Case of Hbrandon Lee Flagner
(AKA: Chico Virgilio Tenorio, Brandon Flagner, Brandon Lee Flagner)
Maple Heights, Cuyahoga County, Ohio
Mansfield
Correctional Institution, Mansfield, Ohio
This page is dedicated to Tiffany Papesh
Hbrandon Lee Flagner confessed and was later convicted of the kidnapping and aggravated murder of Tiffany Jennifer Papesh a 8-year-old girl. Flagner also claimed to have molested hundreds of girls during his life. While in prison Flagner was allowed to convert to Judaism by Chabbad rabbis. Flagner changed name from Chico Virgilio Tenorio in 1977.
Flagner has been incarcerated with the Ohio Department of Rehabilitation and Correction (ODRC) since 1986. Flagner is a practicing Orthodox Hasidic Jew who brought a §1983 suit against prison officials challenging the enforcement of Ohio Administrative Code §§5120-9-25 (D) and (F),1 a prison grooming regulation which requires Flagner to cut his beard and sidelocks, also referred to as "peos," in contravention of the tenets of his religious faith.2 The defendants are ODRC employees who work at either the Lebanon Correctional Institution (LeCI) or the Madison Correctional Institution (MaCI). Flagner was imprisoned at LeCI from July 8, 1994 to November 20, 1996, and transferred shortly thereafter to MaCI. Prior to his transfer to LeCI, Flagner resided at the Mansfield Correctional Institution. He is currently incarcerated at Ross Correctional Institution.
In 1987, Flagner began studying Judaism and formally converted to Orthodox Judaism in 1991 while incarcerated at the Mansfield Correctional Institution. His religious affiliation has been recognized by the defendants and is not in dispute in this case. Flagner testified during the preliminary injunction evidentiary hearing held on December 3, 1996, that between 1991 when he converted to Judaism and prior to his transfer to LeCI in 1994, Mansfield prison officials did not make any effort forcibly to cut his beard or sidelocks. In fact, a period of five years passed between the time Flagner converted to Orthodox Judaism in 1991 until his first forced cutting in 1996.-- Findlaw.com
Circumstances of Disappearance
Papesh went to a neighborhood store for a quick errand in 1980; she never returned home. Papesh was apparently seen at the store, but disappeared afterwards. Police suspect that foul play was involved in Papesh's case. Brandon Flagner confessed to killing Tiffany in a 1983 letter to the FBI. He was indicted in June 1985 on two counts of aggravated murder and one count of kidnapping. He was sentenced to life in prison.
Left: Papesh, circa 1980; Right: Age-progressed image of Papesh at age 28 (circa 1999)
Left: Papesh, circa 1980; Right: Age-progressed image of Papesh at age 36 (circa 2007)
Missing since June 13, 1980 from Maple Heights, Cuyahoga County, Ohio.
Vital Statistics
* Date Of Birth: July 2, 1971
* Age at Time of Disappearance: 8 years old
* Height and Weight at Time of Disappearance: 4'0; 58 pounds
* Distinguishing Characteristics: Brown hair; blue eyes
If you have any information concerning this case, please contact:
Maple Heights Police Department: 216-662-5884 OR Federal Bureau Of Investigation: 202-324-3000
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HBRANDON LEE FLAGNER - legal filings/documents
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Also see:
When A Family Member Molests: Reality, Conflict, and The Need For Support
HBRANDON LEE FLAGNER - legal
filings/documents
534 U.S. 1071; 122 S. Ct. 678; 151 L. Ed. 2d 590; 2001 U.S. LEXIS 11055, *
REGINALD A. WILKINSON, DIRECTOR, OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, ET AL. v. HBRANDON LEE FLAGNER
01-324
SUPREME COURT OF THE UNITED STATES
534 U.S. 1071; 122 S. Ct. 678; 151 L. Ed. 2d 590; 2001 U.S. LEXIS 11055; 70 U.S.L.W. 3383
December 10, 2001, Decided
PRIOR HISTORY: [*1] Reported below: 2001 U.S. App. LEXIS 2560.
JUDGES: Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer.
OPINION: The motion of respondent for leave to proceed in forma pauperis is granted. Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit denied.
2001 U.S. App. LEXIS 11609, *
HBRANDON LEE FLAGNER, Plaintiff-Appellee, v. REGINALD A. WILKINSON, ET AL., Defendants-Appellants.
99-4145
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2001 U.S. App. LEXIS 11609
May 25, 2001, Filed
NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY: Original Opinion of February 22, 2001, Reported at: 2001 U.S. App. LEXIS 2560.
JUDGES: BEFORE: NELSON and MOORE, Circuit Judges; and WILHOIT, * District Judge. * Hon. Henry R. Wilhoit, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation.
OPINION: ORDER
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
1991 U.S. App. LEXIS 18807, *
BRANDON LEE FLAGNER, Plaintiff-Appellant, v. VIRGIL BROWN, Cuyahoga County Commissioner; JOHN T. CORRIGAN, Prosecuting Attorney; CUYAHOGA COUNTY SHERIFF MCFAUL, Defendants-Appellees
No. 91-3137
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
1991 U.S. App. LEXIS 18807
August 1, 1991, Filed
NOTICE: [*1]
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
SUBSEQUENT HISTORY: Reported as Table Case at 940 F.2d 659, 1991 U.S. App.
LEXIS 24053.
PRIOR HISTORY: On Appeal from the United States District Court for the Northern District of Ohio; District No. 84-03571; White, District Judge.
CORE TERMS: mail, preparation, confiscated, reimbursement, correctly, first amendment, involvement, incoming, pictures, girl
JUDGES: Kennedy and Jones, Circuit Judges, and Benjamin F. Gibson, Chief District Judge. *
* The Honorable Benjamin F. Gibson, Chief U.S. District Judge for the Western District of Michigan, sitting by designation.
OPINION: ORDER
Brandon Lee Flagner appeals a judgment for the defendants following a bench trial in a civil rights case that he had filed under 42 U.S.C. ?1983. His case has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel agrees that oral argument is not needed in this case. Fed. R. App. P. 34(a).
Flagner alleged that the defendants had violated his rights under the first amendment by confiscating his incoming mail while he was being held at the Cuyahoga County [*2] jail. Flagner is a convicted child molester who had been indicted for the kidnapping and murder of an eight year-old girl. The evidence at Flagner's civil trial indicated that two letters had been confiscated because they contained pictures of children. One of these letters was from Flagner's sister and the other was from an eleven year-old girl, whom Flagner had apparently solicited as a pen pal. On January 8, 1991, the district court entered a judgment for the defendants. It is from this judgment that Flagner now appeals.
The district court found that the only material which had been confiscated from Flagner's mail were the two letters which contained pictures of children. Flagner argues that other material was confiscated. However, the court's finding was not clearly erroneous because it was supported by the testimony of several witnesses. Cf. Fed. R. Civ. P. 52(a). The district court also found that Flagner had not alleged a due process claim, and Flagner has not challenged this finding on appeal. He has, therefore, waived any argument that he might have had regarding a due process violation for purposes of appellate review. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986). [*3]
Restrictions on incoming prisoner mail do not offend the first amendment if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). The district court correctly held that the confiscation of the two letters was justified under this standard "by a reasonable fear for the safety of potential victims." Cf. Thornburgh v. Abbott, 490 U.S. 401, 403 n. 1 (1989) (approving 28 C.F.R. ?540.71(b) (1988), which restricted circulation of publications in federal prisons that might "facilitate criminal activity"). The district court also correctly held that the defendants could not be held legally responsible under a theory of respondeat superior. See Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989).
All of Flagner's remaining arguments are without merit. The district court did not abuse its discretion by failing to enforce a subpoena duces tecum because it was reasonable to credit the defendants' representation that the requested materials were no longer available to them. The court did not abuse its discretion in rejecting several of Flagner's exhibits because they were arguably irrelevant [*4] to the two pieces of mail that were at issue in his case. See Fed. R. Evid. 402, 403. The district court did not exceed its discretion in denying Flagner's motion to add Assistant Prosecutor Marino as a defendant, because Flagner had a reasonable opportunity to discover Marino's involvement before trial, and Flagner's testimony clearly evidences his knowledge of Marino's involvement as early as March of 1985.
Finally, Flagner argues that the district court erred in denying his motion to authorize preparation of his transcript without prepayment of cost. It appears that Flagner's court appointed counsel ordered the transcript at his own expense when this motion was denied. The correct procedure would have been for counsel to file a motion with this court for preparation of the transcript before expending his own funds. Nevertheless, this argument will be construed as a motion by Flagner's counsel for reimbursement of the cost of the transcript and that motion will be granted because the preparation of the transcript was of service to the court in determining the merits of Flagner's appeal. Cf. 28 U.S.C. ?753(f); Hardy v. United States, 375 U.S. 277, 279 (1964). [*5]
Accordingly, the motion of Flagner's counsel for reimbursement is granted and the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
836 F.2d 1347; 1988 U.S. App. LEXIS 233, *
Brandon Lee Flagner, Plaintiff-Appellant, v. Ronald Arko, Detective, Maple Heights Police Department; Carmen Marino, Asst. County Prosecutor; Chief Kulls, Cuyahoga County Detective Bureau, Defendants-Appellees
No. 87-3469
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
836 F.2d 1347; 1988 U.S. App. LEXIS 233
January 11, 1988, Filed
NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
OPINION: ORDER
BEFORE: ENGEL and RYAN, Circuit Judge; and EDWARDS, Senior Judge.
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).
The plaintiff, an Ohio prisoner, appeals from a judgment of the district court which dismissed his 42 U.S.C. ?1983 action pursuant to the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981). In his action, the plaintiff alleged that his first, fourth, eighth and fourteenth amendment rights had been violated by the defendants' seizure and retention of his personal property.
Because the plaintiff clearly failed to plead or prove the inadequacy of Ohio postdeprivation remedies, the district court correctly [*2] dismissed plaintiff's claim for violation of his procedural due process rights. Hudson v. Palmer, 468 U.S. 517, 531-33 (1984); Joyce v. Mavromatis, 783 F.2d 56 (6th Cir. 1986); Bacon v. Patera, 772 F.2d 259, 264 (6th Cir. 1985); Wilson v. Beebe, 770 F.2d 578, 583-84 (6th Cir. 1985) (en banc). However, the plaintiff's substantive due process claims under the first, fourth and eighth amendments must be separately analyzed as they involve issues distinct from plaintiff's procedural due process claim. See Vinson v. Campbell County Fiscal Court, 820 F.2d 194 (6th Cir. 1987); Dugan v. Brooks, 818 F.2d 513 (6th Cir. 1987).
Accordingly, the district court judgment entered on April 15, 1987, is affirmed insofar as it dismissed plaintiff's procedural due process claim, Rule 9(b)(5), Rules of the Sixth Circuit; it is vacated, however, and the case remanded to the extent that it dismissed plaintiff's substantive due process claims. Rule 9(b)(6), Rules of the Sixth Circuit.
83 Ohio St. 3d 176, *; 1998 Ohio 127; 699 N.E.2d 62, **; 1998 Ohio LEXIS 2499, ***
THE STATE EX REL. FLAGNER, APPELLANT, v. ARKO, APPELLEE.
No. 98-487
SUPREME COURT OF OHIO
83 Ohio St. 3d 176; 1998 Ohio 127; 699 N.E.2d 62; 1998 Ohio LEXIS 2499
July 15, 1998, Submitted
September 23, 1998, Decided
PRIOR HISTORY: [***1] APPEAL from the Court of Appeals for Cuyahoga County, No. 72779.
In 1985, appellant, Hbrandon Flagner, was convicted of the kidnapping and murder of eight-year-old Tiffany Papesh and was sentenced accordingly. Flagner's conviction and sentence were affirmed on appeal. State v. Flagner, 1986 Ohio App. LEXIS 8742 (Oct. 16, 1986), Cuyahoga App. No. 50815, unreported, 1986 WL 11653.
In 1995, a newspaper article raised questions about whether Flagner committed the crimes. According to the article, appellee, Maple Heights Police Detective Ron Arko, who had worked on the Papesh case, stated that he did not believe that Flagner committed the crimes even though Flagner had confessed. The article also mentioned that Flagner's alibi, that he was at work fifty-two miles away around the time of Papesh's disappearance, was supported by his work time card.
In July 1997, Flagner filed a complaint in the Court of Appeals for Cuyahoga County for a writ of mandamus to compel Detective Arko to provide him with exculpatory evidence in his possession pursuant to Crim.R. 16(B). Flagner attached the 1995 newspaper article to his complaint.
Detective Arko filed an "objection and opposition" to Flagner's complaint. Attached to Arko's [***2] filing were his affidavit and the affidavit of Carmen Marino, the Cuyahoga County Assistant Prosecuting Attorney who had prosecuted Flagner. The affidavits established that before Flagner's trial, Detective Arko had given Marino all the documents and evidence he had obtained during his investigation, that Marino had provided all relevant and exculpatory evidence to Flagner during discovery, including the time card, which was presented at trial as part of Flagner's defense, and that Detective Arko obtained no new, relevant, or exculpatory evidence regarding the case following his investigation.
After the court of appeals converted Detective Arko's filing into a motion for summary judgment and Flagner filed responses to the motion, the court of appeals granted the motion and denied the writ.
This cause is now before the court upon an appeal as of right.
DISPOSITION: Judgment affirmed
CASE SUMMARY
PROCEDURAL POSTURE: Appellant prisoner sought review of the decision of the Court of Appeals for Cuyahoga County (Ohio), which denied the prisoner's complaint for a writ of mandamus against appellee detective in which the prisoner sought to compel the detective to provide him with exculpatory evidence that proved that the prisoner did not commit the kidnapping and murder of an eight-year-old girl.
OVERVIEW: The prisoner was convicted of the kidnapping and murder of an eight-year-old girl. While he was incarcerated, the investigating detective gave a newspaper interview in which he stated that he did not believe the prisoner was guilty. The newspaper article mentioned that the prisoner was working 52 miles away at the time of the girl's disappearance and this was supported by the prisoner's work time card. The prisoner filed a complaint requesting that the detective produce exculpatory evidence under Ohio R. Crim. P. 16(B). The detective filed an objection and opposition and a motion for summary disposition, stating that the detective had given the prosecutor all the evidence obtained during the investigation. The court of appeals dismissed the complaint and the court affirmed. The court held that under Ohio R. Crim. P. 16(B), only the prosecutor was required to provide evidence during criminal discovery. Further, the motion to dismiss showed that the prosecutor had provided all the relevant and exculpatory evidence prior to trial. Because the prisoner rested merely on allegation of new exculpatory evidence, but did not provide support, the writ was properly denied.
OUTCOME: The court affirmed the court of appeals, which dismissed the complaint filed by the prisoner requesting the investigating detective to produce newly discovered exculpatory evidence.
CORE TERMS: detective, summary judgment, exculpatory evidence, prosecuting attorney, court of appeals, police detective, new trial, mandamus, vacate
LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts
Criminal Law & Procedure > Discovery & Inspection > Discovery by Defendant Criminal Law & Procedure > Discovery & Inspection > Discovery Misconduct HN1 Ohio R. Crim. P. 16(B) requires the prosecuting attorney, not a police detective, to provide certain evidence in criminal discovery. Ohio R. Crim. P. 16(D) imposes a continuing duty to disclose on the state "prior to or during trial."
Civil Procedure > Summary Judgment > Supporting Papers & Affidavits Civil Procedure > Summary Judgment > Summary Judgment Standard HN2 When a motion for summary judgment is made and supported as provided in Ohio R. Civ. P. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Ohio R. Civ. P. 56, must set forth specific facts establishing the existence of a genuine triable issue.
Civil Procedure > Relief From Judgment > Relief Generally HN3 A newspaper article alone is not evidence of operative facts which might support a Ohio R. Civ. P. 60(B) motion for relief from judgment.
Criminal Law & Procedure > Discovery & Inspection > Discovery by Defendant HN4 Records discoverable under Ohio R. Crim. P. 16 are not thereby subject to release as a public record under Ohio Rev. Code ?149.43.
Show Headnotes
COUNSEL: Hbrandon Flagner, pro se.Michael G. Ciaravino & Associates and Michael G. Ciaravino, for appellee.
JUDGES: MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
OPINION:
[*177] [**63] Per Curiam. Flagner asserts that the court of appeals erred in denying the writ [***3] of mandamus. For the following reasons, however, we find Flagner's assertion meritless and affirm the judgment of the court of appeals.
Initially, Detective Arko had no duty under Crim.R. 16 to provide the requested evidence. HN1Crim.R. 16(B) requires the prosecuting attorney, not a police detective, to provide certain evidence in criminal discovery. Crim.R. 16(D) imposes a continuing duty to disclose on the state "prior to or during trial." It had been over ten years after the conclusion of Flagner's trial when he sought extraordinary relief in mandamus under Crim.R. 16.
In addition, the summary judgment evidence introduced by Detective Arko established that the state, through the prosecuting attorney, fully complied with Crim.R. 16 by providing Flagner with all relevant and exculpatory evidence prior to his criminal trial. HN2When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts establishing the existence of a genuine triable issue. Mootispaw v. Eckstein (1996), 76 Ohio St. 3d 383, [***4] 385, 667 N.E.2d 1197, 1199. After Detective Arko's filing and notice that the court had converted the filing into a motion for summary judgment, Flagner rested on the mere allegations of his pleading and failed to file Civ.R. 56 evidence setting forth specific facts to support his claim. See, also, Salem v. Salem (1988), 61 Ohio App. 3d 243, 246, 572 N.E.2d 726, 728, where the court noted that HN3"[a] newspaper article alone is not evidence of operative facts which might support a Civ.R. 60(B) motion [for relief from judgment]." In fact, the attachments to Flagner's complaint include a defense attorney's opinion that Flagner's "evidence" was insufficient to vacate his conviction and obtain a new trial.
Finally, Flagner erroneously relies on our decision in State ex rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St. 3d 579, 651 N.E.2d 993, to support his contention that he is entitled to the records he claims are in Detective Arko's possession. Carpenter is a public records case brought under R.C. 149.43, Ohio's Public Records Act, which Flagner does not rely on here. See State ex rel. Fuqua v. Alexander (1997), 79 Ohio St. 3d 206, 208, 680 N.E.2d 985, 987. Further, following [***5] Carpenter, we held that HN4records discoverable under Crim.R. 16 are not thereby subject to release as a public record under R.C. 149.43. Id., citing State ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St. 3d 350, 673 N.E.2d 1360, syllabus.
[*178] Based on the foregoing, the court of appeals properly denied the writ. Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
80 Ohio St. 3d 1478; 687 N.E.2d 474; 1997 Ohio LEXIS 3239, *
State v. Flagner.
97-2235.
SUPREME COURT OF OHIO
80 Ohio St. 3d 1478; 687 N.E.2d 474; 1997 Ohio LEXIS 3239
December 17, 1997, Decided
PRIOR HISTORY: [*1] Cuyahoga App. No. 72884.
OPINION: DISMISSAL, SUA SPONTE, NO SUBSTANTIAL CONSTITUTIONAL QUESTION AND DISCRETIONARY APPEAL, IF APPLICABLE, NOT ALLOWED
1998 Ohio App. LEXIS 380, *
STATE EX REL. HBRANDON FLAGNER, Relator vs. DETECTIVE RON ARKO, MAPLE HEIGHTS POLICE DEPARTMENT, Respondent
NO. 72779
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
1998 Ohio App. LEXIS 380
February 5, 1998, Date of Announcement of Decision
PRIOR HISTORY: [*1]
CHARACTER OF PROCEEDING: WRIT OF MANDAMUS. (Motion No. 87263).
DISPOSITION: JUDGMENT: WRIT DISMISSED.
CASE SUMMARY
PROCEDURAL POSTURE: Relator prisoner commenced this mandamus action against respondent detective to compel the discovery of possible exculpatory evidence related to the kidnapping and murder of which the prisoner had been convicted, pursuant to Ohio R. Crim. P. 16. The detective filed a responsive pleading that the court treated as a motion for summary judgment under Ohio R. Civ. P. 56(C).
OVERVIEW: The prisoner based his request for a writ of mandamus on a newspaper article that mentioned possible exculpatory evidence not used at trial many years earlier. The court held that such an article was an insufficient basis upon which to rest a claim for mandamus because it was hearsay of the remotest character and could not be accepted as evidence. The court found that the detective had filed affidavits that all exculpatory evidence had been disclosed prior to the trial and that no new evidence had been discovered. The court also examined Ohio R. Crim. P. 16 and expressed doubt that the rule applied to a detective as opposed to a prosecutor. The court also found that the rule pertained to disclosure before and during trial, not to disclosure years later. The court held that mandamus was an extraordinary remedy that should not be granted unless the prisoner was clearly entitled to it and had no other adequate remedy and the detective had a clear legal duty to comply with the request for action. The court found that the facts alleged here did not support the relief.
OUTCOME: The court granted summary judgment to the detective and dismissed the prisoner's application for a writ of mandamus.
CORE TERMS: detective, disclosure, alibi, newspaper article, summary judgment, discovery, exculpatory evidence, writ of mandamus, mandamus, underlying case, mandamus action, time card, prosecutor, disappearance, exculpatory, requested relief, adequate remedy, settlement, duty, pretrial discovery, factual basis, murder trial, new trial, documentation, disappeared, disclose, murder
LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts
Civil Procedure > Remedies > Extraordinary Writs
Criminal Law & Procedure > Appeals > Extraordinary Writs
HN1 The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law. Moreover, mandamus is an extraordinary remedy, which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. Furthermore, the issuance of a writ of mandamus rests within the discretion of the court, depending upon the facts and circumstances of the case, including the applicant's rights, the relator's conduct, the equity and justice of the relator's case, and public policy.
Civil Procedure > Summary Judgment > Summary Judgment Standard HN2 Ohio R. Civ. P. 56(C) contains the standards for summary judgment. Summary judgment may be entered for a party only if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Moreover, summary judgment shall not be rendered unless it appears from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.
Criminal Law & Procedure > Discovery & Inspection > Brady Materials
Criminal Law & Procedure > Discovery & Inspection > Discovery Misconduct
HN3 Ohio R. Crim. P. 16(B) states the various materials that the prosecution must disclose to the defendant upon motion. Ohio R. Crim. P. 16(B)(1)(f) provides for the disclosure of evidence favorable to the defendant upon motion before trial. Ohio R. Crim. P. 16(F) provides that the defendant shall make his motions for discovery 21 days after arraignment or 7 days before trial, whichever is earlier. Any subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice. Such a motion should be directed to the trial court, and the rule provides that the trial court then order the prosecutor to provide the information, not the police. Furthermore, Ohio R. Crim. P. 16(D), Continuing Duty to Disclose, provides that such a duty persists prior to or during trial.
COUNSEL: For relator: HBRANDON FLAGNER, pro se, Madison Correctional Institution, Post Office Box 740, London, Ohio 43140-0740.
For respondent: MICHAEL G. CIARAVINO, Prosecuting Attorney, City of Maple Heights, 5005 Rockside Road, Suite 600, Independence, Ohio 44131-2194.
JUDGES: KENNETH A. ROCCO, PRESIDING JUDGE. ANN DYKE, J., CONCURS, JAMES D. SWEENEY, J., CONCURS.
OPINIONBY: KENNETH A. ROCCO
OPINION: JOURNAL ENTRY and OPINION
KENNETH A. ROCCO, P.J.:
On July 1, 1997, the relator, Hbrandon Flagner, commenced this mandamus action against the respondent, Ron Arko, a detective with the Maple Heights Police Department, to compel the discovery of exculpatory evidence in the underlying case, State of Ohio v. Hbrandon Flagner, Cuyahoga County Common Pleas Court Case No. CR-191309, pursuant to Crim.R. 16. On September 22, 1997, the respondent submitted his objection and opposition to Mr. Flagner's application for a writ of mandamus. Attached to this filing were the affidavits of Detective Arko and Assistant Cuyahoga County Prosecutor Carmen Marino. On October 1, 1997, this court converted Detective [*2] Arko's filing to a motion for summary judgment and afforded the parties until December 1, 1997 to file supporting briefs and evidence pursuant to Civ.R. 56. Mr. Flagner timely filed a brief, and the respondent, relying on his initial filing, submitted no further materials. For the following reasons, this court grants the respondent's motion for summary judgment and dismisses this writ action.
Tiffany Papesh was eight years old when she disappeared in June, 1980 while running an errand; her body has never been found. At the time, considerable interest in her case arose. Mr. Flagner confessed to various persons to killing Tiffany. In July, 1985, a jury convicted him of the kidnapping and murder of Tiffany, for which he is still serving his prison sentence. Fifteen years after her initial disappearance, the Cleveland Plain Dealer published a follow-up story on the case. This article is the foundation for Mr. Flagner's claim that undisclosed exculpatory evidence exists and is Exhibit A to the mandamus petition.
The critical paragraph stated as follows: "But police and Tiffany's relatives don't believe Flagner is her killer, either, and information that supports his alibi - information [*3] not introduced at his murder trial - raises questions about whether he could have committed the crime." The next paragraphs focused on Detective Arko. He revealed that because the body was never found, the case remains open and that he occasionally checks on tips or sightings of women who would resemble a grown-up Tiffany.
According to the article, he admitted that he does not believe Flagner committed the crime; the Maple Heights Police Department checked into his alibi and his initial confession and concluded that he did not murder Tiffany.
The article also examined the alibi. A mechanically-stamped time card from Mt. Flagner's place of employment indicated that he was working miles away in Wayne County until minutes before the abduction. The work site was an hour away from the place of Tiffany's disappearance. The card showed that Mr. Flagner worked until 2:36 p.m. and Tiffany disappeared at 2:45 p.m.; the search for her began at 3:00 p.m. The article also stated that Mr. Flagner's lawyers did not concentrate on the alibi defense; rather, they pursued another strategy. The article quoted one of the lawyers as saying that, in his experience, juries seldom believe alibis. The article [*4] also quoted one of the jurors: "*** we all felt he was guilty from the start. I don't remember being very impressed with his alibi." n1
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n1 At trial, the defense presented evidence of the alibi, including the time card; however, the prosecution introduced evidence that Mr. Flagner faked his alibi.
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Mr. Flagner concluded from this article that Detective Arko had uncovered new exculpatory evidence that had not been released to him. He then began efforts to obtain this evidence, which culminated in this mandamus action.
In response, Detective Arko submitted his affidavit and that of Carmen Marino, who prosecuted the underlying case. In his affidavit, Detective Arko stated that he provided Mr. Marino with all documents and evidence that he had obtained during the investigation. Because the body of Tiffany was never found, he has kept the case open, but, "To date, I have not obtained or received any new relevant or exculpatory documents or evidence regarding her disappearance. *** I, therefore, do not have any new, [*5] relevant or exculpatory documents or evidence in my possession which would support Flagner's motion for a new trial."
In his affidavit, Mr. Marino stated that as part of pretrial discovery pursuant to Crim.R. 16, he "produced all relevant and exculpatory documentation and evidence to Flagner's counsel, including the mechanically stamped time card ***. Since the production of this documentation to Flagner's counsel prior to the trial in the captioned case, I have not obtained, reviewed, or been provided with any new or additional evidence which would support Flagner's motion for a new trial as set forth in the Writ of Mandamus." In the final paragraph, Mr. Marino reaffirms that he fully complied with Crim.R. 16 and that, "I do not have nor have I received or obtained any new or additional information or evidence which would satisfy Flagner's recent request as contained in his Application for Writ of Mandamus."
HN1The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus [*6] (1987), 33 Ohio St. 3d 118, 515 N.E.2d 914. Moreover, mandamus is an extraordinary remedy, which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St. 2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App. 3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio L. Abs. 308. Furthermore, the issuance of a writ of mandamus rests within the discretion of the court, depending upon the facts and circumstances of the case, including the applicant's rights, the relator's conduct, the equity and justice of the relator's case and public policy. State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St. 2d 141, 228 N.E.2d 631; State ex rel. Bennett v. Lime (1978), 55 Ohio St. 2d 62, 378 N.E.2d 152; and State ex rel. Mettler v. Stratton (1941), 139 Ohio St. 86, 38 N.E.2d 393.
HN2Civ.R. 56(C) contains the standards for summary judgment. Summary judgment may be entered for a party only if there [*7] is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Moreover, "summary judgment shall not be rendered unless it appears from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." See generally, State ex rel. Shumway v. State Teachers Retirement Board (1996), 114 Ohio App. 3d 280, 683 N.E.2d 70.
The gravamen of Mr. Flagner's case is the line in the newspaper article that stated: "Information that supports his alibi--information not introduced at his murder trial--raises questions about whether he could have committed the crime." From this line, he deduced that Detective Arko must have found new information that would support his claim of innocence. In his October 3, 1997 brief, he confirmed that "this is the information that Relator is seeking."
However, this is an insufficient basis upon which to rest a claim for mandamus. The newspaper article cannot be accepted as evidence; it is "hearsay [*8] of the remotest character." Heyman v. City of Bellevue (1951), 91 Ohio App. 321, 326, 108 N.E.2d 161 and City of Cleveland v. Division 268, Amalgamated Assn. Of Street Electric Railway & Motor Coach Employees of America (1948), 84 Ohio App. 43, 81 N.E.2d 310. Salem v. Salem (1988), 61 Ohio App. 3d 243, 572 N.E.2d 726 is particularly illuminating. In that divorce case, the parties had reached a settlement concerning the division of their property after full negotiations. Several years later, the wife moved to vacate the decree that incorporated the settlement because a newspaper article, which discussed an attempted corporate takeover of the husband's company, showed that the husband had not fully disclosed the value of his assets. The trial court summarily dismissed the motion to vacate. In affirming the trial court, the court of appeals ruled that "[a] newspaper article alone is not evidence of operative facts ***." 61 Ohio App. 3d at 246. Just as the movant in Salem could not prove lack of disclosure based on a newspaper article, so, too, Mr. Flagner cannot show lack of disclosure of exculpatory evidence based on a newspaper article.
In contrast, Detective Arko has properly [*9] supported his position with affidavits by himself and the assistant prosecutor from the underlying case. These affidavits establish that, despite whatever inferences might be drawn from the article, no new exculpatory evidence has been discovered. Thus, there is no factual basis to issue a writ of mandamus to compel the disclosure of evidence.
Moreover, an examination of Crim.R. 16 raises doubts as to whether there is a legal basis for issuing a writ of mandamus to compel the disclosure of evidence. HN3Crim.R. 16(B) states the various materials that the prosecution must disclose to the defendant upon motion. Subsection (B)(1)(f) provides for the disclosure of evidence favorable to the defendant upon motion before trial. Crim.R. 16(F) provides that the defendant shall make his motions for discovery twenty-one days after arraignment or seven days before trial, whichever is earlier. "Any subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice." Such a motion should be directed to the trial court, and the rule provides that the trial court then order the prosecutor to provide the information, not the police. Furthermore, Crim.R. 16(D), [*10] Continuing Duty to Disclose, provides that such a duty persists "prior to or during trial."
Thus, the first doubt is whether Detective Arko is the proper respondent for a mandamus action seeking discovery pursuant to Crim.R. 16. The rule states that the prosecutor, as compared to the police, should make the necessary disclosures. Second, Crim.R. 16 appears to provide an adequate remedy at law for nondisclosure, a motion directed to the trial court pursuant to subsection (E)(3) or subsection (F) upon a showing of just cause. Cf. State v. Simmons (1993), 87 Ohio App. 3d 290, 292, 622 N.E.2d 22 ("It is within the trial court's discretion to grant any discovery beyond the scope of that required by Crim.R. 16.").
Finally, there is the issue of timing. Crim.R. 16 generally mandates that discovery occur prior to or during trial. Even the duty of continuing disclosure is, by the wording of the rule, limited to "prior to or during trial." Cf. Simmons and State v. Hesson (1996), 110 Ohio App. 3d 845, 675 N.E.2d 532, which characterize Crim.R. 16 as governing and concerning pretrial discovery. Thus, this court entertains a doubt as to whether, many years after trial and conviction [*11] and when there is no postconviction proceeding pending, Crim.R. 16 is applicable to obtain the desired discovery.
Accordingly, because there is no factual basis supported by admissible evidence and because it is doubtful that mandamus may be employed to compel criminal discovery against a police detective many years after the trial has been concluded, this court grants the respondent's motion for summary judgment and dismisses this writ action. Costs assessed against relator.
ANN DYKE, J. CONCURS
JAMES D. SWEENEY, J. CONCURS
KENNETH A. ROCCO
PRESIDING JUDGE
1997 Ohio App. LEXIS 3834, *
STATE OF OHIO, ex rel. BRANDON L. FLAGNER, Relator vs. NANCY A. FUERST, JUDGE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO, Respondent
NO. 72221, MOTION NO. 86036
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
1997 Ohio App. LEXIS 3834
August 28, 1997, Date of Announcement of Decision
DISPOSITION: [*1]
JUDGMENT: WRIT DISMISSED.
COUNSEL: For relator: BRANDON L. FLAGNER, pro se, London, Ohio.
For respondent: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, L. CHRISTOPHER FREY, Assistant, Cleveland, Ohio 44113.
JUDGES: JAMES D. SWEENEY, CHIEF JUSTICE. PATRICIA A. BLACKMON, J., CONCURS.
OPINIONBY: JAMES D. SWEENEY
OPINION: PETITION FOR WRIT OF MANDAMUS
JOURNAL ENTRY AND OPINION
JAMES D. SWEENEY, C.J.:
Respondent's Motion for Summary Judgment based on mootness is granted. On June 26, 1997, respondent issued Findings of Fact and Conclusions of Law in Common Pleas Case No. CR-191309, as evidenced by Exhibit 2 to respondent's motion. The requested relief having been performed, this action is now moot.
Writ dismissed. Costs to respondent.
PATRICIA A. BLACKMON, J., CONCURS.
JAMES D. SWEENEY, CHIEF JUSTICE
1996 Ohio App. LEXIS 790, *
BRANDON LEE FLAGNER, Plaintiff-appellant -vs- CARMEN MARINO, Defendant-appellee
NO. 68865
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY
1996 Ohio App. LEXIS 790
February 29, 1996, DATE OF ANNOUNCEMENT OF DECISION
NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
PRIOR HISTORY: CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas. Case No. 259322.
DISPOSITION: JUDGMENT: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant sought review of the decision of the Court of Common Pleas of Cuyahoga County (Ohio), which granted summary judgment in favor of appellee Assistant Prosecuting Attorney, in appellant's action for replevin against the assistant prosecuting attorney, alleging a failure to return personal property confiscated.
OVERVIEW: The sheriff's office confiscated property belonging to appellant. However, the property was returned to appellant. Nonetheless appellant filed papers from an earlier action alleging that the assistant prosecutor still had the items. The papers were submitted and the trial court granted summary judgment to the prosecutor. On appeal, the court affirmed, holding that in a motion for summary judgment, court papers filed as exhibits and attachments did not suffice as evidence, and the trial court properly granted summary judgment to the prosecutor.
OUTCOME: The court affirmed the trial court, which granted the assistant prosecutor's motion for summary judgment.
CORE TERMS: summary judgment, belongings, personal jurisdiction, assignment of error, inventory, evidentiary, sheet, authenticated, genuine issue of material fact, papers filed, items listed, replevin, stamp, clerk
LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts
Civil Procedure > Summary Judgment > Supporting Papers & Affidavits
Evidence > Procedural Considerations > Rulings on Evidence
HN1 Under Ohio R. Civ. P. 56(C), documents which are submitted in opposition to a motion for summary judgment, but are not sworn, certified, or authenticated by affidavit, hold no evidentiary value and are not to be considered by a court in determining whether a genuine issue of material fact remains for trial.
COUNSEL:
APPEARANCES:
FOR PLAINTIFF-APPELLANT: Brandon Lee Flagner, Pro Se, 188413 Leci, Box 56, Lebanon Corrections Center, Lebanon, Ohio 45036.
FOR DEFENDANT-APPELLEE: Stephanie Tubbs Jones, Esq., Cuyahoga County Pros. Attorney, Carmen Marino, Esq., Chief Prosecuting Attorney, Marilyn Barkley Cassidy, Esq., Assistant Prosecuting Attorney, 1200 Ontario Street, The Justice Center, Cleveland, Ohio 44113.
JUDGES: PATRICIA ANN BLACKMON, PRESIDING JUDGE, SARA J. HARPER, JUDGE, ANN DYKE, JUDGE
OPINION: JOURNAL ENTRY AND OPINION
PER CURIAM: Plaintiff-appellant, Brandon Lee Flagner, filed a replevin action on October 7, 1993, in the Court of Common Pleas of Cuyahoga County against defendant-appellee, Carmen Marino, an Assistant Prosecuting Attorney. Appellant alleged that Marino failed to return to him a portion of personal property which was confiscated by the Cuyahoga County Sheriff's Department. The trial court granted summary judgment in favor of Marino on [*2] March 22, 1995.
This accelerated appeal followed with appellant claiming as error:
Assignment of errors [sic] # 1.
Lower court erred in granting Summary Judgment against Appellant in light of well pled allegations and supporting evidence in this case.Assignment of errors [sic] # 2.
Appellee waived personal jurisdiction by failure to plea [sic] or defend in a timely manner and thus Lower Court erred by raising jurisdiction.Colleen Cooney, an Assistant Prosecuting Attorney for Cuyahoga County from March 19, 1984 to January 1, 1992, prepared an "Inventory of Flagner Property" on March 27, 1990. According to Cooney's affidavit, the items listed on the inventory were mailed to Flagner, an inmate in Mansfield, Ohio. Cooney stated in the affidavit, "There were no belongings of Brandon Lee Flagner remaining in the care, custody, and control of the Cuyahoga County Sheriff, or the Cuyahoga County Prosecutor."
Flagner acknowledged receipt of the items listed on the inventory sheet in his response to Marino's motion for summary judgment and the attached documents--the inventory sheet and Cooney's affidavit. He charged, however, that Marino remained [*3] in possession of certain items. In support of his position, Flagner provided the trial court with court papers filed in 1986 in an action entitled State of Ohio v. Flagner, Cuyahoga C.P. No. CR191309. The papers carry the clerk of court's file stamp.
Flagner points out to this court that although Marino admitted in 1986 that certain belongings were in the state's possession, not all of the belongings were listed on the 1990 inventory sheet as being returned to him. Flagner thus argues in his first assignment of error that the 1986 court papers demonstrate a genuine issue of material fact remains for litigation concerning his replevin action.
Marino initially suggests to this court that the 1986 court papers filed by Flagner with his response to the motion for summary judgment, are outside the scope of evidentiary materials authorized HN1under Civ.R. 56(C). Documents which are submitted in opposition to a motion for summary judgment, but are not sworn, certified, or authenticated by affidavit, hold no evidentiary value and are not to be considered by a court in determining whether a genuine issue of material fact remains for trial. Green v. B.F. Goodrich Co. (1993), 85 Ohio [*4] App. 3d 223, 228, 619 N.E.2d 497; Citizens Ins. Co. v. Burkes (1978), 56 Ohio App. 2d 88, 95-96, 381 N.E.2d 963. This general rule, however, loses its force when the adverse party fails to object to the documents. See, Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App. 3d 256, 456 N.E.2d 1262; Brown v. Ohio Cas. Ins. Co. (1978), 63 Ohio App. 2d 87, 409 N.E.2d 253; see, also, Karavolos v. Brown Derby (1994), 99 Ohio App. 3d 548, 651 N.E.2d 435; Steinke v. Allstate Ins. Co. (1993), 86 Ohio App. 3d 798, 621 N.E.2d 1275; Green, supra; Lytle v. Columbus (1990), 70 Ohio App. 3d 99, 590 N.E.2d 421; compare, Schmidt v. Nosker (Mar. 29, 1995), 1995 Ohio App. LEXIS 1215, Greene App. No. 94 CA 96, unreported ("a copy of a certificate of judgment bearing the file stamp of the trial court's own clerk carries a high degree of reliability, even if not authenticated in accordance with Civ.R. 56"). Since Marino failed to object to Flagner's attachment of the 1986 court papers to his response brief, the documents were reviewable by the trial court in deciding whether Marino was entitled to summary judgment.
Cooney, in her affidavit, stated that all of Flagner's [*5] belongings in the state's possession were returned to him in 1990. In light of this affidavit, Flagner had to file evidentiary documents that placed in issue the fact alleged by Cooney. See, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 111, 570 N.E.2d 1095; Hoffman v. Davidson (1987), 31 Ohio St. 3d 60, 508 N.E.2d 958; Mathis v. Cleveland Pub. Library (1984), 9 Ohio St. 3d 199, 459 N.E.2d 877; Shepherd v. United Parcel Serv. (1992), 84 Ohio App. 3d 634, 617 N.E.2d 1152. Flagner provided no evidence which contradicted Cooney's sworn statement that all of his belongings were returned to him in 1990, and that the state no longer had any of his belongings in its possession at that time. The record, therefore, demonstrates that when construing the evidence in Flagner's favor, the trial court properly granted summary judgment to Marino. See, Johnson v. New London (1988), 36 Ohio St. 3d 60, 521 N.E.2d 793; Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 364 N.E.2d 267;
Flagner's first assignment of error is overruled.
Flagner's second assignment of error [*6] seems to deal with the trial court's March 22, 1995 order of dismissal which was based upon the court's determination that the court of common pleas did not have jurisdiction over the claims set forth in October 1994 pleadings. The court's order did not specify whether the jurisdictional finding was personal, but both parties' appellate briefs discuss service of process and waiver of personal jurisdiction. Marino admits that personal jurisdiction existed, but argues that since the trial court's grant of summary judgment was proper, no issues remain as to Flagner's outstanding claims.
Flagner filed a second "complaint and counterclaims" on January 30, 1995, that, for the most part, mimicked the claims asserted in October 1994. The trial court merged these claims with prior pleadings on March 22, 1995. The issue of whether the trial court abused its discretion in dismissing the October 1994 pleadings based upon lack of personal jurisdiction is consequently rendered moot by Marino's admission that he received notice of the pleadings, and the court's merger of the January 1995 pleadings into the pending motion for summary judgment.
Appellant's second assignment of error is overruled. [*7]
Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
SARA J. HARPER, JUDGE
ANN DYKE, JUDGE
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.
1991 Ohio App. LEXIS 309, *
BRANDON LEE FLAGNER, Plaintiff-Appellant v. DONALD REIMAN,
Defendant-Appellee
No. 57825
Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County
1991 Ohio App. LEXIS 309
January 24, 1991, Decided
PRIOR HISTORY: [*1]
Character of Proceeding: Civil appeal from Common Pleas Court; Case No. 88-150487.
DISPOSITION: JUDGMENT: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Appellant bailor sought review of the decision of the Court of Common Pleas, Cuyahoga County (Ohio), which granted appellee bailee's motion for summary judgment for the dismissal of the bailment action brought by the bailor for the return of 10 photographs of a nude 14-year old girl.
OVERVIEW: A grand jury indicted the bailor for aggravated murder and kidnapping, and the bailee represented him. During those criminal proceedings, the bailor gave the bailee 10 photographs that showed a nude girl who was 14-years old at the time that the photographs were taken. The girl became the bailor's common law wife under Texas law, and thereafter, the State of Texas granted a divorce to the couple. The photographs had no relation to the bailee's handling of the bailor's criminal case, nor to any other criminal proceeding. The bailor contended that he gave the photographs to the bailee for safe keeping while he was in jail. The bailor made two written requests for the return of the photographs. The bailor claimed that he needed them as evidence in a Texas civil action to terminate the girl's parental rights to their child. The bailee claimed that he no longer had the photographs. The bailor filed a bailment action, and the trial court granted the bailee's motion for summary judgment. The court affirmed the judgment and held that the bailee had incurred no liability for the failure to return the photographs because they were contraband, pursuant to Ohio Rev. Code Ann. ?2907.323(A)(3).
OUTCOME: The court affirmed the judgment, which granted the bailee's motion for summary judgment for the dismissal of the bailment action for the return of 10 photographs of a nude 14-year old girl.
CORE TERMS: photographs, contraband, summary judgment, bailee, girl, non-moving, redeliver, nudity, Ohio Rules, civil action, bona fide, pro se, custody, bailor, nude
LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses
HN1 Ohio Rev. Code Ann. ?2907.323(A)(3) provides that illegal possession of material showing minor in state of nudity is contraband.
Civil Procedure > Summary Judgment > Summary Judgment Standard
Civil Procedure > Appeals > Standards of Review > Standards Generally
HN2 A motion for summary judgment may only be granted where there exists no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Ohio R. Civ. P. 56(C). A trial court must refrain from granting a summary judgment motion unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the non-moving party. In reviewing a grant of summary judgment, the court must construe the evidence in a light most favorable to the non-moving party.
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses
HN3 Ohio Rev. Code Ann. ?2907.323(A), provides in relevant part: No person shall do any of the following: (3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies: (a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought, or caused to be brought into the state of Ohio, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.
COUNSEL: For Plaintiff-Appellant: BRANDON LEE FLAGNER, PRO SE, Mansfield, Ohio.
For Defendant-Appellee: GARY V. GABRIEL, ESQ., Cassidy & Mottl Co., L.P.A., Parma Heights, Ohio.
JUDGES: August Pryatel, * Judge. Nahra, P.J., and Sweeney, J., concur.
* Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment.
OPINIONBY: PRYATEL
OPINION: JOURNAL ENTRY and OPINION
The pro se plaintiff bailor appeals from the summary judgment dismissal of his bailment action for the return by the defendant attorney bailee of ten photographs of a nude fourteen-year-old girl. While the plaintiff fails to assign error in accordance with App. R. 16(A)(2), in his brief he generally challenges the propriety of the trial court's order granting summary judgment. Since the plaintiff chooses to pursue this action pro se, this court shall not require strict conformity with the Ohio Rules of Appellate Procedure.
The record in this action discloses the following undisputed facts. In 1984, a grand jury indicted the plaintiff for aggravated murder and kidnapping. [*2] The defendant represented the plaintiff in that criminal action. During those criminal proceedings the plaintiff gave the defendant ten photographs showing a nude girl who was fourteen years old at the time that the photographs were taken. The girl became the plaintiff's common law wife under Texas law and thereafter the State of Texas granted a divorce to the couple on September 12, 1984.
The photographs had no relation to the defendant's handling of plaintiff's criminal case nor to any other criminal proceeding. The plaintiff contends that he gave the photographs to the defendant for safe-keeping while plaintiff was in jail. He further alleged in his complaint that the defendant promised to hold them for the plaintiff and return them upon request. The county court of common pleas convicted the plaintiff of the charged offenses in July of 1985.
In February of 1988 the plaintiff made two written requests for the return of the photographs. He claims that he needs the photographs as evidence in a Texas civil action to terminate parental rights. The plaintiff purportedly intends to show that his former wife is unfit to have custody of their child. The original divorce decree granted [*3] custody to the wife. The defendant claims that he no longer has the photographs and has no knowledge of their current location.
The plaintiff filed this action on May 26, 1988 seeking the return of the photographs and damages. The defendant filed a motion for summary judgment claiming that the photographs were "contraband" pursuant to R.C. 2907.323(A)(3) HN1(illegal possession of material showing minor in state of nudity). The defendant argued that a bailee has no duty to return contraband material to a bailor. The trial court granted the motion concluding:
"Plaintiff has presented no evidence pursuant to the standards of Civil Rule 56 which contradicts the evidence of defendant that clearly shows that the photographs are contraband under the statute.
"In the absence of evidence demonstrating a right of plaintiff to the property and a proper public purpose to be served by permitting a civil action to be maintained for defendant's acknowledged loss of contraband property, the motion of defendant for summary judgment must be granted."
HN2A motion for summary judgment may only be granted where there exists no genuine issues of material fact and the movant is entitled to judgment as a matter [*4] of law. Civ. R. 56(C). A trial court must refrain from granting a summary judgment motion unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the non-moving party. Id. In reviewing a grant of summary judgment, this court must construe the evidence in a light most favorable to the non-moving party. Morris v. Ohio Cas. Co. (1988), 35 Ohio St. 3d 45, 47.
The defendant's uncontroverted affidavit establishes that the defendant no longer possesses the pictures. Since redelivery is not an issue, the only issue that remains is whether damages shall lie for the defendant's failure to redeliver the property.
R.C. 2907.323(A) HN3provides in relevant part:
"No person shall do any of the following:
"* * *
"(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the
following applies:
"(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, [*5] or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance."
In the instant action, since the photographs are contraband, we conclude that the trial court correctly determined that as a matter of public policy a bailee shall incur no liability for a failure to redeliver contraband. The law recognizes no property rights with regard to illegal objects. Cf. Englehardt v. Kumming, (C.P. 1910), 10 Ohio N.P. 609, 611 (gambling devices).
Judgment affirmed.
It is ordered that appellee recover of appellant his costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision [*6] (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.
11)
1986 Ohio App. LEXIS 8742, *
STATE OF OHIO Plaintiff-Appellee v. BRANDON FLAGNER Defendant-Appellant
No. 50815
Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County
1986 Ohio App. LEXIS 8742
October 16, 1986, Decided
SUBSEQUENT HISTORY: [*1] Rehearing denied December 16, 1987
PRIOR HISTORY:
CHARACTER OF PROCEEDINGS: Criminal appeal from the Common Pleas Court, Case
Number CR-191,309.
DISPOSITION: Affirmed.
CASE SUMMARY
PROCEDURAL POSTURE: Defendant sought review of a decision of the Common Pleas Court, Cuyahoga County (Ohio), which convicted him of aggravated murder in violation of Ohio Rev. Code Ann. ?2903.01, and kidnapping in violation of ?2905.01.
OVERVIEW: Defendant contended that the trial court erred in permitting the testimony of his alleged wife in violation of Ohio Rev. Code Ann. °Ï°Ï 2945.42, 2317.02(D). Defendant further asserted that the trial court erred in permitting the testimony of his clergymen and in determining that various letters between him and the clergymen were not privileged under ?2317.02(C). Regarding the testimony of his alleged wife, defendant asserted that her testimony was subject to exclusion by reason of marriage even though there relationship was merely a common-law marriage. The court determined that a common law marriage did not exist between defendant and his alleged wife because the alleged wife was only 13 years of age when state law required an age of at least 16 years to consent to marriage. Furthermore, the alleged wife had not taken defendant's last name and thus, was not openly holding herself to be married to defendant, as was required for a common law marriage. The court held that the clergymens' testimony was properly admitted because none of the communcation between the clergymen and defendant was in the context of a confessional or penitential relationship.
OUTCOME: The court affirmed the decision of the trial court, which convicted defendant.
CORE TERMS: assignment of error, confession, disappearance, girl, mistrial, marriage, corpus delicti, reasonable doubt, prosecutor, common-law, clergyman, overrule, church, process of law, privileged, murder, drove, prejudicial error, kidnapping, confessional, admissible, arrested, killing, priest, alibi, penitential, errand, Ohio Rules of Evidence, correspondence, preparation
LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts
Family Law > Annulment & Invalid Marriages
HN1 Ohio Rev. Code Ann. ?3101.01 provides that a male must be 18 years old and a female 16 years old before consenting to a marriage.
Criminal Law & Procedure > Evidence > Privileges > Clergy Communications
HN2 Ohio Rev. Code Ann. ?2317.02(C) provides that with respect to privileged communications and acts, the following persons shall not testify in certain respects: A clergyman, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect, when the clergyman, rabbi, priest, or such minister remains accountable to the authority of that church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to him for a religious counseling purpose in his professional character; however, the clergyman, rabbi, priest, or minister may testify by express consent of the person making the communication, except when the disclosure of the information is in violation of his sacred trust.
Criminal Law & Procedure > Evidence > Privileges > Clergy Communications
HN3 A communication made to a clergyman or priest to be deemed privileged under authority of Ohio Rev. Code Ann. ?2317.02, must apply only to a confession made in the understood pursuance of church discipline which gives rise to the confessional relation and not to a communication of another tenor.
Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution
HN4 Until the corpus delicti is proved by some evidence, proof of guilt of the person charged may not be received. Reduced to its simplest state, then, the corpus delicti doctrine in Ohio requires some evidence that the crime charged was committed followed by or accompanied with some proof of who committed the crime.
Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution
HN5 There must be some evidence outside of a confession, tending to establish the corpus delicti before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged. The existence of "some evidence" tending to show that, in fact, a crime had been committed is crucial to the admission of the appellant's subsequent series of confessions under Miranda.
Criminal Law & Procedure > Evidence > Admission, Exclusion & Preservation
HN6 Ohio R. Evid. 404(B) declares that evidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
that he acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
Criminal Law & Procedure > Appeals > Standards of Review > Substantial
Evidence Review
HN7 A reviewing court may not reverse a criminal court conviction where the
record shows a sufficiency of evidence and where no prejudicial error is
demonstrated during the trial of the case or in the court's instructions to
the jury.
Criminal Law & Procedure > Evidence > Admission, Exclusion & Preservation
HN8 A proponent of the evidence is responsible for demonstrating its
authenticity or establishing a foundation for its consideration.
Identification can be accomplished by a witness with personal knowledge.
Criminal Law & Procedure > Evidence > Admission, Exclusion & Preservation
HN9 Ohio R. Evid. 90(A) lists "by way of illustration only" ten methods of
authenticating evidence, including testimony of a witness with knowledge.
COUNSEL: For plaintiff-appellee: John T. Corrigan, Prosecuting Attorney.
For defendant-appellant: Steven E. Elder, Esq.
JUDGES: n* COOK, J.
n* LYNCH, J. CONCUR.
SAUL G. STILLMAN, PRESIDING JUDGE
n* DENOTES SITTING BY ASSIGNMENT. SAUL G. STILLMAN, RETIRED JUDGE OF THE
EIGHTH APPELLATE DIST. ROBERT E. COOK, JUDGE OF THE ELEVENTH APPELLATE
DISTRICT. JOHN J. LYNCH, RETIRED JUDGE OF THE SEVENTH APPELLATE DISTRICT.
OPINIONBY: STILLMAN
OPINION: JOURNAL ENTRY AND OPINION
STILLMAN, J.:
The defendant-appellant, Brandon Flagner, was indicted by the Grand Jury of
Cuyahoga County on three counts on June 7, 1984. Two counts charged him with
the commission of Aggravated Murder, in violation of O.R.C. 2903.01, and the
third charged him with Kidnapping, in violation of O.R.C. 2905.01. These
charges stemmed from the disappearance of a girl named Tiffany Papesh, which
occurred on Friday, June 13, 1980 at approximately 2:45 p.m. in the vicinity
of her home in Maple Heights, Ohio. At that date, she was 8 years old and
was running an errand for [*2] her step-mother, Dorothy Papesh, at a
Convenient Store close to the family residence. Tiffany was seen leaving the
store and has never been seen since that moment.
Attention was first drawn to the appellant shortly after Tiffany's
disappearance. He took part in searches for the child and attempted to
interest Tiffany's father, Frank Papesh, in distributing for sale T-shirts
bearing Tiffany's picture. The purpose was to raise money to facilitate
further search.
At trial, the appellant's aberrant life style emerged from a large body of
testimony. He had lived in 1977 with a family named Scheneman, in Elyria,
Ohio. The Schenemans took him into their household and provided a job for
him. At that time, Flagner told Mrs. Scheneman that he was in love with her
10-1/2-year-old daughter, Thelma. Mrs. Scheneman forced him out of the home.
In September, 1977, Flagner moved to Texas. During June and July of 1978,
Mrs. Scheneman suspected that Flagner had returned to Elyria, and she
provided Thelma, then 11 years old, with a pistol and a long hairpin to
protect herself from any possible intruder. The intrusion did occur. Flagner
was arrested and sentenced to prison.
From his prison cell, Flagner [*3] wrote to a 12-year-old girl, Kelly
Woodward, who had won a spelling contest listing her name and address. He
did not inform her of his prison confinement nor of his previous episode
with the Scheneman girl. So effective was the appellant's approach to Kelly
that the Woodward family went to the prison to see him. They became his
parole sponsors and, in March, 1980, Flagner went to live with the Woodwards
in Creston, Ohio. Kelly was 13 and, apparently with no disapproval from the
adult members of the family, became sexually intimate with Flagner.
On an evening after Tiffany Papesh's disappearance, on June 13, 1980,
Flagner checked the TV stations seeking information on the disappearance of
a small girl. On Sunday, shortly afterward, he read an article on this
subject and spoke to Mrs. Woodward about it. He drove to Maple Heights that
afternoon. At a later date, Flagner again drove to Maple Heights and showed
Mrs. Woodward the Papesh home.
Following this trip, the appellant drove once more to Maple Heights with
Mrs. Woodward and Kelly in the car. He went into the Papesh home without
Mrs. Woodward or Kelly joining him. When he came out, he drove them to the
Convenient Store where Tiffany [*4] had last been seen.
On the return trip to Creston, the appellant stopped the car on the road and
said that they should get out to search for Tiffany's body. Mrs. Woodward
and Flagner did so for about a half hour before proceeding on to Creston. At
this time, the focus of public attention had been upon a missing child,
rather than a suspected victim of murder.
Subsequently, on July 14, 1980, Flagner was arrested by the Maple Heights
Police Department on charges stemming from their investigation of Tiffany's
disappearance. He was released from custody that afternoon.
In August, 1980, the appellant was forced to leave the Woodward family,
returning eventually to Texas. He resided with his brother, Cedric Tenorio.
Flagner had changed his name earlier through legal proceedings.
At the end of October, 1980, Mrs. Woodward left Creston, leaving her
husband, and moved to Texas with her daughter, Kelly, and son, David.
Sometime thereafter, Cedric Tenorio saw a safe deposit box in the car used
by the appellant and questioned him about it. Flagner said that it contained
evidence concerning the killing of Tiffany Papesh. In May, 1981, these
materials were destroyed by Mrs. Woodward and Kelly [*5] Woodward, at the
request of Flagner, when Flagner was arrested by the Texas police for
assaulting young girls. He was convicted and sentenced to prison in Texas.
During June, 1983, the FBI office in Tyler, Texas, received an anonymous
letter regarding Tiffany Papesh. Agents of the FBI visited Flagner in jail
and spent a large amount of time with him. He confessed to the kidnapping
and murder of Tiffany Papesh, describing at least one personal feature of
Tiffany not generally known, a scar on her right knee.
Following the FBI's investigation, further extensive inquiries were
undertaken by the Cuyahoga County Prosecutor's Office. Many letters of
confession had been sent to two ministers, the Rev. Glen Horner and, in a
lesser number, Rev. Jerry Clark. Similar admissions were made to Mrs.
Carolyn Woodward. A letter to Flagner's mother making a specific confession
was produced in court by Cedric Tenorio, his brother. Other confessions went
to newspapers.
An alibi concerning Flagner's working time sheet on the date of Tiffany's
disappearance, June 13, 1980, was discussed in a letter to Rev. Horner, and
the appellant wrote on June 5, 1983, "My alibi was faked."
The jury returned verdicts [*6] of guilt on murder and kidnapping charges,
and this appeal followed.
Each assignment of error is considered seriatim in the opinion which
follows.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF APPELLANT'S WIFE, KELLY
JO WOODWARD, IN VIOLATION OF R.C. SEC. 2945.42 AND R.C. SEC. 2317.02(D). THE
TRIAL COURT ALSO ERRED IN PERMITTING THE TESTIMONY OF REVERENDS GLEN HORNER
AND JERRY CLARK AND IN DETERMINING THAT VARIOUS LETTERS BETWEEN THE
REVERENDS AND APPELLANT WERE NOT "PRIVILEGED" IN VIOLATION OF R.C. SEC.
2317.02(C), ALL OF WHICH DEPRIVED APPELLANT OF HIS FOURTEENTH AMENDMENT
RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.
The first part of this assignment of error is based upon the assertion that
Kelly Jo Woodward was the appellant's wife and her evidence was subject to
exclusion by reason of this relationship. It is asserted that Kelly Jo
Woodward and the appellant had exchanged marriage vows during 1980 and that
a son had been born to them, creating a common-law marriage "at the time of
the Papesh girl's disappearance."
The appellant concedes in his brief that the "specific dates of the above,"
referring to the marriage vows, sexual relations [*7] and the subsequent
events, "are not totally clear." Nevertheless, he asserts that a common-law
marriage did exist and Kelly Jo Woodward's testimony was improperly and
prejudicially admitted.
It is significant that the norms for a common-law marriage in Ohio are not
discussed by the appellant. In order for a common-law marriage to attain
validity in Ohio, there must be (1) a mutual agreement to marry in
praesenti, (2) entered into by parties competent to marry, followed by (3)
cohabitation of the parties as husband and wife, who are (4) holding
themselves out in the community in which they move as husband and wife and
(5) being regarded in the reputation of the community as such. In re Estate
of Schroeder (1966), 7 Ohio App. 2d 271.
In the instant case, the appellant is seeking to establish a common-law
marital relationship with a 13-year-old girl who never was known as Flagner,
who testified as "Kelly Jo Woodward," and who had never been known as the
appellant's spouse in the State of Ohio at all times pertinent to this case.
HN1Revised Code Sec. 3101.01 provides that a male must be 18 years old and a
female 16 before consenting to a marriage. Here, the female's age made
consent [*8] legally invalid.
For these reasons, we hold that the testimony proferred by Kelly Jo Woodward
was properly admitted into evidence.
The second part of the error assigned relates to a series of communications
between the appellant and Reverends Glen Horner and Jerry Clark which were
admitted into evidence, as well as oral evidence, by the two pastors
presented in Court. It is the thesis of the appellant that both the oral
testimony and the written communications involved were "privileged" and,
therefore, exempt from presentation to the jury.
HN2Ohio Revised Code Sec. 2317.02 provides with respect to "Privileged
communications and acts" that:
. . . the following persons shall not testify in certain respects:
(C) A clergyman, rabbi, priest, or regularly ordained, accredited, or
licensed minister of an established and legally cognizable church,
denomination, or sect, when the clergyman, rabbi, priest, or such minister
remains accountable to the authority of that church, denomination, or sect,
concerning a confession made, or any information confidentially
communicated, to him for a religious counselling purpose in his professional
character; however, the clergyman, rabbi, priest, [*9] or minister may
testify by express consent of the person making the communication, except
when the disclosure of the information is in violation of his sacred trust.
To determine the application of this statute properly requires an
examination of the factual circumstances. The appellant was not a member of
the churches served by Reverends Glen Horner or Jerry Clark. Johnson v.
Commonwealth (1949), 310 Ky. 857. Nor is there any indication that he had
ever been a penitent of the churches served by either clergyman. People v.
Thompson (1982), 133 Cal. App. 3d 419.
Moreover, the ruling of this Court In re Estate of Schroeder (1966), 7 Ohio
App. 2d 271 specifically declares that HN3"[a] communication made to a
clergyman or priest to be deemed privileged under authority of Sec. 2317.02
Revised Code, must apply only to a confession made in the understood
pursuance of church discipline which gives rise to the confessional relation
and not to a communication of another tenor."
The appellant here initiated extensive lines of correspondence with the two
clergymen involved herein ranging in content from everything stemming from
his relationships and deliberate molestations [*10] to and with young
female children to various and contradictory statements of his guilt in the
Tiffany Papesh disappearance and killing. Included in this large range of
letters were specific statements that described his mental state when he
accosted Tiffany [State Exh. 42], the faking of his alibi [Exh. 44], a
description of his disposal of the body [Exh. 47], announcement of a letter
to an unnamed person promising to reveal "the exact location of Tiffany's
whereabouts" [Exh. 51], and a promise to "let the family know" directly the
location of Tiffany's body parts [Exh. 45].
None of these statements was made in the context of a confessional or
penitential relationship between a clergyman and a parishioner. In Lucy v.
State (Ala. App. 1983), 443 So.2d 1335, a defendant met an ordained
Methodist minister near the scene of a murder and declared that he had
"severely cut his girl friend." The court held that this statement was not
received by the minister in a professional capacity and was "neither
penitential nor confidential."
See also, Bottoson v. State (Supreme Ct. of Florida 1983), 443 So.2d 962,
cert. den. U.S. 83 L.Ed.2d 153.
In addition to these considerations, [*11] we must not overlook the fact
that the appellant addressed communications virtually identical in content
to the press in the Cleveland and Elyria areas, as well as to the Federal
Bureau of Investigation in Texas and the television media. It is clear that
he was not seeking to establish a confidential, confessional or penitential
relationship with two representatives of a responsive church discipline. On
the contrary, he was seeking to bruit his association with the disappearance
and death of Tiffany Papesh as extensively as possible.
For these reasons, we overrule the first assignment of error
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING VARIOUS EXTRAJUDICIAL
STATEMENTS AND CONFESSIONS OF APPELLANT, BRANDON FLAGNER, INTO EVIDENCE
WITHOUT THE PROSECUTION HAVING FIRST ESTABLISHED THE "CORPUS DELICTI" OF THE
CRIME, WHICH DEPRIVED HIM OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL
AND DUE PROCESS OF LAW.
It is well established in the criminal law of Ohio that HN4"until the corpus
delicti is proved by some evidence, proof of guilt of the person charged may
not be received. Reduced to its simplest state, then, the corpus delicti
doctrine in Ohio [*12] requires: "a. some evidence that the crime charged
was committed, b. followed by or accompanied with some proof of who
committed the crime." Anderson, Ohio Criminal Practice and Procedure, 1973,
p. 404.
In State v. Maranda (1916), 94 Ohio St. 364, the Ohio Supreme Court
declared:
It has long been established as a general rule in Ohio that HN5there must be
some evidence outside of a confession, tending to establish the corpus
delicti before such confession is admissible. The quantum or weight of such
outside or extraneous evidence is not of itself to be equal to proof beyond
a reasonable doubt, nor even enough to make a prima facie case. It is
sufficient if there is some evidence outside of the confession that tends to
prove some material element of the crime charged.
The existence of "some evidence" tending to show that, in fact, a crime had
been committed is crucial to the admission of the appellant's subsequent
series of confessions under Maranda. However, at this stage of inquiry,
there need be no linking of the crime itself to the appellant. It is
sufficient to demonstrate that a crime has occurred. Here, the State's
evidence presented a series of events [*13] adequately fulfilling this
basic requirement:
1. The evidence shows that Tiffany Papesh, an 8-year-old girl, was sent upon
an errand on June 13, 1980. She completed the errand and has never been seen
since that time.
2. She had no reason to leave home, and there is nothing to indicate that
she was a run-away. This total disappearance is the initial showing of "some
evidence" that a crime has been committed under the c
