[Cite as State v. Jones, 2019-Ohio-1548.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-94
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-45
                                                  :
 TIMOTHY JONES                                    :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                              Rendered on the 26th day of April, 2019.

                                             ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
       Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. No. 0084033, P.O. Box 137, Germantown, Ohio 45327
     Attorney for Defendant-Appellant

                                            .............
                                                                                        -2-


HALL, J.

       {¶ 1} On January 9, 2018, during a lockdown and cell search at the Clark County

Jail, inmate Timothy Jones was found to have a three-to-five-inch shank in his sock. On

January 22, 2018, he was indicted for Possession of a Deadly Weapon While Under

Detention in violation of R.C. 2923.131(B), a fifth-degree felony. He was found guilty on

July 12, 2018, after a jury trial. On July 18, 2018, Jones was sentenced to 12 months in

prison. He appeals.

       {¶ 2} Shortly before his July 2018 trial, Jones’s counsel issued subpoenas duces

tecum for all records from the Clark County Jail and the prosecutor’s office pertaining to

charges pressed against inmates for possession of deadly weapons while in jail. At a July

9, 2018 hearing on the State’s motion to quash the subpoenas, Jones argued the records

were relevant because he believed charges were selectively brought against him based

on his race. At the conclusion of the hearing, the trial court stated:

              * * * [I]t would appear to the Court that you were being prosecuted

       because you possessed a deadly weapon while under detention not

       because of who you are, your race or ethnicity.

              Before the Court’s going to allow the defense to launch into some

       kind of racial fishing expedition, I would at a minimum require some

       evidence that that’s the case or the motivation for this prosecution. At this

       point in time there is no evidence of that.

              I understand you’re asking to subpoena records to try to acquire

       evidence of that fact, but at this point it seems to the Court that it’s total

       speculation * * *.
                                                                                           -3-


(Motions Hearing Tr. 7-8). The trial court quashed the subpoenas. On July 12, 2018,

Jones was found guilty.

       {¶ 3} In his sole assignment of error, Jones contends the “Trial Court abused its

discretion when it denied [him] his Sixth Amendment right to present a defense.” He

argues that he “was not allowed to present his defense at trial.” (Brief of Defendant-

Appellant, p. 2). We overrule the assignment of error and affirm the conviction.

       {¶ 4} Without question, under the Due Process Clause of the Fourteenth

Amendment, or the Compulsory Process or Confrontation Clauses of the Sixth

Amendment, the U.S. Constitution guarantees criminal defendants “ ‘a meaningful

opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U.S. 683, 690, 106

S.Ct. 2142, 90 L.Ed.2d 636 (1986), quoting California v. Trombetta, 467 U.S. 479, 485,

104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). Nevertheless, “the Constitution does not

guarantee a defendant the opportunity to present any evidence he desires.” (Emphasis

sic.) Alley v. Bell, 307 F.3d 380, 396 (6th Cir.2002).

       {¶ 5} Initially we note that “ ‘[a] selective-prosecution claim is not a defense on the

merits to the criminal charge itself, but an independent assertion that the prosecutor has

brought the charge for reasons forbidden by the Constitution.’ ” State v. Sanchez, 9th

Dist. Loraine No. 09CA009582, 2010-Ohio-4660, ¶ 33, quoting State v. Getsy, 84 Ohio

St.3d 180, 203, 702 N.E.2d 866 (1998). The Sixth District has ruled that “ ‘[t]he defense

of selective prosecution must be raised in a pretrial motion.’ ” State v. Brown, 6th Dist.

Ottawa No. OT-95-040, 1996 WL 139626, *7 (Mar. 29, 1996), quoting Cleveland v. GSX

Chem. Servs. of Ohio, Inc., 8th Dist. Cuyahoga No. 60512, 1992 WL 95735, *5 (May 7,

1992), and citing former Crim.R. 12(B) (the provision now found in Crim.R. 12(C)). Crim.R.
                                                                                           -4-


12(C)(1) specifically requires that “[d]efenses and objections based on defects in the

institution of the prosecution” must be raised by motion before trial. The Fourth District, in

State v. Powell, 4th Dist. Scioto No. 05CA3024, 2006-Ohio-5031, also determined that

“[b]ecause the defense of selective prosecution is a matter that is independent of guilt or

innocence, it is for the court, not a jury, to decide.” Id. at ¶ 1. Consequently, Jones’s

argument that the trial court’s quashing of trial subpoenas prevented him from introducing

evidence of a defense at trial fails, because the issue could only be raised, and

determined, by pre-trial motion.

       {¶ 6} Assuming, without deciding, that the trial court could have treated the

issuance of the subpoenas and the defense arguments at the motion-to-quash hearing

as raising an issue of selective prosecution, the trial court did not err in quashing the

subpoena and did not err by not conducting an evidentiary hearing on selective

prosecution.

               To support a claim of selective prosecution, “ ‘a defendant bears the

       heavy burden of establishing, at least prima facie, (1) that, while others

       similarly situated have not generally been proceeded against because of

       conduct of the type forming the basis of the charge against him, he has

       been singled out for prosecution, and (2) that the government's

       discriminatory selection of him for prosecution has been invidious or in bad

       faith, i.e., based upon such impermissible considerations as race, religion,

       or the desire to prevent his exercise of constitutional rights.’ ”

State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 44, quoting State

v. Flynt, 63 Ohio St.2d 132, 134, 407 N.E.2d 15 (1980), quoting United States v. Berrios,
                                                                                       -5-


501 F.2d 1207, 1211 (2d Cir.1974).

              A trial court is required to grant an evidentiary hearing if the

      defendant demonstrates a “colorable entitlement” to a selective prosecution

      claim. State v. Wasmus, 10th Dist. No. 94APA07-1013[, 1995 WL 250804]

      (Apr. 27, 1995). However, a “defendant is not entitled to an evidentiary

      hearing on a selective prosecution defense unless he sets forth a prima

      facie claim.” State v. Powell, 4th Dist. No. 05CA3024, 2006-Ohio-5031, ¶

      23. Both the Supreme Court of Ohio and the United States Supreme Court

      have noted that the burden in maintaining a selective prosecution claim is

      on the defendant as the prosecutor enjoys a presumption that his actions

      were non-discriminatory in nature. State v. Keene, 81 Ohio St.3d 646[, 693

      N.E.2d 246] (1998); United States v. Armstrong, 517 U.S. 456, 464[, 116

      S.Ct. 1480, 134 L.Ed.2d 687] (1996).

State v. Moses, 10th Dist. Franklin No. 13AP-816, 2014-Ohio-1748, ¶ 15. In addition,

unless a defendant makes a prima facie showing with credible evidence of selective

prosecution, he is not entitled to discovery on the issue. LaMar at ¶ 38, citing Armstrong

at 468-469.

      {¶ 7} Here, Jones did not present any evidence that he was wrongfully singled out

for prosecution or that the prosecutor’s actions were invidious or in bad faith. Moreover,

even if Jones were entitled to discovery on the issue, his subpoenas for records of others

who had been charged with having a deadly weapon while in the jail would not have

revealed either that he was singled out or that the prosecutor acted improperly. The

requested records would have indicated only who was charged, not those who Jones
                                                                                       -6-


infers may have been found with a deadly weapon in the jail but who were not charged.

Accordingly, the record fails to demonstrate a colorable claim for selective prosecution.

We conclude the trial court was correct that Jones was required to show “some evidence”

that he was singled out because of his race and “some evidence” that the prosecution

was wrongfully motivated.

      {¶ 8} The sole assignment of error is overruled. The judgment of the trial court is

affirmed.

                                    .............



WELBAUM, P.J., concurs.

FROELICH, J., concurs:

      {¶ 9} I would find that, if Jones had filed a timely motion regarding selective

prosecution, that a subpoena requesting specific information for a specific period of time

should not have been quashed. That did not happen here, and therefore I concur.




Copies sent to:

John M. Lintz
Kirsten Knight
Hon. Douglas M. Rastatter
