Ogle v. Mohr

MELANIE A. OGLE, Petitioner, v. GARY C. MOHR, DIRECTOR, Ohio Department of Rehabilitation And Correction, Respondent.

Case No. 2:15-cv-776

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

March 10, 2017

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This action is before the Court on Ogle's Petition for Writ of Habeas Corpus and Amended Petition (ECF Nos. 1, 21). The Warden filed an Answer/Return of Writ ("Return of Writ," ECF No. 14) and later an Amended Answer ("Amended Return of Writ," ECF No. 30) and the Petitioner filed a Reply in response ("Traverse," ECF No. 40). The case is thus ripe for decision.¹

Procedural History

Petitioner, Melanie Ogle, was indicted on September 28, 2009, by a Hocking County Grand Jury on one count for assault on a peace officer. Petitioner, pro se, entered a plea of not guilty. Ogle then obtained counsel and the case proceeded to trial.

The facts of the case as set forth by the Hocking County Court of Appeals, Fourth Appellate District of Ohio, on direct appeal are as follows:

[*P2] Ogle and Ohio Power Company have been engaged in civil litigation over the last several years. The disputes began with Ohio Power's desire to construct a telecommunications tower and obtain an easement through the Ogles' property. [FN2]

[FN2 The details of the continuing litigation are set forth in the following cases: Ogle v. Ohio Power Co., 180 Ohio App. 3d 44, 2008 Ohio 7042, 903 N.E. 2d 1284; Ohio Power Co. v. Ogle, 4^th Dist. Nos. 09CA1 & 09AP1, 2009 Ohio 5953; Ohio Power v. Ogle, 4^th Dist. Nos. 10CA143, 10AP13, 2011 Ohio 3903; Citizen of Hocking County v. Ohio Power Company, 4^th Dist. No. 11CA24, 2012 Ohio 4985; Ogle v. Hocking Cty. Sheriff, 4^th Dist. No. 11AP13, 2012 Ohio 1768; and Ogle v. Ohio Power Co., 4^th Dist. No. 11CA27, 2012 Ohio 4986.]

[*P3] Very generally, the facts relating to Appellant Melanie Ogle's conviction for assault on a peace officer are set forth as follows. On September 9, 2009, after work, Appellant and her husband returned to their residence on Donaldson Road around 5:20 p.m. to find Pike Electric and American Electric Power, (hereinafter "AEP") vehicles parked on Donaldson Road. AEP's contractors were constructing an electric line. The access to the Ogles' driveway was blocked by three trucks. Appellant and her husband began honking the horn and yelling at the workers.

[*P4] At the same time and place, Hocking County Sheriff's Deputy Trent Woodgeard (hereinafter, "Woodgeard") was working a special assignment on behalf of AEP to keep peace and order at the job site. Because of the commotion Appellant and her husband were making, Woodgeard decided to initiate contact. When he attempted to do so, Appellant and her husband failed to comply with requests he testified he made. Instead, when able, the Ogles evaded Woodgeard and drove into their driveway. They testified they drove away because the officer was trying to get into their vehicle and they had done nothing wrong. Woodgeard pursued the Ogles and a physical confrontation ensued outside their residence between Woodgeard and Appeallant.

[*P5] As a result of the events which transpired on September 9^th, 2009, Appellant was indicted by the Hocking County Grand Juryon one count of assault of a peace officer. The case proceeded to the jury trial and on August 11, 2011, the jury returned a verdict of guilty. Appellant was sentenced to six months in a county jail [FN3], a fine and restitution. . . .

[FN3 Appellant was sentenced to "a county jail." The transcript of the sentencing hearing stated: "[a] county jail that is not run or enforced by our local sheriff, " presumably due to the strained nature of the relationship between Appellant and county officials indicated in this case and Ogle v. Hocking County Sheriff, Hocking County Prosecuting Attorney, 4^th Dist. No. 11AP13, 2012 Ohio 1768.]

****

Supplemental facts

[*P6] At trial, the State of Ohio presented testimony from Jason Stacy, Sheriff Lanny North, Trent Woodgeard, and Sgt. Kevin Groves. Jason Stacy, a supervisor for AEP, testified AEP was slightly behind in their work on September 9, 2009. The workers had just set a pole and were trying to connect the line. Three trucks in fact were blocking the Ogles' driveway. The job site was loud due to the diesel trucks and the drilling that was being done.

[*P7] Stacy testified he was talking with Woodgeard when he heard aggressive and repetitive honking. He could see someone in a black truck acting in a threatening manner and cursing. At this point, he felt uncomfortable in turning his back. He saw Woodgeard go from one side of the truck to the other trying to get the situation calmed down. Specifically, he observed Woodgeard say to the female passenger "Calm down, knock it off." The truck sped away and Woodgeard followed in his vehicle. At this point, Stacy could not see what happened on the Ogles' property. Stacy testified it was the most threatening incident he had seen on the job.

[*P8] Sheriff Lanny North testified Woodgeard was employed by the Hocking County Sheriff's Department on the date of the incident. AEP had previously contacted the sheriff's office in order to obtain an officer to keep the peace at the job site on Donaldson Road. He acknowledged there was no written contract between AEP and the sheriff's department.

[*P9] Woodgeard also testified he was a full-time deputy with the Hocking County Sheriff's Office, working special duty on behalfof AEP when the altercation occurred. Woodgeard was wearing his deputy's uniform and driving a sheriff's cruiser. He had been authorized by the sheriff's department to do so.

[*P10] Woodgeard's version of the events leading to his assault began as he watched the Pike Electric and AEP workers on Donaldson Road. When Woodgeard heard honking and yelling, he also noticed the Ogles' truck parked in front of an AEP truck. He saw the passenger in the truck throw up her hands, moving around inside and yelling. He first decided to let her vent. An AEP employee went to move the AEP truck, but Mrs. Ogle continued to scream.

[*P11] Woodgeard decided to address the situation with Appellant so he walked to the passenger side of the truck, made direct eye contact with her, and asked her to step outside. [FN4] She did not comply and continued to yell. Woodgeard placed his hand on the passenger side door and the Ogles drove away at a high rate of speed. Woodgeard radioed for assistance and followed the Ogles into their driveway in his cruiser.

[FN4 Woodgeard knew Melanie Ogle as he graduated from high school with her son.]

[*P12] According to Woodgeard's testimony, once on the Ogle's property, Appellant came charging at Woodgeard, irate and belligerent. She actually made contact with Woodgeard's face with papers [FN5] in her hand. Woodgeard asked Appellant to "calm down" repeatedly, but Appellant was trying to kick Woodgeard while her husband was trying to hold her back. Woodgeard advised Mr. Ogle to step back, that Appellant was under arrest for disorderly conduct. Woodgeard testified Mr. Ogle stepped back, but again, Appellant would not comply. Woodgeard took Appellant's right arm and attempted to handcuff her. Appellant continued kicking Woodgeard's shins and she kicked his genitals once. Woodgeard then used pepper spray to subdue Appellant.

[FN5 These papers, Appellant testified, consisted of a copy of an Ohio Attorney General's opinion regarding the township's authority to issue permits and supported her belief AEP was "breaking the law by blocking their driveway."]

[*P13] At this point, Mr. Ogle came towards Woodgeard and was advised to stay back. When Mr. Ogle refused to comply, Woodgeard deployed pepper spray at him. When the spray took effect, Appellant buckled and fell to the ground. Appellant and Woodgeard continued to struggle in the yard. Woodgeard was eventually able to handcuff her and place her in a cruiser.

[*P14] Sergeant Kevin Groves also testified Woodgeard was working special detail on September 9th. Sgt. Groves was present in the sheriff's office when Woodgeard radioed for backup. Groves responded to the scene and saw Woodgeard in distress. Groves ordered photographs be taken and he took a recorded statement from Mr. Ogle.

[*P15] After Groves' testimony, the State offered its exhibits and rested. The defense made a Crim. R. 29 motion, specifically arguing the State had not presented sufficient evidence Woodgeard was a law enforcement officer acting in an official capacity at the time and further, there was no sufficient evidence as to the remaining elements of the offense. The motion was denied. The defense proceeded with its case and witnesses Jesse Ward, Randall Thompson, Charles Ogle, and Melanie Ogle.

[*P16] Jesse Ward testified he was working for Pike Electric on the incident date. He saw a black pickup arrive on Donaldson Road as he worked nearby. Mr. Ward heard screaming, but denied hearing curse words or feeling threatened.

[*P17] Randall Thompson also testified he worked for Pike Electric and was present that day. He acknowledged the job site was loud and it was "difficult to hear." He testified the voices that were yelling did not interrupt his work.

[*P18] The Ogles' collective version of the events unfolding on Donaldson Road and on their property differs somewhat from that presented by the State's witnesses. Charles Ogle testified when he and his wife reached home and found their driveway blocked, they stopped the truck and waited for "close to a minute" before he began honking and the couple began screaming. He testified Appellant yelled "you bastards have no right to be blocking the road!" His own words were "move your fucking trucks."

[*P19] After the commotion began, the workers dispersed and the deputy came at the Ogle's truck quickly and aggressively. The officer said something Mr. Ogle could not hear. The officer tried the doors. As soon as the road was clear, Ogle turned into his

...