Opposition Brief — Ohio v. Torr

~~

No. 02-435 =)

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF OHIO,

Petitioner,

ANGEL M. TORR,

Respondent,

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF OHIO,

TENTH APPELLATE DISTRICT

BRIEF IN OPPOSITION

Allen V. Adair

Franklin County Public

Defender Office

373 South High Street

12th Floor

Columbus, Ohio 43215

‘Phone: 614-719-2061

Counsel for Respondent

Angel M. Torr

QUESTION PRESENTED FOR REVIEW

Does Jackson _v. Virginia, 443 U.S. 307 (1979) control

appellate review of the sufficiency of the evidence by state courts

beyond holding that due process requires reversal only if after

viewing the evidence in the light most favorable to the prosecution

no rational trier of fact could have found the essential elements

of the crime to have been proved beyond a reasonable doubt?

TABLE OF CONTENTS —

Question Presented for ReEVieW....... cere eee cere cecees eee ease i

Table of Authorities............. (easoeveusoeance Cheenenesees iii

Statement of the CaSe..... cece cccees TerTTrEP TT Tere eT. 1

Reasons Why the Petition Should be Denied.........seeeeeeees 10

I. Petitioner has not advanced a question meriting

review by the Court... ..ccccccccccccccvcees So eeseee sovtes 10

II. The Decision Below Was Correct......-.-eeee- werrer st 12

III. The decision below rests primarily on state law..... 14

Conclusion...... cee ene rrrrrrr cr Tee evevess Tererure er tt. 17

as

TABLE OF AUTHORITIES

CASES

Dunn v. United States, 284 U.S. 390 (1932).......cceeee 16

Marria vy. Bivera 664 U.8. 348 (1662) 6. scccccesneseesese 16

in ve Minshin, 397 Y.8. 358 (2076) sé cbescnssceabnser ee 10

Jackson v. Virginia, 443 U.S. 307 (1979)........ je evens passim

State v. Adams, 53 Ohio St. 2d 223, 374 N.E. 2d

ee ere rere POE et penne ee pak eae ite eee 16

State v. Fields, 84 Ohio App. 3d 423, 427, 616 N.E.

2G ALG5 Ci9SZ) .cvscves CUSCOOHHHRSHR ETE RECHENH HO ORO TERE OS 16

State v. Huntley, 30 Ohio App. 3d 29, 505 N.E. 2d

SOG? SES 6 conse wed anes ‘jean aie ae eee caine si 15

State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2d

541, 1997-Ohio-52 (1997)......c cece ee eeee iehaws Kenaeeee 15

Thompson v. Louisville, 362 U.S. 199 (1960)............ 10-11

United States v. Powell, 469 U.S. 57 (1984).......... os 14, 16

STATUTES

Settion 2901.21, Gnio Revised COGG. cc cccccseusseceevess 13

Section 2901.22, Ohio Revised Code............. bheeeees 13

Section 2903.04, Ohio Revised Code.............. ‘naeoe 1

Section 2919.22, Ghio Revised Code. ..cccscveesscctcueses 1

Section 2945.79, Ohio Revised Code........ tober hon sees i5

CONSTITUTIONAL PROVISIONS

Fourteenth Amendment, United States Constitution....... 11

Section 3(B) (4), Article IV, Ohio Constitution......... 8

iii

IN THE

SUPREME COURT OF THE UNITED STATES

No. 02-435

STATE OF OHIO,

Petitioner,

ANGEL M. TORR,

Respondent,

BRIEF IN OPPOSITION TO THE STATE OF OHIO’S

PETITION FOR A WRIT OF CERTIORARI

Respondent Angel M. Torr respectfully requests that the court

deny the petition for a writ of certiorari seeking review of the

judgement of the Court of Appeal of Ohio, Tenth Appellate District.

STATEMENT OF THE CASE

Respondent Angel M. Torr was indicted for involuntary

manslaughter in violation of Section 2903.04 of the Ohio Revised

Code, and endangering children in violation of O.R.C. 2919.22.

Both counts arose from the death of her five-year old son, William

Welch, in a house fire on July 5, 2000. The endangering count

alleged that she "did recklessly create a substantial risk to the

health or safety of the said William Welch by violating a duty of

care, protection, or support, resulting in serious physical harm to

the said William Welch..." The involuntary manslaughter count

alleged William’s death was the proximate result of the offense of

endangering.

The case was assigned for trial to the Honorable Deborah P.

O’Neill of the Court of Common Pleas of Franklin County, Ohio.

Prior to trial the court overruled defense motions seeking a more

specific Bill of Particulars and a motion to dismiss, contending

the child endangering statute was unconstitutionally vague and

overbroad as applied to the facts of this case. Respondent waived

her right to trial by jury and the case was tried to the court.

Testimony at the trial indicated that when respondent left for

the grocery on the afternoon of July 5, 2000 she told her son, who

was playing with a friend down the street, to check in at home,

where she expected her younger sister Nichole to return after

delivering a note to their grandmother who lived across the street.

While William had an apparent fascination with fire, he had been

punished and received counselling. There had been no recent

incidents, and there was no specific reason to believe that there

was a strong possibility he would start a fire that afternoon.

Respondent’s grandmother, Delores Torr, gave an account of

what happened next. Nichole came over with a note asking to borrow

money to pay for cleaning supplies respondent could not charge to

her food stamp card. Nichole asked to use the phone to call her

mother. While Nichole was on the phone they heard William call for

help.

And we started over, half way over she says, "Oh

Gramma, there’s smoke coming out from the upstairs

window." And I said, "Okay, get the phone and call 911."

I said, “Also, go over and get my fire extinguisher."

2

Before this she had heard no loud sounds, such as an explosion or

fireworks being set off.

Mrs. Torr went first to pound on the door of the apartment in

the other half of the double, where Betty Jo Miller-Geiger lived.

She got no response and assumed "BJ" wasn’t home. She saw flames

inside respondent’s apartment, but went inside anyway. Smoke and

flames kept her from going upstairs. She called for William to

come down. She got no response, so assuming he had gone to the

front bedroom, she called for him to break out the window and jump,

hoping to catch him. He said "Gramma, I can’t do it, I can’t do

it.* She heard an explosion, which proved to be the windows

blowing out. Then:

-..-a neighbor on down the end came running out. He

says, "Is anybody up there?" I said, "William’s up

there," so he ran around to the back and tried to get

in." I pounded on BJ Miller’s door again, she finally

came, said, "Oh, we were up in the shower; we didn’t hear

anything." I said, "Well, just get out of here." I

said, “There’s a fire," I said, “just leave."

After this a medic unit brought the first fire-fighters to the

scene. As directed, she returned to her house.

The fire was put out. William’s body was found by a window in

an upstairs bedroon. One of the firefighters observed water

running in the sink of the second floor bathroom. Though the room

was heavily charred, the sink was filled with clean plastic

bottles.

An investigator with the State Fire Marshall’s office arrived

at the scene at 6:30 and assisted other investigators on the scene.

The fire was determined to have started on the first floor, at the

base of the stairs, specifically in a couch at that location. The

exact cause of the fire could not be determined, though it was

believed to be of human origin. On direct the investigator tended

to discount the possibility a burning cigarette between the

cushions of the couch could have started the fire, since some

studies had shown it took an hour and a half or longer for

smoldering cigarettes to produce flames in such circumstances.

Respondent learned of the fire when her sister had her paged

at the grocery store. She immediately returned home. She spoke to

a detective on the night of the fire and on two later occasions.

She told the detective that someone had given her son five

sparklers when they went to the Whetstone Park fireworks on the

4th, but he had used all of them before they left. On the

afternoon of the 5th she, her sister Nichole and Paul Trout had sat

in the living room watching TV. They shared a pack of cigarettes

and a lighter. She said the lighter was on a coffee table, but was

not asked what became of it when they left for the store. She sent

her sister with a note to their grandmother, who lived across the

street, but expected her to be gone for only a few minutes:

I thought she was only going to be gent just a few

minutes, long enough to give the Grandma the letter,

because she knew I was going to the grocery store and I

told her that I would find Will and have him come check

in.

She said her son had not begun playing with fire until his father

went to jail the most recent time. She said she had taken him for

fire counselling a “on a couple of occasions," but could not

remember exactly.

Before and during trial it was difficult to pin down the

precise conduct the prosecutor believed cdkeidished the elements of

the offenses charged. A initial motion for a bill or particulars

was followed by the above referenced motion for an additional bill

of particulars and motion to dismiss on the grounds the child

endangering statute was void for vagueness and overly broad as

applied to the facts of this case. The court was uncomfortable

about addressing the motion in view of its upcoming duty to serve

as the trier of fact. |

Notwithstanding the bill of particulars narrowing the time

frame to the time of the fire, the prosecutor in his opening

statement invoked conduct at other times, including the claimed

failure to complete counselling offered by a suburban fire

department, contact in April with a Franklin County Children

Services caseworker, engaging respondent’s sister Nichole to watch

William during the summer, and failure to instruct Nichole as to

how to deal with William’s fascination with fire.

The state’s strategy in examining witnesses was to paint

respondent as an irresponsible mother who let her son range further

about the neighborhood on his bike than was prudent, then was happy

for the opportunity to ride in a stretch limousine to his funeral

and have her picture in the paper. There was testimony concerning

fires previously set by William and efforts made to deter such

conduct. These included fire safety classes respondent did not

follow through on around the time she lost her job because of

medical problems, had her car repossessed, and lost phone service.

The prosecutor called William’s father. His years with respondent

and their son had been interrupted by periods of incarceration,

time spent in drug rehabilitation, incidents of domestic violence

when he tried to forcibly remove the child, and periods of

separation. While incarcerated he was in the habit of writing to

the local child welfare agency complaining of respondent’s conduct.

The prosecutor suggested respondent was glad her son died, calling

a neighbor who claimed that on the day of the fire, when William

reacted to something his mother said by "getting an attitude" and

storming off on his bike, respondent acted inappropriately,

including telling her son, "I swear sometimes you are such a

goddamn mother fucking inconvenience in my life...I wish you had

died in the first fire." Vilification continued through closing

argument.

On November 14, 2000 respondent was found guilty of

endangering children, but not guilty of involuntary manslaughter.

The judge prefaced her decision from the bench by stating:

It takes a village to raise a child and this village

failed William terribly. However, I cannot punish the

village. I can only punish you, Angel, as his parent and

his legal guardian. Your rough childhood does not excuse

your conduct. In spite of your tough times, you have

showed the Court that you have the ability to be a caring

and loving parent. You have shown the Court through this

testimony that William was the center of your life.

In finding respondent not guilty of involuntary manslaughter, the

judge stated:

However, I do not find that the State has proved

beyond a reasonable doubt that child endangering was the

proximate cause of William’s death, insofar as the State

has failed to prove beyond a reasonable doubt the cause

of the fire. The State has failed to prove that the

6

<b eT

defendant’s unlawful acts set in motion a sequence of

events leading to William’s death. I do not find that

your acts constituted foreseeability under the statute,

and as such I must find you not guilty of Count One, the

involuntary manslaughter.

No findings were entered attempting to draw a distinction in this

regard between the manslaughter and endangering counts. The Court

immediately imposed a three-year sentence, with credit for ninety-

one days of pretrial detention.

An appeal was taken to the Court of Appeals of Ohio, Tenth

Appellate District, advancing five assignments of error:

FIRST ASSIGNMENT OF ERROR: Focus on irrelevant matters

not bearing on proof of the elements of the offenses

charged constituted prosecutorial misconduct requiring

reversal.

SECOND ASSIGNMENT OF ERROR: The Court erroneously

overruled an objection to irrelevant testimony concerning

appellant’s use of funds collected before her son’s

funeral.

THIRD ASSIGNMENT OF ERROR: Appellant’s conviction was not

supported by sufficient evidence.

FOURTH ASSIGNMENT OF ERROR: Appellant’s conviction was

against the manifest weight of the evidence.

FIFTH ASSIGNMENT OF ERROR: The court erroneously

overruled appellant’s motion for acquittal pursuant to

Criminal Rule 29.

In an opinion rendered January 15, 2002 the Court of Appeals

overruled the first and second assignments of error, agreeing that

the matters in question were irrelevant, but discounting the degree

of prejudice. The third assignment of error was sustained only to

the extent that respondent should be resentenced for a misdemeanor

violation of Ohio’s endangering children statute. The fourth and

fifth assignments of error were overruled. State v..Torr 2002-

Ohio-524 (2002).

In response to this judgment petitioner, the Franklin County

Prosecutor, filed a motion asking the Court of Appeals to

reconsider its decision. An April 30, 2002 memorandum decision

denied reconsideration. Responding both to petitioner’s claims and

the manner in which they were expressed, the court explained its

reasoning as follows:

* * * The court has, at all times been aware that the

trial court found appellant guilty of felony endangering.

The statement, as is obvious from any reasonable reading

of the opinion, relates back to the application of the

trial court’s specific findings of fact to the elements

of both negligent and felonious endangering of a child.

We were also aware of the difference between proximate

cause of death by involuntary manslaughter and proof of

serious physical harm resulting from recklessly violating

a duty of care and protection to the child, which results

in serious physical harm. The problem, as we explained

in our opinion of January 15, 2002, is that the trial

court specifically found that the state failed to prove

that appellant’s unlawful acts set in motion a sequence

of events leading to the child’s death. The acts to

which the trial court was referring were the actions or

inactions relating to the child’s problem with setting

fires. Specifically, the trial court found that there

was no proof that those reckless acts caused harm to the

child. That only left negligent acts (a failure to

secure an appropriate babysitter or the lapse of time

before the babysitter arrived) that resulted in harm.

The reckless acts had no causal relationship to the harm

suffered applying the trial court’s findings of fact to

the elements of negligent child endangering and felony.

The trial court, in effect, found that appellee failed to

meet its burden of proving anything other than negligent

child endangering. The trial court’s judgment of

felonious child endangering was erroneous.

Petitioner also asked the Court of Appeals to certify its

decision to the Supreme Court of Ohio under Section 3(B) (4),

Article IV of the Ohio Constitution as being in conflict with

decisions in other appellate districts. The proposed questions

were:

Question No. 1: Whether reversal is warranted on appeal

when the trial court in a bench trial has entered

inconsistent verdicts on different counts of a multi-

count indictment.

Question No. 2: Whether a trial court’s not guilty

verdict in a bench trial on one count of a multi-count

indictment can be used as grounds on appeal to sustain an

insufficient-evidence challenge to the trial court’s

guilty verdict on another count.

The Court of Appeals refused to certify a conflict. The April 30th

decision states: "The result in this case was not predicated upon

an inconsistency in finding appellant not guilty of involuntary

manslaughter and guilty of felonious endangering of her child."

Finally petitioner sought discretionary review by the Supreme

Court of Ohio. Respondent sought leave to pursue a cross appeal,

advancing propositions of law relating to prosecutorial misconduct

in the state’s efforts to vilify respondent by focusing on matters

not relevant to the elements of the offenses charged, and asserting

sufficiency of the evidence claims rejected by the Court of

Appeals. The Supreme Court of Ohio denied both leave to appeal and

leave to cross-appeal. State v. Torr 95 Ohio St. 3d 1485 (2002).

REASONS WHY THE PETITION SHOULD BE DENIED

I. Petitioner has not advanced a question meriting review by the

Court.

The question presented for review by petitioner has no logical

connection to this court’s decision in Jackson v. Virginia, 443

U.S. 307 (1979). Jackson does not set forth a rigid framework

governing appellate review of the weight and sufficiency of the

evidence. Instead it addresses what due process minimally requires

to sustain a criminal conviction. |

In determining Jackson’s habeas corpus action the lower

federal courts had applied the "no evidence" standard of review set

forth in Thompson v. Louisville, 362 U.S. 199 (1960). Thompson

involved a loitering and disorderly conduct prosecution in which

the defendant claimed, and this court agreed, that the record was

totally lacking in evidence to support conviction under the two

Louisville ordinances:

Thus we find no evidence whatever in the record to

support these convictions. Just as "Conviction upon a

charge not made would be a sheer denial of due process,"

so is it a violation of due process to convict and punish

a man without evidence of his guilt.

Id. at 206 (footnotes omitted). Ten years after Thompson the Court

decided In re Winship, 397 U.S. 358 (1970), holding at p.364:

Lest there remain any doubt about the constitutional

stature of the reasonable-doubt standard, we explicitly

hold that the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime

with which he is charged.

In light of this, the question arose whether appellate review of

the sufficiency of the evidence in a criminal case required more

10

than the "no evidence" standard fashioned from the Thompson

opinion. In Jackson, this Court found that the Due Process Clause

of the Fourteenth Amendment did require more.

The initial paragraph of the Jackson opinion states:

The Constitution prohibits the criminal conviction of

any person except upon proof of guilt beyond a reasonable

doubt, In re Winship, 397 U.S. 358. The question in

this case is what standard is to be applied in a federal

habeas corpus proceeding when the claim is made that a

person has been convicted in a state court upon

insufficient evidence.

The opinion distinguishes the situation in Thompson, where the

Claim was that conviction based on no evidence was a violation of

due process, from the more common situation where there was some

evidence, but not enough to fairly sustain conviction. The Court

4

concluded that more than a no evidence standard was required to

satisfy due process as:

++. a properly instructed jury may occasionally convict

even when it can be said that no rational trier of fact

could find guilt beyond a reasonable doubt, and the same

may be said of a judge sitting as a jury...

Jackson at 317. The Court held:

After Winship the critical inquiry on review of the

sufficiency of the evidence to support a criminal

conviction must be not simply to determine whether the

jury was properly instructed, but to determine whether

the record evidence could reasonably support a finding of

guilt beyond a reasonable doubt. But this inquiry does

not require a court to “ask itself whether it believes

that the evidence at the trial established guilt beyond

a reasonable doubt."...Instead, the relevant question is

whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt...

Id. at 318-319 (footnotes and citations omitted).

11

From this petitioner posits as the Question Presented for

Review:

Whether an appellate court violates the standard of

review for sufficiency of the evidence under Jackson v.

Virginia, 443 U.S. 307 (1979), when it finds that the

evidence was sufficient to support the guilty verdict on

one count but then proceeds to sustain an insufficient-

evidence challenge to that count by relying on the trial

court’s findings regarding another count of the same

indictment.

Nothing in Jackson prohibits a reviewing court from looking at a

trial court’s specific findings when passing on a sufficiency of

the evidence claim.

II. The decision below was correct.

The Court of Appeals decision ruling on petitioner’s motion to

reconsider states:

...the trial court found that there was no proof that

those reckless acts caused harm to the child. That only

left negligent acts (a failure to secure an appropriate

babysitter or the lapse of time before the babysitter

arrived) that resulted in harm. The reckless acts had no

causal relationship to the harm suffered applying the

trial court’s findings of fact to the elements of

~ negligent child endangering and felony.

The distinction between reckless acts and negligent acts is

significant. The Statement of the Case mentions efforts to

determine in advance of trial what conduct the state relied upon to

make out the offenses charged. Notwithstanding the prosecutor’s

a broader claims of parental unfitness before and after the time of

the incident, a bill of particulars had identified the conduct of

the defendant, its date and time to be as fottows:

12

Angel Marie Torr, at approximately 4:26 p.m., on or

about the 5th day of July in the year of our Lord, 2000,

within the County of Franklin aforesaid, in violation of

section 2919.22 of the Ohio Revised Code, being the

parent, guardian, custodian, person having custody or

control, or person in loco parentis, of a child under

eighteen (18), to wit: William Welch, five (5) years of

age, did recklessly create a substantial risk to the

health or safety of the said William Welch by violating

a duty of care, protection, or support, resulting in

serious physical harm to the said William Welch.

According to Section 2901.21(A) of the Ohio Revised Code, unless

strict liability is intended, a person is not guilty of an offense

unless:

(1) His liability is based on conduct which includes

either a voluntary act, or an omission to perform an act

or duty which he is capable of performing;

(2) He has the requisite degree of culpability for

each element as to which a culpable mental state is

specified by the section defining the offense.

If the statutory definition of an offense does not include a

culpable mental state, as is the case with the child endangering

statute, and strict liability is not intended, the state must prove

recklessness. [O.R.C. 2901.21(B).] O.R.C. 2901.22 defines when an

offender may be found to have acted purposely, knowingly,

recklessly and negligently. Recklessness is based on perversely

disregarding a known risk with heedless indifference to the

consequences. Negligence merely involves a lapse from due care.

The Court of Appeal’s resolution of respondent’s sufficiency of the

evidence claim is less a matter of applying Jackson and controlling

Ohio case law than looking to the specific elements of the crime,

the controlling culpable mental state, and holding the trial judge

to her word. It doesn’t matter whether or not the Court of Appeals

13

——oOOeeeeeeeeee SE =——h

believed the proof in support of the serious physical harm element

of felony child endangering was supported by the evidence. The

trial court specifically found that the necessary link did not

exist. :

While inconsistent verdicts do not provide a basis for relief

in the federal system, this court, in United States v. Powell, 469

U.S. 57 (1984), indicated that the remedy for such irrational

decisions by the trier of fact lies in appellate review of the

sufficiency of the evidence:

Finally, we note that a criminal defendant already is

afforded protection against jury irrationality or error

by the independent review of the sufficiency of the

evidence undertaken by the trial and appellate courts.

This review should not be confused with the problems

caused by inconsistent verdicts. Sufficiency-of-the-

evidence review involves assessment by the courts of

whether the evidence adduced at trial could support any

rational determination of guilt beyond a reasonable

doubt. See Glasser v. United States, 315 U.S. 60, 80

(1942); Fed. Rule Crim. Proc. 29(a); cf. Jackson v.

Virginia, 443 U.S. 307, 316, 319 (1979). This review

should be independent of the jury’s determination that

evidence on another count was insufficient. The

Government must convince the jury with its proof, and

must also satisfy the courts that given this proof the

jury could rationally have reached a verdict of guilt

beyond a reasonable doubt. We do not believe that

further safeguards against jury irrationality are

necessary.

Id. at 67. This equally applies to bench trials and was the basis

upon which the Court of Appeals granted relief.

III. The decision- below rests primarily on state law.

Ultimately the Court of Appeals decision rests on application

of Ohio law concerning appellate review of the weight and

14

ee

sufficiency of the evidence. While Ohio law recognizes the

constitutional obligations enunciated in Jackson and other

decisions of this court, it also rests on the Ohio Constitution and

a long line of decisions addressing appellate review of the weight

and sufficiency of the evidence in criminal cases. State v.

Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2a 541, 1997-Ohio-52 (1997)

is the leading Ohio case on appellate review of weight and

sufficiency. It arose in the context of determining when Section

3(B)(3), Article IV of the Ohio Constitution requires unanimous

concurrence of all three judges on a Court of Appeals panel

reviewing a case, but provides considerable discussion of prior

Ohio law and the distinction between weight and sufficiency.

Ohio law recognizes a sufficiency of the evidence claim as the

proper avenue to the limited relief granted by the Court of Appeals

in this case. 0O.R.C. 2945.79 provides:

A new trial, after a verdict of conviction, may be

granted on the application of the defendant for any of

jaa causes affecting materially his substantial

zk*ketk

(D) That the verdict is not sustained by sufficient

evidence or is contrary to law; but if the evidence shows

15

In State v. Huntley, 30 Ohio App. 3d 29, 505 N.E. 2d 1007 (1986),

the underlined language was relied upon by the Hamilton County

Court of Appeals in remanding the case of a defendant convicted of

burglary for conviction to be entered on the lesser-included

offense of breaking and entering.

Though Ohio generally disavows inconsistent verdicts as an

avenue to relief on appeal, there are exceptions. Paragraph two of

the syllabus to State v. Adams, 53 Ohio St. 2d 223, 374 N.E. 2d 137

(1978), vacated on other grounds 439 U.S. 811 (1978), which states

the holeing of the case, provides:

The several counts of an indictment containing more than

one count are not interdependent and an inconsistency in

a verdict does not arise out of inconsistent responses to

different counts, but only arises out of inconsistent

responses to the same count. (Browning v. State, 120 Ohio

St. 62, approved and followed.)

Under Ohio law, venue is not a material element of the crime

charged, but is viewed as a fact which must be proved beyond a

reasonable doubt. Where three people were charged with the same

acts in the same location, if venue was improper to two, it was

improper for the third as well. State v. Fields, 84 Ohio App. 3d

423, 427, 616 N.E. 2d 1185 (1992). The Court of Appeals plainly

stated in its decision refusing to certify this case to the Supreme

Court of Ohio that its decision was not based on inconsistent

verdicts. But even if it were, nothing in this court’s decisions

in Dunn v. United States, 284 U.S. 390 (1932), Harris v. Rivera 454

U.S. 348 (1981) or United States v. Powell, supra, prevents the

states from granting relief from inconsistent verdicts to this

extent Ohio law already does, or on an even broader basis.

16

CONCLUSION

For the above stated reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Allen V. Adair

Franklin County Public

Defender Office

373 South High Street

12th Floor

Columbus, Ohio 43215

Phone: 614-719-2061 or

614-462-3194

Counsel for Respondent

Angel M. Torr

17