Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

MOTIONS (ME027)

Also see topics on subject matter of motion; Appellate Review; Criminal Procedure, Rules of/Criminal Rule 29 (motion for judgment of acquittal).

In general

Necessity of filing

Matters which may not be raised by motion

Time requirements

Sufficiency as to content

Adjudication

Findings of fact and conclusions of law

Appellate issues

Criminal Rule 12 -- Pleadings and Motions Before Trial: Defenses and Objections.

Criminal Rule 45 -- Time Limits and Computation.

Criminal Rule 47 -- Motions.

In general

State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493 – Attorney was appointed as an expert witness in a kiddie porn prosecution. The FBI raided his home and seized his laptop and the digital image exhibits was preparing for use at trial. Trial court sustained a motion to dismiss. Court of Appeals affirmed. Reversed. Court could consider matters beyond the face of the indictment in ruling on motion to dismiss premised on the claim that federal child pornography statutes deprived the defendant of his right to expert assistance, since the motion could be decided without deciding the general issue. Expert could do his work at the prosecutor‘s office.

State v. Baker, 170 Ohio App. 3d 331, 2006-Ohio-7085 -- Defendant's motion to suppress on the basis admission of blood test results was in violation of the physician-patient privilege was untimely, and the court did not extend time in the interest of justice. Thus it became a motion in limine. The initial ruling on the motion in limine may not be appealed, though claimed error may be preserved by timely objection during trial.

State v. Taylor (1999), 135 Ohio App. 3d 634 -- Court erred by consolidating nine OMVI cases for purposes of hearing motions to suppress not firmly rooted in common questions of law or fact.

State v. Bruce, 172 Ohio App. 3d 521, 2007-Ohio-3695 -- State filed a motion to vacate judgments of conviction, apparently believing an imposter had appeared in court in place of the defendant. Error to grant motion without notice to the defendant and without hearing evidence.

State v. Ulis (1992), 65 Ohio St. 3d 83 -- Motions to suppress are not limited to constitutional issues. Since the criminal rules favor determination of evidentiary matters before trial where possible, the ruling on a motion to keep out testimony of a prosecution witness was improperly construed as a motion in limine, requiring renewed objection when the witness was called at trial. The full blown pretrial hearing was sufficient to preserve the issue for review. Also see State v. Hall (1989), 57 Ohio App. 3d 144; State v. Hennessee (1984), 13 Ohio App. 3d 436. Compare State v. Unger (1981), 67 Ohio St. 2d 65, 69-70 -- Under Ohio law, the exclusionary rule is said to apply only to violations of a constitutional nature. Also see State v. Downs (1977), 51 Ohio St. 2d 47, 63-64; State v. Davis (1978), 56 Ohio St. 2d 51; Kettering v. Hollen (1980), 64 Ohio St. 2d 232, 235. But see Defiance v. Kretz (1991), 60 Ohio St. 3d 1; State v. Myers (1971), 26 Ohio St. 2d 190.

State v. Grubb (1986), 28 Ohio St. 3d 199, 201-202 -- A motion in limine is tentative and precautionary in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial. In deciding such motions, the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trail. Finality does not attach when the motion is granted. The losing party must still make a proffer of evidence when the issue becomes ripe for consideration during the course of the trial. Also see State v. Spahr (1976), 47 Ohio App. 2d 221, 224-225; State v. Leslie (1984), 14 Ohio App. 3d 343; State v. White (1982), 6 Ohio App. 3d 1.

State v. Brown (1988), 38 Ohio St. 3d 305 -- Paragraph three of the syllabus: "A denial of a motion in limine does not preserve error for review. A proper objection must be raised at trial to preserve error."

State v. Mitchell (1975), 42 Ohio St. 2d 447 -- Motion to suppress evidence does not lie at the preliminary hearing stage.

State v. Woolum (1976), 47 Ohio App. 2d 313 -- When an attorney has neglected to file a pretrial motion to suppress evidence, which at least arguably could have disposed of the case without trial, the client has been deprived of effective assistance of counsel.

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State v. Gavin (1977), 51 Ohio App. 2d 49, 52-53 -- Failure to move to suppress evidence by pretrial motion may, in the court's discretion, be a waiver of that issue. Also see State v. Savage (1980), 1 Ohio App. 3d 13.

Akron v. Milewski (1985), 21 Ohio App. 3d 140 -- It is within the court's discretion to grant a motion to suppress evidence which was not filed in a timely manner.

State v. French (1995), 72 Ohio St. 3d 446 -- In an OMVI prosecution pursuant to R.C. 4511.19(A)(1-4) the admissibility of chemical test results must be challenged through a pretrial motion to suppress. Failure to do so permits the prosecution to introduce test results without first laying a foundation that the test was conducted in compliance with Department of Health regulations. At p. 452: "This does not mean, however, that the defendant may not challenge the chemical test results at trial under the Rules of Evidence. Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the chemical test results may still be raised." Impliedly overrules Whitehall v. Lee (September 30, 1993), Franklin Co. App. No. 93AP-548, unreported (1993 Opinions 4256). See pp. 449-451 for discussion of the differences between motions to suppress and motions in limine.

State v. F.O.E. Aerie 2295 (1988), 38 Ohio St. 3d 53 -- Failure to file a motion to suppress physical evidence before trial, as required by Criminal Rule 12(B)(3) precludes a challenge to its admission at trial. Submission of a stipulation of facts is the equivalent of the commencement of trial. Also see State v. Carter (1970), 21 Ohio St. 2d 212; State v. Davis (1964), 1 Ohio St. 2d 28.

Defiance v. Kretz (1991), 60 Ohio St. 3d 1 -- Syllabus: "A motion to suppress is a proper pretrial procedure for challenging breathalyzer test results when the defendant is charged with a violation of R.C. 4511.19(A)(3). A plea of no contest does not waive a defendant's appeal from an adverse ruling on the motion." Also see State v. James (1980), 68 Ohio App. 2d 227.

State v. Higgins (1976), 50 Ohio App. 2d 389 -- When the defendant has failed to avail himself of a pretrial motion to suppress his taped confession, objection to admission of the statement is deemed waived under Criminal Rule 12(B)(3) unless the defendant is able to demonstrate good cause for not having filed a motion. Also see State v. Moody (1978), 55 Ohio St. 2d 64.

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State v. Scott, 174 Ohio App. 3d 446, 2007-Ohio-7065 – There is no procedure for obtaining summary judgment in a criminal case even though it is clear the state may not prevail. According to State v. Chandler, 109 Ohio St. 3d 223, 2006-Ohio-2285, a substance must contain some detectible amount of the relevant controlled substance in order to support a major drug offender specification. Here it did not, and the trial court dismissed the indictment. But a motion to dismiss may address only matters that may determined without weighing evidence such as may be introduced during trial.

State v. Certain, 180 Ohio App. 3d 457, 2009-Ohio-148 – The Criminal Rules do not provide for summary judgment before trial. A pretrial motion to dismiss is limited to defects in the charging documents apparent without regard to the evidence that may be produced by either party. But the state actively participated in the procedure followed, so the court proceeds to address the merits.

State v. Lloyd (1998), 126 Ohio App. 3d 95, 100 -- Ohio law makes no provision for a motion to dismiss based on a lack of probable cause. The proper remedy for any Fourth Amendment violation is a motion to suppress evidence. Also see Cincinnati v. Contemporary Arts Center (1990), 57 Ohio Misc. 2d 9; State v. Hartley (1988), 51 Ohio App. 3d 47.

State v. McNamee (1984), 17 Ohio App. 3d 175 -- Defense may not use a pretrial motion to dismiss addressed to the sufficiency of the state's proof as the equivalent as a motion for summary judgment in a civil case.

State v. Varner (1991), 81 Ohio App. 3d 85 -- The Ohio Rules of Criminal Procedure do not provide for summary judgment. Where the defendant's claim raises factual issues beyond the face of the indictment, the issue must be raised through a Rule 29 motion. (Unless is such that it must be raised by pretrial motion.)

State v. Heebsh (1992), 85 Ohio App. 3d 551 -- Whether or not the defendant, who was a teacher, stood in loco parentis to the student victim is a factual issue to be determined at trial and not through a pretrial motion. Such status was an element of the crimes charged and ruling on the issue before trial amounted to summary judgment.

State v. O'Neal (1995), 103 Ohio App. 3d 151 -- Whether or not husband was a trespasser in marital home was a factual issue to be determined at trial and not upon a pretrial motion to dismiss.

State v. O'Neal (1996), 114 Ohio App. 3d 335 -- Whether a minute quantity of cocaine was sufficient to establish knowing possession was an issue for trial and not for a pretrial motion to dismiss.

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State v. Homan 89 Ohio St. 3d 421, 2000-Ohio-212 -- Paragraph two of the syllabus: "When a criminal defendant files a pretrial motion and the state later files against the defendant additional, related criminal charges, R.C. 2945.72(E) does not extend the time within which the defendant must be brought to trial on those additional charges."

State v. Mullins, 152 Ohio App. 3d 83, 2003-Ohio-477 -- Court granted defendant's motion to suppress statements 635 days after the hearing. Constitutional right to a speedy trial was violated. A court's discretion as to the time needed to rule on a defense motion is not limitless, and no explanation was given for the delay.

State v. Robson, 165 Ohio App. 3d 621, 2006-Ohio-628 -- No motion to suppress was filed when case was first pending in 2001. Defendant absconded. Following apprehension, new counsel promptly moved to suppress evidence. Court questioned timeliness, but took evidence. It was an abuse of discretion to later deny the motion as out of rule.

State v. Malen (1993), 83 Ohio App. 3d 394, 397 -- "...(W)here the state makes an amendment to the substance of an indictment, information, or complaint charging a defendant with a new crime, the thirty-five day time limitation contained in Crim. R. 12(C) for raising a pretrial suppression motion regarding the new charge will be tolled to the date of the amendment."

State v. Merritt (1998), 126 Ohio App. 3d 711 -- First attorney did not identify calibration issue in an OMVI case, and did not file a motion to suppress, but new counsel did, and promptly sought leave to file a motion out of rule. Motion improperly denied, where the failure to file a timely motion was the fault of prior counsel and the case was not set for trial for several months.

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State v. Smith, 162 Ohio App. 3d 1, 2005-Ohio-2103 -- Motion to suppress based on the lack of probable cause and State v. Homan 89 Ohio St. 3d 421, 2000-Ohio-212, faulted for failing to address the issue with specificity. Motion should have made specific claims with respect to the testing and identified related sections in the NHTSA manual.

State v. Mayl, 154 Ohio App. 3d 717, 2003-Ohio-5097 -- While grounds for suppression must be stated with particularity, failure to object followed by an extensive evidentiary hearing waives subsequent claims of lack or particularity.

State v. Shindler (1994), 70 Ohio St. 3d 54 -- Syllabus: "In order to require a hearing on a motion to suppress evidence, the accused must state the motion's legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided. (Crim. R. 47 and Xenia v. Wallace [1988], 37 Ohio St. 3d 216...construed and followed.)" The standard motion to suppress set forth in Ohio Driving Under the Influence Law by Painter and Looker is approved, accompanied by facts pleaded in the supporting memorandum.

Solon v. Mallion (1983), 10 Ohio App. 3d 130 -- Evidentiary hearing on pretrial motion is required only when the claims in the motion would left relief and where those claims are supported by factual allegations. Also see Bryan v. Fox (1991), 76 Ohio App. 3d 607; State v. Hensley (1992), 75 Ohio App. 3d 822 -- Hearing on vaguely drafted motion not an alternative to proper investigation and discovery.

State v. Marion (1992), 73 Ohio App. 3d 752 -- "Shotgun motion" not sufficiently specific to require evidentiary hearing, but when additional information is supplied by amendment or supplementation, hearing becomes necessary.

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State v. Litten, 174 Ohio App. 3d 748, 2008-Ohio-313, ¶26-31 – A motion to suppress evidence must be determined before trial. The court may not wait and rule on the motion after hearing evidence at trial.

State ex rel Rodak v. Betmeski, 104 Ohio App. 3d 345, 2004-Ohio-6567 -- Judge sat on motions pending in a criminal case for four years. Some agreement to delay by the defendant did not relieve the court of the obligation to ultimately rule. Peremptory writ of procedendo granted.

Sikora v. Gibbs (1999), 132 Ohio App. 3d 770, 774 -- The failure to rule on a motion is generally treated as if the court overruled it. Also see Akron v. Molyneaux (2001), 144 Ohio App. 3d 421, 425-426; State v. Patrick, 163 Ohio App. 3d 666, 2005-Ohio-5332, ¶17.

State v. King (1999), 136 Ohio App. 3d 377, 381 -- While Crim R. 12(E) requires that a trial court state its essential findings on the record when factual issues are involved in the determination of a motion, the failure to do so does not preclude appellate review where the record provides an adequate basis for passing upon the assignments of error.

Columbus v. Maxey (1988), 39 Ohio App. 3d 171 -- When determining a motion involving disputed factual issues it is error for a court to refuse to conduct an evidentiary hearing.

State v. Scott (1980), 61 Ohio St. 2d 155, 161 -- At a suppression hearing, court sits as the trier of fact and resolves conflicts in testimony.

State v. Hooker (1989), 64 Ohio App. 3d 631 -- Reversal where motion to suppress was granted without giving the prosecutor an opportunity to present evidence.

State v. Owens (1975), 51 Ohio App. 2d 132, 148 -- Denial of compulsory process to deny defense right to call witness at suppression hearing, though defendant may be obligated to indicate how production of witness might benefit the defense and may be non-prejudicial based on the testimony of the same witness at trial.

State v. Woodring (1989), 63 Ohio App. 3d 79 -- Judge may consider admitting hearsay evidence at hearing on pretrial motion.

Xenia v. Wallace (1988), 37 Ohio St. 3d 216 -- Syllabus: "(1) To suppress evidence obtained pursuant to a warrantless search or seizure, the defendant must (1) demonstrate the lack of a warrant, and (2) raise the grounds upon which the validity of the search or seizure is challenged in such a manner as to give the prosecutor notice of the basis for the challenge. (2) Once a defendant has demonstrated a warrantless search or seizure and adequately clarified that the ground upon which he challenges its legality is lack of probable cause, the prosecutor bears the burden of proof, including the burden of going forward with evidence, on the issue of whether probable cause existed for the search or seizure."

State v. Gasser (1980), 5 Ohio App. 3d 217 -- State has both burden of going forward with the evidence and burden of proof on admissibility of alcohol concentration test results. See Aurora v. Kepley (1979), 60 Ohio St. 2d 73; Mentor v. Giordano (1967), 9 Ohio St. 2d 140; Cincinnati v. Sand (1975), 43 Ohio St. 2d 79.

Dayton v. Dabney (1994), 99 Ohio App. 3d 32 -- Supervision by a senior operator developed into an issue during suppression hearing, though it had not been raised by motion. Error for court to decide issue on supplemental memoranda without allowing parties to present additional evidence on the issue of supervision.

Cleveland Heights v. Richardson (1983), 9 Ohio App. 2d 152 -- The criminal rules make no provision for motions for reconsideration, therefore such motions do not lie in a criminal case. See Pitts v. Department of Transportation (1981), 67 Ohio St. 2d 378.

State v. Thomas (1996), 111 Ohio App. 3d 510 -- Trial court was allowed to "upon more mature reflection" change it decision to grant defendant's motion for new trial. Initial decision had been journalized. State filed a motion seeking reconsideration. Decision is at odds with Cleveland Heights v. Richardson (1983), 9 Ohio App. 3d 152 holding that trial courts are without jurisdiction to hear motions for reconsideration as the Criminal Rules make no provision for such motions. Also see Pitts v. Department of Transportation (1981), 67 Ohio St. 2d 378.

State v. Edwards (1993), 86 Ohio App. 3d 554 -- Error for trial court not to have stated on the record its essential factual findings in determining a motion concerning discovery and identification issues. Compare State v. Alexander (1997), 120 Ohio App. 3d 164, 168-169 -- While Crim. R. 12(E) requires the court hearing a motion to state its essential factual findings on the record, the defendant must request it do so, and any omission may be harmless if the record permits full review of the issues presented.

In re Mojica (1995), 107 Ohio App. 3d 461 -- Juvenile court judge conducted a single hearing addressed to motion to suppress and guilt or innocence, granting the motion to dismiss and immediately dismissing the case. Held: (1) Since the judge did not have authority to dismiss the case, the prosecutor retains the right to appeal. (2) Ordering suppression was erroneous. (3) Because of the dismissal, double jeopardy bars further proceedings.

State v. Gray (1984), 14 Ohio App. 3d 43 -- When the defendant has presented sufficient credible evidence that his confession was compelled and involuntary, and the state has presented nothing in rebuttal, it is error to overrule the motion by the simple expedient of rejecting the defendant's evidence.

State v. Tolbert (1990), 70 Ohio App. 3d 372, 388-389 -- It is error for a court to fail to rule on a pretrial motion, though the error is harmless if the substantial rights of the defendant are not prejudiced.

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Bryan v. Knapp (1986), 21 Ohio St. 3d 64 -- When ruling on a motion for discharge on speedy trial grounds, a court must state its essential findings of fact for the record.

State v. Messinger (1976), 49 Ohio App. 2d 341 -- Court must state reasons for overruling a motion to dismiss an indictment so that a reviewing court may determine the propriety of the court's ruling.

State v. Almalik (1986), 31 Ohio App. 3d 33 -- Applying Criminal Rule 12(E), it is reversible error for a trial court not to state on the record its essential findings of fact when overruling a motion to suppress evidence.

Akron v. Milewski (1985), 21 Ohio App. 3d 140 -- When granting a motion to suppress evidence, the court must state for the record its reasons.

State v. Brown (1992), 64 Ohio St. 3d 476 -- Syllabus: "Where a defendant makes no request to the trial court to state findings of fact in support of an order overruling a motion to dismiss on speedy trial grounds, and the trial court does not state its findings of fact, an appellate court errs in reversing a conviction on the ground that the defendant was denied a speedy trial if there is sufficient evidence demonstrating that the court's decision was legally justified and supported by the record."

Zanesville v. Osborne (1992), 73 Ohio App. 3d 580 -- Trial court said not to be obligated to continue indefinitely supplying findings requested by the defendant. Even if findings are inadequate, defendant's claims may be rejected if record is otherwise adequate to allow review.

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State v. Wojnarowski, 179 Ohio App. 3d 141, 2008-Ohio-5749, ¶11 – "When a trial court fails to rule on a motion, it may ordinarily be presumed that the court overruled it." Also see State v. Hines (2001), 145 Ohio App. 3d 792.

Ohler v. United States (2000), 529 U.S. 753, 120 S.Ct. 1851 -- In a federal prosecution the government prevailed in a motion in limine seeking right to impeach the defendant using her prior conviction. Preemptively admitting conviction during direct waived issue on appeal.

State v. Wood (2001), 141 Ohio App. 3d 634, 637 -- No contest plea was entered after the court ruled against the defense on a claim of privilege. Held to be an evidentiary issue capable of determination without trial of the general issue, and thus appealable.

Cleveland v. Abraitis (2001), 146 Ohio App. 3d 306, 307 -- "A motion for reconsideration is not provided for in the Rules of Criminal Procedure and is therefore a nullity and does not suspend the time for filing a notice of appeal."

State v. Marable, Franklin App. No. 02AP-97, 2003-Ohio-6653, ¶ 13 -- "Because there is no provision for a motion for reconsideration, anything appellant averred in his motion for reconsideration was not properly before the court as the trial court had already rendered judgment in the case."

State v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶42-57 -- In response to the prosecutor's motion for reconsideration, the trial court reinstated dismissed death penalty specifications. Such action is upheld with no reference to the lack of authority for reconsideration motions within the criminal rules.

State v. Luna (1982), 2 Ohio St. 3d 57 -- Defendant retains his right to appeal the ruling on a pretrial motion following plea of no contest, whether to the offense charged or to negotiated lesser offense.

Columbus v. Sullivan (1982), 4 Ohio App. 3d 7 -- No contest plea does not preserve right to appeal adverse ruling on motion in limine, however, when ability to appeal ruling was a part of the plea bargain, defendant must be given opportunity to withdraw his plea and proceed to trial. Compare State v. Gabel (1991), 75 Ohio App. 3d 675 where plea agreement did not appear in the record.

Huber Heights v. Duty (1985), 27 Ohio App. 3d 244 -- Unlike a plea of no contest, a plea of guilty does not preserve an erroneous ruling on motion to suppress for purposes of appeal

State v. Buckingham (1980), 62 Ohio St. 2d 14 -- To appeal as of right a ruling on pretrial motion to suppress evidence, pursuant to Criminal Rule 12(J), prosecutor must certify (1) that the appeal is not taken for purpose of delay, and (2) the granting of the motion has rendered the state's proof so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed. Also see State v. Waller (1976), 47 Ohio St. 2d 52, 57; State v. Collins (1970), 24 Ohio St. 2d 107, 107-110.

State v. Fraternal Order of Eagles Aerie 0337 Buckeye (1991), 58 Ohio St. 3d 166 -- Syllabus: "Where a motion to suppress is made and granted after the commencement of trial, a trial court shall not proceed to enter a judgment of acquittal so as to defeat the state's right of appeal pursuant to Crim. R. 12(J)." Also see State v. Newell (1990), 68 Ohio App. 3d 623.

State v. Hamilton (1994), 97 Ohio App. 3d 648 -- At arraignment the defendant entered a no contest plea. The judge found him not guilty, stating that the arresting officer was without authority to search the defendant's vehicle. It was error to in effect suppress evidence and proceed to judgment without allowing the prosecutor an opportunity to appeal on the suppression issue. Nonetheless, double jeopardy bars further proceedings against the defendant.

State v. Malinovsky (1991), 60 Ohio St. 3d 20 -- Prosecutor may pursue appeal of an evidentiary ruling during trial, pursuant to Crim. R. 12(J), upon certification prosecution cannot go forward without the excluded evidence. This does not infringe upon the defendant's right to an uninterrupted trial and where the court improperly orders the trial to proceed, resulting in a dismissal for failure to prosecute, double jeopardy does not bar retrial.

State v. Davidson (1985), 17 Ohio St. 3d 132 -- State may appeal ruling on motion in limine if result is to so limit the state in the presentation of proof that the reasonable possibility of effective prosecution has been destroyed. In determining whether a motion is one in limine or to suppress it is the objective and not the label that is controlling. Also see State v. Lautenheiser (1991), 77 Ohio App. 3d 461.

State v. Hughes (1981), 2 Ohio App. 3d 443, 444 -- Criminal Rule 12(J) requires that the state's notice of appeal and certification be filed within seven days, though they may be filed separately.

In re Hester (1982), 3 Ohio App. 3d 458 -- Following an unsuccessful appeal of an adverse ruling on a motion to suppress statements, the state may still prosecute defendant if the appeal was not undertaken in bad faith.

State v. Crago (1990), 53 Ohio St. 3d 243 -- The overruling of a defendant's motion to dismiss on the grounds of double jeopardy is not a final appealable order.

State ex rel. Paige v. Lisotto (1997), 118 Ohio App. 3d 418 -- Neither mandamus nor prohibition lies to prevent admission of similar acts evidence. Appeal is generally the remedy for denial of a pretrial motion.

Carroll v. United States (1925), 267 U.S. 132, 162 -- Appellate court reviewing ruling on motion to suppress may consider any additional evidence on the issue presented during the trial. Also see United States v. Quiroz-Carrasco (5th Cir. 1978) 565 F. 2d 1328, 1330; United States v. Canieso (2nd Cir. 1972), 470 F. 2d 1224, 1226; United States v. Smith (10th Cir. 1975), 527 F. 2d 692, 694.

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