

despite language prohibiting such publication contained in the Ohio Revised Code and

the memorandum of understanding to which he assented as sheriff, and despite Nye’s

practical advice cautioning against publication of the report.

{¶ 86} When viewing the evidence in a light most favorable to the prosecution, as

we must do in a sufficiency analysis, we find that a rational trier of fact could find that

appellant’s decision to release the report despite concerns made known to him regarding

the sensitive nature of the information contained therein constituted a heedless

indifference to the consequences of releasing the report and a disregard of the substantial

and unjustifiable risk that the report contained confidential information that was

nondisclosable, thereby establishing recklessness. Accordingly, we reject appellant’s

sufficiency argument as to the recklessness element.

{¶ 87} Next, we turn to appellant’s manifest argument set forth in his second

assignment of error. In his brief, appellant asserts that he “does not present this Court

with additional areas of emphasis from those discussed in the [sufficiency] assignment of

error.” As to these areas of emphasis, namely whether the state established the

confidential nature of the information contained in the Job and Family Services report

and appellant’s recklessness, we have reviewed the record, weighed the evidence and all

reasonable inferences to be drawn from that evidence, and considered the credibility of

witnesses. Having done so, we do not find that the jury clearly lost its way in resolving

36. conflicts in the evidence, nor do we conclude that the jury created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered. While

the evidence presented in this case on the issue of recklessness was perhaps susceptible to

a different conclusion than that reached by the jury, we cannot say that this is the

“exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins, supra, 78 Ohio St.3d at 387, 678 N.E.2d 541. Therefore, appellant’s

conviction is not against the manifest weight of the evidence.

{¶ 88} Because we conclude that appellant’s sufficiency and manifest weight

arguments have no merit, we find appellant’s first and second assignments of error not

well-taken.

D. Mistrial

{¶ 89} In appellant’s fifth assignment of error, he argues that the trial court erred

when it failed to declare a mistrial based upon prosecutorial misconduct during the state’s

closing arguments. Appellant did not object to the state’s remarks at trial, nor did he

move the trial court to declare a mistrial. Consequently, the question here is whether the

trial court erred in failing to declare a mistrial sua sponte.

{¶ 90} “Mistrials need be declared only when the ends of justice so require and a

fair trial is no longer possible.” State v. Davis, 6th Dist. Ottawa No. OT-09-032, 2010-

Ohio-4383, ¶ 71, quoting State v. Franklin, 62 Ohio St.3d 118, 127-128, 580 N.E.2d 1

(1991). “The failure to grant a mistrial sua sponte is judged under a plain error standard.”

Id.

37. {¶ 91} In order to establish plain error, there must be an error, or “a deviation from

a legal rule,” the error must be plain, that is, it must be “an ‘obvious’ defect in the trial

proceedings,” and the error must have affected “substantial rights” by altering the

outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

Notice of plain error is to be taken “with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” Id., quoting State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶ 92} Appellant argues that the state committed prosecutorial misconduct when it

made the following statement during closing arguments:

The judge will give you the definitions of reckless, I’m not going to read it

again, but it essentially means acting with headless indifference to the

consequences. I know confidential records could get out there. My great

staff or my trusted staffer told me, but I command you to get it up, let’s go,

I have an agenda, I got a very important agenda, and by the way, it’s not

about child abuse, it’s about calling out people in those reports. That was

very clear. It’s reckless to put up information that you know may [contain]

confidential information in there. (Emphasis added.)

{¶ 93} “Generally, prosecutors are entitled to considerable latitude in opening and

closing arguments.” State v. Boles, 6th Dist. Lucas No. L-07-1255, 2009-Ohio-512, ¶ 47,

citing State v. Ballew, 76 Ohio St.3d 244, 667 N.E.2d 369 (1996). During closing, a

38. prosecutor may comment on what the evidence has shown and what reasonable

inferences may be drawn from the evidence. Id.

{¶ 94} According to appellant, the highlighted portion of the foregoing statement

impermissibly touched upon the subject appellant was precluded from addressing at trial

due to the trial court’s decision granting the state’s motion in limine. Specifically,

appellant contends that “the prosecutor explicitly argued what the evidence had not

shown, and what the defendant could not have possibly rebutted due to the court’s liminal

motion – the Appellant’s actions were not about child abuse, but instead about calling out

people in those reports.”

{¶ 95} Appellant was prosecuted for disclosing confidential information contained

in the Job and Family Services report. The prosecutor’s statement at issue here was

based upon reasonable inferences drawn from the evidence introduced at trial regarding

appellant’s reasons for releasing the Job and Family Services report. Because the

prosecutor is permitted to comment on the evidence and the inferences drawn therefrom,

it is clear that the challenged statement was not improper and did not constitute

prosecutorial misconduct. Therefore, the trial court did not commit plain error in failing

to declare a mistrial based upon the prosecutor’s statement.

{¶ 96} Accordingly, appellant’s fifth assignment of error is not well-taken.

E. Ineffective Assistance of Counsel

{¶ 97} In his seventh assignment of error, appellant advances a conditional

argument, as follows: “If while evaluating any of the prior argued assignments of error

39. this court concludes that but for want of an objection or further argument Appellant

would have prevailed, but alas, there was no such objection or further argument, then

Appellant was denied his constitutional right to effective assistance of counsel.”

{¶ 98} The outcome of appellant’s previous assignments of error did not hinge

upon trial counsel’s failure to object or advance an argument at trial. The condition

implied in appellant’s argument has not been met, and his seventh assignment of error is

therefore not well-taken.

F. Cumulative Error

{¶ 99} In his sixth assignment of error, appellant argues that cumulative error has

deprived him of a fair trial.

{¶ 100} Regarding the doctrine of cumulative error, the Supreme Court of Ohio

has held that a conviction may be reversed where the cumulative effect of errors deprives

a defendant of the constitutional right to a fair trial even though each single instance of

error does not individually constitute cause for reversal. State v. Garner, 74 Ohio St.3d

49, 64, 656 N.E.2d 623 (1995), citing State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d

1256 (1987), paragraph two of the syllabus.

{¶ 101} Having found no errors in the trial below, it follows that “there can be no

cumulative error.” State v. Frost, 6th Dist. Lucas No. L-06-1143, 2007-Ohio-3469, ¶ 60.

Accordingly, appellant’s sixth assignment of error is not well-taken.

40. III. Conclusion

{¶ 102} In light of the foregoing, the judgment of the Bryan Municipal Court is

affirmed. The costs of this appeal are assessed to appellant under App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________________ JUDGE Christine E. Mayle, J. _______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

41.