      [Cite as State v. Steele, 2011-Ohio-5479.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                          HAMILTON COUNTY, OHIO




STATE OF OHIO,                                     :   APPEAL NO. C-100637
                                                       TRIAL NO. B-0903495
     Plaintiff-Appellee,                           :
                                                       O P I N I O N.
     vs.                                           :

JULIAN STEELE,                                     :

    Defendant-Appellant.                           :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: October 28, 2011



Don White, Clermont County Prosecuting Attorney, and Daniel J. Breyer, Special
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Gloria L. Smith, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}    This case presents an issue of first impression: what is the proper jury

instruction concerning “privilege” when a police officer is charged with abduction

arising from an alleged abuse of the power to arrest? That question also presents a

difficult challenge to the court to balance the realities of police investigation and the

inherent decision making that accompanies it with the legal safeguards afforded each

citizen.

                                            Facts

       {¶2}   In the course of investigating a series of robberies, defendant-

appellant detective Julian Steele arrested seventeen-year-old Jerome Maxton and

interrogated him. Steele later charged Maxton. As a result of the charges, Maxton

was incarcerated in a juvenile detention facility pending further action on his case.

Nine days later, Maxton was released at the direction of an assistant Hamilton

County prosecuting attorney.

       {¶3}   A subsequent investigation revealed that Steele may have arrested

Maxton, coerced a false confession from him, and incarcerated him in order to

compel Maxton’s mother’s cooperation with the investigation. There was evidence

that Steele believed that Alicia Maxton, Maxton’s mother, had been involved in the

robberies or knew who had been involved, and that Steele thought that Alicia would

supply information to exonerate her son. There were also allegations that Steele had

forced sexual relations with Alicia, promising her that he would help to secure

Maxton’s release from juvenile detention.

       {¶4}   Following the investigation, the grand jury indicted Steele on charges

of abduction, intimidation, extortion, rape, and sexual battery. The case was tried to




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                         OHIO FIRST DISTRICT COURT OF APPEALS



a jury. Steele claimed he was innocent of all charges. He argued that the arrest was

legal based on the facts known to him at the time. He also contended that he had not

coerced a false confession from Maxton, and that therefore the complaint and

Maxton’s subsequent incarceration were valid, as well.             Finally, Steele argued that

his sexual relations with Alicia Maxton were consensual.

         {¶5}     The jury found Steele guilty of two counts of abduction and one count

of intimidation, each with an accompanying firearm specification, and acquitted him

on all other charges. The trial court sentenced Steele to five years’ incarceration and

five years’ community control. For the following reasons, we affirm in part, reverse

in part, and remand this case for further proceedings.

                           The Contested Jury Instruction

         {¶6}    Steele’s fourth assignment of error is dispositive of a number of issues

in this case. In it, he alleges that the court’s jury instruction on the abduction counts

was erroneous. Because defense counsel did not object to these instructions, we

review Steele’s argument using a plain-error analysis.1

         {¶7}    A trial court must give the jury all relevant instructions that are

necessary for the jury to weigh the evidence and to discharge its duty as the fact-

finder.2 And while the trial court has discretion in fashioning the jury’s charge, the

charge must accurately reflect the law.3

         {¶8}    In pertinent part, the abduction statute provides that “[n]o person,

without privilege to do so shall knowingly * * * (1) By force or threat, remove

another from the place where the other person is found; (2) By force or threat,



1   See Crim.R. 52(B).
2   State v. Comen (1990), 50 Ohio St.3d 206, 553 N.E.2d 640, paragraph two of the syllabus.
3   See id.; see, also, State v. Wolons (1989), 44 Ohio St.3d 64, 541 N.E.2d 443.


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                       OHIO FIRST DISTRICT COURT OF APPEALS



restrain the liberty of another person under circumstances that * * * places the other

person in fear [emphasis added].”4

       {¶9}    Here, the trial court instructed the jury that “privilege” was “an

immunity, license, or right conferred by law * * * or arising out of status, position,

office or relationship * * *.” The jury was further instructed that when an “arrest is

without a judicial order or probable cause to arrest, it is an illegal arrest.” The jury

was told that probable to arrest exists “when an officer has knowledge of existing

facts and circumstances which would warrant a prudent police officer in believing

that a crime was committed and that the person to be arrested has committed the

crime.” In essence, the jury was instructed that an officer loses the privilege to arrest

when the arrest is made without probable cause.

       {¶10} Steele claims that this instruction was incorrect because the abduction

statute should not apply to police officers since other remedies exist to deter police

misconduct. We reject Steele’s argument based on the plain language of the statute.5

There is no exemption for police officers in R.C. 2905.02. And there is no legal

precedent to support the contention that the availability of other remedies is a

defense to criminal prosecution. While enforcing the law, the police must also obey

it.

       {¶11} The state urges the court to affirm the instruction. For the following

reasons, we reject the state’s position, as well.




4 R.C. 2905.02(A)(1) and (A)(2).
5 See State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545,
1996-Ohio-291, 660 N.E.2d 463; Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105-106,
304 N.E.2d 378; Carter v. Youngstown (1946), 146 Ohio St. 203, 65 N.E.2d 63, paragraph one of
the syllabus.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



                               Privilege and Legislative Intent

        {¶12} Determining whether the jury was instructed correctly turns on the

meaning of “privilege” in R.C. 2902.05 as it pertains to the power to arrest.

“Privilege” is defined as “an immunity, license, or right conferred by law, bestowed

by express or implied grant, arising out of status, position, office, or relationship, or

growing out of necessity.”6

        {¶13} A police officer’s right to arrest without a warrant is conferred by

statute,7 and is curtailed by the Fourth Amendment. In construing the meaning of

this “privilege” within the abduction statute, we must give “effect to the legislature's

intention."8 We note that the legislature “will not be presumed to have intended to

enact a law producing unreasonable or absurd consequences.”9 It is the court’s duty

to construe the statute, if possible, to avoid such a result.10

        {¶14} Because probable-cause determinations are far from clear cut, we do

not believe that the legislature intended a police officer to be guilty of abduction

anytime an arrest is made without probable cause. Whether probable cause existed

in a given case may not be finally adjudicated until years after the fact with the aid of

lawyers, judges, and hindsight. The volume of Fourth Amendment jurisprudence

attests to this fact. Given the complexities sometimes involved in a probable-cause

determination, and the obvious chilling effect that the threat of criminal indictment

would have on effective police work, the trial court’s instruction about when an

officer loses his privilege to arrest creates an unreasonable result. We therefore find


6 R.C. 2901.01(12).
7 See Crim.R. 2(J); R.C. 2935.03.
8 See Carter, supra.
9 State ex rel. Cooper v. Savord (1950), 153 Ohio St. 367, 92 N.E.2d 390, paragraph one of the
syllabus; see, also, State v. Nickles (1953), 159 Ohio St. 353, 112 N.E.2d 531, paragraph one of the
syllabus.
10 Savord, supra.




                                                     5
                        OHIO FIRST DISTRICT COURT OF APPEALS



the state’s position to be without merit. The jury instruction should have been more

narrowly tailored.

                       The Parameters of the Privilege to Arrest

        {¶15} The question of when a police officer should be held personally

responsible for an improper arrest has been litigated in the context of civil-rights

claims. In this regard, the United States Supreme Court has recognized the same

concerns that we must balance here—“the need to hold public officials accountable

when they exercise power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their duties reasonably.”11

We therefore turn to Section 198312 case law for guidance.

        {¶16} For a wrongful-arrest claim to succeed under Section 1983, a plaintiff

must prove that the arresting officer lacked probable cause.13                 But even in the

absence of probable cause, officers who “reasonably but mistakenly conclude that

probable cause is present" are immune from suit.14                  This doctrine, known as

“qualified immunity” acknowledges that “reasonable mistakes can be made as to the

legal constraints on particular police conduct" and should not be penalized.15

Qualified immunity “shields an officer from personal liability when an officer

reasonably believes that his or her conduct complies with the law.”16

        {¶17} We are persuaded by these cases to the extent that they acknowledge

that a police officer should not be penalized for reasonable mistakes. But we do not



11 Pearson v. Callahan (2009), 555 U.S. 223, 231, 129 S.Ct. 808.
12 Section 1983, Title 42, U.S. Code.
13 Miller v. Sanilac Cnty. (C.A.6, 2010), 606 F.3d 240, 250; Brooks v. Rothe (C.A.6, 2009), 577

F.3d 701, 706, quoting Fridley v. Horrighs (C.A.6, 2002), 291 F.3d 867, 872.
14 Hunter v. Bryant (1991), 502 U.S. 224, 227, 112 S.Ct. 534, citing Anderson v. Creighton (1987),

483 U.S. 635, 641, 107 S.Ct. 3034; see, also, Harris v. Bornhorst (C.A.6, 2008), 513 F.3d 503, 511.
15 Everson v. Leis (C.A.6, 2009), 556 F.3d 484, 494 (citations omitted).
16 Pearson, supra.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



adopt the test for “qualified immunity” discussed in the cases cited above because

this test is an objective test. This court has already determined that “the existence,

nature and scope of a privilege claimed in any particular instance depend on the

circumstances surrounding the actor, matters primarily within the grasp of the actor

himself.”17 So, a more subjective test is mandated.18 The question literally becomes,

in the vernacular, “what did the officer know and when did he or she know it?”

                                 The Proper Jury Instruction

        {¶18} The jury in this criminal case should have been instructed that a police

officer loses the privilege to arrest when that officer knows, at the time of the arrest,

that the person to be arrested had not committed the crime or that no crime had

been committed.

        {¶19} Thus, criminal liability for abduction is predicated on the element of

the officer’s knowledge that he or she had no probable cause to make the arrest. This

standard reaffirms the long standing rule that a good-faith mistake by an officer is

not enough to cause a loss of the privilege anticipated by the statute and restated in

the Section 1983 cases cited above.19

                                   The Error was Plain Error

        {¶20} In State v. Barnes,20 the Ohio Supreme Court set forth a three prong

test for the invocation of the plain-error rule.            First, there must be an error.21

Second, the error must be “obvious.”22 And third, the error must have affected a




17 State v. Gordon (1983), 9 Ohio App.3d 184, 186, 458 N.E.2d 1277.
18 See Morisette v. United States (1952), 342 U.S. 246, 250-252, 72 S.Ct. 240.
19 Cf. United States v. Leon (1984), 468 U.S. 897, 906, 104 S.Ct. 3405.
20 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240.
21 Id.
22 Id.




                                                     7
                        OHIO FIRST DISTRICT COURT OF APPEALS



substantial right─meaning that the error must have affected the outcome of the

trial.23

           {¶21} We have already determined that there was an error in the jury

instruction. The erroneous instruction was “obvious” to the extent that the

instruction criminalized the reasonable exercise of police power. And this error

affected Steele’s due-process rights. 24 It relieved the state of its burden to prove all

elements of abduction beyond a reasonable doubt.25 Because Steele’s defense

centered on the reasonableness of his actions at the time that he had allegedly

abducted Maxton, the error in the instruction was sufficient to have affected the

outcome of the trial.

           {¶22} In our discretion, we find that invocation of the plain-error rule is

necessary in this case to avoid a manifest miscarriage of justice.26 Steele’s fourth

assignment of error is therefore sustained. His abduction convictions are reversed,

and the counts are remanded for further proceedings.27

                               Weight and Sufficiency

           {¶23} In Steele’s first and second assignments of error, he claims that his

convictions were based on insufficient evidence and were against the manifest weight

of the evidence. These assignments of error are moot insofar as they contest the

jury’s verdict regarding the abduction counts. We therefore decline to address

them.28 As to the firearm specifications that accompanied the abduction counts,




23 Id.
24 See State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶97.
25 Id.
26 See State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 452; State v. Long (1978), 53
Ohio St.2d 91, 372 N.E.2d 804
27 See State v. Duncan, 154 Ohio App.3d 254, 2003-Ohio-4695, 796 N.E.2d 1006 (double
jeopardy does not bar retrial where reversal premised on erroneous jury instructions).
28 See App.R. 12(A)(1)(c).




                                                  8
                     OHIO FIRST DISTRICT COURT OF APPEALS



Steele is correct that the state failed to prove that he had had a firearm on or about

his person when he had allegedly abducted Maxton. The state produced absolutely

no evidence to this effect. But since specifications are penalty enhancements, and

not criminal offenses, jeopardy does not attach and the state may proceed with

prosecuting Steele for the firearm specifications on remand.29

                                       Intimidation

       {¶24} Steele also claims that his intimidation conviction and accompanying

firearm specification must be reversed. R.C. 2931.03(B), the intimidation statute,

provides that no person, “by filing, recording, or otherwise using a materially false or

fraudulent writing with malicious purpose, in bad faith, or in a wanton or reckless

manner, shall attempt to influence, intimidate, or hinder a * * * witness in the

discharge of the person's duty.”

       {¶25} The state presented evidence that, to compel Alicia’s cooperation,

Steele had filed a complaint against Maxton based on a confession that Steele knew

was false. At trial, Maxton testified that he had not been involved in the robberies

and that he had confessed only because Steele told him that, if he did not, his mother

would be arrested and his siblings sent to a foster home. Maxton testified that Steele

had told him what to say when he confessed. Finally, the state presented evidence

that Steele had admitted that he had not believed that Maxton had been involved in

the robberies before obtaining Maxton’s confession.

       {¶26} Viewing the evidence in a light most favorable to the prosecution, we

find that the state proved all elements of the intimidation charge beyond a




29 State v. Ford 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, paragraph one of the
syllabus.


                                               9
                       OHIO FIRST DISTRICT COURT OF APPEALS



reasonable doubt.30 And although Steele presented a version of events that would

have exonerated him, there is no indication that the jury “lost its way” in believing

the state’s version of events instead of Steele’s.31 Steele’s intimidation conviction is

therefore affirmed. The accompanying firearm specification, however, is reversed.

The state presented no evidence that Steele had had an “operable firearm on or about

his person” when he committed this offense. Unlike the firearm specifications that

accompanied the abduction counts, however, this firearm specification must be

vacated. It cannot be re-tried because it existed only as a penalty enhancement to

the intimidation charge that we have affirmed.32 Steele’s first and second

assignments of error are therefore overruled in part and affirmed in part.

       {¶27} His remaining assignments of error are moot.

                                           Conclusion

       {¶28} Steele’s abduction convictions are reversed and those counts are

remanded to the trial court for a new trial, or for other proceedings consistent with

law and this opinion. Steele’s intimidation conviction is affirmed, but the

accompanying firearm specification is hereby vacated, and the cause is remanded to

the trial court with instructions to enter a sentencing order consistent with this

opinion.

                    Judgment affirmed in part, reversed in part, and cause remanded.

SUNDERMANN, P.J., HENDON and CUNNINGHAM, JJ.


Please Note:
       The court has recorded its own entry on the date of the release of this opinion.


30 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
31 State v. Thompkins 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541; State v. Martin (1983),
20 Ohio App.3d 172, 175, 485 N.E.2d 717.
32 See Ford, supra.




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