State v. LaPrairie

[Cite as State v. LaPrairie, 2011-Ohio-2184.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010CA-0009
vs. : T.C. CASE NO. 2009-CR-211
BRIAN LAPRAIRIE : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 6th day of May, 2011.
. . . . . . . . .
Stephen K. Haller, Pros. Attorney; Elizabeth A. Ellis, Asst. Pros.
Attorney, Atty. Reg. No.0074332, 61 Greene Street, Suite 200,
Xenia, OH 45385
Attorneys for Plaintiff-Appellee
Thomas M. Kollin, Atty. Reg. No.0066964, 2661 Commons Blvd., Suite
214, Beavercreek, OH 45431
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Brian LaPrairie, appeals from his convictions
and sentences for involuntary manslaughter, child endangering,
having weapons under disability, and trafficking in marijuana.
{¶ 2} On December 27, 2008, at approximately 10:00 a.m.,
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Fairborn police officers Hiles and Knapp were dispatched to
Defendant’s residence at 233 Pat Lane in Fairborn on a report that
a two year old child was not breathing. Upon arriving, both
officers entered the residence and found the child, Juliana Berry,
unconscious and lying on a couch in the living room. Both officers
immediately began emergency medical procedures on the child in
an attempt to revive her. Defendant was present and in a frantic
state. After paramedics arrived, both officers carried the child
outside to the waiting ambulance. The child was then transported
to a hospital.
{¶ 3} After the ambulance left for the hospital, Officers
Hiles, Knapp, and another officer who had arrived, Holcomb,
reentered Defendant’s residence to talk to Defendant. Officers
Knapp and Holcomb spoke with Defendant, who said he and the child
had got up at 9:00 a.m., ate a bowl of cereal, and then told Defendant
that she vomited. While Defendant was cleaning that up, he noticed
the child was on the floor, shaking. After Defendant attempted
unsuccessfully to get the child to respond, he called 911.
Defendant reported that the child had a seizure two days earlier,
on Christmas, was fine after about one minute, but that she had
hit her head on the toilet when she vomited, and that he caused
bruises to the child’s chest and stomach while Defendant was trying
to wake her up.
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{¶ 4} The officers became suspicious about the circumstances
surrounding the child’s injuries and called a supervisor who
advised them to seek a consent to search from Defendant. While
Officers Hiles and Holcomb continued talking with Defendant,
Officer Knapp obtained a consent to search form from his cruiser
and then reentered the residence. After reviewing the form and
being told by police that he did not have to consent to a search
of his home, Defendant signed the written consent to search form.
Police searched Defendant’s home and discovered a loaded handgun,
marijuana, digital scales, and drug paraphernalia.
{¶ 5} The medical staff at the hospital determined that Juliana
Berry suffered numerous inflicted injuries, including a skull
fracture with swelling of the brain, retinal hemorrhages, a
lacerated liver, contusions of the chest and extremities, broken
ribs, and injuries to her abdomen, which were the result of severe
trauma similar to a car accident and not the result of falls or
playground accidents. Juliana Berry died on December 29, 2008
from injuries resulting from blunt force trauma to the head.
{¶ 6} Defendant was indicted on two counts of felonious
assault, R.C. 2903.11(A)(1), one count of felony murder, R.C.
2903.02(B), one count of endangering children, R.C. 2919.22(B)(1),
one count of involuntary manslaughter, R.C. 2903.04(A), one count
of having weapons under a disability, R.C. 2923.13(A)(3), and one
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count of trafficking in marijuana, R.C. 2925.03(A)(1). Defendant
filed a motion to suppress evidence, which the trial court denied.
Pursuant to a negotiated plea agreement, Defendant entered pleas
of guilty to the involuntary manslaughter and endangering children
charges, and pleas of no contest to the weapons under disability
and trafficking in marijuana charges. In exchange, the State
dismissed the felonious assault and felony murder charges. The
trial court sentenced Defendant according to law to prison terms
totaling twenty-two years, of which ten years is mandatory time.
{¶ 7} Defendant timely appealed to this court from his
conviction and sentence.
FIRST ASSIGNMENT OF ERROR
{¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT
IN FAILING TO FIND INVOLUNTARY MANSLAUGHTER, WITH PROXIMATE CAUSE
OF CHILD ENDANGERING AND THE SAME CHILD ENDANGERING ARE ALLIED
OFFENSES OF SIMILAR IMPORT AND THUS THE CONVICTIONS BE MERGED AT
SENTENCING.”
{¶ 9} Counts Four and Five of the indictment, to which
Defendant pled guilty, state:
{¶ 10} “COUNT IV: BRIAN H. LaPRAIRIE, from February 2008 through
December 27, 2008, in Greene County, Ohio, did recklessly abuse
Juliana Ameena Berry, a child under 18 years of age, contrary to
and in violation of Section 2919.22(B)(1) of the Ohio Revised Code,
5
and the violation of this section resulted in serious physical
harm to Juliana Ameena Berry. (Endangering Children, a felony
of the second degree.)
{¶ 11} “COUNT V: BRIAN H. LaPRAIRIE, on or about December 29,
2008, in Greene County, Ohio, did recklessly cause the death of
Juliana Ameena Berry as a proximate result of BRIAN H. LaPRAIRIE’S
committing or attempting to commit a felony, to wit: Endangering
Children, the elements of which are that the Defendant did
recklessly abuse Juliana Ameena Berry, a child under 18 years of
age, and said violation resulted in serious physical harm to Juliana
Ameena Berry, all of which is contrary to and in violation of Section
2903.04(A) of the Ohio Revised Code, and against the peace and
dignity of the State of Ohio. (Involuntary Manslaughter, a felony
of the first degree.)”
{¶ 12} Prior to Defendant’s guilty pleas, and as part of its
plea bargain agreement with Defendant, the State amended its bill
of particulars to specify that the conduct forming the Endangering
Children offense alleged in Count Four occurred on December 27,
2008, the date on which Julianna Berry was removed from Defendant’s
home and taken to the hospital, where she subsequently died on
December 29, 2008. Count Five alleged that the Involuntary
Manslaughter occurred on December 29, 2008. Nevertheless, the
predicate Endangering Children felony that resulted in Juliana
6
Berry’s death necessarily involved conduct on Defendant’s part
that occurred on or before December 27, 2008.
{¶ 13} At his sentencing, Defendant moved that his convictions
be merged pursuant to R.C. 2941.25, which provides:
{¶ 14} “(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
{¶ 15} “(B) Where the defendant’s conduct constitutes two or
more offenses of dissimilar import, or where his conduct results
in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.”
{¶ 16} Confronted with the prospect that the criminal conduct
in both Count Four and Count Five occurred on December 27, 2008,
and that both involved the felony offense of Endangering Children,
which was the offense alleged in Count Four and the predicate
offense alleged in Count Five, the State argued:
{¶ 17} “We intend to present evidence in that regard to show
that, in fact, there are two separate offenses here. There is,
if you will, a separate animus. The first being the injuries to
the head that actually caused her death and that was the predicate
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for the manslaughter, but there’s also Child Endangering for other
injuries that she suffered primarily to her abdomen and her chest
that were serious physical injuries that occurred about the same
time that will substantiate the Endangering Children.
{¶ 18} “So, in effect, what we’re saying is that they’re [sic]
separate animus, which is one of the tests that the Supreme Court
and the Courts of Appeal always look at when they determine whether
or not these offenses are similar.” (Tr. at 6-7.)
{¶ 19} The State offered the testimony of Dr. Lee Lehman, a
forensic pathologist and the Chief Deputy Coroner of Montgomery
County, who testified concerning an autopsy he performed on the
body of Julianna Berry on December 29, 2008. Dr. Lehman
testified that he signed Julianna Berry’s death certificate, in
which he opined that the cause of her death was “[b]lunt force
trauma to the head due to Battered Baby Syndrome.” (Id. at 6.)
Dr. Lehman testified that the trauma involved “severe blows to
the back of her head resulting in skull fracture, brain injury,
brain swelling, cardiopulmonary arrest, a lack of oxygen, and
death.” (Id. at 7-8.) He further testified that the trauma
involved more than three severe blows which were recent in time.
(Id. at 8.)
{¶ 20} Dr. Lehman testified that Julianna Berry also suffered
multiple injuries to her chest and abdomen, that the right side
8
of her chest bore seventeen bruise marks, and that “[u]nder the
bruises are deep muscle injuries, contusions, and adjacent to that,
fresh rib fractures and rib fractures that had already been broken.”
(Id.) Dr. Lehman further testified that “the liver is bruised
and torn” and that there “are bruises to the back of her abdomen
and injury to her mesentery which is – – the mesentery is in the
part of the abdomen that supplies blood to the intestines.” (Id.
at 9.) Dr. Lehman testified that those injuries were “recent
injuries,” and that he based that opinion on “the lack of a healing
response.” (Id.)
{¶ 21} Dr. Lehman further opined that the multiple blows that
caused the injuries to the child’s chest and abdomen were separate
and apart from the fatal blows to her head he described. (Id.
at 10.) However, he could not determine when any of those injuries
occurred. (Id. at 11.) Dr. Lehman stated that “[s]ome of her
injuries were fresh, as I said before, that it [sic] had no healing
visible, and there are injuries obviously older.” (Id. at 12.)
Dr. Lehman’s testimony concluded with the following colloquy:
{¶ 22} “BY MR. HALLER: (Prosecuting Attorney)
{¶ 23} “Q The injuries to the abdomen and the chest, the
mesentery, the liver, is it more probable than not that those
occurred about the same time as the head injuries, or was it before
that?
9
{¶ 24} “A They appear about the same age. I have the
disadvantage of examining her after two days in the hospital, but
they appeared the same age.” (Id. at 12-13.)
{¶ 25} The trial court addressed Defendant’s motion for merger
and the State’s arguments contra, applying the tests in State v.
Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, and State v. Rance
(1999), 85 Ohio St.3d 632. The court held that Endangering
Children, R.C. 2919.22(B)(1), and Involuntary Manslaughter, R.C.
2903.04(A), are not allied offenses pursuant to R.C. 2941.25(A).
The court further found that the preemptive exception to the merger
of allied offenses announced in State v. Brown, 119 Ohio St.3d
447, 2008-Ohio-4569, applies, because in enacting the sections
defining Endangering Children and Involuntary Manslaughter the
General Assembly intended to protect separate societal interests.
{¶ 26} Having found that Endangering Children, R.C.
2919.22(B)(1), and Involuntary Manslaughter, R.C. 2903.04(A), are
not allied offenses per R.C. 2941.25(A), the court declined to
address the State’s R.C. 2941.25(B) contention that the two
offenses in Counts Four and Five were committed with a separate
animus. (Tr. at 20.) The court imposed prison terms of ten years
for the Involuntary Manslaughter offense and eight years for the
Endangering Children offense, to be served consecutive to each
other and to a sentence of four years for the weapons under
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disability offense charged in Count Six. All three terms are to
be served concurrent to the term of eighteen months imposed for
the trafficking in marijuana offense in Count Seven.
{¶ 27} The judgment of conviction from which Defendant appeals
was journalized on January 7, 2010. On December 29, 2010, the
Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314. Johnson overruled Rance and held: “When
determining whether two offenses are allied offenses of similar
import subject to merger under R.C. 2941.25, the conduct of the
accused must be considered.” Id. at syllabus. The Supreme Court
explained its holding at ¶47-51, stating:
{¶ 28} “Under R.C. 2941.25, the court must determine prior to
sentencing whether the offenses were committed by the same conduct.
Thus, the court need not perform any hypothetical or abstract
comparison of the offenses at issue in order to conclude that the
offenses are subject to merger.
{¶ 29} “In determining whether offenses are allied offenses
of similar import under R.C. 2941.25(A), the question is whether
it is possible to commit one offense and commit the other with
the same conduct, not whether it is possible to commit one without
committing the other. Blankenship, 38 Ohio St.3d at 119, 526
N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary that
both crimes are always committed by the same conduct but, rather,
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it is sufficient if both offenses can be committed by the same
conduct. It is a matter of possibility, rather than certainty,
that the same conduct will constitute commission of both offenses.’
[Emphasis sic]). If the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of
similar import.
{¶ 30} “If the multiple offenses can be committed by the same
conduct, then the court must determine whether the offenses were
committed by the same conduct, i.e., ‘a single act, committed with
a single state of mind.’ Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).
{¶ 31} “If the answer to both questions is yes, then the offenses
are allied offenses of similar import and will be merged.
{¶ 32} “Conversely, if the court determines that the commission
of one offense will never result in the commission of the other,
or if the offenses are committed separately, or if the defendant
has separate animus for each offense, then, according to R.C.
2941.25(B), the offenses will not merge.”
{¶ 33} The defendant in Johnson was convicted of both felony
murder, R.C. 2903.02(B), based upon the predicate offense of child
endangering, and child endangering, R.C. 2919.22(B)(1). The
Supreme Court wrote that the defendant “beat seven-year-old Milton
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Baker to death”, at ¶3, explaining:
{¶ 34} “Johnson was convicted of felony murder under R.C.
2903.02(B) (based upon the predicate offense of child endangering)
and child endangering under R.C. 2919.22(B)(1), among other crimes.
In this case, the crimes of felony murder and child endangering
are allied offenses.
{¶ 35} “The offenses were based upon the following conduct.
In the incident at issue, Johnson was in a room alone with Milton
while the boy’s mother was in a different room watching television.
The mother heard Johnson yelling, heard a ‘thump’ or ‘stomping,’
and went to investigate. She found Johnson yelling at Milton for
mispronouncing a word while reading, and she observed Johnson push
Milton to the floor. The mother left the room. Shortly
thereafter, she heard another loud ‘thump’ or ‘stomp.’ When she
went to the room, she saw Milton shaking on the floor. Neighbors
testified that they had heard the boy crying and heard Johnson
‘whooping’ the boy and yelling, ‘Do you want pain? You want pain?
I’ll give you pain!’
{¶ 36} “Milton’s death was a result of injuries sustained from
blunt impact to the head. Medical experts testified as to older
injuries indicative of multiple incidents of child abuse.
{¶ 37} “We agree with the court of appeals that the state relied
upon the same conduct to prove child endangering under R.C.
13
2919.22(B)(1) and felony murder. Although there were arguably
two separate incidents of abuse, separated by time and brief
intervention by Milton’s mother, the state obtained a conviction
for the first sequence of abuse under R.C. 2919.22(B)(3) for
administering excessive physical discipline. It was the second
sequence of abuse for which the state obtained a conviction under
R.C. 2919.22(B)(1) for abuse that caused serious physical harm.
And the conviction for the second sequence of events under R.C.
2919.22(B)(1) is the basis for the predicate offense of felony
murder under R.C. 2903.02(B). Thus, the two offenses were based
upon the same conduct for purposes of R.C. 2941.25. We decline
the invitation of the state to parse Johnson’s conduct into a
blow-by-blow in order to sustain multiple convictions for the
second beating. This beating was a discrete act that resulted
in the simultaneous commission of allied offenses, child abuse
and felony murder.
{¶ 38} “Johnson’s beating of Milton constituted child abuse
under R.C. 2919.22(B)(1).[] That child abuse formed the predicate
offense for the felony murder under R.C. 2903.02(B).[] The conduct
that qualified as the commission of child abuse resulted in Milton’s
death, thereby qualifying as the commission of felony murder.”
Johnson, at ¶53-57.
{¶ 39} Defendant LaPrairie likewise beat Julianna Berry to
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death. He was charged with the offense of Child Endangering, R.C.
2919.22(B), and the offense of Involuntary Manslaughter, R.C.
2903.04(A), arising from committing the felony offense of Child
Endangering. Under the rule of Johnson, it is possible to commit
both offenses of which Defendant was convicted through the conduct
in which Defendant engaged. Therefore, the two offenses are allied
offenses of similar import for purposes of R.C. 2941.25(A).
Johnson, at ¶48. The further issue is whether the exception to
the merger requirement in R.C. 2941.25(B) applies.
{¶ 40} R.C. 2941.25(B) relieves the court of the merger
requirement for allied offenses when the offenses were “committed
separately or with a separate animus as to each.” In the present
case, the State argued that the offenses of Child Endangering
charged in Count Four and the offense of Child Endangering that
was the predicate felony for the offense of Involuntary
Manslaughter charged in Count Five of the indictment were committed
by Defendant with a separate animus as to each.
{¶ 41} The Supreme Court has held that, as it is used in R.C.
2941.25(B), “the term ‘animus’ requires us to examine the
defendant’s mental state in determining whether two or more
offenses may be chiseled from the same criminal conduct. In this
sense, we believe that the General Assembly intended the term
‘animus’ to mean purpose or, more properly, immediate motive.”
15
State v. Logan (1979), 60 Ohio St.2d 126, 131.
{¶ 42} The State argued that the Child Endangering offense that
forms the predicate to the Involuntary Manslaughter offense in
Count Five, which involved blunt force trauma to the child’s head,
was committed with an animus separate from the animus with which
the Child Endangering offense in Count Four, which involved
different, non-lethal injuries, was committed. However, the
record fails to demonstrate that Defendant’s purpose or immediate
motive differed with respect to any of the injuries he inflicted.
All were the result of multiple severe blows delivered separately
to different parts of the child’s body. One was fatal while the
others were not. While the child’s ordeal is heart-rending, no
separate animus is demonstrated to distinguish one Child
Endangering offense Defendant committed from the other.
{¶ 43} The State’s contention more logically pertains to the
alternative grounds in R.C. 2941.25(B): that the incidents
constituting the two Child Endangering felonies in Counts Four
and Five were “committed separately.” Allied offenses are
committed separately when the criminal behavior the offenses
respectively involve is differentiated by time, place, or
circumstance. When the behavior that allied offenses involve is
instead part of a continuing sequence of interconnected acts or
omissions, as in Johnson, the allied offenses are not committed
16
separately, even though each may involve discrete acts or omissions
that produce different results.
{¶ 44} Having found that the two offenses to which Defendant
pled guilty are not allied offenses per R.C. 2941.25(A), the trial
court declined to consider the applicability of the exceptions
to the merger requirement in R.C. 2941.25(B) on which the State
had offered evidence. In accordance with the disposition ordered
in State v. Craycraft, __ Ohio St.3d __, 2010-Ohio-6332, the case
will be remanded to the trial court to determine the applicability
of the exceptions to merger in R.C. 2941.25(B) to the facts before
it.
{¶ 45} As a final matter, we note that Johnson declined to apply
the preemptive exception to the merger rule of State v. Brown
regarding offenses for which the General Assembly intended to
protect different societal interests, which the trial court applied
in the present case. Johnson involved the offenses of Endangering
Children and Felony Murder, with Endangering Children as the
predicate felony offense. The present case involves Child
Endangering and Involuntary Manslaughter, with Child Endangering
as the predicate offense to Involuntary Manslaughter. The only
distinction between Felony Murder, R.C. 2903.02(B), and
Involuntary Manslaughter, R.C. 2903.04(A), is in their predicate
offenses. Involuntary Manslaughter requires commission of a
17
felony that proximately results in a death. Felony Murder requires
commission of an offense of violence which is a first or second
degree felony that proximately results in a death. We see no
distinction between the offenses and holding in Johnson and the
offenses present case involves, at least with respect to the
societal interests distinction in State v. Brown.
{¶ 46} Johnson was, as we have said, decided almost a year after
the trial court’s decision on the allied offenses question in the
present case. The court acted correctly in applying the
Rance/Cabrales test. Nevertheless, because Johnson was decided
prior to our review of the error assigned in the present appeal,
we are bound to follow and apply Johnson, which overruled Rance.
In so doing, we necessarily find that the trial court erred when
it found that the Child Endangering and Involuntary Manslaughter
offenses of which Defendant was convicted are not allied offenses
per R.C. 2945.21(A), and declined to consider the applicability
of R.C. 2941.25(B), which establishes exceptions to the merger
requirement.
{¶ 47} The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 48} “THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION
TO SUPPRESS.”
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{¶ 49} Defendant was convicted on his pleas of no contest of
Having Weapons Under Disability, R.C. 2923.13(A)(3), and
Trafficking In Marijuana, R.C. 2925.03(A)(1). Defendant entered
his no contest pleas following the trial court’s denial of
Defendant’s Crim.R. 12(C)(3) motion to suppress evidence of the
handgun and drugs police seized in their warrantless search of
his home, to which Defendant had consented.
{¶ 50} Consent is not an exception to the Fourth Amendment
warrant requirement fashioned out of exigent circumstances.
Rather, consent to perform a search waives the warrant requirement
of the Fourth Amendment, but only when the consent is freely and
voluntarily given. Whether a consent to search is voluntary or
a product of duress or coercion is a question of fact to be
determined from the totality of the circumstances. Schneckloth
v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854.
When the state relies on a consent to justify a warrantless search,
the state must show by clear and convincing evidence that the
consent was freely and voluntarily given. Bumper v. North Carolina
(1968), 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; State v. Comen
(1990), 50 Ohio St.3d 206.
{¶ 51} When a consent is given following some form of illegal
police action, the illegal action may be considered along with
other circumstances in determining whether they combined to result
19
in coercion of the person who consented. E.g., Burrows v. Superior
Court (1974), 13 Cal.3d. 238, P.2d 590. The question is said to
be whether the consent was fatally tainted by the prior illegality
under the “fruit of the poisonous tree” doctrine. Wong Sun v.
United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.
Then, it must be determined “whether, granting establishment of
the primary illegality, the evidence to which the instant objection
is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the
primary taint.” Id., 371 U.S. at 488. LaFave writes:
{¶ 52} “While there is a sufficient overlap of the voluntariness
and fruits tests that often a proper result may be reached by using
either one independently, it is extremely important to understand
that (i) the two tests are not identical, and (ii) consequently
the evidence obtained by the purported consent should be held
admissible only if it is determined that the consent was both
voluntary and not an exploitation of the prior illegality.”
LaFave, Search and Seizure (Fourth Ed.), §8.2(d), p. 76.
{¶ 53} In State v. Cheadle (July 14, 2000), Miami App. No.
00CA03, we stated:
{¶ 54} “A warrantless entry and search of a private residence
is presumptively unreasonable under the Fourth Amendment. Payton
v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639;
20
Welch v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d
732. Invasion of the sanctity of the home is the chief evil against
which the Fourth Amendment's warrant requirement is directed.
United States v. United States District Court (1972), 407 U.S.
297, 92 S.Ct. 2125, 32 L.Ed.2d 752. The burden is upon the
government to overcome the presumption that warrantless searches
of homes are per se unreasonable by demonstrating that the search
falls within one of the few, well recognized exceptions to the
warrant requirement. Welsh v. Wisconsin, supra; State v. Kessler
(1978), 53 Ohio St.2d 204, 373 N.E.2d 1252.
{¶ 55} “One such exception to the warrant requirement is an
entry or search based upon exigent circumstances. This exception
is founded on the premise that the existence of an emergency
situation, demanding urgent police action, may excuse the failure
to procure a search warrant. Welch v. Wisconsin, supra. In such
emergency situations, police may have an urgent need to enter a
home in order to protect persons or property, render emergency
aid to injured persons, or prevent the imminent destruction of
evidence. Katz, Ohio Arrest, Search and Seizure (1999), Chapter
10, pp. 177-187.”
{¶ 56} Addressing the exigency involving the need to render
emergency aid to injured persons, the United States Supreme Court
has held:
21
{¶ 57} “‘[T]he ultimate touchstone of the Fourth Amendment,’
we have often said, ‘is reasonableness.’” Id., at 403, 126 S.Ct.
1943. Therefore, although ‘searches and seizures inside a home
without a warrant are presumptively unreasonable,’ Groh v. Ramirez,
540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (internal
quotation marks omitted), that presumption can be overcome. For
example, ‘the exigencies of the situation [may] make the needs
of law enforcement so compelling that the warrantless search is
objectively reasonable.’ Mincey v. Arizona, 437 U.S. 385, 393-394,
98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).
{¶ 58} “Brigham City1 identified one such exigency: ‘the need
to assist persons who are seriously injured or threatened with
such injury.’ 547 U.S., at 403, 126 S.Ct. 1943. Thus, law
enforcement officers ‘may enter a home without a warrant to render
emergency assistance to an injured occupant or to protect an
occupant from imminent injury.’ Ibid. This ‘emergency aid
exception’ does not depend on the officers' subjective intent or
the seriousness of any crime they are investigating when the
emergency arises. Id., at 404-405, 126 S.Ct. 1943. It requires
only ‘an objectively reasonable basis for believing,’ id., at 406,
126 S.Ct. 1943, that ‘a person within [the house] is in need of
1
Brigham City, Utah v. Stuart (2006), 547 U.S. 398, 126
S.Ct. 1943, 164 L.Ed.2d 650.
22
immediate aid,’ Mincey, supra, at 392, 98 S.Ct. 2408.
{¶ 59} “Brigham City illustrates the application of this
standard. There, police officers responded to a noise complaint
in the early hours of the morning. ‘As they approached the house,
they could hear from within an altercation occurring, some kind
of fight.’ 547 U.S., at 406, 126 S.Ct. 1943 (internal quotation
marks omitted). Following the tumult to the back of the house whence
it came, the officers saw juveniles drinking beer in the backyard
and a fight unfolding in the kitchen. They watched through the
window as a juvenile broke free from the adults restraining him
and punched another adult in the face, who recoiled to the sink,
spitting blood. Ibid. Under these circumstances, we found it
‘plainly reasonable’ for the officers to enter the house and quell
the violence, for they had ‘an objectively reasonable basis for
believing both that the injured adult might need help and that
the violence in the kitchen was just beginning.’ Ibid.” Michigan
v. Fisher (2009), ___ U.S. ___, 130 S.Ct. 546, 175 L.Ed.2d 410,
Slip. Op. No. 09-91, p.3.
{¶ 60} We glean from Fisher and the authorities it cites that,
when relying on the emergency aid exception to the warrant
requirement, the state assumes the burden to prove by clear and
convincing evidence that officers were presented with a compelling
need to enter a home or other private premises in order to provide
23
immediate aid to persons inside who were either seriously injured
or threatened with such injury. Furthermore, the officers must
have had an objectively reasonable basis for believing that such
a need to enter presently exists. A mere nexus to a need that
formerly did exist is insufficient.
{¶ 61} In a motion to suppress, the trial court assumes the
role of the trier of facts, and, as such, is in the best position
to resolve questions of fact and evaluate the credibility of the
witnesses. State v. Clay (1972), 34 Ohio St.2d 250. Accordingly,
in our review, we are bound to accept the trial court’s findings
of fact if they are supported by competent, credible evidence.
Accepting those facts as true, we must independently determine
as a matter of law, without deference to the trial court’s
conclusion, whether they meet the applicable legal standard.
State v. Satterwhite (1997), 123 Ohio App.3d 322.
{¶ 62} The trial court’s findings of fact, in pertinent part,
include the following:
{¶ 63} “The Court finds the testimony of the witnesses to be
credible and finds the facts to be as follows. On December 27,
2008 at approximately 10:00 a.m. a dispatch was made from the
Fairborn Police Department to officers to proceed to 233 Pat Lane
in the City of Fairborn, Greene County, Ohio, the nature of which
was an injury to a child. Officer Hiles and Officer Knapp of the
24
Fairborn Police Department arrived at 233 Pat Lane and based upon
the dispatch entered the home without invitation or warrant. They
observed a child in distress as well as an adult later identified
as Brian LaPrairie. The officers immediately attempted rescue
methods upon the child who appeared to be in serious condition.
In less than five minutes the officers heard the ambulance arrive
and scooped up the child and carried the child outside for the
purpose of transferring the child to medics who then removed the
child from the scene by ambulance. At this point the officers
who had little or no information regarding the name of the child,
or the nature of the injury, re-entered the residence of 233 Pat
Lane in order to engage Brian LaPrairie in a question and answer
process to get information regarding the child and the nature of
the child’s distress which they were unable to do initially due
to the condition of the child. The officers observed both the
first time there in the house and the second time in the house
that Brian LaPrairie was emotionally upset. During their
conversations with him after entering the house the second time
the Defendant was calming down and was able to provide information
to the officers regarding the incident. Approximately fifteen
minutes after the medics took the child, Officer Holcomb of the
Fairborn Police Department arrived on scene to assist the other
officers. It was during this time that the Defendant, Brian
25
LaPrairie, was asked questions by the officers and he volunteered
information regarding the child. The Defendant while in his home
was not under arrest and was not in custody. During this
questioning the Defendant did not ask for an attorney nor did he
ask the officers to stop asking him questions. While gathering
this information about the child, the officers became concerned
about the circumstances surrounding the injury to the child. After
placing a call to their supervisor, the officers were instructed
to inquire if the Defendant would consent to a search of the
residence. The Court specifically finds that when the officers
entered the home the second time to speak with the Defendant they
were not pursuing a criminal investigation but concluding the
ongoing emergency.
{¶ 64} “Officer Knapp went to his vehicle and obtained a consent
to search form and re-entered the house where Officer Hiles and
Officer Holcomb were still continuing to discuss the emergency
circumstances with the Defendant after having entered the home
the second time.
{¶ 65} “At approximately 10:52 a.m. Brian LaPrairie consented
to a search of the residence. The consent form was signed by the
Defendant and identified as State’s Exhibit 1. The Court notes
that no promises or threats were made before, during, or after
the execution of the consent to search form. At this time the
26
Defendant still was not in custody or detention. The Court does
find that the Defendant remained emotionally upset and distraught
during this time period. Pursuant to the consent granted by
LaPrairie, the residence at 233 Pat Lane was searched until
approximately 12:10 p.m. when the search ended.”
{¶ 66} Defendant concedes that Fairborn police officers had
a legal justification to initially enter his home, as they were
the first to respond to his 911 call for emergency medical
assistance for two year old Juliana Berry. We agree that the
exigent circumstances/emergency aid exception to the warrant
requirement clearly justified the officers’ initial entry into
Defendant’s home. Mincey. Defendant argues, however, that the
officers’ conduct in reentering his home and/or remaining inside
his home after the child had been removed violated his Fourth
Amendment rights. Because the officers’ reentry was likewise
performed without a warrant, or Defendant’s express consent, it
was the State’s burden to prove by clear and convincing evidence
that the officers were presented with a compelling need to act
as they did.
{¶ 67} After the child had been removed from the home and
transported to the hospital, Officers Hiles and Knapp re-entered
Defendant’s home to talk to Defendant and investigate what had
happened to the child. While Officers Hiles and Knapp were inside
27
Defendant’s home and talking to him about that, Officer Holcomb
arrived and entered Defendant’s home, approximately fifteen
minutes after the child was taken to the hospital. When, after
that, Officer Knapp called his supervisor for direction, he was
advised to seek Defendant’s consent to search his home. Officer
Knapp then exited Defendant’s residence and went to his cruiser
and obtained a consent to search form, while Officers Hiles and
Holcomb remained inside Defendant’s residence, talking to him.
Officer Knapp then re-entered Defendant’s residence and presented
the consent to search form to Defendant, which he signed while
the three officers were inside his home.
{¶ 68} The trial court found that when the officers reentered
Defendant’s home “they were not pursuing a criminal investigation
but concluding the ongoing emergency.” However, the right of the
officers to act for an emergency purpose must be strictly
circumscribed by the exigency that existed. Mincey v. Arizona.
To act as they did, officers must have had an urgent need to render
aid to an injured person inside because of an “emergency threatening
life or limb.” Id., 437 U.S. at 393. Furthermore, the need must
be one based on objectively verifiable facts, and not a mere
reasonable and articulable suspicion. Otherwise, the presumption
that their warrantless entry was illegal is not overcome.
{¶ 69} The urgency that permitted officers to first enter
28
Defendant’s home without a warrant because of the emergency need
to aid the child dissipated after the injured child was removed
from the home and transported by ambulance to a hospital. The
child was then no longer an occupant of the home who was in need
of immediate aid. Mincey; Fisher. The trial court found that
the emergency nevertheless continued because of the officers’ need
to gather medical information concerning the child and to learn
what had happened to her so they could pass that information along
to the medics.
{¶ 70} Officer Hiles testified that officers reentered
Defendant’s home to question him because emergency medical
personnel would have done that had they been able to remain on
the scene. (T. at 26.) However, the record fails to demonstrate
that the officers either determined what information paramedics
wished to know or that the officers asked Defendant any questions
concerning the child’s pertinent past or present medical
information. Neither did the officers make any effort to pass
such information along to the paramedics or others who were
responsible for treating and transporting the child to the
hospital.
{¶ 71} Officer Knapp conceded that when officers reentered the
home after the child had been removed, there was then no medical
emergency for officers to act upon by going inside. (T. at 46.)
29
His supervisor, Captain Plemmons, testified that the officer who
called him “was unsure of the situation and the nature of the call,”
and “I told them to go ahead and get a statement and a consent
to search while I responded to the scene with the other Detective.”
(T. 60). Those matters undermine the attenuation of the
emergency which the trial court found justified the officer’s
reentry into and continued presence inside Defendant’s home after
the child was removed.
{¶ 72} Upon reentering Defendant’s home, Officer Hiles told
Defendant that incidents such as this they treat as a crime scene.
(Tr. at 18.) Officer Hiles testified “well, there’s a death of
a child, we have to investigate what happened.” (Id. at 18-19.)
When asked if the second time police went into Defendant’s home
they were there to get criminal information, Officer Knapp
responded: “possibly. I don’t know. We didn’t know what was
going on.” (Id. at 58.)
{¶ 73} When considering the emergency aid exception to the
warrant requirement, “[a]ny conduct within by the officer which
is in any way inconsistent with the purported reason for the entry
is a just cause for healthy skepticism by the court.” LaFave,
§6.6(a). At least by the time Defendant was presented with a
consent form, the officer’s continued and uninvited presence in
Defendant’s home had no tangible connection with an alleviation
30
of the emergency that had justified their initial entry.
Therefore, on this record, the trial court’s finding that when
officers obtained Defendant’s consent “they were not pursuing a
criminal investigation but concluding an ongoing emergency” is
against the manifest weight of the evidence. The officers’
presence at that time, as well as the consent they obtained, was
instead for purposes of a criminal investigation. Their continued
presence in Defendant’s home for that purpose, absent a warrant,
was therefore in violation of the Fourth Amendment.
{¶ 74} The ultimate question is whether the illegality that
the officers’ presence involved rendered Defendant’s consent to
search less than knowing, intelligent, and voluntary. Concerning
that issue, the trial court found:
{¶ 75} “The Defendant knowingly, intelligently, and
voluntarily understood and signed the form and gave his consent
to search. While the Court notes that the Defendant was upset
emotionally during this time period, there is no evidence that
this condition created any disability to the proper execution of
the consent to search.”
{¶ 76} We have held that even when a consent is not the product
of some more specific coercion or duress, and therefore was
voluntary in the usual sense, evidence seized in a search performed
after the consent was given remains subject to suppression when
31
it was tainted by the fact of a prior illegal entry upon the premises
that were searched. Dayton v. Lowe (Dec. 31, 1997), Montgomery
App. No. 16458. “The question is whether the consent was
‘sufficiently an act of free will to purge the primary taint of
the unlawful invasion.’” State v. McGuire, Montgomery App. No.
24106, 2010-Ohio-6105, ¶22, quoting State v. Cooper, Montgomery
App. No. 20845, 2005-Ohio-5781, ¶28. “‘[S]uppression is required
of any items seized during the search of the house, unless the
taint of the initial entry has been dissipated before the consents
to search were given’; dissipation of the taint resulting from
the illegal entry ‘ordinarily involves some showing that there
was some significant intervening time, space, or event.’” United
States v. Buchanan (C.A. 6, 1990), 904 F.2d 349, 356, quoting United
States v. Vasquez (C.A. 2, 1980), 638 F.2d 507-527-529, cert denied,
450 U.S. 970, 101 S.Ct. 1490, 67 L.Ed.2d 620 (1981).
{¶ 77} In the present case, the officers’ initial entry into
Defendant’s home was, as we have held, justified by the emergency
aid exception to the warrant requirement and therefore was not
illegal. However, after that emergency had clearly dissipated
and the officers then reentered Defendant’s home, and then remained
there, uninvited, in order to perform a criminal investigation,
their continued presence was illegal. Absent some significant
time, space, or event that intervened between that primary
32
illegality and the consent to search the officers obtained, the
consent was tainted by the prior, primary illegality, and the search
that was performed was likewise illegal.
{¶ 78} The consent form Defendant signed contains two notices
that he may refuse to give his consent. Such notices may render
a consent voluntary, in the usual sense. However, in order to
be sufficiently significant to avoid the primary constitutional
taint arising from the officers’ illegal entry or presence on the
premises as a matter of law, an intervening event should not itself
be an element of the consent to which the taint attaches. The
consent therefore remained tainted by the primary illegality when
the consent was obtained by officers. Neither was the primary
illegality itself avoided by the consent that was obtained, which
appears to have been the purpose of obtaining it. Because the
consent was tainted, the warrantless search and seizures performed
on the authority of the consent were illegal. The trial court
therefore erred when it denied Defendant’s motion to suppress
evidence.
{¶ 79} The second assignment of error is sustained.
Conclusion
{¶ 80} Having sustained the first assignment of error, in part,
we will remand the case to the trial court to determine the
applicability of the R.C. 2941.25(B) exceptions to Defendant’s’
33
convictions for Endangering Children and Involuntary Manslaughter,
consistent with our Opinion.
{¶ 81} Having sustained the second assignment of error, we will
reverse Defendant’s convictions for Having Weapons Under
Disability and Trafficking in Marijuana and will remand the case
for further proceeding on those charges, consistent with our
Opinion.
{¶ 82} The judgment of conviction from which the appeal was
taken will otherwise be Affirmed.
FAIN, J., concurs.
FROELICH, J., concurring in part and dissenting in part:
{¶ 83} I agree with the majority that suppression is required
“unless the taint of the unconstitutional entry has been
dissipated” before the consent to search was given.
{¶ 84} I also agree that such dissipation “ordinarily involves
some showing that there was some significant intervening time,
space, or event.” I disagree that on the record before us we can
determine, as a matter of law, whether the taint had dissipated.
The trial court did not make factual findings on this question
since it found, incorrectly (we now hold), that the reentry and
remaining in the house was constitutional as an exception to the
warrant requirement.
34
{¶ 85} I concur on the remand for the court to determine the
applicability of R.C. 2941.25(B), but also would remand for the
court to decide, in light of our holding, whether the State has
met its burden of demonstrating that the consent was voluntary.
Copies mailed to:
Elizabeth A. Ellis, Esq.
Thomas M. Kollin, Esq.
Hon. Stephen A. Wolaver