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Wednesday, June 11, 2014

Damon L. Bevly v. State of Ohio, Case no. 2013-0821
Tenth District Court of Appeals (Franklin County)

City of Cincinnati v. Daniel Ilg, Case no. 2013-1102
First District Court of Appeals (Hamilton County)

City of Toledo, et al. v. Bradley L. Walker, Case no. 2013-1277
Sixth District Court of Appeals (Lucas County)

Are Mandatory Prison Sentences Constitutional for Gross Sexual Imposition Conviction that Included Corroborating Evidence?

Damon L. Bevly v. State of Ohio, Case no. 2013-0821
Tenth District Court of Appeals (Franklin County)


Damon L. Bevly was indicted in August 2011 on four counts of gross sexual imposition in Franklin County. Because the victim was allegedly 10 to 11 years old at the time of the offenses, the charges were third-degree felonies, based on a law that applies when victims are under the age of 13.

Bevly pled guilty to two counts of gross sexual imposition. During the plea hearing, a detective testified that Bevly confessed to the crime, and a recording of the confession was introduced. Under R.C. 2907.05(C)(2)(a), when evidence other than the testimony of the victim is admitted in a gross sexual imposition case corroborating the offense, the court “shall impose” a mandatory prison term.

However, the trial court rejected the mandatory sentencing, finding that the provision did not apply. The court also concluded that the statute was unconstitutional because there was no rational basis for the distinction in sentencing between cases with and without corroborating evidence, and a defendant has a right to have this “fact” decided by a jury rather than the court. The court imposed a three-year sentence for each count, to be served concurrently.

The state appealed to the Tenth District Court of Appeals, which reversed the trial court’s decision.

Bevly appealed to the Ohio Supreme Court, which agreed to hear the case.

Attorneys for Bevly question whether the detective’s testimony and the recording of the confession were admitted during “the case,” given that they were presented during the plea hearing. Pointing to the trial court’s decision, Bevly’s attorneys also assert that no rational basis exists for a distinction between cases with and without corroborating evidence, and no other sentencing provision in Ohio law tells a trial court to consider the “amount of evidence” when deciding on a sentence.

Bevly’s attorneys contend that the right to trial by jury in the Sixth Amendment to the U.S. Constitution requires a jury to find a defendant guilty of every element of the crime for a conviction. In 2013, the U.S. Supreme Court decided Alleyne v. United States. Bevly’s attorneys argue that the court ruled that any fact increasing a defendant’s “penalty” is an element that must be considered by the jury, and an increase in a minimum sentence – as in this case – is an increase in the defendant’s penalty.

They maintain that the corroboration requirement in the Ohio statute is an element of the crime to be considered by the jury, rather than a sentencing factor. The statute, they wrote in their brief to the court, is unconstitutional because it “elevates a non-mandatory sentence to a mandatory sentence (and thereby increases the minimum penalty) when the court, and not a jury, finds ‘corroborating evidence.’”

“When a statute ‘annexes a higher degree of punishment’ based on a specified fact, that fact must be charged in the indictment and proved to a jury beyond a reasonable doubt,” Bevly’s attorneys conclude.

Attorneys from the Franklin County Prosecutor’s Office respond that Ohio’s mandatory sentencing requirements are constitutional and serve the goal of punishing offenders.

The attorneys maintain that the plea hearing, in which the detective’s testimony and the confession were admitted, was part of the “case,” as was the trial and the sentencing hearing. The General Assembly simply intended to require prison when corroborating evidence supports a gross sexual imposition conviction, they argue.

“As the Tenth District has recognized, it is rational for the General Assembly to impose a requirement in relation to a ‘sexual contact’ crime,” the prosecutors wrote in their brief. “The General Assembly could view such crimes as less serious than ‘sexual conduct’ crimes. The General Assembly also could rationally believe that sexual-contact crimes should be prosecuted with greater caution because of a greater danger of accidental touching and a greater danger of misinterpretation by the victim.”

The prosecutors also counter that the lack of other statutes requiring corroborating evidence is not a reason to find this statute unconstitutional; instead, the General Assembly can choose the mandates of a law. The legislature does not have to explain its reasons for passing a law, but Bevly’s attorneys must negate any rational basis for the law to show that it is unconstitutional, which they have not done, the prosecutors assert.

They argue that Bevly’s right to a jury trial was not implicated because no “fact” was at issue when the trial court found that corroborating evidence was admitted in the case. This is true even following the Alleyne decision, they claim.

“The Alleyne majority reiterated, over and over again, that the jury-trial right is implicated when a ‘fact’ is used to increase the penalty floor or penalty ceiling,” they wrote. “As [the Ohio Supreme Court decision in State v.] Economo [(1986)] emphasized, ‘a corroboration requirement does not mandate proof of the facts which are the very substance of the crime charged’ and that such a requirement is merely ‘a threshold inquiry of legal sufficiency to be determined by the trial judge, not a question of proof, which is the province of the factfinder.’”

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Damon L. Bevly: David Strait, 614.525.8872

Representing the State of Ohio from the Franklin County Prosecutor’s Office: Steven Taylor, 614.525.3555

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Is Defendant’s Request for Data from Breath Alcohol Machine a Challenge to His Specific Test or General Attack on the Instrument’s Reliability?

City of Cincinnati v. Daniel Ilg, Case no. 2013-1102
First District Court of Appeals (Hamilton County)

ISSUE: Did a defendant arrested for driving under the influence of alcohol who took a breath alcohol test demand production of information about the breath-testing instrument that is in violation of the Ohio Supreme Court’s decision in State v. Vega (1984)?

While driving in Cincinnati in October 2011, Daniel Ilg hit a fence, sign and utility pole. Police arrested Ilg for driving under the influence of alcohol and took him to a police station. He took a breath test, which showed that he had a prohibited level of alcohol in his breath. After being charged, he pled not guilty.

His attorney subpoenaed various records from the Ohio Department of Health and the Ohio Department of Public Safety relating to the Intoxilyzer 8000, which was the machine used to determine the alcohol content in Ilg’s breath. The subpoena duces tecum demanded, among other items, computerized online breath archives (COBRA) data from the health department, repair and maintenance records on the machine, the breath test report for Ilg, and correspondence among the state agencies, manufacturer, police, and prosecuting attorneys.

In August 2012, the trial court held a hearing to consider Ilg’s claim that the health department had not complied with the subpoena. The court ordered the department to provide all the requested documents.

Following a second hearing, the court found that the health department had not produced all the materials and ruled that the city’s prosecutors could not use Ilg’s breath-test results in their case.

The city appealed to the First District Court of Appeals, which agreed with the trial court. The city then filed an appeal with the Ohio Supreme Court, which agreed to hear the case.

Attorneys from the city prosecutor’s office in Cincinnati assert that the state provided Ilg with all documents related to his test on the Intoxilyzer 8000 and produced all other materials requested that existed, except for the COBRA data and the correspondence.

An official from the health department testified at the second hearing that COBRA is the health department’s database, which contains not only details about Ilg’s test, but also personal information about all people tested with the Intoxilyzer 8000. She said she had spoken with 10 to 20 people about ways to obtain the data in a form that could be appropriately provided and determined that the agency would have to hire a technology expert at a cost of about $100,000. She concluded that the department did not have the resources to comply with the court’s order.

The city’s attorneys contend that the COBRA database is not information that must be provided in discovery under Ohio rules.

“The COBRA database does not concern the defendant's breath test: it was not related to the defendant’s particular case; it is not material to the preparation of a defense; it is not intended for use by the prosecuting attorney at trial; and it was not obtained from and does not belong to the defendant,” they wrote in their brief to the court.

Citing the Vega decision, they note that “while a defendant may ‘attack the reliability of a specific testing procedure and the qualifications of the operator,’ he ‘may not make a general attack upon the reliability and validity of the breath testing instrument.’” They argue that Ilg’s demand for the database shows that he is seeking to challenge the general reliability of the Intoxilyzer 8000.

They point out that the state gave Ilg numerous documents, including copies of his traffic ticket, the arrest report, a DVD of the incident, Ilg’s breath test report, the instrument certification report, factory data about the machine, and more.

“These documents related to the defendant’s particular testing instrument, testing procedure and the testing operator,” they conclude. “The documents requested in the defendant’s subpoena did not relate to the defendant’s particular testing instrument, testing procedure or testing operator. The documents that the trial court ordered disclosed during discovery, including the COBRA database, are not competent evidence of reliability of the specific testing procedure or the qualifications of the testing operator.”

The attorney for Ilg responds that the request was for COBRA data related only to Ilg’s specific test and to tests done on the specific Intoxilyzer 8000 on which his test was performed. He contends that this data involves information related to just 65 tests. He argues that the data can be provided under the discovery rules because it represents a relevant document, tangible object, or the results of a scientific test – all of which are permitted by the discovery rules.

Ilg’s attorney maintains that the request is not in conflict with the Vega holding. Ilg seeks the data from the machine used to test him so that he can challenge specific procedures, not to make a general attack on the Intoxilyzer 8000, the attorney asserts. He notes that an expert for Ilg submitted an affidavit asserting that the COBRA data is needed to evaluate the reliability of the machine used to test Ilg, of the individual testing procedures performed, and of Ilg’s results.

“The Vega court explained that an accused may establish ‘that there was something wrong with the test and the results were erroneous,’” he wrote in his brief. “An accused may introduce any competent evidence to attack the reliability of his test result and the reliability of the test procedures. Expert testimony challenging the test result and testing procedures is admissible.”

“Producing the data from 65 tests hardly seems burdensome,” Ilg’s attorney concludes.

Amicus curiae briefs supporting the position of the City of Cincinnati have been submitted by:

The following groups have filed amicus briefs supporting Daniel Ilg:

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the City of Cincinnati: Jennifer Bishop, 513.352.4708

Representing Daniel Ilg: Steven Adams, 513.929.9333

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Does Appeals Process for Photo-Enforced Red-Light or Speeding Violations Strip Courts of Jurisdiction?

City of Toledo, et al. v. Bradley L. Walker, Case no. 2013-1277
Sixth District Court of Appeals (Lucas County)


The city of Toledo implemented an automated photo system in 2003 to take pictures of vehicles that cross into intersections after traffic lights turn red. The city later added devices to catch speeding vehicles in the intersections as well. Redflex Traffic Systems installed, maintains, and monitors the cameras. The owners of the automobiles that are photographed are sent a “notice of liability,” a civil offense under the Toledo Municipal Code, for running a red light or speeding through an intersection.

According to the law, a person who receives a notice may pay the penalty, submit evidence that an exception (such as someone else driving the car or a stolen car) applies, or request a hearing. When requested, a hearing is held and conducted by a hearing officer.

Bradley L. Walker received a notice in November 2009 for violating the Toledo ordinance, and he paid the $120 civil penalty. In February 2011, Walker filed a lawsuit on behalf of himself and others in the same situation against the city and Redflex. He alleged that the law was unconstitutional because its administrative review process “usurped” the jurisdiction of the municipal court, the ordinance was unconstitutionally vague, and it denied him due process because it did not provide procedures beyond those in the ordinance.

After a motion by Toledo and Redflex, the trial court dismissed the claims. Walker appealed to the Sixth District Court of Appeals, which reversed the trial court’s decision.

Toledo and Redflex appealed to the Ohio Supreme Court, which agreed to consider the case.

Attorneys for the city of Toledo contend that the ordinance’s administrative hearing process does not strip the municipal court of jurisdiction for these offenses. The ordinance is a proper exercise of the city’s home-rule authority, the attorneys assert. They argue that the decisions of the hearing officer can be appealed to the municipal court, just as decisions from other local hearings are appealable to the municipal court. So the law does not usurp that court’s jurisdiction and is therefore not unconstitutional, the attorneys maintain.

They reason that the Ohio Supreme Court’s decision in Mendenhall v. Akron (2008) suggests that cities are within their home-rule authority to enact an administrative review process for these types of civil notices.

The state law governing municipal jurisdiction of criminal and traffic matters (R.C. 1901.20(A)(1)) states: “The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory, unless the violation is required to be handled by a parking violations bureau or joint parking violations bureau pursuant to Chapter 4521 of the Revised Code, and of the violation of any misdemeanor committed within the limits of its territory.”

The city’s attorneys argue that nothing in this statute gives the municipal court “exclusive” jurisdiction over these cases nor prohibits an administrative body from hearing the cases first.

“[A]s this Court in Mendenhall observed, a city’s home-rule authority is broad enough to allow for the creation of [a] ‘complementary system of civil enforcement,’” the attorneys wrote in their brief to the court.

They also note that due process requires notice and a meaningful opportunity to be heard. Both are provided by the clear language of the ordinance, which gives notice and sets forth an appeals process, the attorneys maintain.

Attorneys for Redflex filed a separate brief in the case, stating that Ohio Supreme Court decisions including Mendenhall “are consistent with the notion that chartered home-rule cities may implement traffic photo-enforcement programs that have an administrative structure to review citations issued under those programs – subject to further administrative appeal.” Redflex’s attorneys contend that Ohio municipalities have home-rule authority to implement administrative proceedings to further their civil traffic enforcement ordinances, and Toledo’s law provides due process.

Attorneys for Walker counter that R.C. 1901.20(A)(1) mandates that the Toledo municipal court has jurisdiction over the violation of any municipal ordinance, yet the city has undermined that jurisdiction by instead vesting jurisdiction with a hearing officer.

“From start to finish, the ordinance ensures that Toledo and RedFlex – the parties that should have the burden of proof – never have to prove their allegations in front of an elected municipal court judge under normal rules of evidence or courtroom procedures,” Walker’s attorneys wrote in their brief. They contend that the allegations in the “notice of liability” are never filed with the municipal court, and the ordinance prescribes no rules, no burden of proof, and no minimum qualifications for the hearing officer. This structure takes away the municipal court’s jurisdiction over these matters, they argue.

In addition, the cities and the camera companies never have to prove their allegations in court, call witnesses, ensure that the equipment was operating properly, engage in discovery, or have a judge determine guilt or punishment, they assert.

Walker’s attorneys contend that the city has improperly given the hearing officer exclusive jurisdiction in these cases. This is not a home-rule case, and the city of Toledo is not permitted to negate the jurisdiction of a court, they conclude.

Amicus curiae briefs supporting the positions of the city of Toledo and Redflex have been submitted by:

The following have filed amicus briefs supporting Bradley L. Walker:

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing the City of Toledo: Adam Loukx, 419.245.1020

Representing Redflex Traffic Systems, Inc.: Quintin Lindsmith, 614.227.8802

Representing Bradley L. Walker: Andrew Mayle, 419.334.8377

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.