State v. Hayes

2019 Ohio 257

STATE OF OHIO, Plaintiff-Appellee, v. JOSHUA HAYES, Defendant-Appellant.

Case No. 17CA1056

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

January 17, 2019

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Carly M. Edelstein, Columbus, Ohio, for appellant.¹

Dave Yost, Ohio Attorney General, and Joel King, Assistant Attorney General, Columbus, Ohio, for Appellee.

CRIMINAL CASE FROM COMMON PLEAS COURT

ABELE, P.J.

{¶ 1} This is an appeal from an Adams County Common Pleas Court judgment of conviction and sentence. A jury found Joshua Hayes, defendant below and appellant herein, guilty of (1) forty counts of improper use of the Ohio Law Enforcement Gateway (OHLEG), in violation of R.C. 2913.04(D), and (2) five counts of improper use of the Law Enforcement Automated Database System (LEADS), in violation of R.C. 2913.04(C).

{¶ 2} Appellant raises the following assignments of error for review:

FIRST ASSIGNMENT OF ERROR:

"TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO RAISE AN AFFIRMATIVE DEFENSE PROVIDED FOR IN R.C. 2913.04."

SECOND ASSIGNMENT OF ERROR:

"JOSHUA HAYES' INDICTMENT AND CONVICTION UNDER R.C. 2913.04(C) AND 2913.04(D) VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT DENIED MR. HAYES THE EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNTS 40-42."

{¶ 3} The present case arises out of appellant's alleged misuse of OHLEG and LEADS while employed as a Village of Manchester police officer. After an audit raised suspicions, Ohio Bureau of Criminal Investigation Special Agent David Hornyak investigated whether appellant had made any improper searches. Agent Hornyak subsequently determined that appellant had conducted multiple OHLEG and LEADS searches of himself and several individuals, including Brian Edwards, Carla Knipp, Codey Carter, James White, Kristopher Blanton, Sarah Lowman, David Rowe and Deanna Dryden.

{¶ 4} An Adams County Grand Jury returned an indictment that charged appellant with ninety-two counts of unauthorized use of OHLELG and seventeen counts of unauthorized use of LEADS, all fifth-degree felonies, in violation of R.C. 2913.04. Appellant entered not guilty pleas. Before trial, the state dismissed forty-four counts and the court renumbered the remaining counts, which left forty-eight counts of unauthorized use of OHLELG and seventeen counts of unauthorized use of LEADS.

{¶ 5} At trial, OHLEG quality assurance specialist Michelle Roach-Haver testified that an authorized user may access OHLEG for the administration of criminal justice only and that "[c]uriosity is not an authorized use of OHLEG information." Roach-Haver explained that the OHLEG rules and regulations define "the administration of criminal justice" as follows:

The detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of accused persons or criminal offenders. This also includes criminal identification activities, the collections, storage, and dissemination of criminal history record information and criminal justice employment. In addition, administration of criminal justice includes crime prevention programs to the extent access to criminal history record information is admitted to law enforcement agencies for law enforcement programs as in record checks for individuals who participate in a neighborhood watch or safe house programs.

The state presented Roach-Haver with a copy of appellant's request for OHLEG access. The form states, just below appellant's signature, that "[t]he undersigned agrees that all information from this site is for law enforcement purposes ONLY. Any dissemination to the public is strictly prohibited."

{¶ 6} Roach-Haver additionally related that every time a user logs in to OHLEG, the user must agree to access OHLEG "for the official purposes of my agency and the administration of criminal justice." A user must also agree with the following two statements: (1) "I acknowledge and agree that I will utilize this information exclusively for the administration of criminal justice for the official purpose of my agency"; and (2) "I acknowledge that any unauthorized access or misuse of the law enforcement information and data on this site is prohibited by Revised Code Section 2913.04 and constitutes a fifth degree felony." Roach-Haver stated that the system will not allow a user to continue unless the user agrees to the foregoing statements.

{¶ 7} During Roach-Haver's testimony, the state also introduced the OHLEG training video. The training video states that "OHLEG sources are privileged and to be used in the administration of criminal justice only. Definition of such duties includes detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of accused persons, and identification activities as outlined in the OHLEG rules and regulations."

{¶ 8} Roach-Haver testified that using OHLEG to inquire whether a friend has an outstanding warrant is not a proper use of OHLEG. When questioned whether appellant may have properly used OHLEG to determine whether his friend, Brian Edwards, had any active warrants, Roach-Haver responded that OHLEG does not show any warrants-active or otherwise. She later indicated that, although OHLEG would not display warrants, it would produce an alert that "there is something active in LEADS."

{¶ 9} Roach-Haver explained that "[u]sing the system for personal use or personal gain in any manner would be considered misuse." The OHLEG rules and regulations explicitly provide: "Access to OHLEG is limited to use for official law enforcement/administration of criminal justice purposes only, not for personal use or gain." Roach-Haver further stated that a user is allowed to conduct a self-search during a seven-day practice period and that after the seven-day period, self-searches are not authorized. The OHLEG manual specifically states that a new user is permitted "to run a self-search for a period of seven days from the date they receive their access as a means of learning how to use the search engine tool." The rule also provides that "[a]ny self-searches run by a user beyond the seven day initial training period will be subject to audit review and investigation as misuse."

{¶ 10} Roach-Haver explained that on July 30, 2015, at approximately 12:20 a.m., appellant accessed OHLEG and searched Brian Edwards's social security number, then viewed seven different records associated with Edwards. She stated that on October 5, 2015, at approximately 4:08 a.m., appellant searched a Carla Knipp who lives in Lawrence County. Roach-Haver additionally detailed the other times appellant accessed OHLEG to search for himself, James White, Joe Himes, Kristopher Blanton, Sarah Lowman, and David Rowe.

{¶ 11} Jeremy Hansford testified that he is the Ohio State Highway Patrol data system administrator who oversees the Ohio Criminal Justice Information Services, including LEADS. Hansford explained that officers may access LEADS to obtain "driving information, criminal history information, wants, warrants, stolen vehicles, missing people, * * * known suspected terrorists, [and] fugitive felons." He stated that LEADS contains national files, while OHLEG contains only Ohio files.

{¶ 12} Hansford related that an officer must be certified to use LEADS. He testified that in October 2014, appellant passed the certification test. Hansford stated that the certification test requires the user to know "what its permitted use is." Hansford indicated that the LEADS manual states that "LEADS can be used for the administration of criminal justice by authorized criminal justice agencies" and defines "the administration of criminal justice" as "the performance of any of the following activities: detection, apprehension, detention, pre-trial release, post-trial release, prosecution, adjudication, correctional supervision, rehabilitation of accused person or criminal offenders."

{¶ 13} The LEADS manual states that a user may "run inquiries as long as those * * * inquiries are a legitimate part of the administration of criminal justice." The manual indicates that "[a]n officer on the street can request a record check on a driver stopped for a traffic violation," but "cannot * * * check a neighbor's driving record."

{¶ 14} Hansford testified that when a user logs in to the LEADS mobile application, a red warning banner advises the user that "[u]nauthorized use of the system is prohibited and may be subject to criminal and civil penalties." After log in, another screen appears that the user must review and accept before continuing. It states: "I will conduct LEADS queries only for official business or as part of my job assignment. I will not share LEADS query results outside of my organization, including to the public." Additionally, appellant signed a "LEADS Security Agreement" that recites appellant's understanding that he "may use OHLEG/LEADS access for [his] employment with the Manchester Police Department for Law Enforcement Investigative purposes only."

{¶ 15} Carla Knipp testified that she and appellant dated until December 2015, and that appellant is the father of her children. Knipp stated that on October 5, 2015 at 4:08 a.m., she was not involved in any type of criminal investigation with appellant and that she had never been a suspect in a crime. Knipp related that after appellant's searches came to light, appellant informed Knipp that he had searched her name because "he was calibrating the system."

{¶ 16} David Rowe testified that he dated Knipp, and that on the date appellant searched him (April 4, 2016, at 10:01 a.m.), he had not been involved in any type of criminal investigation with appellant. He further stated that he lived an hour and one-half away from Manchester and had...