“We are at a loss to find a basis of appeal for the state in a criminal case from a decision affecting a non-party when the defendant has already been acquitted.”
How later courts described this case
- “We are at a loss to find a basis of appeal for the state in a criminal case from a decision affecting a non-party when the defendant has already been acquitted.”
- mid-trial objection to hearsay testimony by the defense
- motion to quash a subpoena
Written by the judges who cited it.
The opinion
[Cite as State v. Williams, 2026-Ohio-1953.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 31517
Appellant
v. APPEAL FROM JUDGMENT
ENTERED IN THE
AHMERE D. M. WILLIAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellee CASE No. CR-2023-12-3992
DECISION AND JOURNAL ENTRY
Dated: May 27, 2026
PER CURIUM.
{¶1} The State of Ohio has attempted to appeal an order of the Summit County Court of
Common Pleas that concluded it did not have a duty to compel the testimony of a witness. This
Court dismisses the attempted appeal.
I.
{¶2} Ahmere D.M. Williams was indicted for felonious assault and felony murder in
connection with the shooting death of T.A. The day before trial started, the State of Ohio filed a
motion to call J.P.-W. as a court’s witness. During a hearing on the motion before trial, the defense
agreed that J.P.-W. had initially told police that he saw Mr. Williams fire a gun at a vehicle in
which T.A. was sitting and that he had identified Mr. Williams from a photo array. The trial court
took the motion under consideration, and trial began.
{¶3} When J.P.-W. was called as a witness, the State informed the trial court that it
believed he would be invoking his Fifth Amendment right against self-incrimination. The trial
2
court examined J.P.-W. outside of the presence of the jury and, after consulting with his attorney,
J.P.-W. exercised his Fifth Amendment right. After considering the parties’ arguments, the trial
court determined that the State could call J.P.-W. The trial court then told J.P.-W. that he would
be called as a witness, and he replied, “I’m still invoking my Fifth Amendment right . . . for fear
of additional charges.” At that point in the proceedings, the State asked the trial court to grant
J.P.-W. immunity pursuant to a written offer “excluding murder but for all other offenses relating
to the incident on April 12th of 2023 at the Channelwood apartment complex.” (Emphasis added.)
J.P.-W. told the trial court that the offer of immunity did not change his intention to assert his Fifth
Amendment rights.
{¶4} The trial court concluded that notwithstanding the offer of immunity, J.P.-W. “[did]
have a legitimate reason to invoke his Fifth Amendment right . . . .” The State moved the trial
court to reconsider its ruling. The trial court denied the motion, noting that “I don't think the
immunity that is proffered in this case is a blanket immunity. It excludes murder. It also does not
have any protections against any sort of federal charges.” The trial court issued findings of fact
and conclusions of law explaining its decision and concluding that under the circumstances, it did
not have a duty under R.C. 2945.44 to compel J.P.-W. to testify.
{¶5} The State filed a notice of appeal asserting that R.C. 2945.67(A) and Crim.R. 12(K)
allowed an appeal as of right from the trial court’s ruling. In the alternative, the State moved for
leave to appeal under R.C. 2945.67(A) and App.R. 5(C). This Court provisionally allowed the
appeal to proceed but noted that the question of appealability could be revisited upon final
disposition of the appeal.
3
II.
{¶6} Under R.C. 2945.67(A), the State of Ohio “may appeal as a matter of right any
decision of a trial court in a criminal case . . . [that] grants . . . a motion to suppress evidence. . . .”
This includes “[a]ny motion, however labeled, which, if granted, restricts the state in the
presentation of certain evidence and, thereby, renders the state’s proof with respect to the pending
charge so weak in its entirety that any reasonable possibility of effective prosecution has been
destroyed. . . .” State v. Davidson, 17 Ohio St.3d 132 (1985), syllabus. Stated differently, R.C.
2945.67(A) and Crim.R. 12(K) provide a means for the State to immediately appeal “mistaken
evidentiary rulings,” even if they occur mid-trial. State v. Malinovsky, 60 Ohio St.3d 20, 23 (1991).
This rule has been applied to evidentiary motions made by defendants that are framed in various
ways. See e.g. id. at 21-23 (mid-trial objection to hearsay testimony by the defense); Davidson at
133-134 (motion in limine to exclude evidence); Akron v. Hockman, 144 Ohio App.3d 262, 263-
264 (9th Dist. 2001) (motion to quash a subpoena).
{¶7} This case is fundamentally different because it does not involve an allegedly
“mistaken evidentiary ruling” on motion of or objection by the defendant. This Court is aware of
only one case in which the State of Ohio asserted the right to appeal from an order that declined to
compel testimony under R.C. 2945.44. See State v. Neff, 135 Ohio App.3d 7 (3d Dist. 1999). Even
if this Court assumes without deciding that a trial court’s decision not to grant a State’s motion
under R.C. 2945.44 could fall within the scope of R.C. 2945.67(A) and Crim.R. 12(K), however,
this case is distinguishable because of the way the State chose to frame the matter to the trial court.
{¶8} R.C. 2945.44 provides:
(A) In any criminal proceeding in this state or in any criminal or civil proceeding
brought pursuant to Chapter 2981. of the Revised Code, if a witness refuses to
answer or produce information on the basis of the witness’s privilege against self-
incrimination, the court of common pleas of the county in which the proceeding is
4
being held, unless it finds that to do so would not further the administration of
justice, shall compel the witness to answer or produce the information, if both of
the following apply:
(1) The prosecuting attorney of the county in which the proceedings are being held
makes a written request to the court of common pleas to order the witness to answer
or produce the information, notwithstanding the witness's claim of privilege;
(2) The court of common pleas informs the witness that by answering, or producing
the information the witness will receive immunity under division (B) of this section.
(B) If, but for this section, the witness would have been privileged to withhold an
answer or any information given in any criminal proceeding, and the witness
complies with an order under division (A) of this section compelling the witness to
give an answer or produce any information, the witness shall not be prosecuted or
subjected to any criminal penalty in the courts of this state for or on account of any
transaction or matter concerning which, in compliance with the order, the witness
gave an answer or produced any information.
(Emphasis added.) “[T]ransactional immunity” means “immunity from prosecution for any
criminal act about which the witness testified.” State ex rel. Leis v. Outcalt, 1 Ohio St.3d 147, 148
(1982). Transactional immunity signifies that “[t]he government is willing to forgo prosecution
of the less culpable witness in order to obtain testimony that is necessary to successfully prosecute
the defendant.” State v. Reiner, 93 Ohio St.3d 601, 604 (2001). The statute contemplates nothing
less. The State cannot invoke the procedure outlined in R.C. 2945.44 by proposing incomplete
immunity. In this case, however, that is exactly what the State attempted to do. Under these
circumstances, this Court cannot conclude that the State can appeal as a matter of right from the
trial court’s decision not to compel J.P.-W.’s testimony.
{¶9} The State may also “appeal by leave of the court to which the appeal is taken any
other decision, except the final verdict, of the trial court in a criminal case . . . .” R.C. 2945.67(A).
See also App.R. 5(C). “[T]he decision to grant or deny a motion for leave to appeal in a criminal
case is solely within the discretion of the court of appeals.” State v. Jones, 2025-Ohio-5389, ¶ 19.
In considering a motion for leave, however, this Court must consider whether the State has claimed
5
errors in the trial court’s proceedings with reference to affidavits or the portions of the record upon
which it relies. Id. at ¶ 15, citing App.R. 5(C). We must also consider whether the State has
“establish[ed] ‘the probability’ that the errors claimed did in fact occur.” Id. at ¶ 17, quoting
App.R. 5(C).
{¶11} The State has maintained, with reference to the parts of the record at issue, that
“The Trial Court Improperly Excluded the Testimony of [J.P.-W.].” Nonetheless, having
considered the State’s motion for leave and the entire record, this Court cannot conclude that the
State has established the probability that the claimed errors occurred. See id., citing App.R. 5(C).
Accordingly, this Court denies the State’s motion for leave to appeal under R.C. 2945.67(A) and
App.R. 5(C).
III.
{¶12} This attempted appeal is not an appeal as of right under R.C. 2945.67(A). The
State’s motion for leave to appeal is denied. Accordingly, the attempted appeal is dismissed.
Appeal dismissed.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
6
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
HENSAL, J.
FLAGG LANZINGER, P. J.
CONCURS.
CARR, J.
DISSENTING.
{¶13} I respectfully dissent from the majority’s judgment. For the following reasons, I
would grant the State leave to appeal, reverse the trial court’s decision, and remand the matter for
further proceedings.
{¶14} At least two individuals witnessed the shooting herein: J.W. and J.P.-W. The latter
received a phone call before driving J.W., the victim, and another man to the spot where the
shooting occurred. There was evidence that, when they arrived, people were standing outside in
the parking lot. There was evidence that the two eyewitnesses exited the car while the victim and
the fourth man remained in the backseat. Shortly thereafter, one or more individuals approached
the vehicle with guns and opened fire. The victim and the fourth man attempted to flee, but both
men sustained gunshot wounds. The victim’s wound was fatal.
{¶15} J.P.-W. initially told the police that he saw Mr. Williams shoot the victim. He also
identified Mr. Williams as the shooter when shown a photo array. One day before trial, he retracted
his statement and identification. He said he did not see the shooter and did not want to be involved
in the trial.
7
{¶16} The State filed a motion to have J.P.-W. called as the court’s witness so that both
parties might cross-examine him. The trial court addressed the State’s motion on the morning of
trial. Mr. Williams objected to the motion, and the court heard arguments. The court ultimately
took the matter under advisement and moved forward with jury selection.
{¶17} Once the jury was seated and dismissed for the evening, the trial court notified the
parties that it had appointed counsel for J.W. and J.P.-W. The court indicated that it would not
rule on the State’s motion to have J.P.-W. called as the court’s witness until he was called to the
stand. J.P.-W. would then be subject to voir dire in the presence of counsel before testifying.
{¶18} J.W. was the first eyewitness the State called to testify. He appeared with counsel,
took the stand outside the presence of the jury, and announced his intention to invoke the Fifth
Amendment if asked any questions. Following an extended discussion, the trial court found J.W.
had a legitimate reason to invoke his Fifth Amendment rights and excused him without having
him testify before the jury.
{¶19} Before trial resumed, the State moved the trial court to compel J.P.-W. to testify
pursuant to R.C. 2945.44 and an offer of immunity. The State offered J.P.-W. immunity from
prosecution, “excluding murder but for all other offenses relating to the [shooting] incident . . . .”
The State asked the court to question J.P.-W. as to whether he intended to invoke his Fifth
Amendment rights.
{¶20} When it was time for J.P.-W. to testify, the trial court had him take the stand outside
the presence of the jury. His attorney was present along with two prosecutors and two attorneys
for Mr. Williams. The State asked the court to voir dire J.P.-W. based on its understanding that he
planned to invoke his Fifth Amendment right.
8
{¶21} J.P.-W. answered several preliminary questions and agreed that he had been called
to testify about what he knew, what he had heard, and what he had seen in this matter. He initially
stated that he was prepared to answer questions posed to him on the stand. After conferring with
his attorney, however, he stated that he was going to invoke his Fifth Amendment right. The
following exchange took place:
THE COURT: Okay. So you do not intend to answer questions?
THE WITNESS: No, ma’am.
THE COURT: You’re not going to answer anything that you heard on [the date of
the shooting]?
THE WITNESS: No, ma’am.
THE COURT: Anything you saw on [the date of the shooting]?
THE WITNESS: No, ma’am.
THE COURT: You’re not going to answer anything that you heard on [the date of
the shooting]?
THE WITNESS: No, ma’am.
The court then asked J.P.-W. why he was invoking his right.
{¶22} J.P.-W. initially offered three reasons for asserting his Fifth Amendment right.
First, he stated: “Because it’s my right.” Second, he stated that he “already [had] enough stuff
going on with [himself].” Third, he stated that he feared for the safety of his family and himself.
When the court asked him if he had any other concerns, he said no. His attorney confirmed that
the reasons J.P.-W. offered the court were consistent with the information he had offered her.
{¶23} Following the court’s initial inquiry, the State argued that J.P.-W. had failed to
tender a reason as to why he believed he would incriminate himself if he testified. Counsel for
Mr. Wiliams responded and offered several reasons why J.P.-W. could be implicated criminally.
Further discussion ensued, during which the attorney for J.P.-W. acknowledged that the State was
9
offering her client immunity for his testimony. The attorney stated that, despite the offer of
immunity, J.P.-W. did not wish to testify based on concerns “that things may come down the road
from that.” The court noted that J.P.-W. had not expressed any concern about additional charges.
It noted that, when questioned directly, J.P.-W. said the only reason he did not want to testify was
because he was afraid of retaliation. The attorney for J.P.-W. responded, “Correct. And that is his
reason.”
{¶24} Counsel for Mr. Williams asked the trial court whether it would be allowing J.P.-
W. to answer questions posed by the State but not the defense. The court responded: “I don’t know
what the questions are going to be.” The court noted that J.P.-W. had said he would not answer
any questions regardless of who asked them. The court asked J.P.-W. if he planned to answer
questions from anyone, and he said no. The State then once again argued that J.P.-W. had not
offered a valid reason for invoking his rights. The State asked the court to compel the witness to
testify. J.P.-W.’s attorney indicated that her client understood contempt was a possibility but still
did not wish to testify. A side bar ensued.
{¶25} Once the side bar concluded, the trial court indicated that the trial would proceed
with the witness testifying. The court informed J.P.-W. that he would be questioned by the parties.
The following exchange took place:
THE COURT: . . . Are you going to answer any questions, sir?
THE WITNESS: I’m still invoking my Fifth Amendment right amendment for fear
of additional charges.
THE COURT: Wait. What?
THE WITNESS: I’m still invoking my Fifth Amendment.
THE COURT: Why?
THE WITNESS: Fear of additional charges.
10
THE COURT: Earlier you said something different. Did you change your mind?
THE WITNESS: Both. No, I ain’t change my mind.
THE COURT: Why didn’t you say that earlier?
THE WITNESS: Because I don’t understand all this.
THE COURT: Okay. So, explain to me what is going on. You don’t want to answer
questions, right?
THE WITNESS: For my safety and my family and additional charges.
THE COURT: You have a fear that there will be additional charges if you answer
questions?
THE WITNESS: Possibly, yeah.
THE COURT: Additional charges related to this case or other cases?
THE WITNESS: I don’t know; other cases, this, I don’t know.
Subsequently, the court asked J.P.-W. whether an offer of immunity would change his willingness
to testify. He denied that it would.
{¶26} The attorney for J.P.-W. confirmed that her client was not interested in immunity
and did not want to testify. The attorney indicated that J.P.-W.’s unwillingness to accept the
immunity offer was primarily based on his “concern with the nature of this case” but also with an
appeal he had pending in federal court. The State responded and argued that J.P.-W. had no
authority to decline the immunity offer. The trial court disagreed because the State was not
offering full immunity. The court found that J.P.-W. had “a legitimate reason to invoke his Fifth
Amendment right at this time.” Because J.P.-W. had indicated that he was not willing to answer
any questions, the court found that it was unnecessary for him to testify in front of the jury.
{¶27} The trial court allowed the State to file a motion for reconsideration. At the State’s
request, it issued written findings of fact and conclusions of law. Relevant to this appeal, the court
reached two separate legal conclusions. First, it found that J.P.-W. “had a legitimate and
11
reasonable reason to invoke [his] Fifth Amendment rights.” The court reached that conclusion
based on the testimony of another witness and arguments tendered by counsel for Mr. Williams.
The witness was the man who rode in the backseat alongside the victim and received a nonfatal
gunshot wound. The court cited his testimony to supply certain facts about a phone call J.P.-W.
received and actions he took directly before the shooting. Second, the court found that it had no
duty to compel J.P.-W. to testify, as the State had not offered him full immunity from prosecution.
Citing arguments supplied by counsel for Mr. Williams, the court concluded that, were he to
testify, J.P.-W. could subject himself to a murder charge as well as federal charges and/or penalties
not covered by the State’s offer of immunity.
{¶28} The State argues that the trial court conducted a deficient inquiry when it voir dired
J.P.-W. Because the court did not perform a question-by-question inquiry, the State argues, J.P.-
W. only offered blanket assertions in response to generalized questions. Moreover, because the
court did not conduct its inquiry in camera, the State argues that the attorneys for Mr. Williams
were able to influence the proceedings by repeatedly suggesting concerns not raised by J.P.-W.
The State insists the flawed procedure “undermined the purpose of evaluating the legitimacy of
[J.P.-W.’s] invocation . . . .” It argues that J.P.-W. gave contradictory answers when asked his
reasons for not testifying and never adequately explained why he feared self-incrimination.
According to the State, the court ignored those contradictions and reached its decision based on
facts offered by a different witness and answers and arguments supplied by counsel for Mr.
Williams.
{¶29} A valid assertion of one’s Fifth Amendment privilege is a prerequisite to any grant
or denial of immunity. See State v. Reiner, 89 Ohio St.3d 342, 356 (2000), rev’d on other grounds,
532 U.S. 17 (2001). See also State ex rel. Leis v. Outcalt, 1 Ohio St.3d 147, 148 (1982), citing
12
R.C. 2945.44(A) (“[I]mmunity may not be granted[] unless the witness first refused to answer
upon a claim of privilege against self-incrimination.”). As previously noted, the trial court reached
two separate legal conclusions in this matter. First, the court found that J.P.-W. had a valid reason
for invoking his Fifth Amendment rights. Second, it found that it had no duty to compel J.P.-W.
to testify, as the State had not offered him full immunity from prosecution. The State’s appeal is
not limited to the trial court’s second conclusion. The State seeks to challenge the trial court’s
conclusion that J.P.-W. properly invoked his Fifth Amendment rights.
{¶30} Unlike the majority, I would permit this appeal to proceed to a merits review. I
would allow the appeal to proceed as a matter of right because the trial court’s ruling effectively
excluded evidence and “destroy[ed] the ability of the state to prosecute.” State v. Davidson, 17
Ohio St.3d 132, 135 (1985). Despite its failure to conduct a proper inquiry, see Discussion, infra,
the trial court concluded that Eyewitness Two had a constitutional right not to testify. The court’s
ruling, therefore, placed the State in the untenable position of losing its sole eyewitness or offering
full immunity to an individual who never offered a valid reason for invoking his rights. See
Discussion, infra. I would conclude that the State had the right to appeal from the procedure the
trial court employed herein.
{¶31} Further, even assuming the State does not have a right to appeal under R.C.
2945.67(A) and Crim.R. 12(K), I would grant its motion for leave to appeal. See State v. Bistricky,
51 Ohio St.3d 157, 159 (1990), citing R.C. 2945.67(A). R.C. 2945.67(A) allows the State to seek
leave to appeal any adverse decision apart from the final verdict. “The State’s burden in seeking
leave to appeal is . . . not an onerous one.” State v. Jones, 2025-Ohio-5389, ¶ 18. The State need
only allege that error(s) occurred in the trial court proceedings and “show ‘the probability that the
errors claimed’ – i.e., the ones it asserted – ‘did in fact occur’ . . . .” Id. at ¶ 21. Discretionary
13
leave to appeal is not dependent upon the trial court having issued a final, appealable order. See
State v. Jackson, 2011-Ohio-986, ¶ 7 (9th Dist.).
{¶32} To the extent the State seeks to challenge the procedure the trial court employed
and the sufficiency of the inquiry it conducted herein, I would conclude that the State’s arguments
are properly before us because it has demonstrated at least the probability that trial court error
occurred. See Jones at ¶ 21. See generally State ex rel. Leis v. Outcalt, 1 Ohio St.3d 147, 150
(1982) (“We are at a loss to find a basis of appeal for the state in a criminal case from a decision
affecting a non-party when the defendant has already been acquitted.”). The procedure the court
employed and its inquiry, if improper, resulted in the exclusion of evidence critical to the State’s
case. See State v. Brasher, 2022-Ohio-4703, ¶ 23 (standing exists when a party is aggrieved by a
court’s error and has alleged a personal stake in the outcome of the controversy). Thus, I would
grant the State’s motion for leave insofar as it concerns those aspects of the court’s ruling. I also
would conclude that the State is entitled to relief on the merits.
{¶33} “The Fifth Amendment to the United States Constitution provides persons with a
privilege against compelled self-incrimination, which is applicable against the states through the
Due Process Clause of the Fourteenth Amendment.” State v. Antoline, 2003-Ohio-1130, ¶ 12 (9th
Dist.). It applies to protect the accused as well as “witnesses who would incriminate themselves
by giving responses to questions posed to them.” State v. Arnold, 2016-Ohio-1595, ¶ 31. The
privilege extends to “answers that would in themselves support a conviction” and “those which
would furnish a link in the chain of evidence needed to prosecute the claimant . . . .” Hoffman v.
U.S., 341 U.S. 479, 486 (1951).
14
{¶34} “The trial court’s inquiry into the basis of a witness’s assertion of the privilege is
critical . . . .” Arnold at ¶ 47. “The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself . . . .” Hoffman at 486.
[S]hort of uttering statements or supplying evidence that would be incriminating, a
witness must supply personal statements under oath or provide evidence with
respect to each question propounded to him to indicate the nature of the criminal
charge which provides the basis for his fear of prosecution and, if necessary to
complement non-testimonial evidence, personal statements under oath to meet the
standard for establishing reasonable cause to fear prosecution under this charge.
Statements under oath, in person or by affidavit, are necessary because the present
penalty of perjury may be the sole assurance against a spurious assertion of the
privilege. Argument may be supplied by counsel but not the facts necessary for the
court’s determination.
Arnold at ¶ 44, quoting In re Morganroth, 718 F.2d 161, 169-170 (6th Cir. 1983). “[T]he trial
court has a clear duty to determine whether a direct answer to [a] question may reasonably have a
tendency either to incriminate the witness or to furnish proof of an element or link in the chain of
evidence necessary to convict the witness of a crime.” Arnold at ¶ 45. “[T]he record of the trial
court’s proceedings should clearly reflect the court’s inquiries into the bases of the claim of
privilege and the proponent’s responses.” Id. at ¶ 47.
{¶35} I would conclude that the trial court failed to conduct a proper inquiry when it voir
dired J.P.-W. Though a witness “is not required to prove the hazard” before he can assert his
privilege against self-incrimination, he “is not exonerated from answering merely because he
declares that in so doing he would incriminate himself . . . .” Hoffman, 341 U.S. at 486. The
witness
“must supply personal statements under oath or provide evidence with respect to
each question propounded to him to indicate the nature of the criminal charge which
provides the basis for his fear of prosecution and, if necessary to complement non-
testimonial evidence, personal statements under oath to meet the standard for
establishing reasonable cause to fear prosecution under this charge.”
15
(Emphasis added.) Arnold, 2016-Ohio-1595, at ¶ 44, quoting In re Morganroth, 718 F.2d at 169-
170. The record reflects that the trial court failed to adhere to the foregoing standard when it
questioned J.P.-W.
{¶36} The trial court never attempted a question-by-question inquiry. It only asked J.P.-
W. if he intended to testify about anything he saw or heard on the day of the shooting. J.P.-W.
was never asked about the days before or after the shooting. He was never asked if he would admit
that he was questioned by the police. He was never asked if he would admit that he gave a
statement to the police. At one point during the voir dire, the trial court even acknowledged that
it did not know what questions the parties intended to ask the witness. J.P.-W. simply informed
the court that he would not answer any questions. As further explained below, the court failed to
ensure that he provided it with an adequate “basis for asserting the privilege and evidence to
support that claim . . . .” Arnold at ¶ 46.
{¶37} The first three reasons J.P.-W. offered the trial court for not testifying had no
bearing on his right against self-incrimination. The trial court recognized as much when it
informed J.P.-W. that his proffered reasons were insufficient and that he would have to testify.
Yet, the court then accepted J.P.-W.’s blanket pronouncement that he did not want to testify “for
fear of additional charges.” J.P.-W. was unable to expand on that assertion. He indicated that he
did not know whether he might be subject to any criminal penalties in this case or his federal case.
Likewise, his counsel offered limited input in that regard. The only articulable reasons offered as
to why J.P.-W. might be subject to criminal penalties came from counsel for Mr. Williams. Indeed,
in issuing findings of fact and conclusions of law, the trial court erroneously relied on the
arguments of counsel for Mr. Williams and testimony from another witness who had already
testified for the State. See Arnold at ¶ 44, quoting In re Morganroth at 170 (“Argument may be
16
supplied by counsel but not the facts necessary for the court’s determination.”). The court was
unable to rely on pieces of evidence or personal statements supplied by J.P.-W. because none were
offered.
{¶38} Even if the trial court was not required to question J.P.-W. in camera,1 it had a duty
to ensure that he provided “the basis for asserting the privilege and evidence to support that claim
. . . .” (Emphasis added.). Id. at ¶ 46. Instead, the court relied on evidence introduced by other
parties and arguments advanced by the defense to reach the conclusion that J.P.-W. “had a
legitimate and reasonable reason to invoke [his] Fifth Amendment rights.” Because the trial court
failed to conduct a proper inquiry and relied on improper evidence to support its conclusion, I
would sustain the State’s assignment of error and remand the matter for further proceedings. In
so holding, I would take no position on the issue of whether the State’s immunity agreement
complied with R.C. 2945.44 such that J.P.-W. could be compelled to testify. Because a valid
assertion of one’s Fifth Amendment privilege is a prerequisite to an offer of statutory immunity, I
would conclude that the issue of immunity is premature at this time. For the foregoing reasons, I
respectfully dissent from the majority’s decision.
APPEARANCES:
ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellant.
NOAH MUNYER and JEFF LAYBOURNE, Attorneys at Law, for Appellee.
1
Notably, the State did not request an in camera inquiry or object based on the court’s failure to
conduct one. To the extent the State argues that the court erred by not questioning Eyewitness
Two in camera, I would conclude that it forfeited its argument for review. Because it has not
argued plain error, I would not construct an argument on its behalf. See State v. Blankenship,
2016-Ohio-5458, ¶ 7 (9th Dist.).