IN THE SUPREME COURT OF OHIO STATE OF OHIO NO. 2011-1155 vs. Plaintiff-Appellee On Appeal from the Hamilton County Court of Appeals, First Appellate District DAMON RIDLEY Defendant-Appellant Court of Appeals Case Number C-100301 Joseph T. Deters(0012084P) Prosecuting Attorney Philip R. Cummings (0041497P) Assistant Prosecuting Attorney 230 East Ninth Street, Suite 4000 Cincinnati Ohio 45202 (513)946-, 3012 Fax No. (513) 946-3021 CLERK OF COURT SUPREME CdURT OF HI COUNSEL FOR PLAINTIFF-APPELLEE, STATE OF OHIO Bryan R. Perkins (0061871) Attorney at Law 119 E. Court St., Suite 311 Cincinnati, Ohio 45202 (513) 632-5335 COUNSEL FOR DEFENDANT-APPELLANT, DAMON RIDLEY JUL 2 i Z Ui1 t;itnti UF l,'our! SUPRENiE CUURT OF OHIO
TABLE OF CONTENTS PAGE EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION...1 STATEMENT OF THE CASE AND FACTS...1 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...6 FIRST PROPOSITION OF LAW: THE WEIGHT OF THE EVIDENCE AND CREDIBILITY OF THE WITNESSES IS AN ISSUE THAT IS RESERVED TO THE TRIER OF FACT................ :.6 SECOND PROPOSITION OF LAW: IN DETERMINING THE ADMISSIBILITY OF STATEMENTS MADE DURING PLEA DISCUSSIONS, THE TRIAL COURT MUST FIRST DETERMINE WHETHER, AT THE TIME OF THE STATEMENTS, THE ACCUSED HAD A SUBJECTIVE EXPECTATION THAT A PLEA WAS BEING NEGOTIATED. THE TRIAL COURT MUST THEN DETERMINE WHETHER SUCH AN EXPECTATION WAS REASONABLE UNDER THE CIRCUMSTANCES....9 THIRD PROPOSITION OF LAW: EVIDENCE OF DEFENDANT'S GAMBLING HABITS ADMISSIBLE TO PROVE MOTIVE...11 FOURTH PROPOSITION OF LAW: OUT OF COURT STATEMENTS NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED ARE, BY DEFINITION, NOT HEARSAY AND ARE PROPERLY ADMITTED TO EXPLAIN TESTIFYING WITNESS'S ACTIONS....11 FIFTH PROPOSITION OF LAW: STATEMENTS ADMITTED UNDER RECOGNIZED EXCEPTIONS TO THE HEARSAY RULES DO NOT IMPLICATE THE CONFRONTATION CLAUSE....13 SIXTH PROPOSITION OF LAW: THE WEIGHT OF THE EVIDENCE AND CREDIBILITY OF THE WITNESSES IS AN ISSUE FOR THE TRIER OF FACT...14 SEVENTH PROPOSITION OF LAW: WHERE THE VOIR DIRE PROCESS INDICATES NO DIFFICULTY IN THE SELECTION OF A FAIR AND IMPARTIAL JURY, A CHANGE OF VENUE MOTION IS PROPERLY DENIED...14 EIGHTH PROPOSITION OF LAW: RIDLEY'S SENTENCE WAS PROPER UNDER FOSTER AS IT WAS WITHIN THE STATUTORY RANGE, COMPLIED WITH STATUTORY MANDATES, AND THE TRIAL COURT NEED NO LONGER PROVIDE REASONS FOR IMPOSING MORE THAN THE MINIMUM SENTENCE, OR CONSECUTIVE SENTENCES....:...14 i
TABLE OF CONTENTS (CONT'D) PAGE CONCLUSION...:....:... 15 PROOF OF SERVICE............ 16 ii
EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION Appellant Damon Ridley presents several propositions of law that involve well established Ohio law. These propositions include weight and sufficiency of the evidence, admissibility of evidence under 404(B), hearsay, change of venue, and sentencing. The court of appeals relied on this well established law in affirming Ridley's conviction and sentence. Ridley has also argued that the trial court improperly admitted statements that were part of plea negotiations. But the trial court sustained Ridley's objections to the most damaging statement. Further, at the time the statements were made Ridley was not represented by counsel and the prosecutor informed Ridley that any plea discussions would have to be made with Ridley's counsel. There simply are no issues of great general interest or that involve a substantial constitutional question. STATEMENT OF THE CASE AND FACTS Defendant-appellant Damon Ridley, former bailiff to the Honorable John West, was indicted by a Hamilton County Grand Jury on charges of theft in office, bribery and attempted bribery. A jury convicted Ridley only on the attempted bribery charge and acquitted him on the remaining charges. A definite prison sentence of fourteen months was imposed. The Court of Appeals affirmed on May 25, 2011. Facts: The investigation in this case began when the Cincinnati office of the Drug Enforcement Administration (DEA) was involved in a federal drug investigation that included Charles Johnson as one of the targets. A federal district judge authorized federal agents to intercept and monitor telephone conversations Johnson was having on his cellular telephone. (T.p. 543-550) I
At the time federal agents monitored Johnson's telephone calls, Johnson had state drug trafficking charges pending. On March 25, 2008, Johnson pled guilty to drug trafficking charges in the courtroom of Hamilton County Court of Common Pleas Judge John West. Judge West ordered a pre-sentence investigation and scheduled Johnson's sentencing for May 7, 2008. (T.p. 127-137) On May 6, 2008, federal agents monitored a telephone call between Johnson and a subject later identified as Ronald Steele. Johnson was unaware that his telephone calls were being monitored. Steele and Johnson had known each other for a long time. In this and subsequent telephone conversations between Johnson and Steele, Steele informed Johnson that Judge West's bailiff, Damon Ridley, could help alter the sentence Judge West was about to impose in Johnson's drug case. Steele arranged for Johnson and Ridley to meet at the Salway Park parking lot on Spring Grove Avenue. At the meeting, Johnson paid Ridley $1,000 in cash so that Ridley would use his influence and see to it that Johnson was sentenced to River City, a drug treatment facility, instead of the Ohio penitentiary.(t.p. 203-210, 546-553, 555-559) Federal agents informed the Hamilton County Prosecutor's Office of these conversations and an intensive investigation ensued. Johnson appeared on May 7, 2008, for sentencing before Judge West but the case was continued to May 21, 2008, at the request of the state. On May 8, 2008, Johnson appeared in Hamilton County Municipal Court on some traffic tickets. Ridley approached Johnson and informed Johnson that if he paid him (Ridley) an additional $1,500 Ridley would arrange for Johnson to receive straight probation without going to River City. (T.p. 211-216) Federal agents, who continued to monitor Johnson's telephone calls, overheard telephone conversations between Johnson and some of his friends and famity members wherein Johnson 2
boasted that he had paid a bailiff $1,000 in order to be sentenced to River City and could pay an additional $1,500 for a sentence of straight probation. Johnson expressed concern over paying $1,500 for straight probation. Johnson feared that if he was sentenced to probation on such serious drug charges people might think he was a snitch. Nevertheless, Steele arranged for Johnson to meet Ridley again at the Salway Park parking lot on May 20, 2008, so Johnson could pay the additional $1,500 to get straight probation. (T.p. 301-303, 319-323) Federal agents staked out this meeting. Johnson arrived driving a Honda Odyssey. After driving through the parking lot and not seeing Ridley, Johnson called Steele to find out where Ridley was. Steele tried to contact Ridley but Ridley would not answer his phone. Because Johnson gambled away most of the $1,500 he was going to pay Ridley, he left the area. Shortly after Johnson left, Ridley arrived driving a Ford Explorer. Another male entered Ridley's car and, because Johnson was gone, Ridley and the other male drove away. (T.p. 211-216, 556-565) On May 21, 2008, Johnson appeared in Judge West's courtroom for his re-scheduled sentencing hearing. As he walked into the courtroom, Johnson made eye contact with Ridley who was sitting at his bailiffs desk. Ridley motioned for Johnson to exit the courtroom and both of them met in the courthouse hallway where they had a short conversation in which Ridley assured Johnson that he was still going to be sentenced to River City. When Johnson's case was called, Judge West did indeed sentence Johnson to River City. ( T.p. 134-135, 217-219, State's Exhibit #2) In October of 2008, Johnson was indicted on federal drug charges and agreed to assist law enforcement in the investigation against Ridley. (T.p. 566-570) On October 28, 2008, police executed a search warrant at the residence Ridley shares with his mother. Police seized, among 3
other things, two computers, a Blackberry computer, personal papers and some Hamilton County Court of Common Pleas paperwork. (T.p. 603-604) On the morning of October 28, 2008, McKinley Brown, Chief Investigator for the Hamilton County Prosecutor's Office, interviewed Judge West privately in his chambers about the information investigators discovered from the wiretap on Johnson's phone that involved Ridley. The interview was recorded. Detective Brown informed Judge West that a search warrant had been executed at Ridley's house the day before, and asked Judge West specific questions about a few cases, including the case Johnson had pending before Judge West. Judge West instructed Ridley to retrieve the files on these cases, and Ridley did so. As the interview continued, Ridley persistently knocked on the Judge's office door. Finally, Judge West answered the knock and Ridley entered the judge's chambers. Ridley informed Detective Brown that he knew why he was there and said that he wanted to speak with him in private because he did not want to hurt Judge West any further. (T.p. 595-603) Detective Brown and Ridley went over to Detective Brown's office in the Hamilton County Prosecutor's Office. There, along with Sergeant Chris Conners of the Cincinnati Police Department, Ridley was interviewed. (T.p. 605) After reading Ridley his Miranda rights, Ridley informed Detective Brown and Sergeant Conners that he knew Ronald Steele for many years and that he met Steeele a month ago at Hooligan's where Steele loaned him some money to promote a comedy event. Ridley also admitted that he gambled two to three times a month at the river boat casinos in Indiana and that his mother believes he has a gambling problem. (T.p. 606-622) When questioned about Johnson's specific case pending in front of Judge West, Ridley admitted that Steele asked him about it. Ridley said that he informed Steele that Johnson was 4
going to be sentenced to River City. Ridley said that Johnson's case was set for sentencing but was continued. Ridley admitted that he watched a softball game on Spring Grove Avenue about a week after Johnson's case was scheduled for sentencing. At the softball game, Ridley said that Steele and Johnson asked him about Johnson's case. Ridley re-assured them that he thought Johnson was going to be sentenced to River City. Ridley said that he saw Johnson one more time at a river boat in Indiana but did not speak with him. Ridley denied that he took any money from Johnson to influence Johnson's sentence. (T.p. 605-628, 645) Ridley was asked if he spoke to Johnson on May 21, 2008, when Johnson appeared for his sentencing hearing. At first, Ridley denied that he spoke to Johnson on that date, but later admitted that he did. Ridley said that Johnson asked him if he was going to be sentenced to prison. Ridley told him that he was going to be sentenced to River City. Ridley said that he knew Johnson was going to be sentenced to River City because he saw Judge West's sentencing entry, which the judge prepared several days prior to Johnson's scheduled sentencing hearing. (T.p. 646-649) Ridley also admitted that he met Steele and Johnson another time at Salway Park when he went there to see his brother play in a softball game the night before Johnson's first scheduled sentencing hearing. At this meeting, Ridley said that Johnson told him (Ridley) that he (Johnson) did not want to go to jail. Ridley said that he told Johnson not to worry about it because Judge West was going to sentence Johnson to River City. (T.p. 659-673) At this point in the interview, Ridley informed Detective Brown that he wanted to talk to him alone without the tape recorder on. Detective Brown and Ridley then left Detective Brown's office and went outside. Ridley said that he did not want to cause Judge West further problems and that he would inform Detective Brown of what really happened. Ridley, however, wanted to 5
have a prosecutor present. Detective Brown and Ridley returned to Detective Brown's office and the interview continued with the presence of Assistant Prosecutor Mark Pipemeier. This interview was recorded. (T.p. 705-707) In it, Ridley said that Steele approached him and kept asking if Johnson was going to be sentenced to River City. When Ridley informed Steele that Johnson was indeed going to be sentenced to River City, Steele agreed to give Ridley money for this information. Ridley said that Steele gave him $200. (T.p. 709-715) On October 30, 2008, Ridley tendered his resignation as Judge West's bailiff. Ridley was charged as described. (T.p. 834-837) ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW FIRST PROPOSITION OF LAW: THE WEIGHT OF THE EVIDENCE AND CREDIBILITY OF THE WITNESSES IS AN ISSUE THAT IS RESERVED TO THE TRIER OF FACT. In his first proposition of law, Ridley argues that his attempted bribery conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. The record, however, shows that Ridley, a public servant, accepted money so that he (Ridley) would take action to influence the sentence Judge West was about to impose on Johnson. In reviewing a sufficiency of the evidence claim, a reviewing court's function is to view the evidence in a light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' A weight of the evidence claim concedes that there is some evidence as to each element of the crime charged, but argues that such evidence fails to prove guilt beyond a reasonable doubt.z A ' State v. Bailey (1992), 83 Ohio App. 3d 749, 612 N.E.2d 1241. 2 State v. Thompkins (1997), 78 Ohio St. 3d 380, 678 N.E.2d 541. 6
reviewing court will not reverse a verdict as being contrary to the weight of the evidence where the state has adduced substantial credible evidence as to each element of the crime charged.3 In order to prove attempted bribery, the state was required to prove that Ridley knowingly engaged in conduct which, if successful, would have resulted in the offense of bribery as defined in R.C. 2921.02. In order to prove bribery, the state was required to show either before or after he was employed as a public servant, Ridley knowingly solicited or accepted for himself or another person a valuable thing or valuable benefit, to corrupt or improperly influence him or another public servant or party official with respect to the discharge of his or the other public servant's or party official's duty.' The elements of attempted bribery were easily met here. Ridley, employed as a public servant, approached Johnson and informed him that for an additional $1,500, he (Ridley) would see to it that Johnson received a sentence of probation. The exchange of money never took place. The state provided the testimony of Johnson and admitted tape recordings of Johnson informing friends and family members that for additional money Ridley would see to it that he got straight probation. A meeting was set up whereby Johnson was to pay Ridley the additional $1,500. Federal agents staked out the meeting. Johnson showed up but left because Ridley showed up too late. Since there was not an exchange of money Ridley was charged with attempted bribery rather than straight bribery. (T.p. 211-216) The credibility of the witnesses testimony, including Johnson's, was an issue for the jury. Ridley argues that the state could not show that Ridley had the ability to alter or influence Johnson's sentence. Ridley points to Judge West's testimony wherein Judge West testified that he could never be influenced by Ridley to alter or change a criminal sentence. (T.p. 141-142) 3 State v. Thompkins, supra. 4 R.C. 2921.02(B). 7
First, factual impossibility is not a defense to an attempt charge.5 Even if Ridley could not have succeeded in influencing Judge West to change Johnson's sentence, he can still be convicted on an attempt charge. Second, the state was not required to prove that Judge West could not be influenced by Ridley. The state simply had to prove that Ridley, a public servant, attempted to accept money oz other benefit and used his position to influence the sentence. Johnson already gave Ridley $1,000 after Ridley, not Judge West, guaranteed that Johnson would be sentenced to River City. (T.p. 209) When Johnson showed up to court on some misdemeanor charges, Ridley approached Johnson in the courthouse hallway and said that for additional $1,500 he would see to it that Johnson was sentenced to straight probation. (T.p. 211-213) Although in Johnson's monitored telephone calls and in his testimony he indicates that Ridley was going to inform Judge West that Johnson contributed to his campaign (T.p. 217-218, 302-303), it is clear that Ridley, a public servant, was the one who was going to take action to influence Johnson's sentence. That is all the state was required to show. In fact, the evidence showed that Ridley had access to Judge West's sentencing entries and could have altered the sentencing entries himself. (T.p. 137-138) Accordingly, Ridley's first proposition of law is without merit. s R.C. 2923.02(B). 8
SECOND PROPOSITION OF LAW: IN DETERMINING THE ADMISSIBILITY OF STATEMENTS MADE DURING PLEA DISCUSSIONS, THE TRIAL COURT MUST FIRST DETERMINE WHETHER, AT THE TIME OF THE STATEMENTS, THE ACCUSED HAD A SUBJECTIVE EXPECTATION THAT A PLEA WAS BEING NEGOTIATED. THE TRIAL COURT MUST THEN DETERMINE WHETHER SUCH AN EXPECTATION WAS REASONABLE UNDER THE CIRCUMSTANCES. In his second proposition of law, Ridley contends that the trial court improperly admitted portions of his recorded statement that contained plea discussions with an assistant prosecuting attorney. But the trial court sustained Ridley's objection to parts of Ridley's statements. Further, a close review of the record shows that the parties were not engaged in real plea negotiations. Ridley had not yet been charged with any criminal offense, the right to counsel had not yet attached and, in response to Ridley's questions regarding a possible plea by information, the assistant prosecutor made it clear that this was not the time and place for such discussions and that they had to take place with Ridley's counsel. The record shows that Ridley had a recorded interview about his role in influencing Johnson's case with Detective McKinley Brown of the Hamilton County Prosecutor's Office and Assistant Prosecutor Mark Peipmeier. This interview was played to the jury. (T.p. 709, et seq.) In it, Ridley makes a few remarks about a possible guilty plea to a criminal offense by information. Ridley argues that these remarks should have been redacted from the interview because they were made during plea discussions. The Ohio Supreme Court applies a two-step analysis in determining whether an accused's statements were made during plea discussions. The trial court must first determine whether, at the time of the statements, the accused had a subjective expectation that a plea was being 9
negotiated. The trial court must then determine whether such expectation was reasonable under the circumstances. This test is applied on a case-by-case basis in light of all the facts.6 Preliminarily, the state points out that Ridley objected to a comment Piepmeier made to Ridley during this interview where Piepmeier indicated that Ridley is probably guilty of the crime of theft in office. The trial court sustained this objection and ordered the jury to disregard Peipmeier's statement. (T.p 711-712) A jury is presumed to follow the instructions of the trial court.7 Here, the jury followed the court's instructions and acquitted Ridley on the charge of theft in office. Later during this interview, Ridley admitted to wrongdoing and said that he would have to deal with whatever comes his way. Ridley, not sure of the exact procedure, brought up a possible plea by information, indicating that Detective Brown had mentioned this possibility earlier. Detective Brown made it clear to Ridley that nothing was promised to him and Ridley acknowledged that no promises were made. At first, Piepmeier was not sure what Ridley was referring to. But when Piepmeier realized that Ridley was talking about a possible plea by information, Piepmeier informed Ridley that he would have to talk to Ridley's counsel about that. (T.p. 716-720) Applying the Ohio Supreme Court's two step analysis, it is patently clear that the interview between Ridley, Detective Brown and Piepmeier was not plea negotiations. There was no negotiating taking place. Ridley had not yet been charged and the right to counsel had not attached. Ridley himself brought up the possibility of pleading guilty by information but it was quickly pointed out to him that any such procedure must be negotiated with his attorney at a later 6 State v. Frazier, 73 Ohio St.3d 323, 652 N.E.2d 1000, 1995-Ohio-235, at ] 3. 7 State v. Groomes, 1'` Dist. No. C-100090, 2010-Ohio-431 1, at 21. 10
stage in the proceedings. Since none of these statements can be characterized as being part of a "plea negotiation session," they were properly admitted. Since Ridley approached the subject of a plea and he was available and indeed testified at trial, Crawford is not implicated. THIRD PROPOSITION OF LAW: EVIDENCE OF DEFENDANT'S GAMBLING HABITS ADMISSIBLE TO PROVE MOTIVE. Ridley argues that parts of his statement where he referenced his gambling at river boat casinos in Indiana was prejudicial under Evidence Rule 404(B). Evidence Rule 404(B) prohibits the introduction into evidence of other crimes wrongs or acts to prove a person's character. Evidence Rule 404(B) does, however, allow such evidence to be admissible to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ridley's gambling habits were admissible in this case to prove motive. Ridley, a bailiff, was charged with taking money to influence a criminal sentence. The fact that Ridley had a gambling problem is strongly indicative of his motivation to use his position for financial gain and was thus admissible.8 Ridley's proposition of law lacks merit. FOURTH PROPOSITION OF LAW: OUT OF COURT STATEMENTS NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED ARE, BY DEFINITION, NOT HEARSAY AND ARE PROPERLY ADMITTED TO EXPLAIN TESTIFYING WITNESS'S ACTIONS. In his fourth proposition of law, Ridley contends that the trial court erred when it admitted, over his objection, certain recordings of Charles Johnson's incoming and outgoing telephone calls that were monitored by federal agents pursuant to a federal wiretap warrant. These conversations were of Johnson describing to unidentified various friends and family 8 See State v. Nelson, 9th App. Dist. No. 04CA0001, 2004-Ohio-4967. 11
members how he paid money to Ridley to influence his sentence on a criminal drug trafficking case pending before Judge West. Ridley argues that these conversations contained hearsay and that the admission of these recordings violated his Sixth Amendment right to confront witnesses under Crawford v. Washington.9 The record reflects that the state moved to have these recordings admitted into evidence during its direct examination of Johnson, a key state witness. Ridley made a general objection to the admissibility of these recordings on the basis that "[i]t's their witness' own statement," which the trial court overruled. (T.p. 222) While the recordings were played to the jury, Ridley made no specific objections. (T.p. 223, et. seq.) Johnson testified at trial and admitted that he paid Ridley $1,000, believing that Ridley had the power to influence Judge West to sentence Johnson to River City instead of prison. (T.p. 207-210) Johnson also testified that he set up a meeting to pay Ridley an additional $1,500 to get straight probation, but when he showed up at the meeting Ridley was not there. (T.p. 214) After this testimony, the state played tape recordings of telephone conversations Johnson had with unidentified friends and family members. In these conversations, Johnson boasted that he paid Ridley money to get River City and could pay him more money to get straight probation. (T.p. 270-273, 301-305, 322) First, Johnson testified in court and was subject to cross-examination. Anything he said on the recordings was not hearsay and did not violate Crawford.10 Further, the recordings of Johnson's telephone calls do not fit the definition of hearsay because they were not offered to prove their truth but to explain the course of the investigation against Ridley and to show the actions Johnson took after making and receiving the telephone 9(2004), 541 U.S. 36, 124 S.Ct. 1354. 10Evid. R. 801 (C). 12
calls." After federal agents overheard that Johnson paid Ridley money to influence his sentence, they informed local state officials about it and an intensive investigation against Ridley ensued. Since the recordings explain the subsequent investigative activities against both Johnson and Ridley, and not the fact that Ridley committed the instant offenses, they do not contain hearsay. Moreover, anything that was said by unidentified friends and family members was not offered for the truth of what they said but to provide context of why Johnson was telling them that he was going to be sentenced to River City, or perhaps, for more money, to straight probation.12 The recordings were also properly admitted under Evid. R. 801(D)(1)(b) to rebut an express or implied charge of recent fabrication. During opening statement, Ridley's counsel referred to Johnson as a liar. (T.p. 108) The recordings support Johnson's testimony that he paid Ridley money to influence his sentence. Because these recordings did not contain hearsay, they were properly admitted into evidence. FIFTH PROPOSITION OF LAW: STATEMENTS ADMITTED UNDER RECOGNIZED EXCEPTIONS TO THE HEARSAY RULES DO NOT IMPLICATE THE CONFRONTATION CLAUSE. Ridley's argument that the hearsay statements admitted at trial violated his right to confront and cross-examine witnesses is merely an extension of his previous arguments. The hearsay statements were properly admitted and did not violate Ridley's confrontation rights. "Evid. R. 801 (C); State v. Washington, 8'h Dist. No. 87688, 2006-Ohio-6027, 's 39-40; State v. Thomas (1980), 61 Ohio St.2d 223, 400 N.E.2d 401. '2See State v. Harris, 8'' Dist. No. 09-15-2005, 2005-Ohio-4825 (Witness's testimony during burglary trial, relating to a conversation she had with her mother over the phone, did not constitute inadmissible hearsay; witness was not testifying to what her mother said during the conversation, but was rather testifying as to her own determinations). 13
SIXTH PROPOSITION OF LAW: THE WEIGHT OF THE EVIDENCE AND CREDIBILITY OF THE WITNESSES IS AN ISSUE FOR THE TRIER OF FACT. Ridley's sixth proposition of law challenges the weight of the evidence to support his conviction. This issue was properly resolved by the trier of fact. SEVENTH PROPOSITION OF LAW: WHERE THE VOIR DIRE PROCESS INDICATES NO DIFFICULTY IN THE SELECTION OF A FAIR AND IMPARTIAL JURY, A CHANGE OF VENUE MOTION IS PROPERLY DENIED. Ridley argues that the trial court should have granted his motion for change of venue. This motion, however, was properly overruled. None of the jurors had pre-knowledge of the case and the attorneys had no problem seating a jury. The law in Ohio is clear that change of venue motions are properly ruled on after the voir dire.13 The fact that jurors have read about the case in the media is of little concern, so long as the jurors can remain fair.14 A review of the voir dire process reveals absolutely no problem in seating a fair jury. None of the jurors heard about this case. (T.p.39, 67-68) In fact, the state did not use any of its peremptory challenges and the defense used only two. (T.p. 78) This proposition of law lacks merit. EIGHTH PROPOSITION OF LAW: RIDLEY'S SENTENCE WAS PROPER UNDER FOSTER AS IT WAS WITHIN THE STATUTORY RANGE, COMPLIED WITH STATUTORY MANDATES, AND THE TRIAL COURT NEED NO LONGER PROVIDE REASONS FOR IMPOSING MORE THAN THE MINIMUM SENTENCE, OR CONSECUTIVE SENTENCES. Ridley argues that the trial court erred in sentencing him to fourteen months imprisonment, which is less than the statutory maximum sentence. Appellate review of felony 1 1 State v. Mills (1992), 62 Ohio St.3d 357, 582 N.E.2d 972. 'a Dobbert v. Florida (1977), 432 U.S. 282, 97 S.Ct. 2290; Pattern v. Young (1984), 467 U.S. 1025 S.Ct. 2885. 14
sentencing is controlled by a two-step procedure outlined by the Ohio Supreme Court in State v. Kalish.is Under Kalish, this court must (1) examine the sentencing court's compliance with all applicable rules and statutes in imposing sentence to determine whether the sentence is clearly and convincingly contrary to law, and (2) review the sentencing court's decision for an abuse of discretion.1e Here, the trial court reviewed Ridley's sentencing memorandum, a pre-sentence investigation report, the victim impact statement and heard from Ridley and his counsel before imposing sentence. (T.p. 1136-1141, 1148) The prosecutor requested the maximum sentence of 18 months imprisonment. (T.p. 1146) The trial court imposed a prison sentence of fourteen months. The trial court imposed a sentence in accordance with law. There is nothing in the record to suggest that the trial court abused its discretion when it imposed sentence. This proposition of law is properly overruled. CONCLUSION Appellee submits that jurisdiction should be denied. Respectfully, Joseph T. Deters, 0012084P^ P^ting Attorney, Ronald W. Springn* Assistant Prosecuting Attorneys for Plaintiff-Appellee 15 120 Ohio St.3d 23, 896 N.E.2d 124, 2008-Ohio-4912. 1bld.atf 4. 15
PROOF OF SERVICE I hereby certify that I have sent a copy of the foregoing Memorandum in Response, by United States mail, addressed to Bryan R. Perkins (0061871), 119 E. Court St., Suite 311, Cincinnati, Ohio 45202, counsel of record, this -I) day of July, 2011. Ronald W. Spri Assistant Prosecuting Attorney 16