19*x ^ IN THE SUPREME COURT OF OHIO STATE OF OHIO, * Case No. 14-1271 Plaintiff-Appellee * On Appeal from the Third District Court of Appeals, v. * Shelby County JAMIE J. SEITZ, Deferidant-Appeliant * Court of Appeals * Case No. 17-12-11 PLAINTIFF-APPELLEE, STATE OF OHIO'S, MEMORANDUM IN OPPOSITION TO JURISDICTION TIMOTHY S. SELL, PROSECUTING ATTORNEY SHELBY COUNTY, OHIO By: Melissa L Wood (0089748) Assistant Prosecuting Attorney 100 East Court Street, P.O. Box 4159 Sidney, Ohio 45365 (937) 498-2101 Fax: (937) 658-6125 mwood ^ ^c^ shelbycountypro secutor. com COUNSEL FOR APPELLEE, STATE OF OHIO Christopher R. Bucio (0076517) Roberts Kelly & Bucio, LLP 247 West Court Street Sidney, Ohio 45365 (937) 497-0407 Fax (937) 497-0363 chris.bucio@rkblawyers. com, ^s.%^^i't:{"+; :.. ^`.3 {.,i ^^ '.. G..: t. i ^... $.^ ^,.+ id ^^.. i.i '' 5, 3 hi!^..! COUNSEL FOR APPELLANT, JAMIE SEI'TZ
TABLE OF CONTENTS PAGE EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR A QUESTION OF PUBLIC OR GREAT GENERAL INTEREST, AND WHY LEAVE TO APPEAL SHOULD BE DEI^TIED......................... I STATEMENT OF THE CASE AND FACTS.................................... 2 ARGUMENT AGAINST JURISDICTION...................................... 3 COUNTER-PROPOSITION OF LAW NO. I............................. 3 COUNTER-PROPOSITION OF LAW NO, II............................. 4 CONCLUSION... 5 CERTIFICATE OF SERVICE................................................ 6
EXPLANATION OF WHY THIS CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR A QUESTION OF PUBLIC OR GREAT GENERAL INTEREST, AND WHY LEAVE TO APPEAL SHOULD BE DENIED Appellant was indicted on six counts: 1) Attempted Murder in violation of R.C. 2923.02 and 2903.02(A), a felony of the first degree; 2) Kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first degree; 3) Kidnapping in violation of R.C. 2905.01(A)(3), a felony of the first degree; 4) Kidnapping in violation of R.C. 2905.01(A)(3), a. felony of the first degree; 5) Abduction in violation of R.C, 2905.02(A)(2), a felony of the third degree (later dismissed by the State); and 6) Felonious Assault in violation of R.C. 2903.11(A)(1), a felony of the second degree. Appellant received a fair jury trial, and was ultimately convicted of CoLint 11, Kidnapping in violation of R.C. 2905.01(A)(2), and a lesser included offense of Assault on Count V (known as Count VI prior to the dismissal of the Abduction count at trial), a misdemeanor of the first degree. Applying familiar procedural and constitutional principles and relying on prior case law and the persuasive authority of the other appellate courts, the Third District Court of Appeals upheld the decision of the trial court. This Court should not accept this case for review because the lower court correctly decided the issue. Further, leave to appeal is not warranted, as the case does not involve a substantial constitutional question or a question of public or great general interest. This case involves familiar legal principals and issues on which the lower courts of this state do not require additional guidance. 1
STATEMENT OF THE CASE AND FACTS As referenced above, Defendant Jamie J. Seitz, Appellant, was indicted on six counts. In regards to Count II, Kidnapping, of which Appellant was found guilty, the indictment states as follows: "...no person by force, threat, or deception, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person to facilitate the commission of any felony or flight thereafter, to wit, did remove Scarlet E. Ashworth from Apartment 65... by force, threat or deception after he committed felonious assault upon her, being a felony of the first degree." (Emphasis added). On May 17, 2011, the first jury trial in this matter was held. Appellant was found guilty on all counts charged in the indictment, excepting Count V, Abduction, which was dismissed by the State at the beginning of the trial without prejudice. On June2, 2011, Appellant filed a motion for a judgment of acquittal, or in the alternative, a motion for a new trial. A new trial was ultimately granted for juror misconduct, and a second jury trial was commenced on February 14, 2012. The State presented evidence at trial that the Appellant and the victim, Scarlet E. Ashworth, were having an affair, and that on December 16, 2010, the Appellant became angry with Ashworth. Ashworth testified that throughout that night of December 16th, and into the next day, Appellant repeatedly beat, hit, and kicked her, choked her until she was unconscious, and threatened to kill her. Ashworth further testified that on the morning of December 17, 2010 Appellant took Ashworth against her will from an apartment in Sidney, Ohio to his home in Piqua, Ohio. In regards to Count II - Kidnapping, the jury was instructed as follows: "Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or about the 17th day 2
of December, 2010, and in Shelby County, Ohio, the defendant by force or threat did remove Scarlet E. Ashworth from the place where she was found or restrained Scarlet E. Ashworth of her liberty for the purpose of facilitating the commission of any f elony or flight thereafter." (Emphasis added). The court further instructed the jury that "the felony in this case is felonious assault," but did not instruct the jury that it must find the defendant guilty of felonious assault. IJltimately, the jury found Appellant not guilty of Count I- Attempted Murder, Count III - Kidnapping, and Count IV - Kidnapping, and guilty of Count II - Kidnapping, and guilty of the lesser included offense of Assault for Count V, a misdemeanor. On February 24, 2012, Appellant filed a motion for acquittal on Count II. The trial court overruled the motion on March 9. 2012. On March 12, 2012, a sentencing hearing was held and the trial court ultimately sentenced Appellant to serve concurrent sentences of five years in prison for the Kidnapping conviction and 180 days for the Assault conviction. Appellant appealed this sentence, and the Third District Court of Appeals ultimately affirmed the trial court's decision. ARGUMENT AGAINST JURISDICTION COUNTER-PROPOSITION OF LAW NO. I: A conviction under R.C. 2905.01(A)(2) does not require completion of an underlying felonv. The relevant portions of R.C. 2905.01 read as follows: (A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes... (2) To facilitate the commission of any felony or flight thereafter. As noted in S'tate v. Matthieu, 3d Dist. Mercer Nos. 10-02-04, 10-02-05, 2003-Ohio- 3430, 17: 3
"R.C. 2905.01 defines the offense of kidnapping as the restraint or removal of the person for certain specified purposes and makes the intent at the time of the abduction the gravamen of the offense. 'The statute punishes certain removal or restraint done with a certain purpose and the eventual success or failure of the goal is irrelevant.' Finding Matthieu not guilty of rape, abduction, or sexual battery is in not in any sense a finding that there was no intent or purpose to commit those crimes at the time of the abduction...therefore, we find the record contains sufficient evidence from which the trier of fact could find that every element of the kidnapping offense had been proved beyond a reasonable doubt." (Emphasis added, and internal citations removed). Therefore, for a Kidnapping conviction under R.C. 2905.01(A)(2), all that is required is that the jury ultimately finds that the defendant removed or restrained the victim with the purpose to facilitate the commission of a felony. The success or failure of the underlying felony is irrelevant. See Id.; State v. Lowe, 8th Dist. Cuyahoga No. 99176, 2013-Ohio-3913, which this Court denied to hear on discretionary appeal; State v. C'ope, 12th Dist. No. CA2009-11-285, 2010-Ohio-6430 68; State v. Smith, 9th Dist. No. 23468, 2007-Ohio-5524, 41; State v. Price, 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912, 28. Completion of an underlying felony is not required here, and therefore the decisions of the lower courts vvere appropriate. COUNTER-PROPOSITION OF LAW NO. II: Consistency between verdicts on multiple counts is not required, and sentencing based on inconsistent verdicts does not amount to cruel and unusual punishment. Individual counts of an indictment which contain more than one count are not interdependent. As held in State v. Smith at 22, "[c]onsistency between verdicts on several counts of an indictment is unnecessary where the defendant is convicted on one or some counts and acquitted on others; the conviction generally will be upheld irrespective of its rational incompatibility with the acquittal." An inconsistency in a verdict arises only out of inconsistent responses to one count, not inconsistent responses to different counts. Lowe at 21. 4
Further, it is well established that a sentence which falls within the statutory range cannot amount to cruel and unusual punishment. State v. Hairston, 118 Ohio St. 3d 289, 2008-Ohio- 2338; 888 N.E.2d 1073, 21; McDnzegle v. Maxwell, 1 Ohio St. 2d 68, 69; 203 N.E.2d 334 (1964). Here, Appellant was convicted of both a felony, Kidnapping in violation of R.C. 2905.01(A)(2), a felony of the first degree, and Assault in violation of R.C. 2903.13, a misdemeanor of the first degree. The verdicts arose out of separate counts, and any inconsistency is therefore irrelevant. Furthermore, Appellant received sentences for these convictions within the ranges allowed by statute. The verdicts are appropriate and should not be vacated. CONCLUSION The issues raised by Appellant here involve familiar procedural and constitutional principles which have been previously addressed by Ohio courts. T'here are no substantial constittitional questions and no questions of public or great general interest, and leave to appeal is not warranted. Based on the foregoing arguments the State respectfully requests the Court refuse to grant jurisdiction in this matter. 5
Respectfully Submitted, TIMOTHY S. SELL, PROSECUTING ATTORNEY SHELBY COUNTY, OHIO By: Melissa L Wood (0089748) Assistant Prosecuting Attorney 100 East Court Street, P.O. Box 4159 Sidney, Ohio 45365 (937) 498-2101 Fax: (937) 658-6125 mwood@shelbycountyprosecutor.com CERTIFICATE OF SERVICE A copy of the foregoing document was served upon Christopher Bucio, counsel for the Appellant, by regular U.S. Mail Service this 25th day of August, 2014, at Roberts Kelly & Bucio, LLP, 247 West Court Street, Sidney, Ohio 45365. _e ^ M1 ^e Melissa L Wood (0089748) 6