[Cite as State v. Parris, 2014-Ohio-4863.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                    Court of Appeals No. OT-14-015

        Appellant                                Trial Court No. 12 CR 203

v.

Cameron W. Parris                                DECISION AND JUDGMENT

        Appellee                                 Decided: October 31, 2014

                                             *****

        Mark Mulligan, Ottawa County Prosecuting Attorney, and
        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellant.

        Kristopher K. Hill and Thomas J. DeBacco, for appellee.

                                             *****

        SINGER, J.

        {¶ 1} Appellant, the state of Ohio, appeals from the Ottawa County Court of

Common Pleas judgment granting the motion to dismiss of appellee, Cameron Parris.

Because we conclude the trial court properly granted appellee’s motion, we affirm.
       {¶ 2} In the early morning hours of September 5, 2011, Zachary Brody assaulted

Phil Masterson at Put-in-Bay on South Bass Island, Ottawa County, Ohio. This assault

resulted in Mr. Masterson’s death. Appellee was Brody’s friend and was with Brody at

Put-in-Bay on the day of the crime. Appellee had knowledge of the crime and the events

which occurred afterwards.

       {¶ 3} On September 13, 2011, appellee’s counsel, who represented appellee in

regards to the death of Phil Masterson, sent a proffer letter to the Ottawa County

Prosecutor “to immunize my client in exchange for his truthful testimony throughout the

legal process.” The letter indicated appellee would meet and give a “full honest

disclosure” in a taped interview and at grand jury. The letter stated “[i]f my client’s

testimony is useful to you, I would ask that you agree to grant my client immunity from

any future charges in exchange for his truthful testimony.” The letter further provided

“[y]our signature at the bottom of this page indicates your agreement to this Proffer.”

The letter was signed by appellee’s counsel and the Ottawa County Prosecutor.

       {¶ 4} On September 14, 2011, appellee was interviewed by law enforcement

officers for almost two hours. The interview was taped. On September 15, 2011, a grand

jury was empaneled, however, appellee was not called to testify. Also on that day,

appellee was notified by appellant that he “has not made a full and truthful disclosure.

Thus our agreement for immunity has been breached.” Appellant further informed

appellee at least one, and probably more, felony charges against him were appropriate.




2.
       {¶ 5} On March 12, 2012, Brody was charged with one count of involuntary

manslaughter and two counts of tampering with evidence, and entered a plea of guilty to

all counts. The trial court accepted Brody’s guilty plea, and on May 23, 2012, imposed

maximum, consecutive sentences for a total of 16 years in prison. Brody appealed the

sentence and this court affirmed the trial court’s judgment in State v. Brody, 6th Dist.

Ottawa No. OT-12-022, 2013-Ohio-1708.

       {¶ 6} On November 1, 2012, appellee was charged by indictment with three

counts of tampering with evidence, three counts of obstructing justice, one count of

failure to report a death and one count of falsification. Counts one through seven of the

indictment are alleged to have occurred on or about September 4, 5 or 6, 2011, and count

eight is alleged to have occurred on or about September 14, 2011.

       {¶ 7} On January 3, 2013, appellee filed a motion to dismiss/motion for specific

performance with the trial court seeking specific performance of the agreement not to

prosecute, and to have the indictment against him dismissed.

       {¶ 8} On February 28, 2013, a hearing was held. At the hearing, appellee’s

counsel and the Ottawa County Prosecutor testified they entered into a written non-

prosecution agreement on September 13, 2011 (“the agreement”). Following further

testimony, the trial court denied appellee’s motion finding it was appellee’s burden to

prove compliance with the agreement. Thereafter, appellee filed a motion to reconsider

as well as other motions. On July 18 and September 3, 2013, the trial court held

additional hearings on the pending motions.



3.
       {¶ 9} On March 27, 2014, the trial court issued its decision, finding it was

appellee’s burden to prove the existence of the agreement, then the burden shifted to

appellant to establish, by a preponderance of the evidence, that appellee breached the

agreement and the breach was sufficiently material to warrant rescission of the

agreement. The court noted the parties stipulated that they entered into the agreement.

The trial court then found appellant did not establish by a preponderance of the evidence

that appellee breached or materially breached the agreement. The court granted

appellee’s motion to dismiss as to counts one through seven of the indictment, but denied

the motion to dismiss as to count eight of the indictment.

       {¶ 10} Appellant timely filed its appeal, setting forth two assignments of error:

              I. The Ottawa County Court of Common Pleas abused its discretion

       when it dismissed counts one through seven of the indictment against

       Cameron Parris because Cameron Parris did not perform a condition

       precedent to the State’s performance under the non-prosecution agreement.

              II. The Ottawa County Court of Common Pleas abused its discretion

       when it dismissed counts one through seven of the indictment against

       Cameron Parris because Cameron Parris materially breached the non-

       prosecution agreement.

       {¶ 11} There are three types of non-prosecution agreements. See State v. Stanley,

7th Dist. Mahoning No. 99-C.A.-55, 2002-Ohio-3007, ¶ 41. The first type of agreement

is a negotiated plea agreement or plea bargain, which is permitted pursuant to Crim.R. 11,



4.
and is not binding until accepted by the court. Id. The second type is a grant of

immunity by the trial court pursuant to R.C. 2945.44. Id. at ¶ 42. The third type is a pre-

indictment agreement wherein a person agrees to provide truthful information about a

crime on the condition that he or she will not be prosecuted at all. Id. at ¶ 48. No court

approval is required for a pre-indictment agreement. Id.

       {¶ 12} This court has recognized that non-prosecution agreements are governed by

contract law. See State v. Reimsnyder, II, 6th Dist. Erie No. E-96-006, 1997 WL 224969,

*11 (May 2, 1997). With respect to the meaning of a contract term, courts must give

common words in a written instrument their plain and ordinary meaning, unless an absurd

result would follow or there is clear evidence of another meaning found on the face of the

document or from a reading of the entire contents of the instrument. Alexander v.

Buckeye Pipe Line Co., 53 Ohio St.2d 241, 374 N.E.2d 146 (1978), paragraphs one and

two of the syllabus. If the meaning of a contract term cannot be determined from the four

corners of the document, a factual determination of the parties’ intent may be necessary

to supply the missing term. Inland Refuse Transfer Co. v. Browning-Ferris Industries of

Ohio, Inc., 15 Ohio St.3d 321, 322, 474 N.E.2d 271 (1984). Extrinsic evidence will be

considered only “where the language is unclear or ambiguous, or where the

circumstances surrounding the agreement invest the language of the contract with a

special meaning.” Kelly v. Medical Life Ins. Co., 31 Ohio St.3d 130, 132, 509 N.E.2d

411 (1987).




5.
       {¶ 13} The construction of written contracts is generally a matter of law, which an

appellate court reviews de novo. Ohio Bell Tel. Co. v. PUCO, 64 Ohio St.3d 145, 147,

593 N.E.2d 286 (1992). See also Reimsnyder, II. With respect to factual determinations

made by a trial court, appellate courts must accept those findings if they are supported by

competent, credible evidence in the record. State v. Williams, 23 Ohio St.3d 16, 19, 490

N.E.2d 906 (1986).

       {¶ 14} In cases where a witness has promised to cooperate or provide honest

information to law enforcement in exchange for an agreement not to prosecute, the

government’s promise not to prosecute is nullified “[if] it is determined that the

defendant has not fulfilled the terms of the agreement * * *.” State v. Small, 41 Ohio

App.3d 252, 255, 535 N.E.2d 352 (8th Dist.1987). When a witness does not fulfill the

terms of an agreement, the failure “will relieve the government of its reciprocal

obligations under the agreement.” Id. Whether a witness breached a non-prosecution

agreement by failing to provide honest information should be determined by the trial

court at an evidentiary hearing. Id. The witness must first demonstrate the existence of a

non-prosecution agreement, then the government must prove by a preponderance of the

evidence the witness breached that agreement and “the breach is sufficiently material to

warrant rescission.” (Citation omitted.) State v. Stanley, 7th Dist. Mahoning No. 99-

C.A.-55, 2002-Ohio-4372, ¶ 16, 18. Whether a party has materially breached a non-

prosecution agreement depends, in part, upon the incriminating nature of the information




6.
provided by the witness. United States v. Fitch, 964 F.2d 571, 575 (6th Cir.1992). It

must, of course, be remembered that “the promise of a state official in his public capacity

is a pledge of the public faith and is not to be lightly disregarded. The public justifiably

expects the state, above all others, to keep its bond.” (Citation omitted.) State v. Moore,

7th Dist. Mahoning No. 06-MA-15, 2008-Ohio-1190, ¶ 62.

       {¶ 15} In its first assignment of error, appellant argues the trial court erred by

dismissing counts one through seven of the indictment because appellee did not perform

a condition precedent to appellant’s performance under the agreement. Appellant

contends appellee’s full and honest disclosure was a condition of its performance to grant

appellee immunity from prosecution. Appellant submits appellee lied on multiple

occasions and was not useful to the prosecution because once a witness lies, the

effectiveness of that witness is marginalized.

       {¶ 16} In its second assignment of error, appellant argues the trial court erred by

dismissing counts one through seven of the indictment since appellee materially breached

the agreement. Appellant observes the parties stipulated to the existence of the

agreement. Appellant maintains it was unreasonable for the trial court to find appellant

was not deprived of the benefit of its bargain since appellant’s benefit of the bargain with

appellee was appellee’s full and honest disclosure which would be useful to appellant.

Appellant contends appellee’s disclosure was not full or honest, and appellee was not

useful to it.




7.
       {¶ 17} Since appellant’s assignments of error are related, they will be addressed

together.

       {¶ 18} The type of non-prosecution agreement here is a pre-indictment agreement;

appellee agreed to provide a “full honest disclosure” in exchange for which appellant

agreed to grant appellee “immunity from any future charges.” Although the agreement

mentions immunity, it clearly means immunity from prosecution, not a grant of immunity

pursuant to R.C. 2945.44. In any event, the existence of the agreement is not disputed by

the parties.

       {¶ 19} What is in dispute is whether appellee fulfilled the terms of the agreement

or whether appellee breached the agreement by failing to provide a full and honest

disclosure and whether this breach was material such that the information disclosed was

not useful to appellant and appellant did not get the benefit of the bargain.

       {¶ 20} The phrase in the agreement, “full honest disclosure,” must be given its

plain and ordinary meaning, unless an absurd outcome would result. Full is defined as

“complete esp. in detail.” Merriam-Webster’s Collegiate Dictionary 471 (10th Ed.1996).

Honest means truthful, id. at 556, and disclosure means revelation, id. at 330. There is

nothing absurd or ridiculous about the phrase’s ordinary meaning, therefore the ordinary

meaning of the phrase will be used.

       {¶ 21} Appellant submits appellee’s full and honest disclosure was a condition of

its performance to grant appellee immunity, and since appellee was untruthful, appellant




8.
terminated the agreement. Appellant maintains appellee did not provide a full honest

disclosure, and materially breached the agreement because he left out or misrepresented

many important details during the taped interview. Specifically, appellant asserts

appellee omitted the following information during his interview: finding Mr. Masterson’s

wallet, mentioning the blood on the deck, picking up Mr. Masterson’s shirt and giving the

shirt to Clifton Knoth to throw away, and revealing Brody and his girlfriend went back to

Put-in-Bay to further cover up the crime scene after appellee left the island.

       {¶ 22} A breach of a non-prosecution agreement is considered material if “the

non-breaching party is deprived of the benefit of the bargain.” Stanley, 7th Dist.

Mahoning No. 99-C.A.-55, 2002-Ohio-4372 at ¶ 18, quoting United States v. Castaneda,

162 F.3d 832, 837 (5th Cir.1998). “The less the non-breaching party is deprived of the

expected benefits, the less material the breach.” Castaneda at 837. Another method of

determining whether a breach is material is by applying the converse of the substantial

performance concept, which is, “if a party’s ‘nonperformance * * * is innocent, does not

thwart the purpose of the bargain, and is wholly dwarfed by that party’s performance,’

the breaching party has substantially performed under the contract, and the non-breaching

party is not entitled to rescission.” (Citation omitted.) Id. As the court noted in

Castaneda,

              [D]espite Castaneda’s relatively insignificant omissions, the

       government got the benefit of its bargain and has failed to carry its burden

       of proving a material breach by Castaneda. * * * Although it appears that



9.
       Castaneda’s performance was not perfect-that he did not literally “tell

       everything he knew,” as he was technically required to do under the

       agreement-the government has failed to show that these omissions were

       intentional or, more importantly, that the government was prejudiced.

       Much of the relatively little that Castaneda omitted was already known to

       the government before interrogating Castaneda, or was discovered from

       other sources. When viewed in light of the overwhelming quantity of

       information he furnished about numerous individuals and incidents * * *

       much that Castaneda omitted must be classified either as cumulative or

       surplusage. Id. at 839.

       {¶ 23} Here, a review of the record, including the transcript of appellee’s taped

interview as well as the transcripts of the hearings on appellee’s motion and Brody’s

sentencing hearing, shows appellee supplied appellant with a substantial amount of

incriminating information concerning the circumstances surrounding Brody’s assault of

Masterson, and appellant used information learned from appellee against Brody. The

evidence indicates appellee revealed to appellant certain events which occurred before

and after the crime that appellant did not learn from any other source, and which assisted

appellant in its prosecution of Brody. The record establishes appellee provided appellant

with important facts regarding who was at the scene of the crime, how the victim was

acting, what led up to the crime including what appellee saw and heard of the fight, the

location of the fight on the porch of the cabin, what time the crime occurred and what



10.
transpired afterwards, including the cover-up planned by Brody. While appellee’s taped

interview was not flawless, the record shows many of the incidents he witnessed and

relayed to appellant happened very unexpectedly in the early morning hours after

appellee had returned to the cabin following a night of drinking with friends. Moreover,

there is no evidence any statements made by appellee were intentionally false, nor is

there evidence the omissions were substantial or in any way harmed appellant. Rather,

the evidence shows appellant already knew or shortly thereafter discovered from other

sources information omitted by appellee at his taped interview. Considering all of the

incriminating information appellee communicated to appellant, which was subsequently

used by appellant, the omissions relied upon by appellant are not sufficient to constitute a

substantial material breach to justify voiding the agreement or completely invalidating

appellee’s value as a witness to the crime. Appellant has not shown by a preponderance

of the evidence that it did not receive the benefit of the bargain contained in and

contemplated by the agreement. Accordingly, the agreement should be enforced. It

follows the trial court properly granted appellee’s motion to dismiss as to counts one

through seven of the indictment. Appellant’s assignments of error are found not well-

taken.

         {¶ 24} The judgment of the Ottawa County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is hereby ordered to pay the court costs incurred on

appeal.

                                                                       Judgment affirmed.



11.
                                                                      State v. Parris
                                                                      OT-14-015




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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