on

IN THE SUPREME COURT OF OHIO

STATE OF OHIO

vs.

Plaintiff-Appellant,

CASE NO. 09-

ON APPEAL FROM THEMONTGOMERY COUNTYCOURT OF APPEALS, SECONDAPPELLATE DISTRICT

DANNY HALLCOURT OF APPEALS

Defendant-Appellee. CASE NO. 22901

MEMORANDUM IN SUPPORT OF JURISDICITONOF APPELLANT STATE OF OHIO

MATIIIAS H. HECK, JR.PROSECUTING ATTORNEYBy JOHNNA M. SHIA(COUNSEL OF RECORD)

REG. NO. 0067685Assistant Prosecuting Attorney

Montgomery County Prosecutor's OfficeAppellate DivisionP.O. Box 972301 West Third Street, Suite 500Dayton, Ohio 45422(937) 225-4117

ATTORNEY FOR APPELLANT, STATE OF OHIO

GEORGE A. KATCHMER (COUNSEL OF RECORD)115 Brookside DriveYellow Springs, Ohio 45387

COUNSEL FOR APPELLEE, DANNY HALL

TABLE OF CONTENTS

WHY LEAVE TO APPEAL SHOULD BE GRANTED

STATEMENT OF THE CASE

STATEMENT OF THE FACTS

ARGUMENT

A nurse employed by a hospital holds a position of trustunder ILC. 2929.13(B)(1)(d) and, if during the course ofhis employment, he steals drugs from his employer, heis ineligible for intervention in lieu of conviction.

CONCLUSION

APPENDIX A, State v. Hall, Opinion, November 13, 2009

APPENDIX B, State v. Hall, Final Entry, November 13, 2009

CERTIFICATE OF SERVICE

Page

1

1-2

2

2-5

2-5

5

6-7

8-9

10

Why Leave To Appeal Should Be Granted

The Second District Court of Appeals has found that a nurse wlio works for and steals

drugs from a hospital during his course of employment is eligible for intervention in lieu of

conviction because the "position of trust" language in R.C. 2929.13(B)(1)(d) only applies to

persons who liold a public office and not to a private person hired by another private person. In

reaching this conclusion, the court of appeals noted that other courts have struggled over the

ambiguous language of the statute and the general asseinbly's intent. Since there is a need

among Ohio courts for an interpretation of whether a nurse holds a position of trust and, if he

steals drugs from his employer, whether he is eligible for intervention in lieu of conviction, the

issue warrants this Court's review. In fact, this Court certified a conflict between the 9`" and the

10`h Districts on July 1, 2009, and has not yet resolved this issue. State v. Massien, 122 Ohio

St.3d 1453, 2009-Ohio-3131; State v. France, 10th Dist. No. 04AP-1124, 2006-Ohio-1204. The

State asks this Court to hold this case for the decision in State v. Massien.

Statement Of The Case

This is an appeal by the State of Ohio from a decision reversing the trial court's decision

finding that Hall was ineligible for intervention in lieu of conviction because he held a position

of trust under R.C. 2929.13(B)(1)(d) as a nurse employed by a hospital.

On May 14, 2008, Danny Hall was charged by indictment with three counts of theft of

drugs (Sch. III, IV, and V), in violation of R.C. 2913.02(A)(1) - felonies of the fourth degree.

(Docket Entry 1) On June 24, 2008, Hall entered a no contest plea to counts one and two in the

indictment and count three was dismissed. (Docket Entry 9) On July 30, 2008, the trial court

sentenced Hall to five years community control. (Docket Entry 11) On August 19, 2008, Hall

filed a timely notice of appeal. (Docket Entry 12) On Noveniber 13, 2009, the Second District

2

Court of Appeals found that the trial court erred when it found that Hall was ineligible for

intervention in lieu of conviction (ILC) because he violated a position of trust when he stole

drugs from his employer.

Statement Of Facts

Hall requested ILC at an unrecorded status conference and the trial court expressed its

unwillingness to consider ILC because Hall, a nurse, stole drugs from his employer, violating a

position of trust as found in State v. France, 10`h Dist. No. 04AP-1124, 2006-Ohio-1204. Hall

appealed and requested remand to the trial court to make a record of his ILC request so that the

appellate court could review the trial court's decision pursuant to App.R_ 9. On October 8, 2009,

the trial court and the parties made a record indicating that Hall had expressed an interest in

seeking TLC and that the trial court denied his request finding Hall ineligible for ILC based upon

France, supra. The court of appeals reviewed the new record and found that the trial court erred

and renianded the case to the trial court to decide whether Hall was a good candidate for ILC.

Areument

1. A nurse employed by a hospital holds a position of trust under R.C.2929.13(B)(1)(d) and, if during the course of his employment, he stealsdrugs from his employer, he is ineligible for intervention in lieu ofconviction.

When interpreting a statute, "a court's paramount concern is the legislative intent in

enacting the statute. fli determining legislative intent, the court first looks to the language in the

statute and the purpose to be accomplished. Words used in a statute must be taken in their usual,

normal or customary meaning. It is the duty of the court to give effect to the words used and not

to insert words not used. Where the language of a statute is plain and uiiambiguous and conveys

a clear and definite meaning, there is no need to apply rules of statutory interpretation." State ex

rel. Richard v. Bd. of Trustees of the Police & Firemen's Disability & Pension Fund, 69 Ohio

St.3d 409, 411-412, 1994-Ohio-126, 632 N.E.2d 1292. (Internal citations and quotations

omitted.)

However, if the statute is ambiguous, "[t]he presumption always is, that every word in a

statute is designed to have some effect, and hence the ntle that, `in putting a construction upon

any statute, every part shall be regarded, and it shall be so expounded, if practicable, as to give

some effect to every part of' it.' " Turley v. Turley (1860), 11 Ohio St. 173, 179, citing

Commonwealth v. Alger (Mass.1851), 7 Cush. 53, 89 (Emphasis in original.) See, also, R.C.

1.47(B), which provides that: "[i]n enacting a statute, it is presumed that ***[t]he entire statute

is intended to be effective."

R.C. 2951.041(A)(1) provides: "If an offender is charged with a criminal offense and the

court has reason to believe that drug or alcohol usage by the offender was a factor leading to the

offender's criminal bellavior, the court may accept, prior to the entry of a guilty plea, the

offender's request for intervention in lieu of conviction. * * * The court may reject an

offender's request without a hearing. ***." The decision whether to grant or deny a motion for

ILC lies within the trial court's sound fliscretion. State v. Schmidt, 149 Ohio App.3d 89, 2002-

Ohio-3923.

Pursuant to R.C. 2951.041(B)(1), "An offender is eligible for intervention in lieu of

conviction if the court finds all of the following: The offender previously has not been convicted

of or pleaded guilty to a felony, previously has not been through intervention in lieu of

conviction under this section or any similar regimen, and is charged with a felony for which the

court, upon conviction, would impose sentence under division (B)(2)(b) of section 2929.13 of the

Revised Code or with a misdemeanor."

4

If the trial court makes any of the enumerated findings in R.C. 2929.13(B)(1)(a) through

(i), the trial court will, after considering the factors set forth in R.C. 2929.12 in determining that

a prison term is consistent with the purposes and principles of sentenciug set forth in R.C.

2929.11, impose sentence pursuant to R.C. 2929.13(B)(2)(a), not 2929.13(B)(2)(b), as required

by the intervention statute. France, supra.

One of the enumerated findings that a trial court can find is contained in R.C.

2929.13(B)(1)(d), which reads, "The offender held a public office or position of tnist and the

offense related to that office or position; the offender's position obliged the offender to prevent

the offense or to bring those committing it to justice; or the offender's professional reputation or

position facilitated the offense or was likely to influence the future conduct of others." Whether

an offender held a position of trust and whether the offense related to that position of trust is

principally a question of law. State v. Condon, 152 Ohio App.3d 629, 2003-Ohio-2335, at ¶ 104.

Ohio courts have conflicting views on whether a nurse employed by a hospital who in the course

of their employinent, steals drugs from the hospital violates a position of trust under R.C.

2929.13(B)(1)(d)thereby making the nurse ineligible for ILC. The Second and Ninth Districts

have found that the statute only applies to offenders who hold a public office, like a public

official or a public servant, and does not apply to a private person who abuses a position of trust

with another private person. Flall, supra, citing State v. Jones (Nov. 13, 1998), 2nd Dist. No.

98CA009; State v. Massien, 9`h Dist. No. 24369, 2009-Ohio-1521.

On the other hand, the Tenth District has fotind that the plirase "posifion of trust"

encompasses individuals occupying either public or private positions. France, supra, citing State

v. Boland, 147 Ohio App.3d 151, 2002-Ohio-1163, at 11 55-69. The Tenth District has

determined that a nurse with the authority to dispense narcotics holds a position of trust falling

5

under R.C. 2929.13(B)(1)(d), stating, "Given the trust position appellant held as a nurse in our

society and the access to drugs, intervention in lieu of conviction would demean the seriousness

of theft of dntgs from the employer. ***" State v. Wiley, 10`h Dist. Nos. 03AP-362, 03AP-363,

2003-Ohio-6835. When read in its entirety it is clear that the statutory interpretation and

decision in France is "tlie logical result of the statute as written." France, supra, at ¶ 11.

CONCLUSION

For all of the reasons discussed herein, the State respectfully asks this Court to accept

jurisdiction and hold this case for the decision in Massien, supra.

Respectfully submitted,

MATHIAS H. HECK, JR.PROSECUTING ATTORNEY

By:JO A SHIAR . NO. 0067685Assistant Prosecuting AttorneyMontgomery County Prosecutor's OfficeAppellate DivisionP.O. Box 972301 West Third Street, 5"' FloorDayton, Ohio 45422(937) 225-4117

APPENDIX A

We-51=LaW:

Slip Copy, 2009 WL 3792359 (Ohio App. 2 Dist.), 2009 -Ohio- 6016(Cite as: 2009 W1. 3792359 (Ohio App. 21Dist.))

CIIECK OHIO SUPREME COURT RULES FORREPORTING OF OPINIONS AND WEIGHT OF

LEGAL AUTIIORITY.

Court of Appeals of Ohio,Second District, Montgomery County.

STATE of Ohio, Plaintiff-AppelleeV.

Danny HALL, Defendant-Appellant.No. 22901.

Decided Nov. 13, 2009.

Mathias H. Heck, Jr., by Johnna M. Shia, Atty.Reg. # 0067685, Montgomery County Prosecutor'sOffice, Appellate Division, Montgotnery CountyCourts Building, Dayton, OH, for plaintiff-appellee.

George A. Katchmer, Atty. Reg. # 0005031, Yel-low Springs, OH, for defendant-appellant.

BROGAN, J.

*1 (¶ 1) Daazn y Hall appeals from his convictionand sentence following a no-contest plea to twocounts of theft of dmgs. Following the plea, the tri-al court sentenced him to frve years of communitycontrol.

{$ 2} In his sole assignment of error, IIall contendstbe trial court erred in not considering him for in-tervention in lieu of conviction (ILC). During oralargument, wo pointed out the absence of anythingin the record showing that Hall ever sought ILC andthat the trial court denied it. Shortly after oral argu-ment, Hall presented us with a motion to file anApp.R. 9 statenient. Therein, he elaimed to haveraised the ILC issue during an unrecorded statusconference. He further claitned that the trial courthad indicated its unwillingness to consider ILC, re-lying on State v. Frcmc•c, Franklin App. No.04AP-1124, 2006-Ohio-1204, which held that a

Page 6 Page 2 of 3

Page 1

nurse who stole diugs froin the hospital where sheworked was ineligible for ILC.

{1 3} While keeping Hall's appeal pending on ourdocket, we remanded the case on October 8, 2009,to allow the trial court to resolve the issue raised inhis App.R. 9 mo6on. Thereafter, counsel for bothparties met in open court and agreed that, during aprior status conference, defense counsel had ex-pressed a desire to seek ILC. They further agreedthat the State had indicated its opposition to ILC,citing France. They also agreed that the trial courthad stated, based on France, that it believed Hallwas ineligible for ILC. Therefore, defense counsclnever formally moved for ILC. Instead, Hallentered a no-contest plea to the charges set forthabove. During the on-the-record proceeding on Oc-tober 8, 2009, the trial court agreed that the forego-ing version of events was accurate. That proceedingwas recorded on an audio-video disk and made partof the appellate record.

{¶ 4} Having reviewed the audio-vidco disk, we be-lieve Hall sufficiently raised the issue of ILC topreserve it for appellate review, Altliough Hall didnot file a written motion, his counsel essentially re-quested ILC during the status conference. As setforth above, the trial court responded by expressingits belief that Hall was ineligible for ILC based onFrance. In light of that response, there would havebeen no purpose in Hall following up with a writtenniotion.''"' Therefore, we conelude that the issueof Hall's eligibility for ILC properly is before us.

FN1. Altl ough the trial court's oral pro-nouncement on ILC bears some similarityto a ruling on a motion in limine, which istentative and not appealable, we see atleast one notable distinction. A trial court'sdecision on a niotion in limine is anticipat-ory and unappealable because the prelitn-inary ruling may change whcn the evid-ence is presented in its actual context at tri-al. In the present case, however, the trial

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

http://web2.westlaw.com/print/printstream.aspx7sv=Split&prft=HTMLE&ifm -NotSet&... 11/23/2009

Page 3 of 3

Slip Copy, 2009 WL 3792359 (Ohio App. 2 Dist.), 2009 -Ohio- 6016(Cite as: 2009 WL 3792359 (Ohio App. 2 Dist.))

court was confronted with a legal question,namely whether a nurse who steals drugsfrom his employer is eligible for ILC. Thetrial court resolved the issue by relying onFrance- No subsequent events were likelyto change the trial court's legal opinion.Therefore, there is no reason to requireHall to have rc-raised the issue in a writtenmotion for ILC.

{¶ 5} On the merits of the ILC issue, we note theexistence of conflicting vicws. In France, the TenthDistrict held that a nnrse who stole drugs in thecourse of her etnploytnent was not cligible for ILCbecause she occupied a" position of trust " withinthe meaning of R.C. 2929.13(B)(1)(d) and the of-fense related to the position. France, supra, at ¶8-12. More recently, in State v. Massien, SutntnitApp. No. 24369, 2009-Ohio-1521, the Ninth Dis-trict held that a nurse who stole drugs from her em-ployer was eligible for ILC. It reasoned that thephrase " position of trust " in R.C. 2929.13(B)(1)(d) is intended "to apply predominantly to theoffender's public standing[.]" Id. at ¶ 17. While notforeclosing the possibility "that in limited circunt-stanees, a private individual in a private setting maybe found to have occupied a` position of trust,' "the Ninth District held that a nurse (lid not holdsuch a position. Id, at ¶ 17-19.

*2 On July 1, 2009, the Ohio Supreme Court certi-fied a conflict between Massien and France. Thecertified issue is "[w]hcther a nurse employed by ahospital who in the course of her employment stealsdrugs from the hospital holds 'a position of trust 'under R.C. 2929.13(B)(1)(d) tirus making the nurseineligible for intervention in lieu of conviction[.]"State v. Massien, 122 Ohio St.3d 1453,2009-Ohio-3131.

{¶ 7} Although the Ohio Supreme Coutt has not yetresolved the certified conflict, we too have ad-dressed ttie scope of R.C. 2929 .13(B)(1)(d). In

Page 2

{¶ 81 "We believe the trial couit misconsttued R.C.2929.13(B)(1)(d) to apply it to Defendant Jones. Itapplies to offenders who hold `a public officc orposition of trust and (when) the offense related tothat office or position.' Such persons are a`publicofficial' or a 'public servant,' as those terms aredefined by R.C. 2921.01(A) and (B), who commitsoffenses such as theft in office, R.C. 2921.41, orbribery, R.C. 2921.02. R.C. 2929.13(B)(1)(d) doesnot apply to a private person who abuses a positionof trust into which he is put by another private per-son which is the case here." (Emphasis added).

{¶ 8} Based on Jones, we hold that Hall did not oc-cupy a" position of trust " within the mcaning ofR.C. 2929.13(B)(1)(d). The statute applies to publicofficials and public servants, not to a private personsuch as Hall who abuses a position of trust grantedto hiin by his private-hospital employer. As a result,the trial court erred in finding Hall ineligible forILC on the basis of R.C. 2929.13(13)(I)(d). Thequestion remains, however, whethcr Hall should re-ceive ILC. "[E]ven when a defendant satisfies all ofthe statutory requircments, a trial court has discre-tion to detcrmine whether the particular defendantis a good candidate for ILC." State v. Schniidt, 149Ohio App.3d 89, 91, 2002-Ohio-3923, ¶ 9. As a res-ult, we must remand the cause for the trial court todetennine, in its discretion, whether Hall is a suit-able candidate for ILC. Id. at ¶ 11

{¶ 10} Hall's sole assignment of error is sustained,the judgment of the Montgomery County ConunonPleas court is reversed, and the cause is remandcdfor further proceedings consistent with this opinion.

FAIN and FROELICH, JJ., concur.

Ohio App. 2 Dist.,2009.State v. HallSlip Copy, 2009 WL 3792359 (Ohio App. 2 Dist.),2009 -Ohio- 6016

State v. Jones (Nov. 13, 1998), Greene App. No. END OF DOCUMENT98CA009, we held:

© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

http://web2.westlaw.com/print/printstream.aspx?sv=Split&prft=HTMLEBcifm=NotSet&... 11/23/2009

APPENDIX B

, 2009, the judgment of the trial court is Reversed, and the cause

is Remanded for further proceedings consistent with the opinion.

Costs to be paid as stated in App.R. 24.

Plaintiff-Appellee

IN THE COURT OF APPEAL.^°, OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

Defendant-Appellant

Page 8

IF I I11s I I

Appellate Case No. 22901

Trial Court Case No. 08-CR-1520

(Criminal Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this court rendered on the 13th day

MIKE FAIN, Judge

'I'HE COURT OF APPEALS OF OAIOSECOhD APPELLATE DISTRICT

Copies mailed to:

Mathias H. Heck, Jr.Johnna M. ShiaMontgomery County Prosecutor's OfficeP.O. Box 972Dayton, OH 45422

George A. Katchmer115 Brookside DriveYellow Springs, OH 45387

Hon. Timothy N. O'ConnellMontgomery County Common Pleas Court41 N. Perry StreetDayton, OH 46422

THfi COU12l' OF APPEALS OF OHIOSECOND APPELLATE DISTRIC"r

10

CERTIFTCATE OF SERVICE

I hereby certify that a copy of the foregoing Meniorandum in Support was sent by first classmail on this 24`h day of November, 2009, to the following: George A. Katchmer, 115 BrooksideDrive, Yellow Springs, Ohio 45387 and Timotliy Young, Ohio Public Defender Commission, 250East Broad Street, Suite 1400, Columbus, OH 432 1 5-93 1 1.

MATHIAS H. HECK, JR.PROSECUTING ATTORNEY

By:( 4^/^ ^r-+r'a

Assistant Prosecuting AttorneyAPPELLATE DIVISION

HNNA M. SHIAG. NO. 0067685