State v. Page

[Cite as State v. Page, 2020-Ohio-816.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-346
v. : (C.P.C. No. 18CR-0626)
Nagui Page, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 5, 2020
On brief: Ron O'Brien, Prosecuting Attorney, Steven L.
Taylor, and Sheryl L. Prichard, for appellee. Argued:
Sheryl L. Prichard.
On brief: Gerald G. Simmons, for appellant. Argued:
Gerald G. Simmons.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} Nagui Page stands charged in the Franklin County Court of Common Pleas
with felonious assault (a second-degree felony), abduction (a third-degree felony), and
violating a protective order (a first-degree misdemeanor). With that case pending, he
seeks here to pursue an appeal from various trial court rulings that to this point have capped
public funding at $1,500 for a consulting pathologist who is a potential defense rebuttal
witness. Because the trial court has not issued a final appealable order, we lack jurisdiction
over the case and will grant the state's motion to dismiss the appeal.
No. 19AP-346 2
{¶ 2} The record provides some limited context. Concerned that the state proposes
to call a police officer to testify (in conjunction with the observations of another witness) to
certain physical indicia of strangulation on the strength of concepts imparted at a law
enforcement seminar, Mr. Page filed two motions in limine. He sought "to prohibit the
testimony of any member of the Columbus Police Department from offering a medical or
otherwise 'expert' opinion that the prosecuting witness * * * was strangled or choked * * *
on or about January 29, 2018," October 23, 2018 Motion in Limine, and "to disqualify the
State's expert police witnesses from testifying at the trial * * * concerning the cause and
extent of the injuries sustained by the alleged victim," October 24, 2018 Motion in Limine
2. His point essentially was that such purported expert testimony on the basis of limited
training would rely on junk science outside the standards of admissibility sanctioned in
State v. Nemeth, 82 Ohio St. 3d 202 (1998). Motion in Limine 2 at 2-3.
{¶ 3} Mr. Page says that the trial court addressed this issue at what he variously has
termed a "hearing" and a "pre-trial" on December 3, 2018. Compare August 14, 2019
Amended Brief of Defendant-Appellant Page at 7 with December 5, 2018 Motion to
Continue Trial. We find no transcript of that event in the record. Nor do we find any entry
from the trial court making any preliminary ruling on the motions in limine. Rather, what
we have is Mr. Page's representations that the court indicated that a Detective Ketcham
"may offer his layman's opinion per Ohio Evidence Rule 701," see Motion to Continue Trial,
and that the court further "suggested the parameters he would allow," see Amended Brief
of Defendant-Appellant Page at 7. Given Mr. Page's references to Evidence Rule 701
(concerning "[o]pinion testimony by lay witnesses"), we gather that the court was not
inclined to deem the Detective any sort of medical expert in accordance with Evidence Rule
702, but again we do not have a record of the court's preliminary thinking on the matter,
No. 19AP-346 3
nor do we know the precise contours of what sorts of testimony the court "suggested" it
might allow.
{¶ 4} The following month, and with a new judge installed on the trial court bench,
Mr. Page requested authorization and funding to hire Dr. Daniel Spitz as an expert "willing
to consult with the defense in rebuttal of testimony from Detective Ketcham, up to and
perhaps including live testimony." January 11, 2019 Motion for Appointment of Forensic
Pathology Consulting Expert at 1. That motion advised the court that "a hearing was held
by the [predecessor judge], allowing Sgt. Ketcham to testify with limiting conditions"; it
further noted that defense objections to the Detective's testimony would be raised at trial
and that "these issues must still be dealt with by [the] successor Judge." Id. The trial court
on January 14, 2019 signed a "Proposed Order" authorizing payment to Dr. Spitz of "up to
$1,500 as Consulting Forensic Pathologist" and noting that the defense could seek
additional amounts were that sum to "become exhausted."
{¶ 5} On March 13, 2019, after Mr. Page had posted bond, the trial court issued an
"Entry Denying Additional Fees for Expert Witness," stating that "[a]s the defendant is no
longer indigent no further funds will be approved for the defense expert. Court appointed
funds for the Forensic Pathology Consulting Expert will be capped at $1,500." Mr. Page
then filed a Successive Motion for Approval of Defense Expert Funding, "renew[ing] his
prayer for public funding," reciting that he had requested the assistance of Dr. Spitz "in
rebuttal of the State's intended witness * * * Detective * * * Ketcham," and stating that the
defense had "received this Court's approval for the employment of Dr. Spitz as either a
Consulting Expert or a Testifying Expert, dependent upon whether defense counsel decided
to call him as a witness." April 28, 2019 Successive Motion at 1. Finding the motion "not
well taken," the trial court denied it by Decision and Entry of May 28, 2019.
No. 19AP-346 4
{¶ 6} In his May 29, 2019 Notice of Appeal to us, Mr. Page purports to appeal "from
the March 13, 2019 and the May 28, 2019, denial of expert funding as prayed for." We
observe first that had the March 13, 2019 entry actually been a final appealable order, Mr.
Page would have needed to file his notice of appeal "within 30 days of that entry." Appellate
Rule 4(A). And his failure to have done so might have raised questions about whether
principles of res judicata precluded an appeal from the second entry as made in keeping
with the first. For purposes for final appealable order analysis (and like Mr. Page,
apparently), we find no significant distinction between the first order and the second. But
because neither is a final appealable order, principles of res judicata do not come into play
at this juncture.
{¶ 7} Mr. Page himself has suspected as much. On the same day that he filed his
notice of appeal in this case, he also initiated a new case here seeking a writ of mandamus
to compel the trial court to provide "adequate funding" to enable him "to rebut a so-called
expert[sic]." Petition for a Writ of Mandamus as filed in case number 19AP-347 at 4, 6; see
also December 8, 2019 Relator's Memorandum Contra Respondent's Motion to Dismiss
[Petition in case number 19AP-000347] at 2 (arguing need for "a state paid expert to rebut
an announced state lay expert [sic]"). Mr. Page's Petition contends that "he cannot at this
stage know if this Court will honor [his] appeal as a final appealable order," and emphasizes
his view that "if this Court dismisses this appeal then the writ herein prayed for is his only
remedy." Petition for Writ of Mandamus at 5. Concern that his appeal is not from any final
appealable order is well founded. (We do not address his mandamus petition here because
that separate case has not been assigned or argued to this panel and has been referred to a
magistrate.)
No. 19AP-346 5
{¶ 8} Ohio's Constitution specifies that courts of appeals generally "shall have such
jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments
or final orders of the courts of record inferior to the court of appeals within the district."
Ohio Constitution, Article IV, Section 3(B)(2). That is a constitutional check on our
authority: "If a lower court's order is not final, then an appellate court does not have
jurisdiction to review the matter and the appeal must be dismissed." State v. Harvey, 10th
Dist. No. 19AP-165, 2019-Ohio-4022, ¶ 8, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44
Ohio St. 3d 17, 20 (1989). And R.C. 2505.02 provides the law as to what is (and therefore
what is not) a "final order." That definition includes, as conceivably relevant here:
(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding * * * ; [or]
(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the
action in favor of the appealing party with respect to the
provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as
to all proceedings, issues, claims, and parties in the action.
R.C. 2505.02(B)(1), (2) and (4).
{¶ 9} Mr. Page appears perhaps to argue in his brief opposing the state's motion to
dismiss his appeal that the trial court's entries could qualify as final orders under the (B)(2)
"special proceeding" rubric, see Appellant's Response to Appellee's Motion to Dismiss at 4
(discussing Amato v. General Motors, 67 Ohio St. 2d 253 (1981), overruled by Polikoff v.
Adam, 67 Ohio St. 3d 100 (1993)). In the interest of completeness, however, we assess them
No. 19AP-346 6
with reference to each of the three subsections quoted above and in light of the fair trial
considerations that Mr. Page urges. We also note that R.C. 2505.02 defines "substantial
right" in this context to mean "a right that the United States Constitution, the Ohio
Constitution, a statute, the common law, or a rule of procedure entitles a person to enforce
or protect"; it now defines "special proceeding" to mean "an action or proceeding that is
specially created by statute and that prior to 1853 was not denoted as an action at law or a
suit in equity"; and it defines "provisional remedy" to mean "a proceeding ancillary to an
action, including, but not limited to, a proceeding for a preliminary injunction, attachment,
discovery of privileged matter, suppression of evidence," or certain showings or findings
made pursuant to various environmental claims. R.C. 2505.02(A).
{¶ 10} We begin our assessment by observing that in certain situations, " 'due
process may require that a criminal defendant be provided * * * expert assistance when
necessary to present an adequate defense.' " State v. Brady, 119 Ohio St. 3d 375, 2008-
Ohio-4493, ¶ 21, quoting State v. Mason, 82 Ohio St. 3d 144, 149 (1998). But at this stage
of the proceedings—without having any record of what evidence will be advanced against
Mr. Page, or what latitude, if any, the court on further reflection will extend to the proposed
testimony of Detective Ketcham, or whether Mr. Page will decide that any rebuttal
testimony to that hypothetical, prospective testimony is warranted—we cannot say that
funding (or additional funding) for Dr. Spitz "in effect determines the action" against Mr.
Page. Nor do the entries at issue prevent a judgment. They are not final orders under R.C.
2505.02(B)(1).
{¶ 11} In this regard, we note further that the trial court has not yet issued any
entries granting or denying in whole or in part Mr. Page's motions in limine seeking to
restrict the testimony to which he proposes perhaps to respond by calling Dr. Spitz in
No. 19AP-346 7
rebuttal. And a ruling on a motion in limine is itself "not a final appealable order" precisely
because it is provisional and subject to change with the circumstances: it is only "a pretrial,
preliminary, anticipatory ruling," and "the trial court is certainly at liberty to again consider
the admissibility of the disputed evidence in its actual context." Columbus v. Zimmerman,
10th Dist. No. 14AP-963, 2015-Ohio-3488, ¶ 9, citing among other cases Gable v. Gates
Mills, 103 Ohio St. 3d 449, 2004-Ohio-5719 (which emphasizes at ¶ 34 that "Ohio law is
clear * * * that a ruling on a motion in limine may not be appealed").
{¶ 12} Nor were the entries on funding "made in a special proceeding": rather, they
issued in the course of a criminal case of the sort long established at law and not involving
a special proceeding. See, e.g., Polikoff v. Adam, 67 Ohio St. 3d 100, 107 (1993) (as then
largely incorporated into statute: "The underlying action can be distinguished from a
special proceeding in that it provides for an adversarial hearing on the issues of fact and
law which arise from the pleadings and which will result in a judgment for the prevailing
party. * * * * [W]e determine that orders that are entered in actions that were recognized at
common law or in equity and were not specially created by statute are not orders entered
in special proceedings pursuant to R.C. 2505.02. Amato therefore is overruled."); State v.
Smith, 7th Dist. No. 17 MA 0171, 2018-Ohio-3905 (entry denying motion to dismiss on
speedy trial grounds is not a final appealable order; no substantial right is "affected"
because the right "will be enforced upon any appeal following final disposition of the
criminal proceedings," and further "a criminal proceeding is not a 'special proceeding' ")
(citations omitted); compare LaSalle Inst. Realty Advisors v. Nantucket on Montgomery
Rd., Ltd., 10th Dist. No. 11AP-402, 2011-Ohio-4080, ¶ 9 ("A breach of contract claim is not
a 'special proceeding' ") (citations omitted). The entries are not final orders under R.C.
2505.02(B)(2).
No. 19AP-346 8
{¶ 13} We come, then, to R.C. 2505.02(B)(4). To be a final appealable order under
that subsection: "(1) the order must either grant or deny relief sought in a certain type of
proceeding – a proceeding that the General Assembly calls a 'provisional remedy,' (2) the
order must both determine the action with respect to the provisional remedy and prevent a
judgment if favor of the appealing party with respect to the provisional remedy, and (3) the
reviewing court must decide that the party appealing from the order would not be afforded
a meaningful or effective remedy by an appeal following final judgment." State v. Muncie,
91 Ohio St. 3d 440, 446 (2001).
{¶ 14} Even were we to decide that a determination on funding for a defense expert
comes as an ancillary proceeding (and most discovery orders, for example, do not fall within
that category, see, e.g., Myers v. Toledo, 110 Ohio St. 3d 218, 2006-Ohio-4353, ¶ 34-35
[request for physical examination under Civ.R. 35(A) is not a provisional remedy and
decision is not a final appealable order]), neither of the other two required (B)(4) prongs
would be met. First, as Mr. Page's own "Successive Motion" for funding approval
demonstrates, nothing about the trial court's entries to date precludes him from seeking to
revisit the issue with the trial court if and as appropriate. Perhaps Mr. Page is better
positioned now, for example, to provide new or changed information with regard to his
indigency status. Or perhaps after the trial court hears at trial—if it even does—from
Detective Ketcham and makes whatever final rulings it makes regarding whatever his
proffered testimony may prove to be, the trial court will have additional information to take
into account in considering whether to permit payment for rebuttal testimony by Dr. Spitz
should Mr. Page want to call him at that time. The state acknowledges that the trial court's
funding entries to date are not preclusive: "Appellant also could ask for a hearing to
demonstrate a specific need for funds by offering specifics as to the testimony or advice he
No. 19AP-346 9
further seeks from an expert." Motion to Dismiss Appeal at 6. The requisite of R.C.
2505.02(B)(4)(a) that the order "prevents a judgment in the action in favor of the appealing
party with respect to the provisional remedy" sought (if such it be) is not satisfied.
{¶ 15} Nor is the third prong of the (B)(4) subsection satisfied: Should he be
convicted, Mr. Page will have a "meaningful or effective remedy following final judgment,"
through pursuit of an appeal. We understand his argument that a finding of guilt on the
felonious assault with which he is charged would carry a presumption of prison, that such
a conviction likely also would result in revocation of his community control status in
Fairfield County, and that time while incarcerated pending an appeal cannot be reclaimed.
See Appellant's Response to Appellee's Motion to Dismiss Appeal at 5-6. But that argument
proves too much, and Mr. Page himself recognizes that denials of motions in limine
(improvidently allowing adverse testimony that might lead to conviction) or of motions to
suppress (incorrectly allowing introduction of evidence that might contribute to a finding
of guilt) are not final appealable orders. See id. at 2. Neither are denials of motions to
dismiss for speedy trial violations. See, e.g., State v. Hare, 10th Dist. No. 88AP-683, 1989
Ohio App. Lexis 2709 (pre-amendment statute); State v. Payne, 4th Dist. No. 16CA3, 2016-
Ohio-1411 ("six other appellate districts have reviewed interlocutory orders denying a
motion to dismiss on speedy trial grounds and have held that these orders are not final
appealable orders"; same result).
{¶ 16} So, for example, in State v. Ricciardi, 135 Ohio App. 3d 155, 159 (7th
Dist.1999), the Seventh District Court of Appeals found that the possibility "that appellant
would have served time in prison prior to successfully procuring a reversal of his conviction
does not amount to the denial of a meaningful or effective remedy." Even where time has
been served, the court reasoned, reversals of criminal convictions matter to the defendant
No. 19AP-346 10
and still provide a "meaningful" remedy for the conviction. Id. Compare, e.g., State v.
Collins, 24 Ohio St. 2d 107, 100 (1970) (pre-amendment; distinguishing state's ability to
appeal from suppression grant from position of defendant who, "if his motion to suppress
is overruled, may challenge the correctness of that order in appellate proceedings following
the conviction"); State v. Benson, 11th Dist. No. 2019-A-0080, 2019-Ohio-5050, ¶ 14, 17
(appeal dismissed; "[a]n order denying a motion to suppress has been held not to be a final
appealable order") (citations omitted).
{¶ 17} State v. Powell, 6th Dist. No. L-18-1194, 2019-Ohio-4286, underscores the
point. There, a divided panel of the Sixth District Court of Appeals found that an order
denying a capital defendant expert funding in his postconviction relief proceeding was a
final appealable order only because the procedures specified in Criminal Rule 42(E) for "the
appointment of experts in all capital cases and in post-conviction review of a capital case"
themselves constitute an "ancillary proceeding," and because "[n]either the trial courts nor
the appellate courts can stay a defendant's death sentence while the review of the petition
for postconviction relief is pending. Therefore, time is of the essence as a defendant could
be deprived of his life while the petition is being determined by the trial and appellate
courts." 2019-Ohio-4286 at ¶ 44 (adding that "[f]or most postconviction relief petitions,
the length of time to wait for a final adjudication on the merits of the petition, and the time
for an appellate court to review the trial court's decision, would not be enough for a finding"
necessitating immediate judicial review). That ruling was limited to and compelled by "the
unique nature of a capital proceeding * * * and the corresponding risk that a defendant *
* * may be wrongly executed while postconviction proceedings remain pending." Id. at ¶
46 (again restricting ruling to denial under capital expert Criminal Rule 42(E)). Even that
context was not enough for the dissent, which found that because the capital Rule 42(E)
No. 19AP-346 11
proceeding sounded in discovery but did not relate to the discovery of a privileged matter,
it was not a provisional remedy, and which concluded further that contrary to the majority's
distinction based on the trial and appellate court's inability to stay a death sentence pending
post-conviction review, the matter was susceptible of meaningful appellate review. Id. at
¶ 73-75 (Zmuda, J., dissenting in part).
{¶ 18} The Eleventh District Court of Appeals directly addressed the issue, under an
earlier formulation of the statute, in State v. Wolf, 71 Ohio App. 3d 740 (1991). The court of
appeals in that murder case held squarely that "the [trial] court's refusal to permit expert
assistance [at state expense] is not a final appealable order." Id. at 748. Wolf reasoned
that: "There is no denial of substantial right, nor is it impracticable to wait until final
adjudication. R.C. 2505.02. A request for expert assistance, made in a more specific
manner, may also be refiled at any time prior to or during the course of the trial. Appellant
will not lose his right to review of the issue. Should an abuse of discretion and prejudice be
demonstrated, defendant's conviction can be reversed." Id. (citation omitted).
{¶ 19} That ruling accords with the Second District Court of Appeals' earlier, pre-
amendment decision in State v. Mays, 2d Dist. No. 1884, 1984 Ohio App. Lexis 9802, which
dismissed as "not a final appealable order" an attempted appeal from the trial court's pre-
trial refusal to fund a defense handwriting expert: "we note that if appellant is brought to
trial and ultimately convicted as charged, nothing would impair the 'practicability' of an
appeal following such a final order of conviction. A subsequent appeal, if desired, could
squarely present the constitutional issue, if any, in terms of its specific prejudice to
appellant. At that point, an appeal would remain an efficacious and practicable option."
{¶ 20} Although Wolf and Mays preceded the specific formulation of current R.C.
2505.02(B)(4), both are instructive in assessing the availability of "a meaningful or effective
No. 19AP-346 12
remedy by an appeal following final judgment as to all proceedings." Should (a) Mr. Page's
case proceed to trial, with (b) Detective Ketcham being permitted to testify as to matters
outside of his direct observation and within the scope of Dr. Spitz's expertise, and (c) Mr.
Page then seeking to call his expert, and (d) the trial court refusing to authorize that defense
hire, and should (e) Mr. Page then be convicted of the charge or charges to which Dr. Spitz's
testimony would arguably relate, Mr. Page would have been able to preserve his right to a
meaningful appeal. We find that the independently necessary requirements of R.C.
2505.02(B)(4)(b), like those of R.C. 2505.02(B)(4)(a), are not met.
{¶ 21} At this juncture, Mr. Page has not appealed from a final appealable order.
"An appellate court can review only final orders, and without a final order, an appellate
court has no jurisdiction." Supportive Solutions, L.L.C. v. Electronic Classroom of
Tomorrow, 137 Ohio St. 3d 23, 2013-Ohio-2410, ¶10. We grant the state's motion and
dismiss this appeal for want of jurisdiction.
Motion to dismiss granted; appeal dismissed.
LUPER SCHUSTER and BRUNNER, JJ., concur.
_________________