State v. Littlejohn ( 2012 )

[Cite as State v. Littlejohn, 2012-Ohio-4554.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 106
)
PLAINTIFF-APPELLANT )
)
VS. ) OPINION
)
JONATHAN LITTLEJOHN )
)
DEFENDANT-APPELLEE )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown
Municipal Court of Mahoning County,
Ohio
Case No. 11 CRB 773
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellant: Atty. Dana Lantz
Youngstown City Prosecutor
26 S. Phelps Street
Youngstown, Ohio 44503
For Defendant-Appellee: Atty. Charles E. Dunlap
3855 Starr’s Centre Drive, Suite A
Canfield, Ohio 44406
JUDGES:
Hon. Joseph J. Vukovich
Hon. Cynthia Rice of the Eleventh District Court of Appeals Sitting by Assignment
Hon. Frank D. Celebrezze, Jr. of the Eighth District Court of Appeals Sitting by
Assignment
Dated: September 28, 2012
[Cite as State v. Littlejohn, 2012-Ohio-4554.]
VUKOVICH, J.
{¶1} The State of Ohio appeals the decision of Youngstown Municipal Court
dismissing the criminal case against defendant-appellee Jonathan Littlejohn. The
court found that the arrest was made outside the territorial boundaries of the arresting
officer, a Youngstown State University police officer. The issue is whether the mutual
aid agreement granting university police the power to arrest within a specified area of
the City of Youngstown which lies outside of the university’s borders is violative of
R.C. 2935.03.
{¶2} Pursuant to R.C. 3345.041, a state university and a municipality may
enter into an agreement allowing the university police to perform any police function,
exercise any police power, or render any police service on behalf of the municipality.
R.C. 3345.041 is a specific statute, whereas R.C. 2935.03 is a general statute
outlining a state university officer’s power to arrest for crimes committed in his
presence within the limits of the university. We thus conclude that the statutes are
not irreconcilable and that R.C. 3345.041 is clearly intended to be an exception to a
university police officer’s statutory boundaries. As such, the trial court erred in
dismissing the case based upon the officer’s actions outside of the university’s
borders but within the mutual aid agreement’s expanded territory.
STATEMENT OF THE CASE
{¶3} Due to a rash of car break-ins on Ohio Avenue, university police officers
were instructed to increase patrol time in this area. (Tr. 12). Near 1:00 a.m. on April
25, 2011, a university police officer shined a spotlight into a vehicle parked in a lot
behind an apartment complex at 815 Ohio Avenue. The spotlight illuminated five
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people in a car, and the officer noticed the three backseat passengers were smoking.
The officer smelled burning marijuana as he approached the vehicle. Marijuana
cigarette butts were retrieved from the vehicle. (Tr. 8).
{¶4} The defendant was charged with minor misdemeanor possession of
marijuana, fourth degree misdemeanor possession of drug paraphernalia (a
sifter/grinder used for removing twigs and seeds from marijuana), and first degree
misdemeanor falsification for lying about his name. His attorney filed a motion to
dismiss the charges, alleging in pertinent part that the officer acted outside of his
territorial jurisdiction in violation of R.C. 2935.03(A). He also made suppression
arguments not at issue herein.
{¶5} The state responded that the university’s board passed a resolution and
the city passed an ordinance under R.C. 3345.042, which permitted a mutual aid
agreement to be perpetuated between the city police department and the university
police department. The state urged that the university officer had full police power
under that agreement. The state attached the resolution, the ordinance, the mutual
aid agreement, and a map showing Ohio Avenue to be within the patrol area outlined
by an attachment incorporated into the agreement. The May 13, 2010 mutual aid
agreement states at paragraph one:
Under the provisions of Ohio Revised Code, Section 3345.041
(Attachment 1), unless actively engaged in effecting an arrest or related
duties, or in an emergency, or when ordered by a superior officer not to
render aid, each police officer employed by either of the parties hereto
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shall render assistance to the police officers employed by the other
party whenever such assistance is requested by officers of a party or a
requesting officer’s dispatcher. When the University’s on-duty police
officers are rendering assistance to the City’s police officers or when
within the area expressly indicated in Attachment 2, which is
incorporated herein as if fully rewritten, and when on City streets and
highways en route to or from University property, they shall have full
police authority commensurate with the authority held by the City’s
police officers including, but not limited to, authority to issue parking
and traffic citations.
Notwithstanding the provisions of the preceding paragraph, any on-duty
University police officer who sees a crime being committed within the
corporate limits of the City of Youngstown, or who sees a City police
officer who reasonably appears to be in need of assistance, shall have
the authority to apprehend or attempt to apprehend the person or
persons committing such crime and shall have the authority to aid and
assist such police officer. (Emphasis added).
{¶6} The defendant replied by focusing on the first sentence and interpreting
the agreement as requiring a demand for assistance by the city before a university
officer could proceed outside of university property. The defendant argued that even
then, the officer can only assist, not arrest; otherwise, the agreement would violate
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R.C. 2935.03 since it expands the territorial area in which a university police officer
can arrest.
{¶7} A hearing was held before the municipal court where the university
police officer testified to the facts set forth supra. He also stated that he had authority
to act as a police officer on Ohio Avenue that night due to a mutual aid agreement,
and he identified a patrol map which encompassed the boundaries set forth in the
attachment to the mutual aid agreement. The state also elicited that the officer was
commissioned as a deputy sheriff in Mahoning County but recognized that they did
not raise this in their response to the motion to dismiss.
{¶8} After the hearing, the court granted the motion to dismiss, finding on the
record that the mutual aid agreement expanded the university officer’s authority and
territorial boundaries in violation of R.C. 2935.03. The court also noted that the
officer was not requested to aid the city police nor dispatched to the scene. (Tr. 26).
The trial court journalized its decision on the case jacket which entry was file-
stamped July 1, 2011.1 The state filed a timely notice of appeal. After briefing, this
court heard oral arguments.2
ASSIGNMENT OF ERROR
{¶9} The state sets forth the following assignment of error:
1
See State v. McDowell, 150 Ohio App. 3d 413, 2002-Ohio-6712, 781 N.E.2d 1057, ¶ 7 (7th Dist.) (a
handwritten notation on a case jacket can rise to the dignity and formality of a judgment if it is in
writing, signed by the judge, and filed with the clerk), citing State ex rel. White v. Junkin, 80 Ohio St. 3d
335, 337, 686 N.E.2d 267 (1997). See also State v. Derov, 7th Dist. No. 08MA189, 2009-Ohio-4810,
fn.1 (a judge’s initialing of the time-stamped notation on a case jacket to constitute the signature for
purposes of finding a judgment to appeal).
2
During oral argument, defense counsel alleged that the city charter prohibits outside officers
in this situation. However, this argument was not raised in his appellee’s brief. In fact, it was not
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THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO
DISMISS AND FINDING THAT THE YOUNGSTOWN STATE
UNIVERSITY OFFICER EXCEEDED HIS SCOPE OF AUTHORITY
PURSUANT TO R.C. 2935.03.
{¶10} R.C. 2935.03 merely details the general powers of arrest of various
officers. Division (A) allows a state university law enforcement officer to arrest a
person without a warrant if they are “found violating” the law within the limits of the
university. R.C. 2935.03(A) (also outlining the arrest powers for sheriffs, municipal
police officers, and others). Compare R.C. 2935.03(B)(1) (granting additional arrest
powers if officer has reasonable grounds to believe that a certain listed offense has
been committed such as an offense of violence).
{¶11} The officer here acted outside of the limits of the university. However,
the mutual aid agreement existing between the city and university police department
expands the university officer’s limits. The agreement states that he shall aid city
police when requested. It also states that while on duty, when he is rendering such
assistance or when he is within the patrol area incorporated into the agreement,
which indisputably includes the Ohio Avenue apartment complex, he has “full police
authority commensurate with the authority held by the City’s police officers.” The
agreement further specifies that if he is on duty and sees a crime being committed
within the corporate limits of the City of Youngstown, he shall have the authority to
raised to the trial court either. See Motion to Dismiss (June 2, 2011), Reply to State’s Response (June
30, 2011). See also (Tr. 16-21). Thus, we cannot consider this argument.
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apprehend or attempt to apprehend the person or persons. The officer was clearly
acting within these expanded limits when he encountered appellant.
{¶12} The agreement was permissible pursuant to R.C. 3345.041, which
provides that the board of trustees of a state university or college may enter into an
agreement with a municipal corporation (or other listed entities) and said municipal
corporation may likewise enter into an agreement with the state university or college
upon such terms as are agreed to by them, to allow the use of state university law
enforcement officers to perform any police function, exercise any police power, or
render any police service on behalf of the contracting political subdivision that it may
perform, exercise, or render. R.C. 3345.041(A).
{¶13} The only issue then is whether R.C. 3345.041(A) conflicts with R.C.
2935.03(A) and which statute prevails in the event of a conflict. Pursuant to R.C.
1.51, if a general provision conflicts with a special provision, they shall be construed
so that effect is given to both if possible. State ex rel. Data Trace Info. Servs., L.L.C.
v. Cuyahoga Cty. Fiscal Officer, 131 Ohio St. 3d 255, 2012-Ohio-753, 963 N.E.2d
1288, ¶ 48 (construe provisions if possible to give effect to both; neither prevails over
the other unless they are irreconcilable). If the conflict is irreconcilable, then the
special provision prevails as an exception to the general provision unless the general
provision was adopted later and the manifest intent is that the general provision
prevails. R.C. 1.51. Similarly, R.C. 1.52(A), provides that if statutes are
irreconcilable, the statute latest in date of enactment prevails.
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{¶14} R.C. 3345.041 was first enacted on October 20, 1987. It is said to have
been enacted in response to cases such as State v. Dakoski, 11th Dist. No. 1636
(Sept. 26, 1986). In that case, the appellate court invalidated an arrest effected by
an officer from Kent State University where all acts took place on a city street.
{¶15} The pertinent language in R.C. 2935.03(A) predated that of R.C.
3345.041. See Dakoski, 11th Dist. No. 1636 (quoting the pertinent language from
R.C 2935.03(A) for a 1985 arrest). See also 1988 H 708 (“to enact new sections * * *
2935.03” and then restating the same language from the prior division (A) that is
pertinent in this case); R.C. 1.30(A), (B)(15) (mentioning that 1988 H 708 contains
non-substantive changes to be construed as a restatement); R.C. 1.54 (a statute
which is reenacted or amended is intended to be a continuation of the prior statute
and not a new enactment, so far as it is the same as the prior statute). Thus, the
general provision was not adopted after the specific provision. See R.C. 1.51.
{¶16} R.C. 2935.03 is the general statute providing the limits of a university
police officer’s territorial jurisdiction. R.C. 3345.041(A) provides an exception to the
general rule. If the university and the city enter a mutual aid agreement under R.C.
3345.041, the territorial jurisdiction of the university officers can be expanded to the
extent specified in the agreement up to “any police function,” “any police power”, and
“any police service” that the municipal officers can perform.
{¶17} These statutes are not irreconcilable, and effect can be given to both.
Even if they were irreconcilable, it is R.C. 3345.041(A), which is the special provision,
that would prevail as an exception to R.C. 2935.03(A), the general provision which
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existed at the time R.C. 3345.041(A) was enacted and which in any event
demonstrates no manifest intent to prevail over R.C. 3345.041. See R.C. 1.51.
{¶18} The whole purpose of R.C. 3345.041 is to expand the limits set forth in
R.C. 2935.03(A) as pertaining to university or college police officers where such
university or college is able to enter a mutual aid agreement with a municipal
corporation (or other listed entity). The trial court ignored or refused to apply this
statute. However, there is no reason to invalidate R.C. 3345.041 merely because it
provides authority to enter agreements to expand the basic territorial boundaries of
university or college police officers existing under a general statute. Rather, the
mutual aid agreement statute is clearly an expansion of or exception to the general
statute. Accordingly, the trial court’s judgment is reversed, and this case is
remanded for further proceedings.
Rice, J., concurs.
Celebrezze, Jr., J., concurs.