Steve Palmer

Week of January 27 – 31 Appeals with Decisions Reversed

On Behalf of | Feb 4, 2025 | Firm News

Issue on Appeal: Motion to Suppression and Substantial Compliance  

Background: On January 28, 2023, Meagan Nesbitt was stopped by a Wadsworth police officer after committing several traffic violations, including failing to stop completely at a red light. The officer observed signs of impairment, leading to Nesbitt being asked to perform field sobriety tests. Nesbitt was placed under arrest after failing the Horizontal Gaze Nystagmus (HGN) test and refusing a chemical test. She was charged with operating a vehicle under the influence (OVI) and with violating R.C. 4511.19(A)(2) for refusing to submit to the chemical test due to a prior OVI conviction. Nesbitt filed motions to suppress the evidence obtained during the stop and arrest, which were ultimately denied by the trial court. Following a jury trial, Nesbitt was convicted of both OVI charges, and her sentences were ordered to be served consecutively. She appealed, raising issues regarding the suppression of evidence and the trial court’s ruling on probable cause.

Legal Issue: Nesbitt raises three assignments of error on appeal. First, she argues the trial court committed plain error by admitting the results of the HGN test, claiming the test was not administered in substantial compliance with the National Highway Traffic Safety Administration (NHTSA) standards. Second, she challenges the trial court’s denial of her motion to suppress, arguing that the court erroneously found probable cause to arrest her based on the results of the HGN test. Third, Nesbitt contends the trial court failed to merge her convictions for the OVI offenses under R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) at sentencing.

Court of Appeals Analysis: The court began by reviewing the trial court’s ruling on Nesbitt’s motion to suppress, recognizing that the suppression decision involves a mixed question of law and fact. The court accepted the trial court’s factual findings as true, but it independently reviewed whether those facts met the applicable legal standards. Regarding the HGN test, the court found that the trial court erred by admitting the test results even though they did not meet the NHTSA standards for substantial compliance. Specifically, the officer failed to properly administer the “lack of smooth pursuit” portion of the test, violating the procedural requirements. The trial court had improperly allowed the modified results into evidence by limiting the number of clues considered, which was an error. Furthermore, the court ruled that the HGN test results were erroneously considered in determining probable cause for Nesbitt’s arrest. As a result, the court reversed the trial court’s suppression ruling and remanded the case for a new probable cause analysis based on the proper evidence.

The court also addressed Nesbitt’s third assignment of error concerning the failure to merge her OVI convictions for sentencing. However, since the issues related to the suppression of evidence were being remanded for further proceedings, the court deemed the sentencing issue moot and declined to address it.

Conclusion: The court sustained Nesbitt’s first and second assignments of error, finding that the trial court erred in admitting the HGN test results and in using those results to determine probable cause for Nesbitt’s arrest. The case was reversed and remanded for further proceedings consistent with this opinion. The third assignment of error regarding sentencing was not addressed as it was rendered moot by the remand. The judgment of the Wadsworth Municipal Court was reversed, and the case was sent back for further action.

https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2025/2025-Ohio-223.pdf

State v. Nesbitt, 9th Dist. Medina No. 2023CA0073-M, 2025-Ohio-223

Issue on Appeal: Newly Discovered Evidence Enough for a Hearing

Background: Terry Little was convicted in 2009 of aggravated murder and other offenses, receiving a 30-year-to-life prison sentence. Over the years, he pursued multiple appeals and postconviction motions, all of which were denied. In 2024, he filed two motions for leave to file motions for a new trial, citing newly discovered evidence. The trial court denied both motions without a hearing, leading Little to appeal once again.

Legal Issue: Little argued that the trial court erred by denying his motions for leave to file a motion for a new trial without a hearing. He claimed that new evidence—a 2007 police report allegedly suppressed by the State and a 2012 news article regarding police misconduct—should have been considered. The core legal question was whether he was unavoidably prevented from discovering this evidence within the timeframe required by Crim.R. 33(B) and whether the trial court should have held a hearing to determine the validity of his claims.

Court of Appeals Analysis: The appellate court split its decision. On the first motion regarding the 2007 police report, the court found that Little had presented sufficient questions about whether the State suppressed Brady material. Because a defendant is entitled to rely on the prosecution’s duty to disclose exculpatory evidence, the trial court should have held a hearing to determine if the report was improperly withheld. The court reversed the trial court’s denial of this motion and remanded the case for further proceedings.

However, on the second motion, which involved the 2012 news article about police misconduct and a Miranda waiver form Little claimed was forged, the appellate court affirmed the trial court’s denial. It held that Little had long been aware of both pieces of evidence and could have raised these claims in earlier filings. Since res judicata prevents defendants from raising postconviction claims in a piecemeal fashion, the court determined these claims were barred.

Conclusion: The appellate court ruled in favor of Little on the issue of the 2007 police report, reversing the trial court’s denial and ordering a hearing to determine whether it was improperly suppressed. However, it affirmed the trial court’s denial of the motion based on the news article and Miranda waiver form, finding that Little failed to meet the standard for newly discovered evidence. This mixed ruling means Little will have another opportunity to argue his case regarding the police report but cannot relitigate the other claims.

https://www.supremecourt.ohio.gov/rod/docs/pdf/9/2025/2025-Ohio-130.pdf

State v. Nesbitt, 9th Dist. Medina No. 2023CA0073-M, 2025-Ohio-223

Issue on Appeal: Issue not Raised on Prior Appeal

Background: David Martin appeals the Trumbull County Court of Common Pleas’ decision to dismiss his successive petition for postconviction relief. Martin argues that the trial court erred by dismissing his petition because (1) the U.S. Supreme Court recognized new federal or state rights that should apply retroactively to him, (2) he was unavoidably prevented from presenting his ineffective assistance of counsel claim earlier due to his intellectual disability, indigence, and incarceration, and (3) he has presented uncontroverted proof that he is intellectually disabled and ineligible for execution. He further contends that if the trial court properly dismissed his petition under R.C. 2953.23, then the statute must be deemed unconstitutional as applied to him.

Legal Issue: The key legal question in this case is whether Martin’s successive petition for postconviction relief meets the jurisdictional requirements under R.C. 2953.23(A), which permits untimely or successive petitions only under specific conditions. Martin claims that new and retroactive federal rights apply to his case and that he was unavoidably prevented from discovering critical facts necessary for his claim of intellectual disability. He further challenges the constitutionality of R.C. 2953.23 if it bars his petition.

Court of Appeals Analysis: The appellate court found that Martin failed to meet the statutory requirements for filing a successive postconviction petition. First, the court rejected his argument that the U.S. Supreme Court’s decisions in Moore v. Texas and Jones v. Mississippi created new and retroactive legal rights applicable to his case. The court determined that these decisions did not establish new constitutional rules but rather applied existing precedent, meaning they did not trigger the exception in R.C. 2953.23(A).

Second, the court found that Martin did not demonstrate that he was unavoidably prevented from discovering facts necessary for his claim. The record already contained evidence suggesting his intellectual disability, such as an IQ score of 71, failing grades, and a competency evaluation noting borderline intellectual functioning. The court reasoned that if this evidence was reasonably discoverable, then his trial counsel could have raised the claim earlier, and his failure to do so did not constitute unavoidable prevention.

Third, the court dismissed Martin’s argument that his initial postconviction counsel was ineffective, stating that there is no constitutional right to effective assistance of counsel in postconviction proceedings under Ohio law. Finally, the court held that R.C. 2953.23’s procedural restrictions on successive petitions are constitutional and do not violate Martin’s rights.

Conclusion: The appellate court affirmed the trial court’s dismissal of Martin’s petition, concluding that he failed to meet the jurisdictional requirements of R.C. 2953.23. The court emphasized that its decision was based strictly on the statutory framework for postconviction relief and took no position on the substantive merits of Martin’s intellectual disability claim.

Dissenting Opinion: Judge Matt Lynch dissented, arguing that Martin had demonstrated he was unavoidably prevented from discovering key evidence supporting his Atkins claim, which prohibits the execution of intellectually disabled individuals. Lynch criticized the majority for applying an overly rigid standard, stating that Martin’s trial counsel’s failure to investigate his intellectual disability justified an exception to R.C. 2953.23’s procedural bars. He contended that new psychological evaluations from 2020 and 2021, which concluded Martin met the criteria for intellectual disability, constituted newly discovered evidence that was unavailable at the time of his trial and initial postconviction proceedings. Accordingly, Judge Lynch would have reversed the trial court’s decision and allowed Martin’s claim to proceed.

https://www.supremecourt.ohio.gov/rod/docs/pdf/11/2025/2025-Ohio-144.pdf

State v. Martin, 11th Dist. Trumbull No. 2024-T-0001, 2025-Ohio-144

Issue on Appeal: Showing Preindictment Delay was Prejudicial

Background: Scott Alan Wilson appealed his conviction for involuntary manslaughter in the Clermont County Court of Common Pleas, challenging the trial court’s denial of his motion to dismiss based on preindictment delay. The case stemmed from a 1985 assault in which Wilson inflicted serious brain trauma on his then-girlfriend’s six-week-old daughter, Hannah. At the time, Wilson was convicted of misdemeanor assault and served six months in jail. However, Hannah suffered severe medical complications for the rest of her life, eventually passing away in 2006. Following an autopsy that linked her death to the original brain injury, no charges were filed at the time. It wasn’t until 2022—16 years after Hannah’s death—that prosecutors revisited the case upon reviewing Wilson’s motion to seal his record. He was subsequently indicted for involuntary manslaughter. Wilson moved to dismiss the charges, arguing the lengthy delay violated his due process rights. The trial court denied the motion, finding he failed to show actual prejudice from the delay. Wilson then entered a no-contest plea and was sentenced to two years in prison.

Legal Issue: Wilson argued that the trial court erred by denying his motion to dismiss due to preindictment delay. He claimed the 16-year delay between Hannah’s death and his indictment deprived him of a fair trial, violating his due process rights under the U.S. and Ohio Constitutions. Specifically, he contended that critical evidence had been lost, including trial transcripts, child protective services records, and the testimony of deceased witnesses.

Court of Appeals Analysis: The appellate court applied the two-part test for preindictment delay: (1) the defendant must show actual prejudice, and (2) if actual prejudice is established, the burden shifts to the state to justify the delay. The court found Wilson failed to meet the first prong—demonstrating actual prejudice—making it unnecessary to assess whether the state’s delay was justified.

Wilson claimed missing evidence from 1985, including trial records and witness testimony, hindered his defense. However, the court noted that his original assault conviction was an established fact that could not be relitigated. Since the issue in the manslaughter case was whether the 1985 injury proximately caused Hannah’s death, the unavailable evidence had little bearing on that determination. The court found that any potential testimony from missing witnesses was speculative, as Wilson failed to explain how it would have altered the outcome.

Wilson also argued that unavailable medical evidence from 2006, particularly the absence of neuropathologist Dr. Greg Balko, prejudiced his defense. However, the court found that Wilson’s own expert could still critique Dr. Balko’s findings, potentially to Wilson’s benefit, since the state lacked direct rebuttal testimony. Additionally, Wilson failed to identify specific missing medical records from Hannah’s nursing home care that would have been exculpatory. Without a concrete showing of prejudice, the court determined his claim was insufficient.

Conclusion: The appellate court held that Wilson did not establish actual prejudice from the preindictment delay, and therefore, his due process rights were not violated. Since he failed to meet this threshold requirement, the court did not need to evaluate the justification for the delay. Accordingly, the court affirmed the trial court’s denial of Wilson’s motion to dismiss and upheld his conviction.

https://www.supremecourt.ohio.gov/rod/docs/pdf/12/2025/2025-Ohio-134.pdf

State v. Wilson, 12th Dist. Clermont No. CA2024-03-021, 2025-Ohio-134

Issue on Appeal: Weight of Evidence

Background Mark W. Mattox was convicted of first-degree felony theft from a person in a protected class under R.C. 2913.02(B)(3) after withdrawing and gambling away over $450,000 from his elderly aunt’s bank accounts. A grand jury originally indicted him for theft in violation of R.C. 2913.02, later amending the indictment to specify that the victim was an elderly person, which elevated the charge. Mattox pleaded not guilty, and the case proceeded to trial.

The prosecution presented extensive evidence, including testimony from the victim, A.G., who stated she had entrusted Mattox to pay her bills while she underwent cancer treatment in Virginia. However, upon returning, she discovered her accounts had been emptied, her bills had gone unpaid, and Mattox had withdrawn large sums of money from her accounts without her authorization. Evidence showed that he had used the funds at multiple casinos, and bank records, surveillance footage, and testimony from law enforcement supported these findings. Mattox argued that he was a joint account holder, asserting he had legal access to the funds. However, the prosecution countered that A.G. never authorized him to withdraw funds beyond bill payments, and the bank was unable to produce any documentation showing he was a joint holder on her checking and money market accounts. The jury found him guilty, and the court sentenced him to an indefinite prison term of five to seven and a half years.

Legal Issue On appeal, Mattox raised three arguments: (1) the trial court erred in denying his Crim.R. 29 motion for acquittal due to insufficient evidence, (2) his right to a unanimous verdict was violated because the state presented multiple theories of theft in a single charge, and (3) his conviction was against the manifest weight of the evidence.

Court of Appeals Analysis The appellate court first addressed Mattox’s sufficiency and manifest weight arguments together. To convict him of theft under R.C. 2913.02, the state needed to prove that he knowingly obtained or exerted control over A.G.’s funds with the intent to deprive her, either without her consent, beyond the scope of her consent, or by deception. The court found that extensive evidence, including Mattox’s admissions, bank records, and testimony, supported his conviction. The court also rejected his claim that he did not intend to permanently deprive A.G. of her funds, emphasizing that his extensive gambling losses made the deprivation effectively permanent. The evidence overwhelmingly demonstrated that he acted beyond the scope of A.G.’s limited authorization.

Regarding his claim of jury unanimity, the court applied the alternative means test established in State v. Gardner, which permits a single charge to be proven by multiple alternative means if substantial evidence supports each. The theft statute allows conviction based on taking property without consent, beyond the scope of consent, or by deception. Since the state presented ample evidence for each theory, jury unanimity was satisfied under Ohio law.

Conclusion The appellate court found that Mattox’s conviction was supported by sufficient evidence, was not against the manifest weight of the evidence, and did not violate jury unanimity rules. His three assignments of error were overruled, and the trial court’s judgment was affirmed.

https://www.supremecourt.ohio.gov/rod/docs/pdf/10/2025/2025-Ohio-239.pdf

State v. Mattox, 10th Dist. Franklin No. 24AP-186, 2025-Ohio-239

Issue on Appeal: Court Denying Challenges for Cause in Voir Dire

Background: Charles H. Dennison appeals a judgment of the Lawrence County Municipal Court, where he was convicted by a jury of three counts of sexual imposition following trial. Dennison raises three assignments of error: (1) the trial court’s refusal to allow challenges for cause during jury selection, (2) insufficient evidence to support his convictions, and (3) an unlawful sentence.

Legal Issue: The central legal issues in this case include whether Dennison was denied the right to a fair trial due to the court’s refusal to permit challenges for cause during voir dire, and whether his conviction was supported by sufficient evidence.

Court of Appeals Analysis: The appellate court found that while sufficient evidence supported Dennison’s conviction, the trial court committed an error in denying the defendant the opportunity to challenge jurors for cause. Specifically, the court held that Dennison should have been allowed to challenge jurors outside of the jury’s presence, as previously discussed in a pretrial meeting. Because of this procedural error, the appellate court reversed Dennison’s conviction and remanded the case for a new trial on the sexual imposition charges. As a result, Dennison’s sentencing appeal was rendered moot.

Conclusion: The court sustained the first assignment of error and reversed the judgment of the trial court. A new trial was ordered due to the failure to allow Dennison to properly challenge jurors for cause. The second and third assignments of error were overruled or rendered moot, respectively.

https://www.supremecourt.ohio.gov/rod/docs/pdf/4/2025/2025-Ohio-139.pdf

State v. Dennison, 4th Dist. Lawrence No. 24CA7, 2025-Ohio-139