Rachel Shtibel's story of horror during the war is one of six published by Azrieli Foundation

Rachel Shtibel's story of horror during the war is one of six published by Azrieli Foundation

By Debra Black

Toronto Star - November 22, 2007

 

Rachel Shtibel, with her husband, Adam, plays the violin that her family buried near their home in Kolomyja, Poland before they went into hiding. She and other Holocaust survivors read excerpts of their stories last night at a launch of their memoirs published by the Azrieli Foundation, a Toronto-based charitable organization, at the Bloor Cinema in downtown Toronto.

 

Rachel Shtibel, now 72, spent two years of her life living in a bunker – 3 metres by 3 metres – underneath a barn in Poland during part of the Holocaust. "There were ten of us," she said. "We were lying like sardines. When one had to turn all of us had to turn." The men went out at night to get food. By day they all remained as still as possible. Her father had smuggled her out of the local ghetto in a sack of garden tools, warning her to be dead silent or they would be shot. 

During the time she and her parents and others hid in the bunker, a family friend – a doctor molested her. Even after the war was over she never told her parents about the sexual abuse, fearful they wouldn't believe her. She speaks of it now as if she were another person. "I was mourning this little child," she said. "I felt so sorry for her – helpless." 

Shtibel's story is one of six Canadian memoirs of Holocaust survivors published by the Azrieli Foundation, a Toronto-based charitable organization. She and other survivors read excerpts of their stories last night at a launch at the Bloor Cinema in downtown Toronto. 

The books are to be distributed free of charge to libraries across Canada as well as Holocaust memorials around the world. Individuals can go online and order them free of charge shortly. The Azrieli Foundation has close to 170 such memorials it plans to publish.

Shtibel's message is one of hope – hope that the Holocaust will never happen again. The horror and the terror of not knowing whether she would live or die was just one of the burdens she shouldered as her fellow Jews were slaughtered. 

But for Shtibel the shame of being molested wasn't the only secret in the family. After the Holocaust, Shtibel inherited her uncle's violin – which had been buried near a walnut tree near their old home in the Jewish ghetto. With it were old pictures of herself as a baby and of her uncle and another unknown woman. Her parents encouraged her to learn to play the instrument. 

Fifty years later she found out – after her parents died – that her biological father was in fact her uncle – the violinist. And the unknown woman in the picture was in fact her biological mother and the love of her father's life. Today, she still plays that violin – now more than 100 years old – and cherishes it for both its music and the secrets it holds engrained in the wood. 

Still the Holocaust hangs heavy over the survivors. "I wanted the world to know (what happened)," she said. "We are the last generation to witness the Holocaust." 

Case of Rabbi Lewis Brenner

Case of Rabbi Lewis Brenner

(AKA: Louis Brenner, Lipa Brenner, Lippa Brenner)

Brooklyn, NY

 

Convicted of child molestation.  The original charges included 14 counts of sodomy, sexual abuse and endangering the welfare of a child.  He agreed to plead guilty to one count of sodomy in the third degree, a Class E felony, in exchange for a sentence of five years' probation.

 

Prosecutors said Brenner had sexual contact with a youth he met in the bathroom of the temple they both attended. The molestations allegedly took place over a three-year period that ended in 1995 when the victim was 15 years old.

 

Note:  Rabbi Lewis Brenner's daughter Yochevad, is married to Rabbi Ephraim Bryks.  

If anyone has a photograph of Rabbi Lipa Brenner, please forward it to The Awareness Center.

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CALL TO ACTION:  Contact Rabbi Paysach Krohn and Demand he stop promoting alleged child molester, Rabbi Ephraim Bryks. Remind him if another child is harmed that he could be held liable in a civil suit.

Rabbi Paysach Krohn, Certified Mohel

E-mail: pkrohn@brisquest.com

Toll Free: 866-846-6900

NY: 718-846-6900

 

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Disclaimer: Inclusion in this website does not constitute a recommendation or endorsement. Individuals must decide for themselves if the resources meet their own personal needs.

Table of Contents:

1. Retroactive Effect Given Megan's Law Fed'l, State Rulings Diverge, Judge Notes  (03/14/1997)
2. Court To Hear Sex Offender Registry Case  (05/20/2002)
3. Rabbis Trial Begins (07/12/2002)
4. Tripping Up The Prosecution (05/28/2003)
5. Rabbi Paysach Krohn, Rabbi Lipa Brenner and Alleged Sex Offender, Rabbi Ephraim Bryks  (11/13/2007)
   • Around The Magid's Table, by Paysach Krohn

Also see:  

• Related Cases
  1. Case of Rabbi Ephraim Bryks

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Retroactive Effect Given Megan's Law Fed'l, State Rulings Diverge, Judge Notes

New York Law Journal - March 14, 1997, Friday

BY CERISSE ANDERSON

A BROOKLYN rabbi who pleaded guilty to one felony count of sexual abuse must register as a sex offender under New York's version of Megan's Law even though the criminal act occurred before the law became effective and though he was sentenced to probation instead of jail time, a state judge has ruled.

 

Ruling yesterday in People v. Lewis Brenner, filed in Supreme Court, Kings County, Criminal Term Part AP F1, Acting Justice Charles J. Heffernan noted, after an extensive review of 15 opinions in 13 cases across the country which have considered whether Megan's Laws should be applied to all offenders retoactively, that "there is a marked divergence of opinion between federal and state courts."

 

An edited version of the decision will be published Monday.

 

Justice Heffernan said he agreed with the majority of state judges who have considered the issue that, when applied to Mr. Brenner, New York's Sex Offender Registration Act (SORA) was not punishment, since Mr. Brenner already had felt the sting of community rejection upon his arrest. Thus, he said, the retroactive application of the notification provisions of the law was not unconstitutional as a violation of the ex post facto clause of the U.S. Constitution.

Furthermore, the judge said, the Legislature intended the law to apply to offenders sentenced to probation as well as to those who serve prison time. But, he said, prosecutors had failed to produce evidence that would justify classifying the 65-year-old man as a Level 2 Risk which would require notification to law enforcement agencies and possible announcement to the community of his "approximate" address (based on his zip code) and criminal background.

 

A Level 1 Risk, a "low" risk of repeat offense, requires notification of his address and background only to law enforcement agencies.

 

The original Megan's Law requiring notification to law enforcement agencies, and in some cases the public, of a defendant's status as as previously-convicted sex offender was enacted in New Jersey after the molestation and murder of Megan Kanka by a released sex offender whose history was unknown in the neighborhood where he and the child lived. All the remaining states have since enacted child sex offender registration laws.

 

Shunned in Community

Last year, U.S. District Court Judge Denny Chin in Manhattan found the notification provisions of SORA amounted to punishment and thus were unconstitutional as an ex post facto law and permanently enjoined its retroactive enforcement in Doe v. Pataki, 940 F.Supp. 603 (appeal has been argued before the Second Circuit and is pending). Justice Heffernan, however, said he was unable to reach the same conclusion for Mr. Brenner.

 

"While four of the six state courts which have considered the issue have rejected such [retroactivity-related] challenges . . ., decisions in four of the six federal cases on point have espoused a contrary view, either directly or by pointed suggestion. Appeals in two of those cases are now sub judice before the U.S. Court of Appeals for the Second and Third Circuits," the judge noted in his 111-page opinion.

 

Justice Heffernan said he agreed with the analyses and holdings of the Supreme Courts of New Jersey and Washington State, the U.S. District Court for New Jersey and a state Supreme Court justice in Rochester, N.Y., all of whom rejected the contention that retroactive notification constituted punishment.

After conducting a hearing last October, the judge concluded that Mr. Brenner had been subjected to shunning within his Orthodox Jewish community (he had to resign from the temple he founded and received a letter threatening him unless he stayed off the block where his congregation was located), but "it would appear that defendant has been able to retain considerable stability in his life with limited exceptions." Justice Heffernan noted that Mr. Brenner had been accepted by another religious congregation despite knowledge of thecharges in the case.

"[Defendant] failed to demonstrate that the effects of any form of community notification, should it be authorized, would be appreciably beyond those which arose without such notification," he said. Thus there was no basis for a finding that the notification "would be an affirmative disability or restraint upon defendant."

Mr. Brenner had been charged with 14 counts of sodomy, sexual abuse and endangering the welfare of a child arising from sexual contact with the same youth whom he allegedly met in the bathroom of the temple they both attended. The sexual contact was alleged to have been committed over a three-year period until October 1995, when the then 15-year-old told authorities.

He agreed to plead guilty to one count of sodomy in the third degree, a Class E felony, in exchange for a sentence of five years' probation.

Mr. Brenner was represented by Marvin E. Schechter. The case was prosecuted for Brooklyn Assistant District Attorney Nancy M. Slater.

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Court To Hear Sex Offender Registry Case - Case Could Affect Oklahoma Law

May 20, 2002

http://www.channeloklahoma.com/okl/news/stories/news-146914120020520-090533.html

 

WASHINGTON -- The Supreme Court agreed Monday to consider a constitutional challenge to some registries of known sex offenders, the second case the court will hear involving lists meant to keep tabs on potentially dangerous sex criminals. 

The court said it will hear an appeal from Connecticut, where a federal judge struck down the state's sex offender registry last year. The judge found that the law violated the constitutional rights of past offenders, because their names were placed on the list without a chance to prove they are no longer dangerous to society. 

SEX OFFENDER REGISTRY

Is it unconstitutional? What do you think? 

The New York-based 2nd U.S. Circuit Court of Appeals agreed, and the registry is no longer publicly available. 

The case could affect more than 20 states, including Oklahoma, with similar laws requiring community notification based on the offender's record rather than an individual evaluation of his or her current likelihood to repeat the crime. 

A high court ruling against Connecticut could force states to hold separate hearings for sex criminals to assess whether their names, addresses or other identifying information will be made public.

All states have laws requiring some kind of list of sex criminals, but some provide the public with names of only those offenders deemed dangerous. Still other states have hybrid laws, making the names public in the cases of serious sex crimes, but taking a case-by-case approach when the crime is considered less egregious. 

The registry laws are usually called Megan's law, after Megan Kanka, a New Jersey girl raped and killed in 1994 by a neighbor who was a convicted sex offender. Her parents didn't know his history when he moved in across the street. 

The registries take conviction records already publicly available through police or court records, and compile them in one place. Information on Connecticut sex offenders is still publicly available on the old piecemeal basis. 

The Bush administration backed Connecticut in asking the Supreme Court to step in. 

"Megan's laws serve vital government interests by assisting law enforcement and enabling American communities to better protect themselves, and in particular their children," the administration's top Supreme Court lawyer wrote in court papers. 

Solicitor General Theodore Olson noted that federal law requires states to have a registry, or face a reduction in federal funding.

Twenty-three states and the District of Columbia also filed a friend-of-the-court brief backing Connecticut. 

The Supreme Court will hear the case in the term that begins next fall. 

The court will also hear a separate constitutional challenge to laws in about a dozen states that publish names, addresses or other personal information about convicted sex offenders on the Internet. The question in that case is whether such publicly available lists, which include names of people who long ago served their sentences, amount to unconstitutional double punishment for the same crime.

Connecticut's registry was also available over the Internet, but that factor was not the key to the case the high court agreed to hear Monday. 

The registry was created in 1998 and operated by state police. Users could search by town for lists of resident sex offenders. It listed the names, addresses and, in most cases, pictures of nearly 2,100 offenders. The Web site received 150,000 hits per month, state police said. 

Two anonymous sex offenders sued the state, claiming they are no longer a danger to society and should not be stigmatized. The men claimed the registry violated their constitutional right to fair treatment in the courts by denying them a chance to keep their names off the list. 

According to the Justice Department, laws similar to Connecticut's are in force in: Alabama; Delaware; the District of Columbia; Florida; Georgia; Illinois; Indiana; Louisiana; Maryland; Michigan; Mississippi; Missouri; New Mexico; North Carolina; Oklahoma; South Carolina; Tennessee; Texas; Utah; Virginia; West Virginia and Wisconsin. 

The case is Connecticut Department of Public Safety v. John Doe, 01-1231

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Rabbi's trial begins

by Elaine Silvestrini- Freehold Bureau

Asbury Park Press (NJ) - June 12, 2002

FREEHOLD - Jury selection began yesterday in the case of a rabbi accused of sexually molesting two teen-age students while he was principal of Hillel High School in Ocean Township.

Rabbi Baruch Lanner, 52, of Fair Lawn is charged with two counts each of aggravated criminal sexual contact, criminal sexual contact and endangering the welfare of a child between 1992 and 1997.

Endangering the welfare of a child is the most serious of the charges, and it carries a maximum possible sentence of 10 years in state prison.

Lanner is being represented by a team of three lawyers, who also employed a jury consultant to sit with them in the courtroom during jury selection. The defense maintains that the two teens have motives to lie about Lanner because they blame him for setbacks in their education and their lives.

Superior Court Judge Paul F. Chaiet has granted permission to an out-of-state lawyer, Marvin E. Schechter, to represent Lanner, along with lawyers Julian Wilsey of Livingston and Tama Beth Kudman of Hackensack and New York.

The government's case is represented by a single assistant prosecutor, Peter Boser

Schechter, who is former president of the New York State Association of Criminal Defense Lawyers, has tried more than 100 cases and has been an adjunct faculty professor at Fordham Law School, according to court papers submitted by the defense.

He has lectured on topics, including "Sex Crimes - Defense Techniques" and "Voire Dire (jury selection) Techniques."

According to the New York Law Journal, Schechter represented Brooklyn Rabbi Lewis Brenner, who pleaded guilty to a charge of sodomy after being charged with 14 counts of sodomy, sexual abuse and endangering the welfare of a child.

 

According to the Journal, prosecutors said Brenner had sexual contact with a youth he met in the bathroom of the temple they both attended. The molestations allegedly took place over a three-year period that ended in 1995 when the victim was 15 years old, the Journal reported. Rabbi Brenner was sentenced to five years probation.

 

The Lanner investigation reportedly began after one of the victims' allegations were reported in New York Jewish Week in July 2000. The newspaper conducted an investigation that turned up abuse claims by 25 of Lanner's former students, most from the job he held before he came to Hillel High School in 1982.

Mindful that allegations of sexual abuse by clergy are a hot topic in the media, the judge yesterday assembled a larger-than-usual pool of 100 potential jurors and gave each jury candidate a questionnaire to complete. The jury candidates were then sent home and directed to return to court today.

Ordinarily in non-capital cases, jury selection is conducted differently, with oral questioning of potential jurors by the judge, who addresses his inquiries to a panel with directions for people to raise their hands if a question applies to them.

Among the questions contained on a three-page questionnaire given to jury candidates yesterday was, "Do the recent scandals of a sexual nature that are affecting the Catholic church have any bearing or affect your ability to be a fair and impartial juror?"

Potential jurors are also being asked their religious affiliation and whether they or any family members or friends have been the victim of sexual abuse or harassment.

While he did not screen the entire panel yesterday, Chaiet did excuse at least three jury candidates who felt they could not be fair because of the nature of the charges.

He also began hearing excuses from some jury candidates who felt they could not sit for the expected three-week trial. A total of 14 people were excused for hardships ranging from scheduled medical procedures to lack of income or scheduled trips.

The judge did not accept all excuses, and refused to release a physician, for example, who said he worked in a hospital and has patients and new residents coming in. Chaiet told the doctor his staff could fill in, and directed him to "take a seat" in the jury box.

Jury selection was set to resume this morning.

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Tripping Up The Prosecution

By Stephanie Saul - Staff Writer

Newsday - May 28, 2003

Last in a series.

 

Former New Yorker Avrohom Mondrowitz has built a quiet, comfortable life as a college professor in Jerusalem.

The syllabus for his business administration course at Jerusalem College of Engineering is posted on the Web, along with his phone number.

Mondrowitz is living so openly, it's hard to believe the psychologist and self-styled rabbi is wanted for allegedly sexually abusing four Brooklyn boys, ages 10 to 16. The charges against him include sodomy.

"I don't want this hydra to lift its head again," said Mondrowitz, declining to discuss his 1985 indictment on 13 counts. Once the host of a radio program in Brooklyn, Mondrowitz will be arrested should he ever re-enter the United States, according to the office of Brooklyn District Attorney Charles J. Hynes.

But according to U.S. Justice and State department documents, Hynes' office approved a decision in 1993 to drop efforts to extradite Mondrowitz, a U.S. citizen who has been sheltered by the Israeli government since he fled the United States in 1985.

Michael Lesher, a New Jersey attorney who obtained the federal documents after years of research on the Mondrowitz case, said the decision to drop efforts to return Mondrowitz to the United States is an embarrassing one, considering the severity of the charges.

A spokesman for Hynes, Jerry Schmetterer, was at a loss to explain the decision.

"We don't know anything about the State Department closing its file," said Schmetterer, calling the federal records a "mystery."

"We have nothing in our files to indicate we ever made that decision," said Schemetterer, emphasizing that the Mondrowitz file is still kept in a prosecutor's desk in the event Mondrowitz ever returns from Jerusalem.

Escape to Israel is merely one of the factors that can hamper prosecution of alleged sex abuse in the Orthodox community.

Police and prosecutors find that victims of alleged sexual abuse in those communities are discouraged from coming forward.

Intense pressure is often brought to bear on complainants who bypass rabbinical courts -- the community's preferred method of settling disputes -- and instead go to secular authorities. Witnesses, who are often young, become fearful and wavering. And prosecutors face pressure from a community that votes as a cohesive block.

One woman, whose son was called to testify about an alleged instance of abuse, said that extraordinary pressure was placed both on her family and on the family of the alleged victim.

"I had rabbis coming by. They threatened we'll have curses in our family. It might sound silly to you, but it was very frightening," said the woman.

She said that rabbis supplied her with a statement from a psychologist who had never examined her son, saying he was not fit to testify.

In Brooklyn, with its large Hasidic community, police have been confounded by the outcomes of some cases they investigated involving the Hasidim.

At a loss to explain the cases, some cops in the 66th Precinct, which includes Borough Park, have shrugged their shoulders and paraphrased a line from the Jack Nicholson film "Chinatown" -- "Forget it, Jake, it's Brooklyn."

One of those who recalls making the remark was retired police Capt. William Plackenmeyer, who worked for many years in Brooklyn. "In Brooklyn, it almost seemed like there were two penal codes, one for the Hasidic community and one for everyone else," Plackenmeyer said.

But Hynes' office says decisions on prosecutions are made without regard to political considerations or community pressure.

"We prosecute sex crimes. We prosecute allegations of child abuse, sex abuse," said Schmetterer. "Trained investigators conduct these investigations and come to a conclusion. They make the decision."

The arrest of a popular rabbi in the Bobox Hasidic sect in January 2000 provides another example of the pressure that can be placed on those who complain to outside officials. In that case, a 9-year-old boy accused the Brooklyn rabbi, his tutor, of physically and sexually abusing him.

In the end, Hynes' office threw out all charges against Rabbi Solomon Hafner. Schmetterer said they were found to be baseless.

But before the case was resolved, the police assigned 24-hour protection to the complainant's family, according to a law enforcement source. The family had been threatened by members of the Bobov community, the source said.

"They excoriate the victim, they run them out of the community, they make sure the victim will never marry," said sociologist Amy Neustein, who, with Lesher, researched the Hafner case and frequently writes about domestic abuse in the Orthodox community and provided documents for this article.

The boy's family later moved from Brooklyn to the quieter Bobov community in Monsey. The family would not talk to Newsday, but a friend said the move was an effort to escape community pressure.

While Hynes' office was examining the boy's allegations, the Bobov community convened a rabbinical court, a bet din, to conduct its own investigation.

The child's uncle later complained that rabbis on the bet din had asked the family to sign a document saying the boy was crazy so that they could get the criminal case thrown out. Several members of the bet din either did not return calls from Newsday or declined to discuss the religious court's proceedings.

Meantime, according to the law enforcement source, Bobov rabbis appeared in Hynes office' to plead in Hafner's defense.

Hynes' spokesman Schmetterer would not confirm or deny that such meetings took place, but he said it is not unusual for Hynes' office to meet with community leaders on cases.

After the bet din decision, the five-member panel posted notices throughout Borough Park clearing Hafner. "Rabbi Hafner's comportment with [the child] has been in complete accordance with both Torah law and the law of the land, and a parent should not hesitate to engage Rabbi Hafner as a tutor for his/her child."

With intense pressure from the community common in such cases, families also come under indirect pressure not to go public with their cases.

The social stigma attached to being the victim of sexual abuse in the general public is magnified within the Hasidic community, sources said, so much so that Hasidic victims can find it difficult to marry within the community.

And, as with sex-abuse allegations generally, parents fear causing further psychological damage to their children by placing them on the stand.

In 1995, for instance, Hynes' office charged Rabbi Lewis Brenner with repeatedly sexually abusing a boy starting in 1992 and ending in 1995, when the boy, then 15, told police. Among other places, the alleged encounters occurred in the bathroom of the rabbi's Brooklyn temple.

In a statement to the court, the boys' devastated parents said he could not even attend school, he was so troubled by "a raging cyclone of hate."

"Our son is with us physically today, but his self-respect, dignity and sense of worth were stolen from him at the tender age of 12," the boys' parents said. "Do you realize that you destroyed a world and our family, Mr. Brenner? You have stolen from our son the very essence of his life, his hopes, dreams and aspirations for the future."

 

The charges against Brenner initially included 14 counts, including sodomy, sexual abuse, and endangering the welfare of a minor. But a plea agreement whittled the charges down to one felony, stunning a Brooklyn judge.

 

"Given the nature, gravity and frequency of the sexual contact alleged in the felony complaint, this court was surprised by the People's plea offer and requested of the prosecutor a statement why it was forthcoming," said acting Supreme Court Justice Charles J. Heffernan in a court ruling.

The district attorney's office told the judge that the boy's family agreed to the plea bargain ... Recently, an official of the district attorney's office said the family did not want to go through with a trial.

The plea arrangement left Brenner a free man -- he got 5 years probation.

Brenner is the father-in-law of Ephraim Bryks, a Queens rabbi who was the subject of a story in Newsday on Tuesday.

Two teenagers told Canadian police years ago that Bryks abused them when they were youngsters. Bryks has never been charged with a crime and has denied the allegations.

After Brenner's plea deal, he asked the court to exempt him from the sexual abuse registry on grounds that his behavior occurred before the law was passed.

Heffernan refused.

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Rabbi Paysach Krohn, Rabbi Lipa Brenner and Alleged Sex Offender Rabbi Ephraim Bryks

The Awareness Center - November 12, 2007

The following article was written by Rabbi Paysach Krohn, and is about convicted sex offender, Rabbi (Lewis) Lipa Brenner. While reading the article remember that Rabbi Ephraim Bryks's wife is Rabbi Lipa Brenner's daughter; and Rabbi Paysach Krohn is married to Rabbi Ephraim Bryks's sister.

It's a known fact that Rabbi Paysach Krohn has a long history of protecting those who allegedly, perpetrate crimes against children. An example of this is the fact that to this day he still helps his brother-in-law, Rabbi Ephraim Bryks get speaking engagements.

In the book "Around The Magid's Table", Rabbi Paysach Krohn portrays Rabbi Brenner as a righteous man even though he was being accused as being a child molester at the time. When Artscroll learned that Rabbi Brenner was barred from Yeshiva Torah Vodaas because of his sex crimes, they removed the story from later editions of the book. Back in the 1990's rumors circulated that Krohn new about the allegations when he published his book, yet decided to ignore them.

The original charges against Rabbi Brenner included, 14 counts of sodomy, sexual abuse and endangering the welfare of a child.  Brenner agreed to plead guilty to one count of sodomy in the third degree, a Class E felony, in exchange for a sentence of five years' probation.

Prosecutors said Brenner had sexual contact with a youth he met in the bathroom of the synagogue they both attended. The molestation's allegedly took place over a three-year period that ended in 1995 when the victim was 15 years old.

On June 24, 2007, both Rabbi Paysach Krohn and Rabbi Ephraim Bryks presented at a Shabbaton (weekend retreat)

---------------------------------------------------------------------

 

CALL TO ACTION:  Contact Rabbi Paysach Krohn and Demand he stop promoting alleged child molester, Rabbi Ephraim Bryks. Remind him if another child is harmed that he could be held liable in a civil suit.

Rabbi Paysach Krohn, Certified Mohel

E-mail: pkrohn@brisquest.com

Toll Free: 866-846-6900

NY: 718-846-6900

_______________________________________________________________

Around The Magid's Table

By Rabbi Paysach Krohn

Published by Art Scroll (1989, 1990, 1991, 1992)

718-921-9000

Children's Children.

Family Life, Page 97 - 101

Being a rav in a small town, far from any city with a large Jewish population, is often a lonely and thankless job. True, there is much to accomplish, but the challenges which need to be overcome on the way to building a day school, solidifying a minyan of shomrei Shabbos (Sabbath observers), or convincing people to uphold and maintain standards of kashrus and family purity always seem to be uphill struggles. More often than not, a rav in an area with a limited number of Jewish inhabitants gets the feeling that the Jews he is dealing with are simply not on the same wave length as he is.

One such rav was R' Lipa Brenner, who had been inspired to enter the rabbinate by his mentor in Yeshiva Torah Vodaath, R' Shraga Feivel Mendlowitz (1886-1948). After a few years of serving as a rabbi and principal in a small town in New Jersey, R' Lipa was becoming exasperated. The local baalei battim (laymen) were not cooperating with him in his endeavors, and R' Lipa's accomplishments seemed to dim with every passing year. Meanwhile to add to his dilemma, business opportunities beckoned from New York. Aside from the potential financial security that was so alluring, Lipa might finally have the opportunity to provide his children with the chinuch (education) that he felt was proper and essential.

In a quandary as to whether or not to leave the rabbinate, he decided to travel to Eretz Yisrael (Israel) and seek the advice of Vizhnitzer Rebbe, R' Chaim Mayer Hager (1898-1972). R' Lipa obtained his tickets and passport, and made the trip. However upon his arrival he was informed that the Rebbe was preparing to leave for Lugano, Switzerland, and would receive no more visitors before his departure. And so R' Lipa followed him to Switzerland.

In Lugano, R'Lipa made his way to where the Rebbe was staying. He waited his turn to see the Rebbe and, when he was finally ushered in, the Rebbe asked R'Lipa to sit beside him at his table. Seated across the table was another rav from Tel Avivi. After a few moments the rebbetzin came in with a glass of hot tea for her husband. Before she could even put the tea on the table, the Rebbe gently admonished her and said, :Please bring two more glasses of tea. We are three rabbanim here about to have a discussion."

R' Lipa was astounded. The Rebbe had referred to him as a rav, and talked of him as though he were a peer. R' Lipa trembled as he realized the significance of the title the Vizhnitzer Rebbe had inadvertently bestowed on him. But perhaps it wasn't inadvertent? Did the Rebbe know that he was thinking of leaving the rabbinate? R' Lipa never bothered to find out. Then and there he resolved his own conflict. He would retain his position as rav.

***

 

That winder, back in New Jersey, R' Lipa received a call from the head of a nearby children's s foster home. This woman told him that five Jewish boys had been placed in her care. "School registration is coming up soon, and I feel that the boys should be given some background in Jewish culture," she said. "I am Jewish, although not religious, " she continued, somewhat apologetically, " and I just can't see sending these five children to a regular public school." She asked R' Lipa if he could find places for the boys in his day school. At least in a Jewish environment they would get to know something about their heritage." She went on to explain that the foster home could not pay any tuition because its budget covered only room and board. The children in the home were supposed to attend public school, which was free. As if to reinforce her point, she then added, "And don't think for a moment that any of these children's parents left us any money for parochial schools!"

R' Lipa realized that this was an opportunity to perform spiritual hatzalas nefasho (saving of lives). Tuition at the time was one thousand dollars per child, but maybe if he spoke to the members of the Board of Directors they would be willing to foot the bill for these children. He tried, but had no luck. As a matter of fact, the Board members were totally opposed to his idea. "Our school is not a charity organization," on of them said. "If neither the parents of the children nor the foster home will contribute at all towards their tuition, then we won't accept them. Finished."

The young rav was incensed. True, it wouldn't be easy for the school to absorb the cost of education additional boys, but it was the attitude of the Board members that enraged him. "They shouldn't be pushing away problems," he thought, "They should tackling them head on!"

R'Lipa thought about the situation for a day and then came back to the Board with his mind made up. "I won't allow these boys to fall by the wayside," he declared. "if the director of the foster home was considerate enough to contact us, it would be a chillul Hashem (disgrace of Hashem's Name) not to respond affirmatively to her suggestions. I will consider these children as my own and assume responsibility for paying their tuition." The Board members were stunned but silent, and the next day the five boys were enrolled in the town's Hebrew Day School.

R'Lipa had no idea from where he would get the money. Already he was raising funds for the shul, the school, the mikveh and the chevra kaddisha. But he persisted in his search, all the while taking a special interest in these children.

One day he made an appointment with a wealthy woman who headed a prestigious store downtown. She hadn't been known for her charity in the past, but he felt that perhaps of the plight of these five boys would awaken within her a sense of sympathy. Miraculously it did, and by the time "R'Lipa walked out of her office he had with him a check for five thousand dollars -- the amount to necessary to cover the entire year's tuition bill for the boys.

****

The school year progressed as the boys advanced, each at his own pace. At year's end one of the five was reunited with his family, two remained in the day school, and two brothers, having made significant strides in their studies, were encouraged by R'Lipa and another teacher to enter fine yeshivos in New York.

The next year R'Lipa left New Jersey and eventually lost contact with the people there

****

 

More than two decades later, R' Lipa was visiting in the Matterdorf section of Jerusalem. It was Shabbos afternoon and dozens of children were playing in the streets. , which are cordoned off until nightfall. Suddenly a bearded young man came running over to R' Lipa, yelling, "Rebbe!!" R'Lipa turned around, but did not recognize anyone. "Rebbe,", the young man said, smiling, "you are R' Brenner, aren't you? You probably don't recognize me anymore. I went to your school back in New Jersey more than twenty years ago. come with me," the young man said warmly. "I want to introduce you to your grandchildren."

The young man took R' Lipa by the hand and brought him to where his wife was watching their children playing. (something in hebrew) -- Anyone who teaches Torah to a child of at his friend, it's as though he gave birth to him," said the young man, citing the Talmudic text (Sanhedrin 19b). "Thus, if I am your child, these are your grandchildren."

 

The young man was indeed one of the five from the foster home in New Jersey. R' Lipa had seen to it that he attend the Mirrer Yeshiva in New York, and from there the young man went on to become an outstanding talmid chacham. R'Lipa had all but forgotten him, but the young man had remembered him. The face of his mentor had been etched in the child's memory forever.

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Last Updated:  11/13/2007

"Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has."

--Margaret Mead

Case of Hbrandon Lee Flagner

Case of Hbrandon Lee Flagner
(AKA: Chico Virgilio Tenorio, Brandon Flagner, Brandon Lee Flagner) 

This page is dedicated to Tiffany Papesh

Maple Heights, Cuyahoga County, Ohio
Mansfield Correctional Institution, Mansfield, Ohio

Hbrandon Lee Flagner confessed and was later convicted of the kidnapping and aggravated murder of Tiffany Jennifer Papesh a 8-year-old girl. Flagner also claimed to have molested hundreds of girls during his life.  While in prison Flagner was allowed to convert to Judaism by Chabbad rabbis. Flagner changed name from Chico Virgilio Tenorio in 1977.

Flagner has been incarcerated with the Ohio Department of Rehabilitation and Correction (ODRC) since 1986. Flagner is a practicing Orthodox Hasidic Jew who brought a §1983 suit against prison officials challenging the enforcement of Ohio Administrative Code §§5120-9-25 (D) and (F),1 a prison grooming regulation which requires Flagner to cut his beard and sidelocks, also referred to as "peos," in contravention of the tenets of his religious faith.2 The defendants are ODRC employees who work at either the Lebanon Correctional Institution (LeCI) or the Madison Correctional Institution (MaCI). Flagner was imprisoned at LeCI from July 8, 1994 to November 20, 1996, and transferred shortly thereafter to MaCI. Prior to his transfer to LeCI, Flagner resided at the Mansfield Correctional Institution. He is currently incarcerated at Ross Correctional Institution.

In 1987, Flagner began studying Judaism and formally converted to Orthodox Judaism in 1991 while incarcerated at the Mansfield Correctional Institution. His religious affiliation has been recognized by the defendants and is not in dispute in this case. Flagner testified during the preliminary injunction evidentiary hearing held on December 3, 1996, that between 1991 when he converted to Judaism and prior to his transfer to LeCI in 1994, Mansfield prison officials did not make any effort forcibly to cut his beard or sidelocks. In fact, a period of five years passed between the time Flagner converted to Orthodox Judaism in 1991 until his first forced cutting in 1996.-- Findlaw.com

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Tiffany Jennifer Papesh
Circumstances of Disappearance
Papesh went to a neighborhood store for a quick errand in 1980; she never returned home. Papesh was apparently seen at the store, but disappeared afterwards. Police suspect that foul play was involved in Papesh's case. Brandon Flagner confessed to killing Tiffany in a 1983 letter to the FBI. He was indicted in June 1985 on two counts of aggravated murder and one count of kidnapping. He was sentenced to life in prison.
 

Tiffany Papesh, circa 1980.  Age-progressed imageat age 28 (circa 1999).  Age-progressed image of Papesh at age 36 (circa 2007).  Age-progressed to age 39 (circa 2010)

Missing since June 13, 1980 from Maple Heights, Cuyahoga County, Ohio.

Vital Statistics

• Date Of Birth: July 2, 1971   
• Age at Time of Disappearance: 8 years old   
• Distinguishing Characteristics: Brown hair blue eyes
• Height and Weight at Time of Disappearance: 4'0; 58 pounds   
• Marks, Scars: Pierced ears. Previously fractured collar bone.  
• Clothing: Red/blue t-shirt, blue shorts and blue tennis shoes.  
• Dentals: Available. Gap between front teeth.  
•  DNA: Available.  
• AKA: TJ

You may remain anonymous when submitting information. Please refer to this number when contacting any agency with information regarding this case. If you have any information concerning this case, please contact:  

Maple Heights Police Department: 216-662-5884 
Federal Bureau Of Investigation:  202-324-3000.  

• NCMEC #: NCMC603389
• Case Number: OH-O770100
• NCIC Number: M-619343158

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Disclaimer: Inclusion in this website does not constitute a recommendation or endorsement. Individuals must decide for themselves if the resources meet their own personal needs.

Table of Contents:HBRANDON LEE FLAGNER - legal filings/documents


1985

1. Child-Murder Suspect Ordered to Stand Trial (04/05/1985)
2. Murder Suspect To Stand Trial (04/05/1985)
3. Court Will Accept Letters of Confession (05/19/1985)
4. Convict Says He Molessted Hundreds (06/13/1985)
5. Selection For Jury Continues Publicity is Issue In Child-Slaying Case  (07/09/1985)
6. Witnesses Say Suspect Admitted Killing Girl  (07/17/1985)
7. Flagner Gets Life In Killing Tiffany's Body Never Found (07/23/1985)

1986

1. STATE OF OHIO Plaintiff-Appellee v. BRANDON FLAGNER Defendant-Appellant  (10/16/1986)

1987

1. Court won't review Brandon Flagner's conviction in the 1980 death of Tiffany Papesh (11/06/1987)

1988

1. T Papesh's grandmother still in living nightmare  (12/04/1988)

1989

1. Blaze destroys Papesh home in Bedford Heights   (03/22/1989)
2. Parents of Tiffany Papesh know Bay family's agony (11/19/1989)

1991

1. FBI Creates Profile of a Typical Child Killer  (02/09/1990)

1993

1. Frank Papesh, Who Mobilized Hundreds  (01/30/1993)

1995

1. Mystery, Tears Still Fresh For Tiffiny; Body Was Never Found, And Now Confessions of Convict Questioned (06/13/1995)
2. Hbrandon Flagner, the man convicted of kidnapping & murdering Tiffany Papesh 15 years ago, says he molested hundreds of young girls; Flagner's confession on missing girl raises questions-il (06/13/1995)

1997

1. Grooming Rules Eased For Jewish Inmate (02/15/1997)

1998

1. Jewish prisoner alleges anti-Semitism (01/07/1998)

1999

1. Prisoner's beard-cutting case headed to trial (08/26/1999)
2. Unkept Inmates Can Put Jails In Hairy Predicament While Jails Are Limited In Enforceing Personal Hygieny, Cellmates Might Provide Some Guidance (08/27/1999)
3. Ohio inmate's religious-liberty suit gets go-ahead (08/31/1999)

2001

1. Hbrandon Lee Flagner v. Reginald Wilkinson, et al.  (02/22/2001)
2. Beards are part of religious freedom (02/23/2001)
3. Federal appeals panel: Jewish inmate can sue Ohio over forced shaving  (02/26/2001)
4. Inmate Can Sue Ohio Over Grooming
5. Supreme Court Round-Up (12/10/2001)
6. Beard Suit Moves Ahead  (12/10/2001)
7. Ohio prisoner can sue state over grooming policy (12/11/2001)
8. Convicted killer in religious dispute (12/11/2001)
9. Jewish inmate in Ohio may keep beard, high court rules (12/11/2001)
10. High Court Denies Ohio's Appeal; Prisoner Can Keep Beard (12/11/2001)
11. Prisoner made to cut payes and beard can sue  (12/14/2001)
12. High court backs inmate´s lawsuit  (12/14/2001)
13. Hasidic prison inmate can sue Ohio over trimming of his beard (12/23/2001)

2007

1. Inmates become crimefighters in new AG program (11/05/2007)

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Child-Murder Suspect Ordered to Stand Trial
Akron Beacon Journal (OH) - April 5, 1985

Brandon Flagner on Thursday, was found competent to stand trial in the 1980 kidnapping and death of 8-year-old Tiffany Papesh.

Cuyahoga County Common Pleas Judge Norman Fuerst made the ruling during a hearing.

Tiffany disappeared on June 13, 1980, after buying hamburger buns at a convenience store near her Maple Heights home.

No trace of the girl has been found.

Flagner, 32, confessed to killing Tiffany in a 1983 letter to the FBI.

Authorities at first were skeptical ...

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Murder Suspect To Stand Trial
Akron Beacon Journal (OH) - April 5, 1985

Brandon Flagner on Thursday, was found competent to stand trial in the 1980 kidnapping and death of 8-year-old Tiffany Papesh, Cuyahoga County Common Pleas Judge Norman Fuerst has ruled. Tiffany disappeared on June 13, 1980, in Maple Heights. Flagner, 32, confessed to killing Tiffany in a 1983 letter to the FBI. He was indicted in June on two counts of aggravated murder and one count of kidnapping. Flagner has said he expects to be cleared of the crime because authorities never ...

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Court Will Accept Letters of Confession
Akron Beacon Journal (OH) - May 19, 1985


A Cuyahoga County judge says letters in which Brandon Lee Flagner told a Wooster minister about the killing of 8-year-old Tiffany J. Papesh can be used in court when Flagner stands trial on aggravated murder charges.

Common Pleas Judge Norman A. Fuerst ruled Friday, that the 50 letters Flagner wrote to the Mennonite minister did not fall within the client-penitent privilege and could be used as evidence. Flagner's attorneys had argued that the letters should not be allowed ....

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Convict Says He Molested Hundreds
By Michael Sangiacomo
Plain Dealer (Cleveland, Ohio) June 13, 1995

Hbrandon Flagner sits in the wooden chair in an office at the State Correctional Institution at Lebanon, his small body crunched up to appear even smaller, his hands clasped tightly together.

Little of his face is visible under a heavy growth of beard.

"How many young girls did I molest?" he says, repeating a question. "I don't know. I did it all the time. I used to pick them up in churches, playgrounds, malls, and just talk to them. It was so easy, you know?"

The man convicted of kidnapping and murdering Tiffiny Papesh 15 years ago smiles slightly now. He is mulling an earlier admission to police and reporters that he molested more than 435 girls. He was convicted in 1981 of molesting two Texas girls in one incident and exposing himself to another and was sentenced to 10 years in prison.

"Let's see, 435? That sounds about right," he says.

Cuyahoga County First Assistant Prosecutor Carmen Marino, who got a murder and kidnapping conviction against Flagner in the disappearance of Tiffiny Papesh, says he does not believe Flagner has molested 435 girls.

"Guys like him love to brag about their prowess," Marino said. "I think if he had committed that many crimes, he would have been caught."

Flagner's estimate covers a period from 1978 to 1981. He was in jail much of that time, serving two years for breaking into the bedroom of an 11-year-old Elyria girl.

He says he assaulted children in Elyria, Lorain, Wayne County and Texas.

Most of the victims never reported the incidents to police, Flagner said. He says many were neighbors, children of friends or friends of other victims.

Flagner, 43, says he has married five times and has 11 children. His passion for pre-teen girls started in 1977 when he fell in love with a 10-year-old in Elyria.

"I was out of work," he recalls. A woman he met "needed someone to help run her restaurant in Elyria. I moved in with her and worked for her. I was infatuated with her daughter, who was 10 going on 11, but I never had a chance to do anything with her. I never tried."

The child's mother beat him up and threw him out when he told her he loved her daughter. He moved to Texas but returned and broke into the child's room one night. He says he just wanted to tell her he loved her.

He was arrested, convicted and sentenced to two to five years for breaking and entering. He said that after his release in 1980, he molested more young girls.

"I think I was trying to recapture what [the Elyria girl] and I had with these other girls," he says. "It was almost an everyday thing. I don't think it would be as easy today. Back then, children were not taught to mistrust strangers. They were so easy.

One item police collected but prosecutors did not use as evidence at his murder trial was a blue notebook. It was empty except for one page, which listed the names of 15 girls, their ages, and a location where he says he molested them: a 4-year-old girl in Creston, Ohio; a 10-year-old in Euless, Texas; a 6-year-old in Sterling, Ohio; a 9-year-old identified only as "girl in Creston park"; a 7-year-old in Lorain.

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Selection For Jury Continues Publicity is Issue In Child-Slaying Case
Akron Beacon Journal (OH) - July 9, 1985


Jury selection was to continue today, in the trial of Brandon Lee Flagner, who is accused of aggravated murder and kidnapping in the 1980 disappearance of 8-yearold Tiffany Papesh of Maple Heights.

The 33-year-old former Elyria resident is on trial before Cuyahoga County Common Pleas Court Judge Norman A. Fuerst in Cleveland.

Prospective jurors were asked Monday, whether publicity would influence their judgment in the trial.

Flagner wrote several letters to various people and ...

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Witnesses Say Suspect Admitted Killing Girl
Akron Beacon Journal (OH) - July 17, 1985


Brandon Lee Flagner has admitted to at least two people that he killed and dismembered 8 year-old Tiffany Papesh, according to testimony in Cuyahoga County Common Pleas Court Tuesday.

But Tuesday's testimony also revealed that Flagner has given more than one version of how he killed the girl, leaving authorities to guess which one, if any, is true.

FBI agent Lloyd Harrell said he interviewed Flagner three times in 1983 in the Texas prison where Flagner was serving ....

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Flagner Gets Life In Killing Tiffany's Body Never Found
Akron Beacon Journal (OH) - July 23, 1985


A man who confessed in letters to kidnapping and killing an 8year-old Maple Heights girl faces life in prison for her death.

Brandon Lee Flagner, 33, was sentenced Monday, after a jury convicted him of the aggravated murder of Tiffany Papesh. Cuyahoga County Common Pleas Judge Norman Fuerst also sentenced him to seven to 25 years in prison for kidnapping Tiffany.

Tiffany vanished June 13, 1980, while running an errand to a convenience store in the Cleveland suburb. Her body...

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STATE v. FLAGNER
STATE OF OHIO Plaintiff-Appellee v. BRANDON FLAGNER Defendant-Appellant

1986 Ohio App. LEXIS 8742 *
No. 50815

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County

October 16, 1986, Decided

October 16, 1986, Decided; Rehearing denied December 16, 1987


Prior History:  CHARACTER OF PROCEEDINGS: Criminal appeal from the Common Pleas Court, Case Number CR-191,309.

Subsequent History: [*1] Rehearing denied December 16, 1987

Disposition: Affirmed.

Keywords: assignment of error, confession, disappearance, girl, mistrial, marriage, corpus delicti, reasonable doubt, prosecutor, common-law, clergyman, overrule, church, process of law, privileged, murder, drove, prejudicial error, kidnapping, confessional, admissible, arrested, killing, priest, alibi, penitential, errand, Ohio Rules of Evidence, correspondence, preparation

Counsel: For plaintiff-appellee: John T. Corrigan, Prosecuting Attorney. For defendant-appellant: Steven E. Elder, Esq.

Judges: * COOK, J., * LYNCH, J. CONCUR. SAUL G. STILLMAN, PRESIDING JUDGE

* DENOTES SITTING BY ASSIGNMENT. SAUL G. STILLMAN, RETIRED JUDGE OF THE EIGHTH APPELLATE DIST. ROBERT E. COOK, JUDGE OF THE ELEVENTH APPELLATE DISTRICT. JOHN J. LYNCH, RETIRED JUDGE OF THE SEVENTH APPELLATE DISTRICT.

Opinion by: STILLMAN

Opinion: JOURNAL ENTRY AND OPINION

STILLMAN, J.:  The defendant-appellant, Brandon Flagner, was indicted by the Grand Jury of Cuyahoga County on three counts on June 7, 1984. Two counts charged him with the commission of Aggravated Murder, in violation of O.R.C. 2903.01, and the third charged him with Kidnapping, in violation of O.R.C. 2905.01. These charges stemmed from the disappearance of a girl named Tiffany Papesh, which occurred on Friday, June 13, 1980 at approximately 2:45 p.m. in the vicinity of her home in Maple Heights, Ohio. At that date, she was 8 years old and was running an errand for [*2] her step-mother, Dorothy Papesh, at a Convenient Store close to the family residence. Tiffany was seen leaving the store and has never been seen since that moment.

Attention was first drawn to the appellant shortly after Tiffany's disappearance. He took part in searches for the child and attempted to interest Tiffany's father, Frank Papesh, in distributing for sale T-shirts bearing Tiffany's picture. The purpose was to raise money to facilitate further search.

At trial, the appellant's aberrant life style emerged from a large body of testimony. He had lived in 1977 with a family named Scheneman, in Elyria, Ohio. The Schenemans took him into their household and provided a job for him. At that time, Flagner told Mrs. Scheneman that he was in love with her 10-1/2- year-old daughter, Thelma. Mrs. Scheneman forced him out of the home.

In September, 1977, Flagner moved to Texas. During June and July of 1978, Mrs. Scheneman suspected that Flagner had returned to Elyria, and she provided Thelma, then 11 years old, with a pistol and a long hairpin to protect herself from any possible intruder. The intrusion did occur. Flagner was arrested and sentenced to prison.

From his prison cell, Flagner [*3] wrote to a 12-year-old girl, Kelly Woodward, who had won a spelling contest listing her name and address. He did not inform her of his prison confinement nor of his previous episode with the Scheneman girl. So effective was the appellant's approach to Kelly that the Woodward family went to the prison to see him. They became his parole sponsors and, in March, 1980, Flagner went to live with the Woodwards in Creston, Ohio. Kelly was 13 and, apparently with no disapproval from the adult members of the family, became sexually intimate with Flagner.

On an evening after Tiffany Papesh's disappearance, on June 13, 1980, Flagner checked the TV stations seeking information on the disappearance of a small girl. On Sunday, shortly afterward, he read an article on this subject and spoke to Mrs. Woodward about it. He drove to Maple Heights that afternoon. At a later date, Flagner again drove to Maple Heights and showed Mrs. Woodward the Papesh home.

Following this trip, the appellant drove once more to Maple Heights with Mrs. Woodward and Kelly in the car. He went into the Papesh home without Mrs. Woodward or Kelly joining him. When he came out, he drove them to the Convenient Store where Tiffany [*4] had last been seen.

On the return trip to Creston, the appellant stopped the car on the road and said that they should get out to search for Tiffany's body. Mrs. Woodward and Flagner did so for about a half hour before proceeding on to Creston. At this time, the focus of public attention had been upon a missing child, rather than a suspected victim of murder.

Subsequently, on July 14, 1980, Flagner was arrested by the Maple Heights Police Department on charges stemming from their investigation of Tiffany's disappearance. He was released from custody that afternoon.

In August, 1980, the appellant was forced to leave the Woodward family, returning eventually to Texas. He resided with his brother, Cedric Tenorio. Flagner had changed his name earlier through legal proceedings.

At the end of October, 1980, Mrs. Woodward left Creston, leaving her husband, and moved to Texas with her daughter, Kelly, and son, David.

Sometime thereafter, Cedric Tenorio saw a safe deposit box in the car used by the appellant and questioned him about it. Flagner said that it contained evidence concerning the killing of Tiffany Papesh. In May, 1981, these materials were destroyed by Mrs. Woodward and Kelly [*5] Woodward, at the request of Flagner, when Flagner was arrested by the Texas police for assaulting young girls. He was convicted and sentenced to prison in Texas.

During June, 1983, the FBI office in Tyler, Texas, received an anonymous letter regarding Tiffany Papesh. Agents of the FBI visited Flagner in jail and spent a large amount of time with him. He confessed to the kidnapping and murder of Tiffany Papesh, describing at least one personal feature of Tiffany not generally known, a scar on her right knee.

Following the FBI's investigation, further extensive inquiries were undertaken by the Cuyahoga County Prosecutor's Office. Many letters of confession had been sent to two ministers, the Rev. Glen Horner and, in a lesser number, Rev. Jerry Clark. Similar admissions were made to Mrs. Carolyn Woodward. A letter to Flagner's mother making a specific confession was produced in court by Cedric Tenorio, his brother. Other confessions went to newspapers.

An alibi concerning Flagner's working time sheet on the date of Tiffany's disappearance, June 13, 1980, was discussed in a letter to Rev. Horner, and the appellant wrote on June 5, 1983, "My alibi was faked."

The jury returned verdicts [*6] of guilt on murder and kidnapping charges, and this appeal followed.

Each assignment of error is considered seriatim in the opinion which follows.


ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF APPELLANT'S WIFE, KELLY JO WOODWARD, IN VIOLATION OF R.C. SEC. 2945.42 AND R.C. SEC. 2317.02(D). THE TRIAL COURT ALSO ERRED IN PERMITTING THE TESTIMONY OF REVERENDS GLEN HORNER AND JERRY CLARK AND IN DETERMINING THAT VARIOUS LETTERS BETWEEN THE REVERENDS AND APPELLANT WERE NOT "PRIVILEGED" IN VIOLATION OF R.C. SEC. 2317.02(C), ALL OF WHICH DEPRIVED APPELLANT OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

The first part of this assignment of error is based upon the assertion that Kelly Jo Woodward was the appellant's wife and her evidence was subject to exclusion by reason of this relationship. It is asserted that Kelly Jo Woodward and the appellant had exchanged marriage vows during 1980 and that a son had been born to them, creating a common-law marriage "at the time of the Papesh girl's disappearance."

The appellant concedes in his brief that the "specific dates of the above," referring to the marriage vows, sexual relations [*7] and the subsequent events, "are not totally clear." Nevertheless, he asserts that a common-law marriage did exist and Kelly Jo Woodward's testimony was improperly and prejudicially admitted.

It is significant that the norms for a common-law marriage in Ohio are not discussed by the appellant. In order for a common-law marriage to attain validity in Ohio, there must be (1) a mutual agreement to marry in praesenti, (2) entered into by parties competent to marry, followed by (3) cohabitation of the parties as husband and wife, who are (4) holding themselves out in the community in which they move as husband and wife and (5) being regarded in the reputation of the community as such. In re Estate of Schroeder (1966), 7 Ohio App. 2d 271.

In the instant case, the appellant is seeking to establish a common-law marital relationship with a 13-year-old girl who never was known as Flagner, who testified as "Kelly Jo Woodward," and who had never been known as the appellant's spouse in the State of Ohio at all times pertinent to this case.

Revised Code Sec. 3101.01 provides that a male must be 18 years old and a female 16 before consenting to a marriage. Here, the female's age made consent [*8] legally invalid.

For these reasons, we hold that the testimony proferred by Kelly Jo Woodward was properly admitted into evidence.

The second part of the error assigned relates to a series of communications between the appellant and Reverends Glen Horner and Jerry Clark which were admitted into evidence, as well as oral evidence, by the two pastors presented in Court. It is the thesis of the appellant that both the oral testimony and the written communications involved were "privileged" and, therefore, exempt from presentation to the jury.

Ohio Revised Code Sec. 2317.02 provides with respect to "Privileged communications and acts" that:

. . . the following persons shall not testify in certain respects:

(C) A clergyman, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect, when the clergyman, rabbi, priest, or such minister remains accountable to the authority of that church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to him for a religious counselling purpose in his professional character; however, the clergyman, rabbi, priest, [*9] or minister may testify by express consent of the person making the communication, except when the disclosure of the information is in violation of his sacred trust.

To determine the application of this statute properly requires an examination of the factual circumstances. The appellant was not a member of the churches served by Reverends Glen Horner or Jerry Clark. Johnson v. Commonwealth (1949), 310 Ky. 857. Nor is there any indication that he had ever been a penitent of the churches served by either clergyman. People v. Thompson (1982), 133 Cal. App. 3d 419.

Moreover, the ruling of this Court In re Estate of Schroeder (1966), 7 Ohio App. 2d 271 specifically declares that "[a] communication made to a clergyman or priest to be deemed privileged under authority of Sec. 2317. 02 Revised Code, must apply only to a confession made in the understood pursuance of church discipline which gives rise to the confessional relation and not to a communication of another tenor."

The appellant here initiated extensive lines of correspondence with the two clergymen involved herein ranging in content from everything stemming from his relationships and deliberate molestations [*10] to and with young female children to various and contradictory statements of his guilt in the Tiffany Papesh disappearance and killing. Included in this large range of letters were specific statements that described his mental state when he accosted Tiffany [State Exh. 42], the faking of his alibi [Exh. 44], a description of his disposal of the body [Exh. 47], announcement of a letter to an unnamed person promising to reveal "the exact location of Tiffany's whereabouts" [Exh. 51], and a promise to "let the family know" directly the location of Tiffany's body parts [Exh. 45].

None of these statements was made in the context of a confessional or penitential relationship between a clergyman and a parishioner. In Lucy v. State (Ala. App. 1983), 443 So.2d 1335, a defendant met an ordained Methodist minister near the scene of a murder and declared that he had "severely cut his girl friend." The court held that this statement was not received by the minister in a professional capacity and was "neither penitential nor confidential."

See also, Bottoson v. State (Supreme Ct. of Florida 1983), 443 So.2d 962, cert. den. U.S. 83 L.Ed.2d 153.

In addition to these considerations, [*11] we must not overlook the fact that the appellant addressed communications virtually identical in content to the press in the Cleveland and Elyria areas, as well as to the Federal Bureau of Investigation in Texas and the television media. It is clear that he was not seeking to establish a confidential, confessional or penitential relationship with two representatives of a responsive church discipline. On the contrary, he was seeking to bruit his association with the disappearance and death of Tiffany Papesh as extensively as possible.

For these reasons, we overrule the first assignment of error


ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING VARIOUS EXTRAJUDICIAL STATEMENTS AND CONFESSIONS OF APPELLANT, BRANDON FLAGNER, INTO EVIDENCE

WITHOUT THE PROSECUTION HAVING FIRST ESTABLISHED THE "CORPUS DELICTI" OF THE

CRIME, WHICH DEPRIVED HIM OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL

AND DUE PROCESS OF LAW.

It is well established in the criminal law of Ohio that "until the corpus delicti is proved by some evidence, proof of guilt of the person charged may not be received. Reduced to its simplest state, then, the corpus delicti doctrine in Ohio [*12] requires: "a. some evidence that the crime charged was committed, b. followed by or accompanied with some proof of who committed the crime." Anderson, Ohio Criminal Practice and Procedure, 1973, p. 404.


In State v. Maranda (1916), 94 Ohio St. 364, the Ohio Supreme Court declared:

It has long been established as a general rule in Ohio that there must be some evidence outside of a confession, tending to establish the corpus delicti before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.

The existence of "some evidence" tending to show that, in fact, a crime had been committed is crucial to the admission of the appellant's subsequent series of confessions under Maranda. However, at this stage of inquiry, there need be no linking of the crime itself to the appellant. It is sufficient to demonstrate that a crime has occurred. Here, the State's evidence presented a series of events [*13] adequately fulfilling this basic requirement:

1. The evidence shows that Tiffany Papesh, an 8-year-old girl, was sent upon an errand on June 13, 1980. She completed the errand and has never been seen since that time.

2. She had no reason to leave home, and there is nothing to indicate that she was a run-away. This total disappearance is the initial showing of "some evidence" that a crime has been committed under the circumstances of this case.

3. Linking this evidence of disappearance to the appellant, the State showed that Flagner had demonstrated an avid interest in the media coverage of this event from the very beginning of the case.

4. He interjected himself into the affairs of the Papesh family to so marked an extent that he was at one time arrested in connection with these events.

5. He drove from Creston, Ohio to Maple Heights, first alone and later in the company of Mrs. Woodward and Kelly Jo Woodward, stopping on the return trip to "search for the body" at a time when a "body" was not the subject of general discussion.

6. At a later time, the appellant requested that Mrs. Woodward and the appellant's brother destroy the contents of a metal box in [*14] the trunk of appellant's car. The contents included some children's clothing.

7. The appellant told agents of the Federal Bureau of Investigation that Tiffany Papesh had a scar on her right knee, a fact which could have been known only to someone who had been in her presence.

All of these indications of the "some evidence" required to establish the "corpus delicti" established in Maranda. supra were argued at length before the trial court. The court concluded that the combination of incidents, both direct and circumstantial, as presented, met the standards required.

We cannot find error in this determination, and, accordingly, overrule the second assignment of error.


ASSIGNMENT OF ERROR NO. III

THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF EVIDENCE OF "OTHER ACTS" OF BRANDON FLAGNER, THUS VIOLATING HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

The appellant has correctly quoted Ohio Rules of Evidence 404(B), 401 and 403(A) in urging this Court to find error in the trial court's admission of evidence of other acts. However, in his attempt to justify the proposition, he has not succeeded in persuading this appellate court that errors [*15] were committed in applying the rules at trial.

The evidence presented indicated a long-standing practice indulged in by the appellant whereby he discovered attractive young girls, engaged in correspondence with them, and subsequently sought to ingratiate himself with their families as a means of obtaining sexual satisfaction from the children. He succeeded in becoming a member of the Scheneman household in 1977 and later of the Woodward family in this fashion, preying on the gullibility of both adult women and children 11 and 12 years old.

Ohio Rules of Evidence 404(B) declares in part:

Other crimes, wrongs or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The evidence adduced demonstrated a proof of the appellant's penchant for pedophilia, a love by an adult for small children for sexual purposes.

Five episodes were attested to by young girls in this context. In addition to Thelma Scheneman and [*16] Kelly Jo Woodward in Ohio, the appellant forced his attentions upon three very young girls in Texas: Susie Newhouse, 7, Melissa Cox, 8; and Ann Terry, 8.

Motive and intent, preparation, plan, and exclusion of accident are all portions of the evidence specifically listed in Evid. R. 404 as admissible without detriment to the appellant's defense. In the context of the instant case, this evidence of a consistent course of conduct motivated by the aberrant sexual behavior of the appellant was clearly admissible to demonstrate motivation, intent, plan of action, preparation and absence of mistake or accident, all exceptions accepted in the interest of justice under the Rules of Evidence.

For the foregoing reasons, Assignment of Error No. III is, therefore, overruled.


ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTIONS FOR ACQUITTAL, WHICH DENIED HIM DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

This assignment of error is predicated in large part upon the theories advanced in the first three errors charged.

The conviction for aggravated murder and kidnapping, once the issue of corpus [*17]Â delicti had been resolved in favor of the State of Ohio, rested upon the direct confessions of the appellant to two ministers, to the news media, to his brother, to the Federal Bureau of Investigation, and to his mother.

It is important to recognize the circumstances surrounding these confessions. They were made voluntarily and knowingly by the appellant with no coercive influence present at any time. To assert that his Fifth and Fourteenth Amendment rights were denied or violated flies in the face of the facts presented. See, State v. King (1983), 10 Ohio App. 3d 161.

Upon the basis of our conclusions in considering this assignment of error in association with the previous errors alleged, we conclude that the trial court did not err in overruling the motions for acquittal based upon the Fifth and Fourteenth Amendments of the United States Constitution.

Counsel suggests that the appellant's crime, if any crime was committed, was not done "purposely." Reliance is placed upon statements that the killing occurred "accidentally." However, many of the confessional statements made no reference to accidental occurrence. The appellant has, in fact, never denied the charge of killing [*18] Tiffany Papesh at any time.

We find no error in overruling the motion for acquittal under Crim. R. 29 or in derogation of the due process rights of the appellant under the Fifth and Fourteenth Amendments to the Constitution.


ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE EXTREME PREJUDICE OF APPELLANT IN OVERRULING SEVERAL DEFENSE MOTIONS FOR MISTRIAL, WHICH DEPRIVED APPELLANT OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

This assignment of error refers to "at least ten separate motions for mistrial. " Six of these related to the admission of testimony concerning "other acts" committed by the appellant. These have been carefully considered in our analysis of Assignment of Error No. III. We found in response to these challenges that there was no impropriety in receiving this evidence and, therefore, overruled that assignment of error.

Two additional mistrial motions were challenges to the admission of evidence relating to what the appellant considered "privileged" information which should have been excluded. This argument was the subject matter of the first assignment of error and has been discussed in response to [*19] the errors there alleged. Since we found no "privilege" affecting the testimony of the purported 13-year-old common-law wife nor in the communications between the ministers and the appellant, we find no basis for granting a mistrial in these contexts.

The objection to testimony offered by Mrs. Scheneman and her daughter, Thelma, with respect to the use of a gun was properly overruled because it was within the relevant purview of Evid. R. 404(B). No mistrial was warranted on this issue.

It remains to consider the alleged misconduct of the prosecutor in final argument.

Reading the text of these remarks in their continuity and taking them as a whole, we find that where objectionable comment was made by the prosecutor, the court intervened and promptly took action to inform the jury of any improprieties. The instructions subsequently given by the court to the jury clarified the issues and removed any prejudice which the appellant now seeks to establish. Granting a mistrial is within the sound discretion of the trial court. State v. Palmieri (Ohio App. 1938), 13 O.O. 517, 46 N.E. 2d 318.

We find nothing in the record which deprived the appellant of a fair trial and no insinuation [*20] by the State of Ohio that the appellant was required to testify in his own behalf.

Assignment of Error No. V is accordingly overruled.


ASSIGNMENT OF ERROR NO. VI

THE JURY VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE.

This assignment of error declaring that the jury verdicts are against the "weight of the evidence" should be reserved for more persuasive cases. A careful reading of the transcript, followed by an examination of the exhibits admitted into evidence, suggests that the appellant's course of conduct, climaxed by his frequent confessions, was evidence of sufficient weight to sustain the jury verdicts.

In determining the weight of the evidence and the credibility of the witnesses, the trier of facts in this case was the jury.

Under the holding of State v. DeHass (1967), 10 Ohio St. 2d 230, the reviewing court may not reverse a criminal court conviction where the record shows a sufficiency of evidence and where no prejudicial error is demonstrated during the trial of the case or in the court's instructions to the jury.

Neither prejudicial error during trial nor in the trial court's instructions to the jury has been demonstrated here.

We overrule Assignment [*21] of Error No. VI.


ASSIGNMENT OF ERROR NO. VII

THE TRIAL COURT ERRED IN ALLOWING VARIOUS EXHIBITS INTO EVIDENCE OVER DEFENSE OBJECTION AND CONTRARY TO THE OHIO RULES OF EVIDENCE, THEREBY DENYING APPELLANT HIS FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW AND TO A FAIR AND IMPARTIAL TRIAL.

There is no doubt that the exhibits admitted into evidence in this case, primarily including the appellant's repeated confessions, contributed in large measure to his convictions. A proponent of the evidence is responsible for demonstrating its authenticity or establishing a foundation for its consideration. 7 Wigmore, Evidence Sec. 2128-69 3d Ed. Identification can be accomplished by a witness with personal knowledge. The confessions were authenticated by the witnesses to whom they were addressed and came from their custody directly into the possession of the State of Ohio. Such exhibits as Exh. 41, a letter from the appellant to Reverend Jerry Clark, recited that, "Just about all the evidence they have against me is my own confession and everything I supplied them with myself." Exh. 42 is a letter describing the appellant's state of mind when the episode with Tiffany Papesh occurred. [*22] Exh. 44 recites, "My alibi was faked."

Evidence Rule 90(A) lists "by way of illustration only" ten methods of authenticating evidence, including (1) testimony of a witness with knowledge. Here, a framework of correspondence between the appellant and his two ministerial correspondents served to provide primary self-authentication of the confession letters.

The specific references in this assignment of error to exhibits not demonstrating a proper "chain of custody" do not demonstrate any element of prejudice to the appellant's defense. Nor does the issue with respect to the arrest and release of the appellant on July 14, 1980 in Maple Heights affect the rights of the appellant to due process of law and a fair and impartial trial.

We, therefore, overrule Assignment of Error No. VII.


ASSIGNMENT OF ERROR NO. VIII

PROSECUTORIAL MISCONDUCT DURING FINAL ARGUMENT TO THE JURY DENIED APPELLANT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL TRIAL.

Prosecutorial misconduct serious enough to warrant reversal of a criminal conviction is first to be determined by the trial court. If serious prejudice attributable to the prosecutor's comments is present, the trial court [*23] may set aside a verdict of guilt. But if there is evidence supporting the argument of counsel, there should be no interference by the court because the jury will determine the weight to be accorded to the evidence. State v. Champion (1924), 109 Ohio St. 281.

In charging that the prosecutor had violated the restraints imposed by Griffin v. California (1965), 380 U.S. 609, the appellant is interpreting the remarks made by the prosecutor in an exaggerated fashion. Nothing in the closing argument suggested that the appellant had an obligation to come forward with testimony in violation of his Fifth Amendment right to remain silent.

The trial judge cautioned counsel on both sides in the closing arguments. At page 1362, he declared, "They (the attorneys) are not allowed to express their own personal views of the case, when they present the arguments on the facts. So, I'm going to ask the jury to ignore the comments made about what the defense lawyers think."

Motions for mistrial punctuated the final arguments, but all were overruled properly because the prosecutor was, in each situation, arguing his version of the case from evidence previously admitted. State v. [*24] Marshall (1968), 15 Ohio App. 2d 187.

We find, therefore, no basis upon which to establish prosecutorial misconduct as a ground for reversal and overrule Assignment of Error No. VIII.


ASSIGNMENT OF ERROR NO. IX

THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY BY GIVING A DEFINITION OF "REASONABLE DOUBT" WHICH WAS EXPANDED BEYOND THE OHIO STATUTORY DEFINITION.

The issue raised by this assignment of error has a history of contradiction through the Ohio court system.

In requiring the trial court to read the statutory definition of "Reasonable Doubt" in criminal cases, R.C. 2901.05(D), the Ohio General Assembly sought to establish a uniform procedure designed to guide our courts. For reasons known only to trial judges, various expansions of the definition have been presented to juries in an effort to assist them in their consideration of their cases.

In 1980, this Court considered State v. Seneff, 70 Ohio App. 2d 171, where an amplification of the "Reasonable Doubt" provision was at issue. Objection was raised at trial to the expanded definition, but this Court of Appeals, in a unanimous opinion, found that the addition of the words "firmly convinced" of the "truth [*25] of the charge" was, if error, harmless.

Two years later, in 1982, the same Court in State v. Lewis (May 6, 1982), Cuy. App. No. 43987, unreported, was confronted with a far more expanded definition of "reasonable doubt" devised by a trial court and again found no prejudicial error.

In 1984, however, this Court, in State v. Swanson, 16 Ohio App. 3d 375, decided to reverse on the basis of an expanded definition of "reasonable doubt" without addressing the issue of prejudicial error. The charge to the jury repeated the unnecessarily verbose language of State v. Lewis, supra.

In the present case, the words which are asserted to be prejudicial were not similar to those used in State v. Lewis, supra or State v. Swanson, supra. There was no "verbose exhortation." No objection was made to the court's charge, and we find no basis for objection if such had been made. The gratuitous words "firmly convinced" were identical to those in Seneff, supra and in no way prejudiced the rights of the appellant.

We, therefore, overrule Assignment of Error No. IX and, accordingly, affirm the judgment of the trial court.


JOURNAL ENTRY
It is ordered [*26] that appellee recover of appellant its costs herein taxed.

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Court won't review Brandon Flagner's conviction in the 1980 death of Tiffany Papesh
Plain Dealer - November 6, 1987, pg. 06 sec. B

(If anyone has a copy of this article please forward it to The Awareness Center)

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T Papesh's grandmother still in living nightmare-il
Plain Dealer - December 4, 1988, pg. 01 sec. B

If anyone has a copy of this article please forward it to The Awareness Center

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Blaze destroys Papesh home in Bedford Heights
Plain Dealer - Marcy 22, 1989, pg. 03 sec. B

If anyone has a copy of this article please forward it to The Awareness Center

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Parents of Tiffany Papesh know Bay family's agony
Plain Dealer - November 19 Nov, 1989, pg. 01 sec. A

If anyone has a copy of this article please forward it to The Awareness Center

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836 F.2d 1347; 1988 U.S. App. LEXIS 233, *

Brandon Lee Flagner, Plaintiff-Appellant, v. Ronald Arko, Detective, Maple Heights Police Department; Carmen Marino, Asst. County Prosecutor; Chief Kulls, Cuyahoga County Detective Bureau, Defendants-Appellees

No. 87-3469

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

836 F.2d 1347; 1988 U.S. App. LEXIS 233

January 11, 1988, Filed


NOTICE: [*1] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

OPINION: ORDER

BEFORE: ENGEL and RYAN, Circuit Judge; and EDWARDS, Senior Judge.

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

The plaintiff, an Ohio prisoner, appeals from a judgment of the district court which dismissed his 42 U.S.C. ?1983 action pursuant to the doctrine of Parratt v. Taylor, 451 U.S. 527 (1981). In his action, the plaintiff alleged that his first, fourth, eighth and fourteenth amendment rights had been violated by the defendants' seizure and retention of his personal property.

Because the plaintiff clearly failed to plead or prove the inadequacy of Ohio postdeprivation remedies, the district court correctly [*2] dismissed plaintiff's claim for violation of his procedural due process rights. Hudson v. Palmer, 468 U.S. 517, 531-33 (1984); Joyce v. Mavromatis, 783 F.2d 56 (6th Cir. 1986); Bacon v. Patera, 772 F.2d 259, 264 (6th Cir. 1985); Wilson v. Beebe, 770 F.2d 578, 583-84 (6th Cir. 1985) (en banc). However, the plaintiff's substantive due process claims under the first, fourth and eighth amendments must be separately analyzed as they involve issues distinct from plaintiff's procedural due process claim. See Vinson v. Campbell County Fiscal Court, 820 F.2d 194 (6th Cir. 1987); Dugan v. Brooks, 818 F.2d 513 (6th Cir. 1987).

Accordingly, the district court judgment entered on April 15, 1987, is affirmed insofar as it dismissed plaintiff's procedural due process claim, Rule 9(b)(5), Rules of the Sixth Circuit; it is vacated, however, and the case remanded to the extent that it dismissed plaintiff's substantive due process claims. Rule 9(b)(6), Rules of the Sixth Circuit.

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83 Ohio St. 3d 176, *; 1998 Ohio 127; 699 N.E.2d 62, **; 1998 Ohio LEXIS 2499, ***

THE STATE EX REL. FLAGNER, APPELLANT, v. ARKO, APPELLEE.

No. 98-487

SUPREME COURT OF OHIO

83 Ohio St. 3d 176; 1998 Ohio 127; 699 N.E.2d 62; 1998 Ohio LEXIS 2499

July 15, 1998, Submitted

September 23, 1998, Decided

PRIOR HISTORY: [***1] APPEAL from the Court of Appeals for Cuyahoga County, No. 72779.

In 1985, appellant, Hbrandon Flagner, was convicted of the kidnapping and murder of eight-year-old Tiffany Papesh and was sentenced accordingly. Flagner's conviction and sentence were affirmed on appeal. State v. Flagner, 1986 Ohio App. LEXIS 8742 (Oct. 16, 1986), Cuyahoga App. No. 50815, unreported, 1986 WL 11653.

In 1995, a newspaper article raised questions about whether Flagner committed the crimes. According to the article, appellee, Maple Heights Police Detective Ron Arko, who had worked on the Papesh case, stated that he did not believe that Flagner committed the crimes even though Flagner had confessed. The article also mentioned that Flagner's alibi, that he was at work fifty-two miles away around the time of Papesh's disappearance, was supported by his work time card.

In July 1997, Flagner filed a complaint in the Court of Appeals for Cuyahoga County for a writ of mandamus to compel Detective Arko to provide him with exculpatory evidence in his possession pursuant to Crim.R. 16(B). Flagner attached the 1995 newspaper article to his complaint.

Detective Arko filed an "objection and opposition" to Flagner's complaint. Attached to Arko's [***2] filing were his affidavit and the affidavit of Carmen Marino, the Cuyahoga County Assistant Prosecuting Attorney who had prosecuted Flagner. The affidavits established that before Flagner's trial, Detective Arko had given Marino all the documents and evidence he had obtained during his investigation, that Marino had provided all relevant and exculpatory evidence to Flagner during discovery, including the time card, which was presented at trial as part of Flagner's defense, and that Detective Arko obtained no new, relevant, or exculpatory evidence regarding the case following his investigation.

After the court of appeals converted Detective Arko's filing into a motion for summary judgment and Flagner filed responses to the motion, the court of appeals granted the motion and denied the writ.

This cause is now before the court upon an appeal as of right.

DISPOSITION: Judgment affirmed

CASE SUMMARY

PROCEDURAL POSTURE: Appellant prisoner sought review of the decision of the Court of Appeals for Cuyahoga County (Ohio), which denied the prisoner's complaint for a writ of mandamus against appellee detective in which the prisoner sought to compel the detective to provide him with exculpatory evidence that proved that the prisoner did not commit the kidnapping and murder of an eight-year-old girl.

OVERVIEW: The prisoner was convicted of the kidnapping and murder of an eight-year-old girl. While he was incarcerated, the investigating detective gave a newspaper interview in which he stated that he did not believe the prisoner was guilty. The newspaper article mentioned that the prisoner was working 52 miles away at the time of the girl's disappearance and this was supported by the prisoner's work time card. The prisoner filed a complaint requesting that the detective produce exculpatory evidence under Ohio R. Crim. P. 16(B). The detective filed an objection and opposition and a motion for summary disposition, stating that the detective had given the prosecutor all the evidence obtained during the investigation. The court of appeals dismissed the complaint and the court affirmed. The court held that under Ohio R. Crim. P. 16(B), only the prosecutor was required to provide evidence during criminal discovery. Further, the motion to dismiss showed that the prosecutor had provided all the relevant and exculpatory evidence prior to trial. Because the prisoner rested merely on allegation of new exculpatory evidence, but did not provide support, the writ was properly denied.

OUTCOME: The court affirmed the court of appeals, which dismissed the complaint filed by the prisoner requesting the investigating detective to produce newly discovered exculpatory evidence.

CORE TERMS: detective, summary judgment, exculpatory evidence, prosecuting attorney, court of appeals, police detective, new trial, mandamus, vacate

LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts

Criminal Law & Procedure > Discovery & Inspection > Discovery by Defendant Criminal Law & Procedure > Discovery & Inspection > Discovery Misconduct HN1 Ohio R. Crim. P. 16(B) requires the prosecuting attorney, not a police detective, to provide certain evidence in criminal discovery. Ohio R. Crim. P. 16(D) imposes a continuing duty to disclose on the state "prior to or during trial."

Civil Procedure > Summary Judgment > Supporting Papers & Affidavits Civil Procedure > Summary Judgment > Summary Judgment Standard HN2 When a motion for summary judgment is made and supported as provided in  Ohio R. Civ. P. 56, the nonmoving party may not rest on the mere allegations  of his pleading, but his response, by affidavit or as otherwise provided in Ohio R. Civ. P. 56, must set forth specific facts establishing the existence of a genuine triable issue.

Civil Procedure > Relief From Judgment > Relief Generally HN3 A newspaper article alone is not evidence of operative facts which might support a Ohio R. Civ. P. 60(B) motion for relief from judgment.


Criminal Law & Procedure > Discovery & Inspection > Discovery by Defendant HN4 Records discoverable under Ohio R. Crim. P. 16 are not thereby subject to release as a public record under Ohio Rev. Code ?149.43.


Show Headnotes

COUNSEL: Hbrandon Flagner, pro se.Michael G. Ciaravino & Associates and Michael G. Ciaravino, for appellee.

JUDGES: MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

OPINION:

[*177] [**63] Per Curiam. Flagner asserts that the court of appeals erred in denying the writ [***3] of mandamus. For the following reasons, however, we find Flagner's assertion meritless and affirm the judgment of the court of appeals.

Initially, Detective Arko had no duty under Crim.R. 16 to provide the requested evidence. HN1Crim.R. 16(B) requires the prosecuting attorney, not a police detective, to provide certain evidence in criminal discovery. Crim.R. 16(D) imposes a continuing duty to disclose on the state "prior to or during trial." It had been over ten years after the conclusion of Flagner's trial when he sought extraordinary relief in mandamus under Crim.R. 16.

In addition, the summary judgment evidence introduced by Detective Arko established that the state, through the prosecuting attorney, fully complied with Crim.R. 16 by providing Flagner with all relevant and exculpatory evidence prior to his criminal trial. HN2When a motion for summary judgment is made and supported as provided in Civ.R. 56, the nonmoving party may not rest on the mere allegations of his pleading, but his response, by affidavit or as otherwise provided in Civ.R. 56, must set forth specific facts establishing the existence of a genuine triable issue. Mootispaw v. Eckstein (1996), 76 Ohio St. 3d 383, [***4] 385, 667 N.E.2d 1197, 1199. After Detective Arko's filing and notice that the court had converted the filing into a motion for summary judgment, Flagner rested on the mere allegations of his pleading and failed to file Civ.R. 56 evidence setting forth specific facts to support his claim. See, also, Salem v. Salem (1988), 61 Ohio App. 3d 243, 246, 572 N.E.2d 726, 728, where the court noted that HN3"[a] newspaper article alone is not evidence of operative facts which might support a Civ.R. 60(B) motion [for relief from judgment]." In fact, the attachments to Flagner's complaint include a defense attorney's opinion that Flagner's "evidence" was insufficient to vacate his conviction and obtain a new trial.

Finally, Flagner erroneously relies on our decision in State ex rel. Carpenter v. Tubbs Jones (1995), 72 Ohio St. 3d 579, 651 N.E.2d 993, to support his contention that he is entitled to the records he claims are in Detective Arko's possession. Carpenter is a public records case brought under R.C. 149.43, Ohio's Public Records Act, which Flagner does not rely on here. See State ex rel. Fuqua v. Alexander (1997), 79 Ohio St. 3d 206, 208, 680 N.E.2d 985, 987. Further, following [***5] Carpenter, we held that HN4records discoverable under Crim.R. 16 are not thereby subject to release as a public record under R.C. 149.43. Id., citing State ex rel. WHIO-TV-7 v. Lowe (1997), 77 Ohio St. 3d 350, 673 N.E.2d 1360, syllabus.

[*178] Based on the foregoing, the court of appeals properly denied the writ. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.

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1998 Ohio App. LEXIS 380, *

STATE EX REL. HBRANDON FLAGNER, Relator vs. DETECTIVE RON ARKO, MAPLE HEIGHTS POLICE DEPARTMENT, Respondent

NO. 72779

COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY

1998 Ohio App. LEXIS 380

February 5, 1998, Date of Announcement of Decision

PRIOR HISTORY: [*1]

CHARACTER OF PROCEEDING: WRIT OF MANDAMUS. (Motion No. 87263).

DISPOSITION: JUDGMENT: WRIT DISMISSED.


CASE SUMMARY

PROCEDURAL POSTURE: Relator prisoner commenced this mandamus action against respondent detective to compel the discovery of possible exculpatory evidence related to the kidnapping and murder of which the prisoner had been convicted, pursuant to Ohio R. Crim. P. 16. The detective filed a responsive pleading that the court treated as a motion for summary judgment under Ohio R. Civ. P. 56(C).


OVERVIEW: The prisoner based his request for a writ of mandamus on a newspaper article that mentioned possible exculpatory evidence not used at trial many years earlier. The court held that such an article was an insufficient basis upon which to rest a claim for mandamus because it was hearsay of the remotest character and could not be accepted as evidence. The court found that the detective had filed affidavits that all exculpatory evidence had been disclosed prior to the trial and that no new evidence had been discovered. The court also examined Ohio R. Crim. P. 16 and expressed doubt that the rule applied to a detective as opposed to a prosecutor. The court also found that the rule pertained to disclosure before and during trial, not to disclosure years later. The court held that mandamus was an extraordinary remedy that should not be granted unless the prisoner was clearly entitled to it and had no other adequate remedy and the detective had a clear legal duty to comply with the request for action. The court found that the facts alleged here did not support the relief.

OUTCOME: The court granted summary judgment to the detective and dismissed the prisoner's application for a writ of mandamus.

CORE TERMS: detective, disclosure, alibi, newspaper article, summary  judgment, discovery, exculpatory evidence, writ of mandamus, mandamus,  underlying case, mandamus action, time card, prosecutor, disappearance, exculpatory, requested relief, adequate remedy, settlement, duty, pretrial discovery, factual basis, murder trial, new trial, documentation, disappeared, disclose, murder

LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts

Civil Procedure > Remedies > Extraordinary Writs

Criminal Law & Procedure > Appeals > Extraordinary Writs

HN1 The requisites for mandamus are well established: (1) the relator must  have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law. Moreover, mandamus is an extraordinary remedy, which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. Furthermore, the issuance of a writ of mandamus rests within the discretion of the court, depending upon the facts and circumstances of the case, including the applicant's rights, the relator's conduct, the equity and justice of the relator's case, and public policy.

Civil Procedure > Summary Judgment > Summary Judgment Standard HN2 Ohio R. Civ. P. 56(C) contains the standards for summary judgment. Summary judgment may be entered for a party only if there is no genuine  issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Moreover, summary judgment shall not be  rendered unless it appears from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.

Criminal Law & Procedure > Discovery & Inspection > Brady Materials

Criminal Law & Procedure > Discovery & Inspection > Discovery Misconduct

HN3 Ohio R. Crim. P. 16(B) states the various materials that the prosecution must disclose to the defendant upon motion. Ohio R. Crim. P. 16(B)(1)(f) provides for the disclosure of evidence favorable to the defendant upon motion before trial. Ohio R. Crim. P. 16(F) provides that the defendant shall make his motions for discovery 21 days after arraignment or 7 days before trial, whichever is earlier. Any subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice. Such a motion should be directed to the trial court, and the rule provides that the trial court then order the prosecutor to provide the information, not the police. Furthermore, Ohio R. Crim. P. 16(D), Continuing Duty to Disclose, provides that such a duty persists prior to or during trial.

COUNSEL: For relator: HBRANDON FLAGNER, pro se, Madison Correctional Institution, Post Office Box 740, London, Ohio 43140-0740.

For respondent: MICHAEL G. CIARAVINO, Prosecuting Attorney, City of Maple  Heights, 5005 Rockside Road, Suite 600, Independence, Ohio 44131-2194.

JUDGES: KENNETH A. ROCCO, PRESIDING JUDGE. ANN DYKE, J., CONCURS, JAMES D. SWEENEY, J., CONCURS.

OPINIONBY: KENNETH A. ROCCO

OPINION: JOURNAL ENTRY and OPINION

KENNETH A. ROCCO, P.J.:

On July 1, 1997, the relator, Hbrandon Flagner, commenced this mandamus action against the respondent, Ron Arko, a detective with the Maple Heights Police Department, to compel the discovery of exculpatory evidence in the underlying case, State of Ohio v. Hbrandon Flagner, Cuyahoga County Common Pleas Court Case No. CR-191309, pursuant to Crim.R. 16. On September 22, 1997, the respondent submitted his objection and opposition to Mr. Flagner's application for a writ of mandamus. Attached to this filing were the affidavits of Detective Arko and Assistant Cuyahoga County Prosecutor Carmen Marino. On October 1, 1997, this court converted Detective [*2] Arko's filing to a motion for summary judgment and afforded the parties until December 1, 1997 to file supporting briefs and evidence pursuant to Civ.R. 56. Mr. Flagner timely filed a brief, and the respondent, relying on his initial filing, submitted no further materials. For the following reasons, this court grants the respondent's motion for summary judgment and dismisses this writ action.

Tiffany Papesh was eight years old when she disappeared in June, 1980 while running an errand; her body has never been found. At the time, considerable interest in her case arose. Mr. Flagner confessed to various persons to killing Tiffany. In July, 1985, a jury convicted him of the kidnapping and murder of Tiffany, for which he is still serving his prison sentence. Fifteen years after her initial disappearance, the Cleveland Plain Dealer published a follow-up story on the case. This article is the foundation for Mr. Flagner's claim that undisclosed exculpatory evidence exists and is Exhibit A to the mandamus petition.

The critical paragraph stated as follows: "But police and Tiffany's relatives don't believe Flagner is her killer, either, and information that supports his alibi - information [*3] not introduced at his murder trial - raises questions about whether he could have committed the crime." The next paragraphs focused on Detective Arko. He revealed that because the body was never found, the case remains open and that he occasionally checks on tips or sightings of women who would resemble a grown-up Tiffany.

According to the article, he admitted that he does not believe Flagner committed the crime; the Maple Heights Police Department checked into his alibi and his initial confession and concluded that he did not murder Tiffany.

The article also examined the alibi. A mechanically-stamped time card from Mt. Flagner's place of employment indicated that he was working miles away in Wayne County until minutes before the abduction. The work site was an hour away from the place of Tiffany's disappearance. The card showed that Mr. Flagner worked until 2:36 p.m. and Tiffany disappeared at 2:45 p.m.; the search for her began at 3:00 p.m. The article also stated that Mr. Flagner's lawyers did not concentrate on the alibi defense; rather, they pursued another strategy. The article quoted one of the lawyers as saying that, in his experience, juries seldom believe alibis. The article [*4] also quoted one of the jurors: "*** we all felt he was guilty from the start. I don't remember being very impressed with his alibi." n1

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 At trial, the defense presented evidence of the alibi, including the time card; however, the prosecution introduced evidence that Mr. Flagner faked his alibi.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Mr. Flagner concluded from this article that Detective Arko had uncovered new exculpatory evidence that had not been released to him. He then began efforts to obtain this evidence, which culminated in this mandamus action.

In response, Detective Arko submitted his affidavit and that of Carmen Marino, who prosecuted the underlying case. In his affidavit, Detective Arko stated that he provided Mr. Marino with all documents and evidence that he had obtained during the investigation. Because the body of Tiffany was never found, he has kept the case open, but, "To date, I have not obtained or received any new relevant or exculpatory documents or evidence regarding her disappearance. *** I, therefore, do not have any new, [*5] relevant or exculpatory documents or evidence in my possession which would support Flagner's motion for a new trial."

In his affidavit, Mr. Marino stated that as part of pretrial discovery pursuant to Crim.R. 16, he "produced all relevant and exculpatory documentation and evidence to Flagner's counsel, including the mechanically stamped time card ***. Since the production of this documentation to Flagner's counsel prior to the trial in the captioned case, I have not obtained, reviewed, or been provided with any new or additional evidence which would support Flagner's motion for a new trial as set forth in the Writ of Mandamus." In the final paragraph, Mr. Marino reaffirms that he fully complied with Crim.R. 16 and that, "I do not have nor have I received or obtained any new or additional information or evidence which would satisfy Flagner's recent request as contained in his Application for Writ of Mandamus."

HN1The requisites for mandamus are well established: (1) the relator must have a clear legal right to the requested relief; (2) the respondent must have a clear legal duty to perform the requested relief; and (3) there must be no adequate remedy at law. State ex rel. Ney v. Niehaus [*6] (1987), 33 Ohio St. 3d 118, 515 N.E.2d 914. Moreover, mandamus is an extraordinary remedy, which is to be exercised with caution and only when the right is clear. It should not issue in doubtful cases. State ex rel. Taylor v. Glasser (1977), 50 Ohio St. 2d 165, 364 N.E.2d 1; State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App. 3d 43, 621 N.E.2d 850; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio L. Abs. 308. Furthermore, the issuance of a writ of mandamus rests within the discretion of the court, depending upon the facts and circumstances of the case, including the applicant's rights, the relator's conduct, the equity and justice of the relator's case and public policy. State ex rel. Pressley v. Industrial Commission of Ohio (1967), 11 Ohio St. 2d 141, 228 N.E.2d 631; State ex rel. Bennett v. Lime (1978), 55 Ohio St. 2d 62, 378 N.E.2d 152; and State ex rel. Mettler v. Stratton (1941), 139 Ohio St. 86, 38 N.E.2d 393.

HN2Civ.R. 56(C) contains the standards for summary judgment. Summary judgment may be entered for a party only if there [*7] is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. Moreover, "summary judgment shall not be rendered unless it appears from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor." See generally, State ex rel. Shumway v. State Teachers Retirement Board (1996), 114 Ohio App. 3d 280, 683 N.E.2d 70.

The gravamen of Mr. Flagner's case is the line in the newspaper article that stated: "Information that supports his alibi--information not introduced at his murder trial--raises questions about whether he could have committed the crime." From this line, he deduced that Detective Arko must have found new information that would support his claim of innocence. In his October 3, 1997 brief, he confirmed that "this is the information that Relator is seeking."

However, this is an insufficient basis upon which to rest a claim for mandamus. The newspaper article cannot be accepted as evidence; it is "hearsay [*8] of the remotest character." Heyman v. City of Bellevue (1951), 91 Ohio App. 321, 326, 108 N.E.2d 161 and City of Cleveland v. Division 268, Amalgamated Assn. Of Street Electric Railway & Motor Coach Employees of America (1948), 84 Ohio App. 43, 81 N.E.2d 310. Salem v. Salem (1988), 61 Ohio App. 3d 243, 572 N.E.2d 726 is particularly illuminating. In that divorce case, the parties had reached a settlement concerning the division of their property after full negotiations. Several years later, the wife moved to vacate the decree that incorporated the settlement because a newspaper article, which discussed an attempted corporate takeover of the husband's company, showed that the husband had not fully disclosed the value of his assets. The trial court summarily dismissed the motion to vacate. In affirming the trial court, the court of appeals ruled that "[a] newspaper article alone is not evidence of operative facts ***." 61 Ohio App. 3d at 246. Just as the movant in Salem could not prove lack of disclosure based on a newspaper article, so, too, Mr. Flagner cannot show lack of disclosure of exculpatory evidence based on a newspaper article.

In contrast, Detective Arko has properly [*9] supported his position with affidavits by himself and the assistant prosecutor from the underlying case. These affidavits establish that, despite whatever inferences might be drawn from the article, no new exculpatory evidence has been discovered. Thus, there is no factual basis to issue a writ of mandamus to compel the disclosure of evidence.

Moreover, an examination of Crim.R. 16 raises doubts as to whether there is a legal basis for issuing a writ of mandamus to compel the disclosure of evidence. HN3Crim.R. 16(B) states the various materials that the prosecution must disclose to the defendant upon motion. Subsection (B)(1)(f) provides for the disclosure of evidence favorable to the defendant upon motion before trial. Crim.R. 16(F) provides that the defendant shall make his motions for discovery twenty-one days after arraignment or seven days before trial, whichever is earlier. "Any subsequent motion may be made only upon showing of cause why such motion would be in the interest of justice." Such a motion should be directed to the trial court, and the rule provides that the trial court then order the prosecutor to provide the information, not the police. Furthermore, Crim.R. 16(D), [*10] Continuing Duty to Disclose, provides that such a duty persists "prior to or during trial."

Thus, the first doubt is whether Detective Arko is the proper respondent for a mandamus action seeking discovery pursuant to Crim.R. 16. The rule states that the prosecutor, as compared to the police, should make the necessary disclosures. Second, Crim.R. 16 appears to provide an adequate remedy at law for nondisclosure, a motion directed to the trial court pursuant to subsection (E)(3) or subsection (F) upon a showing of just cause. Cf. State v. Simmons (1993), 87 Ohio App. 3d 290, 292, 622 N.E.2d 22 ("It is within the trial court's discretion to grant any discovery beyond the scope of that required by Crim.R. 16.").

Finally, there is the issue of timing. Crim.R. 16 generally mandates that discovery occur prior to or during trial. Even the duty of continuing disclosure is, by the wording of the rule, limited to "prior to or during trial." Cf. Simmons and State v. Hesson (1996), 110 Ohio App. 3d 845, 675 N.E.2d 532, which characterize Crim.R. 16 as governing and concerning pretrial discovery. Thus, this court entertains a doubt as to whether, many years after trial and conviction [*11] and when there is no postconviction proceeding pending, Crim.R. 16 is applicable to obtain the desired discovery.

Accordingly, because there is no factual basis supported by admissible evidence and because it is doubtful that mandamus may be employed to compel criminal discovery against a police detective many years after the trial has been concluded, this court grants the respondent's motion for summary judgment and dismisses this writ action. Costs assessed against relator.

ANN DYKE, J. CONCURS

JAMES D. SWEENEY, J. CONCURS

KENNETH A. ROCCO

PRESIDING JUDGE

__________________________________________________________________________________

1997 Ohio App. LEXIS 3834, *

STATE OF OHIO, ex rel. BRANDON L. FLAGNER, Relator vs. NANCY A. FUERST, JUDGE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO, Respondent

NO. 72221, MOTION NO. 86036

COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY

1997 Ohio App. LEXIS 3834

August 28, 1997, Date of Announcement of Decision

DISPOSITION: [*1]

JUDGMENT: WRIT DISMISSED.

COUNSEL: For relator: BRANDON L. FLAGNER, pro se, London, Ohio.

For respondent: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, L. CHRISTOPHER FREY, Assistant, Cleveland, Ohio 44113.

JUDGES: JAMES D. SWEENEY, CHIEF JUSTICE. PATRICIA A. BLACKMON, J., CONCURS.

OPINIONBY: JAMES D. SWEENEY

OPINION: PETITION FOR WRIT OF MANDAMUS

JOURNAL ENTRY AND OPINION

JAMES D. SWEENEY, C.J.:

Respondent's Motion for Summary Judgment based on mootness is granted. On June 26, 1997, respondent issued Findings of Fact and Conclusions of Law in Common Pleas Case No. CR-191309, as evidenced by Exhibit 2 to respondent's motion. The requested relief having been performed, this action is now moot.

Writ dismissed. Costs to respondent.

PATRICIA A. BLACKMON, J., CONCURS.


JAMES D. SWEENEY, CHIEF JUSTICE

__________________________________________________________________________________

1996 Ohio App. LEXIS 790, *

BRANDON LEE FLAGNER, Plaintiff-appellant -vs- CARMEN MARINO, Defendant-appellee

NO. 68865

COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA COUNTY

1996 Ohio App. LEXIS 790

February 29, 1996, DATE OF ANNOUNCEMENT OF DECISION

NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.

PRIOR HISTORY: CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas. Case No. 259322.

DISPOSITION: JUDGMENT: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: Appellant sought review of the decision of the Court of Common Pleas of Cuyahoga County (Ohio), which granted summary judgment in favor of appellee Assistant Prosecuting Attorney, in appellant's action for replevin against the assistant prosecuting attorney, alleging a failure to return personal property confiscated.

OVERVIEW: The sheriff's office confiscated property belonging to appellant. However, the property was returned to appellant. Nonetheless appellant filed papers from an earlier action alleging that the assistant prosecutor still had the items. The papers were submitted and the trial court granted summary judgment to the prosecutor. On appeal, the court affirmed, holding that in a motion for summary judgment, court papers filed as exhibits and attachments did not suffice as evidence, and the trial court properly granted summary judgment to the prosecutor.

OUTCOME: The court affirmed the trial court, which granted the assistant prosecutor's motion for summary judgment.

CORE TERMS: summary judgment, belongings, personal jurisdiction, assignment of error, inventory, evidentiary, sheet, authenticated, genuine issue of material fact, papers filed, items listed, replevin, stamp, clerk

LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts

Civil Procedure > Summary Judgment > Supporting Papers & Affidavits

Evidence > Procedural Considerations > Rulings on Evidence

HN1 Under Ohio R. Civ. P. 56(C), documents which are submitted in opposition to a motion for summary judgment, but are not sworn, certified, or authenticated by affidavit, hold no evidentiary value and are not to be considered by a court in determining whether a genuine issue of material fact remains for trial.

COUNSEL:

APPEARANCES:

FOR PLAINTIFF-APPELLANT: Brandon Lee Flagner, Pro Se, 188413 Leci, Box 56, Lebanon Corrections Center, Lebanon, Ohio 45036.

FOR DEFENDANT-APPELLEE: Stephanie Tubbs Jones, Esq., Cuyahoga County Pros. Attorney, Carmen Marino, Esq., Chief Prosecuting Attorney, Marilyn Barkley Cassidy, Esq., Assistant Prosecuting Attorney, 1200 Ontario Street, The Justice Center, Cleveland, Ohio 44113.

JUDGES: PATRICIA ANN BLACKMON, PRESIDING JUDGE, SARA J. HARPER, JUDGE, ANN DYKE, JUDGE

OPINION: JOURNAL ENTRY AND OPINION

PER CURIAM:  Plaintiff-appellant, Brandon Lee Flagner, filed a replevin action on October 7, 1993, in the Court of Common Pleas of Cuyahoga County against defendant-appellee, Carmen Marino, an Assistant Prosecuting Attorney. Appellant alleged that Marino failed to return to him a portion of personal property which was confiscated by the Cuyahoga County Sheriff's Department. The trial court granted summary judgment in favor of Marino on [*2] March 22, 1995.

This accelerated appeal followed with appellant claiming as error:

Assignment of errors [sic] # 1.

Lower court erred in granting Summary Judgment against Appellant in light of well pled allegations and supporting evidence in this case.Assignment of errors [sic] # 2.

Appellee waived personal jurisdiction by failure to plea [sic] or defend in a timely manner and thus Lower Court erred by raising jurisdiction.Colleen Cooney, an Assistant Prosecuting Attorney for Cuyahoga County from March 19, 1984 to January 1, 1992, prepared an "Inventory of Flagner Property" on March 27, 1990. According to Cooney's affidavit, the items listed on the inventory were mailed to Flagner, an inmate in Mansfield, Ohio. Cooney stated in the affidavit, "There were no belongings of Brandon Lee Flagner remaining in the care, custody, and control of the Cuyahoga County Sheriff, or the Cuyahoga County Prosecutor."

Flagner acknowledged receipt of the items listed on the inventory sheet in his response to Marino's motion for summary judgment and the attached documents--the inventory sheet and Cooney's affidavit. He charged, however, that Marino remained [*3] in possession of certain items. In support of his position, Flagner provided the trial court with court papers filed in 1986 in an action entitled State of Ohio v. Flagner, Cuyahoga C.P. No. CR191309. The papers carry the clerk of court's file stamp.

Flagner points out to this court that although Marino admitted in 1986 that certain belongings were in the state's possession, not all of the belongings were listed on the 1990 inventory sheet as being returned to him. Flagner thus argues in his first assignment of error that the 1986 court papers demonstrate a genuine issue of material fact remains for litigation concerning his replevin action.

Marino initially suggests to this court that the 1986 court papers filed by Flagner with his response to the motion for summary judgment, are outside the scope of evidentiary materials authorized HN1under Civ.R. 56(C). Documents which are submitted in opposition to a motion for summary judgment, but are not sworn, certified, or authenticated by affidavit, hold no evidentiary value and are not to be considered by a court in determining whether a genuine issue of material fact remains for trial. Green v. B.F. Goodrich Co. (1993), 85 Ohio [*4] App. 3d 223, 228, 619 N.E.2d 497; Citizens Ins. Co. v. Burkes (1978), 56 Ohio App. 2d 88, 95-96, 381 N.E.2d 963. This general rule, however, loses its force when the adverse party fails to object to the documents. See, Rodger v. McDonald's Restaurants of Ohio, Inc. (1982), 8 Ohio App. 3d 256, 456 N.E.2d 1262; Brown v. Ohio Cas. Ins. Co. (1978), 63 Ohio App. 2d 87, 409 N.E.2d 253; see, also, Karavolos v. Brown Derby (1994), 99 Ohio App. 3d 548, 651 N.E.2d 435; Steinke v. Allstate Ins. Co. (1993), 86 Ohio App. 3d 798, 621 N.E.2d 1275; Green, supra; Lytle v. Columbus (1990), 70 Ohio App. 3d 99, 590 N.E.2d 421; compare, Schmidt v. Nosker (Mar. 29, 1995), 1995 Ohio App. LEXIS 1215, Greene App. No. 94 CA 96, unreported ("a copy of a certificate of judgment bearing the file stamp of the trial court's own clerk carries a high degree of reliability, even if not authenticated in accordance with Civ.R. 56"). Since Marino failed to object to Flagner's attachment of the 1986 court papers to his response brief, the documents were reviewable by the trial court in deciding whether Marino was entitled to summary judgment.

Cooney, in her affidavit, stated that all of Flagner's [*5] belongings in the state's possession were returned to him in 1990. In light of this affidavit, Flagner had to file evidentiary documents that placed in issue the fact alleged by Cooney. See, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265; Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St. 3d 108, 111, 570 N.E.2d 1095; Hoffman v. Davidson (1987), 31 Ohio St. 3d 60, 508 N.E.2d 958; Mathis v. Cleveland Pub. Library (1984), 9 Ohio St. 3d 199, 459 N.E.2d 877; Shepherd v. United Parcel Serv. (1992), 84 Ohio App. 3d 634, 617 N.E.2d 1152. Flagner provided no evidence which contradicted Cooney's sworn statement that all of his belongings were returned to him in 1990, and that the state no longer had any of his belongings in its possession at that time. The record, therefore, demonstrates that when construing the evidence in Flagner's favor, the trial court properly granted summary judgment to Marino. See, Johnson v. New London (1988), 36 Ohio St. 3d 60, 521 N.E.2d 793; Temple v. Wean United, Inc. (1977), 50 Ohio St. 2d 317, 364 N.E.2d 267;

Flagner's first assignment of error is overruled.

Flagner's second assignment of error [*6] seems to deal with the trial court's March 22, 1995 order of dismissal which was based upon the court's determination that the court of common pleas did not have jurisdiction over the claims set forth in October 1994 pleadings. The court's order did not specify whether the jurisdictional finding was personal, but both parties' appellate briefs discuss service of process and waiver of personal jurisdiction. Marino admits that personal jurisdiction existed, but argues that since the trial court's grant of summary judgment was proper, no issues remain as to Flagner's outstanding claims.

Flagner filed a second "complaint and counterclaims" on January 30, 1995, that, for the most part, mimicked the claims asserted in October 1994. The trial court merged these claims with prior pleadings on March 22, 1995. The issue of whether the trial court abused its discretion in dismissing the October 1994 pleadings based upon lack of personal jurisdiction is consequently rendered moot by Marino's admission that he received notice of the pleadings, and the court's merger of the January 1995 pleadings into the pending motion for summary judgment.

Appellant's second assignment of error is overruled. [*7]

Judgment affirmed.

It is ordered that appellee recover of appellant his costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, PRESIDING JUDGE

SARA J. HARPER, JUDGE

ANN DYKE, JUDGE

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.

__________________________________________________________________________________

1991 Ohio App. LEXIS 309, *

BRANDON LEE FLAGNER, Plaintiff-Appellant v. DONALD REIMAN,

Defendant-Appellee

No. 57825

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County

1991 Ohio App. LEXIS 309

January 24, 1991, Decided

PRIOR HISTORY: [*1]

Character of Proceeding: Civil appeal from Common Pleas Court; Case No. 88-150487.

DISPOSITION: JUDGMENT: Affirmed.

CASE SUMMARY

PROCEDURAL POSTURE: Appellant bailor sought review of the decision of the Court of Common Pleas, Cuyahoga County (Ohio), which granted appellee bailee's motion for summary judgment for the dismissal of the bailment action brought by the bailor for the return of 10 photographs of a nude 14-year old girl.

OVERVIEW: A grand jury indicted the bailor for aggravated murder and kidnapping, and the bailee represented him. During those criminal proceedings, the bailor gave the bailee 10 photographs that showed a nude girl who was 14-years old at the time that the photographs were taken. The girl became the bailor's common law wife under Texas law, and thereafter, the State of Texas granted a divorce to the couple. The photographs had no relation to the bailee's handling of the bailor's criminal case, nor to any other criminal proceeding. The bailor contended that he gave the photographs to the bailee for safe keeping while he was in jail. The bailor made two written requests for the return of the photographs. The bailor claimed that he needed them as evidence in a Texas civil action to terminate the girl's parental rights to their child. The bailee claimed that he no longer had the photographs. The bailor filed a bailment action, and the trial court granted the bailee's motion for summary judgment. The court affirmed the judgment and held that the bailee had incurred no liability for the failure to return the photographs because they were contraband, pursuant to Ohio Rev. Code Ann. ?2907.323(A)(3).

OUTCOME: The court affirmed the judgment, which granted the bailee's motion for summary judgment for the dismissal of the bailment action for the return of 10 photographs of a nude 14-year old girl.

CORE TERMS: photographs, contraband, summary judgment, bailee, girl, non-moving, redeliver, nudity, Ohio Rules, civil action, bona fide, pro se, custody, bailor, nude

LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts

Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses

HN1 Ohio Rev. Code Ann. ?2907.323(A)(3) provides that illegal possession of material showing minor in state of nudity is contraband.

Civil Procedure > Summary Judgment > Summary Judgment Standard

Civil Procedure > Appeals > Standards of Review > Standards Generally

HN2 A motion for summary judgment may only be granted where there exists no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Ohio R. Civ. P. 56(C). A trial court must refrain from granting a summary judgment motion unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the non-moving party. In reviewing a grant of summary judgment, the court must construe the evidence in a light most favorable to the non-moving party.


Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses

HN3 Ohio Rev. Code Ann. ?2907.323(A), provides in relevant part: No person shall do any of the following: (3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the following applies: (a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought, or caused to be brought into the state of Ohio, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.


COUNSEL: For Plaintiff-Appellant: BRANDON LEE FLAGNER, PRO SE, Mansfield, Ohio.

For Defendant-Appellee: GARY V. GABRIEL, ESQ., Cassidy & Mottl Co., L.P.A., Parma Heights, Ohio.

JUDGES: August Pryatel, * Judge. Nahra, P.J., and Sweeney, J., concur.

* Judge August Pryatel, Retired, of the Eighth District Court of Appeals, sitting by assignment.

OPINIONBY: PRYATEL

OPINION: JOURNAL ENTRY and OPINION

The pro se plaintiff bailor appeals from the summary judgment dismissal of his bailment action for the return by the defendant attorney bailee of ten photographs of a nude fourteen-year-old girl. While the plaintiff fails to assign error in accordance with App. R. 16(A)(2), in his brief he generally challenges the propriety of the trial court's order granting summary judgment. Since the plaintiff chooses to pursue this action pro se, this court shall not require strict conformity with the Ohio Rules of Appellate Procedure.

The record in this action discloses the following undisputed facts. In 1984, a grand jury indicted the plaintiff for aggravated murder and kidnapping. [*2] The defendant represented the plaintiff in that criminal action. During those criminal proceedings the plaintiff gave the defendant ten photographs showing a nude girl who was fourteen years old at the time that the photographs were taken. The girl became the plaintiff's common law wife under Texas law and thereafter the State of Texas granted a divorce to the couple on September 12, 1984.

The photographs had no relation to the defendant's handling of plaintiff's criminal case nor to any other criminal proceeding. The plaintiff contends that he gave the photographs to the defendant for safe-keeping while plaintiff was in jail. He further alleged in his complaint that the defendant promised to hold them for the plaintiff and return them upon request. The county court of common pleas convicted the plaintiff of the charged offenses in July of 1985.

In February of 1988 the plaintiff made two written requests for the return of the photographs. He claims that he needs the photographs as evidence in a Texas civil action to terminate parental rights. The plaintiff purportedly intends to show that his former wife is unfit to have custody of their child. The original divorce decree granted [*3] custody to the wife. The defendant claims that he no longer has the photographs and has no knowledge of their current location.

The plaintiff filed this action on May 26, 1988 seeking the return of the photographs and damages. The defendant filed a motion for summary judgment claiming that the photographs were "contraband" pursuant to R.C. 2907.323(A)(3) HN1(illegal possession of material showing minor in state of nudity). The defendant argued that a bailee has no duty to return contraband material to a bailor. The trial court granted the motion concluding:

"Plaintiff has presented no evidence pursuant to the standards of Civil Rule 56 which contradicts the evidence of defendant that clearly shows that the photographs are contraband under the statute.

"In the absence of evidence demonstrating a right of plaintiff to the property and a proper public purpose to be served by permitting a civil action to be maintained for defendant's acknowledged loss of contraband property, the motion of defendant for summary judgment must be granted."


HN2A motion for summary judgment may only be granted where there exists no genuine issues of material fact and the movant is entitled to judgment as a matter [*4] of law. Civ. R. 56(C). A trial court must refrain from granting a summary judgment motion unless it appears from the evidence that reasonable minds could come to but one conclusion and that conclusion is adverse to the non-moving party. Id. In reviewing a grant of summary judgment, this court must construe the evidence in a light most favorable to the non-moving party. Morris v. Ohio Cas. Co. (1988), 35 Ohio St. 3d 45, 47.


The defendant's uncontroverted affidavit establishes that the defendant no longer possesses the pictures. Since redelivery is not an issue, the only issue that remains is whether damages shall lie for the defendant's failure to redeliver the property.

R.C. 2907.323(A) HN3provides in relevant part:

"No person shall do any of the following:

"* * *

"(3) Possess or view any material or performance that shows a minor who is not the person's child or ward in a state of nudity, unless one of the

following applies:

"(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, [*5] or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance."

In the instant action, since the photographs are contraband, we conclude that the trial court correctly determined that as a matter of public policy a bailee shall incur no liability for a failure to redeliver contraband. The law recognizes no property rights with regard to illegal objects. Cf. Englehardt v. Kumming, (C.P. 1910), 10 Ohio N.P. 609, 611 (gambling devices).

Judgment affirmed.

It is ordered that appellee recover of appellant his costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision [*6] (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run.


11)

1986 Ohio App. LEXIS 8742, *

STATE OF OHIO Plaintiff-Appellee v. BRANDON FLAGNER Defendant-Appellant

No. 50815

Court of Appeals of Ohio, Eighth Appellate District, Cuyahoga County

1986 Ohio App. LEXIS 8742

October 16, 1986, Decided

SUBSEQUENT HISTORY: [*1] Rehearing denied December 16, 1987

PRIOR HISTORY:

CHARACTER OF PROCEEDINGS: Criminal appeal from the Common Pleas Court, Case

Number CR-191,309.

DISPOSITION: Affirmed.

CASE SUMMARY


PROCEDURAL POSTURE: Defendant sought review of a decision of the Common Pleas Court, Cuyahoga County (Ohio), which convicted him of aggravated murder in violation of Ohio Rev. Code Ann. ?2903.01, and kidnapping in violation of ?2905.01.

OVERVIEW: Defendant contended that the trial court erred in permitting the testimony of his alleged wife in violation of Ohio Rev. Code Ann. °Ï°Ï 2945.42, 2317.02(D). Defendant further asserted that the trial court erred in permitting the testimony of his clergymen and in determining that various letters between him and the clergymen were not privileged under ?2317.02(C). Regarding the testimony of his alleged wife, defendant asserted that her testimony was subject to exclusion by reason of marriage even though there relationship was merely a common-law marriage. The court determined that a common law marriage did not exist between defendant and his alleged wife because the alleged wife was only 13 years of age when state law required an age of at least 16 years to consent to marriage. Furthermore, the alleged wife had not taken defendant's last name and thus, was not openly holding herself to be married to defendant, as was required for a common law marriage. The court held that the clergymens' testimony was properly admitted because none of the communcation between the clergymen and defendant was in the context of a confessional or penitential relationship.

OUTCOME: The court affirmed the decision of the trial court, which convicted defendant.

CORE TERMS: assignment of error, confession, disappearance, girl, mistrial, marriage, corpus delicti, reasonable doubt, prosecutor, common-law, clergyman, overrule, church, process of law, privileged, murder, drove, prejudicial error, kidnapping, confessional, admissible, arrested, killing, priest, alibi, penitential, errand, Ohio Rules of Evidence, correspondence, preparation


LexisNexis(TM) HEADNOTES - Core Concepts - Hide Concepts

Family Law > Annulment & Invalid Marriages

HN1 Ohio Rev. Code Ann. ?3101.01 provides that a male must be 18 years old and a female 16 years old before consenting to a marriage.


Criminal Law & Procedure > Evidence > Privileges > Clergy Communications

HN2 Ohio Rev. Code Ann. ?2317.02(C) provides that with respect to privileged communications and acts, the following persons shall not testify in certain respects: A clergyman, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect, when the clergyman, rabbi, priest, or such minister remains accountable to the authority of that church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to him for a religious counseling purpose in his professional character; however, the clergyman, rabbi, priest, or minister may testify by express consent of the person making the communication, except when the disclosure of the information is in violation of his sacred trust.


Criminal Law & Procedure > Evidence > Privileges > Clergy Communications

HN3 A communication made to a clergyman or priest to be deemed privileged under authority of Ohio Rev. Code Ann. ?2317.02, must apply only to a confession made in the understood pursuance of church discipline which gives rise to the confessional relation and not to a communication of another tenor.


Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

HN4 Until the corpus delicti is proved by some evidence, proof of guilt of the person charged may not be received. Reduced to its simplest state, then, the corpus delicti doctrine in Ohio requires some evidence that the crime charged was committed followed by or accompanied with some proof of who committed the crime.


Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution

HN5 There must be some evidence outside of a confession, tending to establish the corpus delicti before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged. The existence of "some evidence" tending to show that, in fact, a crime had been committed is crucial to the admission of the appellant's subsequent series of confessions under Miranda.

Criminal Law & Procedure > Evidence > Admission, Exclusion & Preservation HN6 Ohio R. Evid. 404(B) declares that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence Review HN7 A reviewing court may not reverse a criminal court conviction where the record shows a sufficiency of evidence and where no prejudicial error is demonstrated during the trial of the case or in the court's instructions to the jury.

Criminal Law & Procedure > Evidence > Admission, Exclusion & Preservation HN8 A proponent of the evidence is responsible for demonstrating its authenticity or establishing a foundation for its consideration.  Identification can be accomplished by a witness with personal knowledge.

Criminal Law & Procedure > Evidence > Admission, Exclusion & Preservation HN9 Ohio R. Evid. 90(A) lists "by way of illustration only" ten methods of authenticating evidence, including testimony of a witness with knowledge.
 
COUNSEL: For plaintiff-appellee: John T. Corrigan, Prosecuting Attorney.

For defendant-appellant: Steven E. Elder, Esq.

JUDGES: n* COOK, J.

n* LYNCH, J. CONCUR.

SAUL G. STILLMAN, PRESIDING JUDGE

* DENOTES SITTING BY ASSIGNMENT. SAUL G. STILLMAN, RETIRED JUDGE OF THE EIGHTH APPELLATE DIST. ROBERT E. COOK, JUDGE OF THE ELEVENTH APPELLATEDISTRICT. JOHN J. LYNCH, RETIRED JUDGE OF THE SEVENTH APPELLATE DISTRICT.

OPINION BY: STILLMAN

OPINION: JOURNAL ENTRY AND OPINION

STILLMAN, J.:

The defendant-appellant, Brandon Flagner, was indicted by the Grand Jury of Cuyahoga County on three counts on June 7, 1984. Two counts charged him with the commission of Aggravated Murder, in violation of O.R.C. 2903.01, and the third charged him with Kidnapping, in violation of O.R.C. 2905.01. These charges stemmed from the disappearance of a girl named Tiffany Papesh, which occurred on Friday, June 13, 1980 at approximately 2:45 p.m. in the vicinity of her home in Maple Heights, Ohio. At that date, she was 8 years old and was running an errand for [*2] her step-mother, Dorothy Papesh, at a Convenient Store close to the family residence. Tiffany was seen leaving the store and has never been seen since that moment.
 
Attention was first drawn to the appellant shortly after Tiffany's disappearance. He took part in searches for the child and attempted to interest Tiffany's father, Frank Papesh, in distributing for sale T-shirts bearing Tiffany's picture. The purpose was to raise money to facilitate further search.
 
At trial, the appellant's aberrant life style emerged from a large body of testimony. He had lived in 1977 with a family named Scheneman, in Elyria, Ohio. The Schenemans took him into their household and provided a job for him. At that time, Flagner told Mrs. Scheneman that he was in love with her 10-1/2-year-old daughter, Thelma. Mrs. Scheneman forced him out of the home.
 
In September, 1977, Flagner moved to Texas. During June and July of 1978,

Mrs. Scheneman suspected that Flagner had returned to Elyria, and she

provided Thelma, then 11 years old, with a pistol and a long hairpin to

protect herself from any possible intruder. The intrusion did occur. Flagner

was arrested and sentenced to prison.


From his prison cell, Flagner [*3] wrote to a 12-year-old girl, Kelly

Woodward, who had won a spelling contest listing her name and address. Hedid not inform her of his prison confinement nor of his previous episode with the Scheneman girl. So effective was the appellant's approach to Kelly that the Woodward family went to the prison to see him. They became his parole sponsors and, in March, 1980, Flagner went to live with the Woodwards in Creston, Ohio. Kelly was 13 and, apparently with no disapproval from the adult members of the family, became sexually intimate with Flagner.

On an evening after Tiffany Papesh's disappearance, on June 13, 1980, Flagner checked the TV stations seeking information on the disappearance of a small girl. On Sunday, shortly afterward, he read an article on this subject and spoke to Mrs. Woodward about it. He drove to Maple Heights that afternoon. At a later date, Flagner again drove to Maple Heights and showed Mrs. Woodward the Papesh home.

Following this trip, the appellant drove once more to Maple Heights with Mrs. Woodward and Kelly in the car. He went into the Papesh home without Mrs. Woodward or Kelly joining him. When he came out, he drove them to the Convenient Store where Tiffany [*4] had last been seen.

On the return trip to Creston, the appellant stopped the car on the road and said that they should get out to search for Tiffany's body. Mrs. Woodward and Flagner did so for about a half hour before proceeding on to Creston. At this time, the focus of public attention had been upon a missing child, rather than a suspected victim of murder.

Subsequently, on July 14, 1980, Flagner was arrested by the Maple Heights Police Department on charges stemming from their investigation of Tiffany's disappearance. He was released from custody that afternoon.

In August, 1980, the appellant was forced to leave the Woodward family, returning eventually to Texas. He resided with his brother, Cedric Tenorio.

Flagner had changed his name earlier through legal proceedings.  At the end of October, 1980, Mrs. Woodward left Creston, leaving her husband, and moved to Texas with her daughter, Kelly, and son, David.

Sometime thereafter, Cedric Tenorio saw a safe deposit box in the car used by the appellant and questioned him about it. Flagner said that it contained evidence concerning the killing of Tiffany Papesh. In May, 1981, these materials were destroyed by Mrs. Woodward and Kelly [*5] Woodward, at the request of Flagner, when Flagner was arrested by the Texas police for assaulting young girls. He was convicted and sentenced to prison in Texas.

During June, 1983, the FBI office in Tyler, Texas, received an anonymous letter regarding Tiffany Papesh. Agents of the FBI visited Flagner in jail and spent a large amount of time with him. He confessed to the kidnapping and murder of Tiffany Papesh, describing at least one personal feature of Tiffany not generally known, a scar on her right knee.

Following the FBI's investigation, further extensive inquiries were undertaken by the Cuyahoga County Prosecutor's Office. Many letters of confession had been sent to two ministers, the Rev. Glen Horner and, in a lesser number, Rev. Jerry Clark. Similar admissions were made to Mrs.

Carolyn Woodward. A letter to Flagner's mother making a specific confession was produced in court by Cedric Tenorio, his brother. Other confessions went to newspapers.

An alibi concerning Flagner's working time sheet on the date of Tiffany's disappearance, June 13, 1980, was discussed in a letter to Rev. Horner, and the appellant wrote on June 5, 1983, "My alibi was faked."

The jury returned verdicts [*6] of guilt on murder and kidnapping charges, and this appeal followed.

Each assignment of error is considered seriatim in the opinion which follows.

ASSIGNMENT OF ERROR NO. I

THE TRIAL COURT ERRED IN PERMITTING THE TESTIMONY OF APPELLANT'S WIFE, KELLY JO WOODWARD, IN VIOLATION OF R.C. SEC. 2945.42 AND R.C. SEC. 2317.02(D). THE TRIAL COURT ALSO ERRED IN PERMITTING THE TESTIMONY OF REVERENDS GLEN HORNER AND JERRY CLARK AND IN DETERMINING THAT VARIOUS LETTERS BETWEEN THE REVERENDS AND APPELLANT WERE NOT "PRIVILEGED" IN VIOLATION OF R.C. SEC. 2317.02(C), ALL OF WHICH DEPRIVED APPELLANT OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

The first part of this assignment of error is based upon the assertion that Kelly Jo Woodward was the appellant's wife and her evidence was subject to exclusion by reason of this relationship. It is asserted that Kelly Jo Woodward and the appellant had exchanged marriage vows during 1980 and that a son had been born to them, creating a common-law marriage "at the time of the Papesh girl's disappearance."

The appellant concedes in his brief that the "specific dates of the above," referring to the marriage vows, sexual relations [*7] and the subsequent events, "are not totally clear." Nevertheless, he asserts that a common-law marriage did exist and Kelly Jo Woodward's testimony was improperly and prejudicially admitted.

It is significant that the norms for a common-law marriage in Ohio are not discussed by the appellant. In order for a common-law marriage to attain validity in Ohio, there must be (1) a mutual agreement to marry in praesenti, (2) entered into by parties competent to marry, followed by (3) cohabitation of the parties as husband and wife, who are (4) holding themselves out in the community in which they move as husband and wife and (5) being regarded in the reputation of the community as such. In re Estate of Schroeder (1966), 7 Ohio App. 2d 271.

In the instant case, the appellant is seeking to establish a common-law marital relationship with a 13-year-old girl who never was known as Flagner, who testified as "Kelly Jo Woodward," and who had never been known as the appellant's spouse in the State of Ohio at all times pertinent to this case.

HN1 Revised Code Sec. 3101.01 provides that a male must be 18 years old and a female 16 before consenting to a marriage. Here, the female's age made consent [*8] legally invalid.


For these reasons, we hold that the testimony proferred by Kelly Jo Woodward

was properly admitted into evidence.

The second part of the error assigned relates to a series of communications between the appellant and Reverends Glen Horner and Jerry Clark which were admitted into evidence, as well as oral evidence, by the two pastors presented in Court. It is the thesis of the appellant that both the oral testimony and the written communications involved were "privileged" and, therefore, exempt from presentation to the jury.

HN2 Ohio Revised Code Sec. 2317.02 provides with respect to "Privileged communications and acts" that:

. . . the following persons shall not testify in certain respects:

(C) A clergyman, rabbi, priest, or regularly ordained, accredited, or licensed minister of an established and legally cognizable church, denomination, or sect, when the clergyman, rabbi, priest, or such minister remains accountable to the authority of that church, denomination, or sect, concerning a confession made, or any information confidentially communicated, to him for a religious counselling purpose in his professional character; however, the clergyman, rabbi, priest, [*9] or minister may testify by express consent of the person making the communication, except when the disclosure of the information is in violation of his sacred trust.

To determine the application of this statute properly requires an examination of the factual circumstances. The appellant was not a member of the churches served by Reverends Glen Horner or Jerry Clark. Johnson v. Commonwealth (1949), 310 Ky. 857. Nor is there any indication that he had ever been a penitent of the churches served by either clergyman. People v. Thompson (1982), 133 Cal. App. 3d 419.

Moreover, the ruling of this Court In re Estate of Schroeder (1966), 7 Ohio App. 2d 271 specifically declares that HN3"[a] communication made to a clergyman or priest to be deemed privileged under authority of Sec. 2317.02 Revised Code, must apply only to a confession made in the understood pursuance of church discipline which gives rise to the confessional relation and not to a communication of another tenor."

The appellant here initiated extensive lines of correspondence with the two clergymen involved herein ranging in content from everything stemming from his relationships and deliberate molestations [*10] to and with young female children to various and contradictory statements of his guilt in the Tiffany Papesh disappearance and killing. Included in this large range of letters were specific statements that described his mental state when he accosted Tiffany [State Exh. 42], the faking of his alibi [Exh. 44], a description of his disposal of the body [Exh. 47], announcement of a letter to an unnamed person promising to reveal "the exact location of Tiffany's whereabouts" [Exh. 51], and a promise to "let the family know" directly the location of Tiffany's body parts [Exh. 45].

None of these statements was made in the context of a confessional or penitential relationship between a clergyman and a parishioner. In Lucy v. State (Ala. App. 1983), 443 So.2d 1335, a defendant met an ordained Methodist minister near the scene of a murder and declared that he had "severely cut his girl friend." The court held that this statement was not received by the minister in a professional capacity and was "neither penitential nor confidential."

See also, Bottoson v. State (Supreme Ct. of Florida 1983), 443 So.2d 962, cert. den. U.S. 83 L.Ed.2d 153.

In addition to these considerations, [*11] we must not overlook the fact that the appellant addressed communications virtually identical in content to the press in the Cleveland and Elyria areas, as well as to the Federal Bureau of Investigation in Texas and the television media. It is clear that he was not seeking to establish a confidential, confessional or penitential relationship with two representatives of a responsive church discipline. On the contrary, he was seeking to bruit his association with the disappearance and death of Tiffany Papesh as extensively as possible.

For these reasons, we overrule the first assignment of error

ASSIGNMENT OF ERROR NO. II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING VARIOUS EXTRAJUDICIAL STATEMENTS AND CONFESSIONS OF APPELLANT, BRANDON FLAGNER, INTO EVIDENCE WITHOUT THE PROSECUTION HAVING FIRST ESTABLISHED THE "CORPUS DELICTI" OF THE CRIME, WHICH DEPRIVED HIM OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

It is well established in the criminal law of Ohio that HN4"until the corpus delicti is proved by some evidence, proof of guilt of the person charged may not be received. Reduced to its simplest state, then, the corpus delicti doctrine in Ohio [*12] requires: "a. some evidence that the crime charged was committed, b. followed by or accompanied with some proof of who committed the crime." Anderson, Ohio Criminal Practice and Procedure, 1973, p. 404.

In State v. Maranda (1916), 94 Ohio St. 364, the Ohio Supreme Court declared:
 
It has long been established as a general rule in Ohio that HN5 there must be some evidence outside of a confession, tending to establish the corpus delicti before such confession is admissible. The quantum or weight of such outside or extraneous evidence is not of itself to be equal to proof beyond a reasonable doubt, nor even enough to make a prima facie case. It is sufficient if there is some evidence outside of the confession that tends to prove some material element of the crime charged.
 
The existence of "some evidence" tending to show that, in fact, a crime had been committed is crucial to the admission of the appellant's subsequent series of confessions under Maranda. However, at this stage of inquiry, there need be no linking of the crime itself to the appellant. It is  sufficient to demonstrate that a crime has occurred. Here, the State's evidence presented a series of events [*13] adequately fulfilling this basic requirement:


1. The evidence shows that Tiffany Papesh, an 8-year-old girl, was sent upon an errand on June 13, 1980. She completed the errand and has never been seen since that time.

2. She had no reason to leave home, and there is nothing to indicate that she was a run-away. This total disappearance is the initial showing of "some evidence" that a crime has been committed under the circumstances of thiscase.

3. Linking this evidence of disappearance to the appellant, the State showed that Flagner had demonstrated an avid interest in the media coverage of this event from the very beginning of the case.

4. He interjected himself into the affairs of the Papesh family to so marked an extent that he was at one time arrested in connection with these events.

5. He drove from Creston, Ohio to Maple Heights, first alone and later in the company of Mrs. Woodward and Kelly Jo Woodward, stopping on the return trip to "search for the body" at a time when a "body" was not the subject of general discussion.

6. At a later time, the appellant requested that Mrs. Woodward and the appellant's brother destroy the contents of a metal box in [*14] the trunk of appellant's car. The contents included some children's clothing.


7. The appellant told agents of the Federal Bureau of Investigation that Tiffany Papesh had a scar on her right knee, a fact which could have been known only to someone who had been in her presence.


All of these indications of the "some evidence" required to establish the "corpus delicti" established in Maranda. supra were argued at length before the trial court. The court concluded that the combination of incidents, both direct and circumstantial, as presented, met the standards required.

We cannot find error in this determination, and, accordingly, overrule the second assignment of error.


ASSIGNMENT OF ERROR NO. III


THE TRIAL COURT ERRED IN PERMITTING THE INTRODUCTION OF EVIDENCE OF "OTHER

ACTS" OF BRANDON FLAGNER, THUS VIOLATING HIS FOURTEENTH AMENDMENT RIGHTS TO

A FAIR TRIAL AND DUE PROCESS OF LAW.


The appellant has correctly quoted Ohio Rules of Evidence 404(B), 401 and 403(A) in urging this Court to find error in the trial court's admission of evidence of other acts. However, in his attempt to justify the proposition, he has not succeeded in persuading this appellate court that errors [*15] were committed in applying the rules at trial.


The evidence presented indicated a long-standing practice indulged in by the appellant whereby he discovered attractive young girls, engaged in correspondence with them, and subsequently sought to ingratiate himself with their families as a means of obtaining sexual satisfaction from the children. He succeeded in becoming a member of the Scheneman household in 1977 and later of the Woodward family in this fashion, preying on the gullibility of both adult women and children 11 and 12 years old.
 
HN6 Ohio Rules of Evidence 404(B) declares in part:
 
Other crimes, wrongs or acts.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The evidence adduced demonstrated a proof of the appellant's penchant for pedophilia, a love by an adult for small children for sexual purposes.

Five episodes were attested to by young girls in this context. In addition to Thelma Scheneman and [*16] Kelly Jo Woodward in Ohio, the appellant forced his attentions upon three very young girls in Texas: Susie Newhouse, 7, Melissa Cox, 8; and Ann Terry, 8.

Motive and intent, preparation, plan, and exclusion of accident are all portions of the evidence specifically listed in Evid. R. 404 as admissible without detriment to the appellant's defense. In the context of the instant case, this evidence of a consistent course of conduct motivated by the aberrant sexual behavior of the appellant was clearly admissible to demonstrate motivation, intent, plan of action, preparation and absence of mistake or accident, all exceptions accepted in the interest of justice under the Rules of Evidence.

For the foregoing reasons, Assignment of Error No. III is, therefore, overruled.

ASSIGNMENT OF ERROR NO. IV

THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTIONS FOR ACQUITTAL, WHICH DENIED HIM DUE PROCESS OF LAW, AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.
 
This assignment of error is predicated in large part upon the theories advanced in the first three errors charged.

The conviction for aggravated murder and kidnapping, once the issue of corpus [*17] delicti had been resolved in favor of the State of Ohio, rested upon the direct confessions of the appellant to two ministers, to the news media, to his brother, to the Federal Bureau of Investigation, and to his mother.


It is important to recognize the circumstances surrounding these confessions. They were made voluntarily and knowingly by the appellant with no coercive influence present at any time. To assert that his Fifth and Fourteenth Amendment rights were denied or violated flies in the face of the facts presented. See, State v. King (1983), 10 Ohio App. 3d 161.

Upon the basis of our conclusions in considering this assignment of error in association with the previous errors alleged, we conclude that the trial court did not err in overruling the motions for acquittal based upon the Fifth and Fourteenth Amendments of the United States Constitution.

Counsel suggests that the appellant's crime, if any crime was committed, was not done "purposely." Reliance is placed upon statements that the killing occurred "accidentally." However, many of the confessional statements made no reference to accidental occurrence. The appellant has, in fact, never denied the charge of killing [*18] Tiffany Papesh at any time.

We find no error in overruling the motion for acquittal under Crim. R. 29 or in derogation of the due process rights of the appellant under the Fifth and Fourteenth Amendments to the Constitution.

ASSIGNMENT OF ERROR NO. V

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO THE EXTREME PREJUDICE OF APPELLANT IN OVERRULING SEVERAL DEFENSE MOTIONS FOR MISTRIAL, WHICH DEPRIVED APPELLANT OF HIS FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.

This assignment of error refers to "at least ten separate motions for mistrial." Six of these related to the admission of testimony concerning "other acts" committed by the appellant. These have been carefully considered in our analysis of Assignment of Error No. III. We found in response to these challenges that there was no impropriety in receiving this evidence and, therefore, overruled that assignment of error.

Two additional mistrial motions were challenges to the admission of evidence relating to what the appellant considered "privileged" information which should have been excluded. This argument was the subject matter of the first assignment of error and has been discussed in response to [*19] the errors there alleged. Since we found no "privilege" affecting the testimony of the purported 13-year-old common-law wife nor in the communications between the ministers and the appellant, we find no basis for granting a mistrial in these contexts.


The objection to testimony offered by Mrs. Scheneman and her daughter, Thelma, with respect to the use of a gun was properly overruled because it was within the relevant purview of Evid. R. 404(B). No mistrial was warranted on this issue.
 
It remains to consider the alleged misconduct of the prosecutor in final argument.


Reading the text of these remarks in their continuity and taking them as a whole, we find that where objectionable comment was made by the prosecutor, the court intervened and promptly took action to inform the jury of any improprieties. The instructions subsequently given by the court to the jury clarified the issues and removed any prejudice which the appellant now seeks to establish. Granting a mistrial is within the sound discretion of the trial court. State v. Palmieri (Ohio App. 1938), 13 O.O. 517, 46 N.E. 2 318.


We find nothing in the record which deprived the appellant of a fair trial and no insinuation [*20] by the State of Ohio that the appellant was required to testify in his own behalf.
 
Assignment of Error No. V is accordingly overruled.


ASSIGNMENT OF ERROR NO. VI


THE JURY VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE.


This assignment of error declaring that the jury verdicts are against the "weight of the evidence" should be reserved for more persuasive cases. A careful reading of the transcript, followed by an examination of the exhibits admitted into evidence, suggests that the appellant's course of conduct, climaxed by his frequent confessions, was evidence of sufficient weight to sustain the jury verdicts.

In determining the weight of the evidence and the credibility of the witnesses, the trier of facts in this case was the jury.


Under the holding of State v. DeHass (1967), 10 Ohio St. 2d 230, HN7the reviewing court may not reverse a criminal court conviction where the record shows a sufficiency of evidence and where no prejudicial error is demonstrated during the trial of the case or in the court's instructions to the jury.

Neither prejudicial error during trial nor in the trial court's instructions to the jury has been demonstrated here.
 
We overrule Assignment [*21] of Error No. VI.


ASSIGNMENT OF ERROR NO. VII

THE TRIAL COURT ERRED IN ALLOWING VARIOUS EXHIBITS INTO EVIDENCE OVER DEFENSE OBJECTION AND CONTRARY TO THE OHIO RULES OF EVIDENCE, THEREBY DENYING APPELLANT HIS FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS OF LAW AND

TO A FAIR AND IMPARTIAL TRIAL.
There is no doubt that the exhibits admitted into evidence in this case, primarily including the appellant's repeated confessions, contributed in large measure to his convictions. HN8A proponent of the evidence is responsible for demonstrating its authenticity or establishing a foundation for its consideration. 7 Wigmore, Evidence Sec. 2128-69 3d Ed.

Identification can be accomplished by a witness with personal knowledge. The confessions were authenticated by the witnesses to whom they were addressed and came from their custody directly into the possession of the State of Ohio. Such exhibits as Exh. 41, a letter from the appellant to Reverend Jerry Clark, recited that, "Just about all the evidence they have against me is my own confession and everything I supplied them with myself." Exh. 42 is a letter describing the appellant's state of mind when the episode with Tiffany Papesh occurred. [*22] Exh. 44 recites, "My alibi was faked."

HN9 Evidence Rule 90(A) lists "by way of illustration only" ten methods of authenticating evidence, including (1) testimony of a witness with knowledge. Here, a framework of correspondence between the appellant and his two ministerial correspondents served to provide primary self-authentication of the confession letters.
 
The specific references in this assignment of error to exhibits not demonstrating a proper "chain of custody" do not demonstrate any element of prejudice to the appellant's defense. Nor does the issue with respect to the arrest and release of the appellant on July 14, 1980 in Maple Heights affect the rights of the appellant to due process of law and a fair and impartial trial.

We, therefore, overrule Assignment of Error No. VII.

ASSIGNMENT OF ERROR NO. VIII

PROSECUTORIAL MISCONDUCT DURING FINAL ARGUMENT TO THE JURY DENIED APPELLANT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR AND IMPARTIAL TRIAL.

Prosecutorial misconduct serious enough to warrant reversal of a criminal conviction is first to be determined by the trial court. If serious prejudice attributable to the prosecutor's comments is present, the trial court [*23] may set aside a verdict of guilt. But if there is evidence supporting the argument of counsel, there should be no interference by the court because the jury will determine the weight to be accorded to the evidence. State v. Champion (1924), 109 Ohio St. 281.

In charging that the prosecutor had violated the restraints imposed by Griffin v. California (1965), 380 U.S. 609, the appellant is interpreting the remarks made by the prosecutor in an exaggerated fashion. Nothing in the closing argument suggested that the appellant had an obligation to come forward with testimony in violation of his Fifth Amendment right to remain silent.

The trial judge cautioned counsel on both sides in the closing arguments. At page 1362, he declared, "They (the attorneys) are not allowed to express their own personal views of the case, when they present the arguments on the facts. So, I'm going to ask the jury to ignore the comments made about what the defense lawyers think."
 
Motions for mistrial punctuated the final arguments, but all were overruled properly because the prosecutor was, in each situation, arguing his version of the case from evidence previously admitted. State v. [*24] Marshall (1968), 15 Ohio App. 2d 187.
 
We find, therefore, no basis upon which to establish prosecutorial misconduct as a ground for reversal and overrule Assignment of Error No.

VIII.
 
ASSIGNMENT OF ERROR NO. IX
THE TRIAL COURT ERRED IN ITS INSTRUCTION TO THE JURY BY GIVING A DEFINITION
OF "REASONABLE DOUBT" WHICH WAS EXPANDED BEYOND THE OHIO STATUTORY DEFINITION.

The issue raised by this assignment of error has a history of contradiction through the Ohio court system.

In requiring the trial court to read the statutory definition of "Reasonable Doubt" in criminal cases, R.C. 2901.05(D), the Ohio General Assembly sought to establish a uniform procedure designed to guide our courts. For reasons known only to trial judges, various expansions of the definition have been presented to juries in an effort to assist them in their consideration of their cases.

In 1980, this Court considered State v. Seneff, 70 Ohio App. 2d 171, where an amplification of the "Reasonable Doubt" provision was at issue. Objection was raised at trial to the expanded definition, but this Court of Appeals, in a unanimous opinion, found that the addition of the words "firmly convinced" of the "truth [*25] of the charge" was, if error, harmless.
 
Two years later, in 1982, the same Court in State v. Lewis (May 6, 1982), Cuy. App. No. 43987, unreported, was confronted with a far more expanded definition of "reasonable doubt" devised by a trial court and again found no prejudicial error.
 
In 1984, however, this Court, in State v. Swanson, 16 Ohio App. 3d 375, decided to reverse on the basis of an expanded definition of "reasonable doubt" without addressing the issue of prejudicial error. The charge to the jury repeated the unnecessarily verbose language of State v. Lewis, supra.
 
In the present case, the words which are asserted to be prejudicial were not similar to those used in State v. Lewis, supra or State v. Swanson, supra.  There was no "verbose exhortation." No objection was made to the court's charge, and we find no basis for objection if such had been made. The gratuitous words "firmly convinced" were identical to those in Seneff, supra and in no way prejudiced the rights of the appellant.
 
We, therefore, overrule Assignment of Error No. IX and, accordingly, affirm the judgment of the trial court.

JOURNAL ENTRY
It is ordered [*26] that appellee recover of appellant its costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

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FBI Creates Profile of a Typical Child Killer
Akron Beacon Journal (OH) - February 9, 1990,

Beyond a physical description that a witness gave police of the man suspected of abducting Amy Mihaljevic, a psychological profile of someone who would abduct and kill a 10-year-old girl remains as elusive as the suspect himself.

Nonetheless, the FBI has put together general information about the type of person who might commit such a crime, based on experience and research conducted by the FBI at the National Center for the Analysis of Violent Crime at Quantico, ...

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 1991 U.S. App. LEXIS 18807, *

BRANDON LEE FLAGNER, Plaintiff-Appellant, v. VIRGIL BROWN, Cuyahoga County  Commissioner; JOHN T. CORRIGAN, Prosecuting Attorney; CUYAHOGA COUNTY  SHERIFF MCFAUL, Defendants-Appellees

No. 91-3137

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

1991 U.S. App. LEXIS 18807

August 1, 1991, Filed

NOTICE: [*1]

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS  CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A  PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED  ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED  IF THIS DECISION IS REPRODUCED.

SUBSEQUENT HISTORY: Reported as Table Case at 940 F.2d 659, 1991 U.S. App.

LEXIS 24053.

PRIOR HISTORY: On Appeal from the United States District Court for the Northern District of  Ohio; District No. 84-03571; White, District Judge.

CORE TERMS: mail, preparation, confiscated, reimbursement, correctly, first amendment, involvement, incoming, pictures, girl

JUDGES: Kennedy and Jones, Circuit Judges, and Benjamin F. Gibson, Chief District Judge. *

* The Honorable Benjamin F. Gibson, Chief U.S. District Judge for the  Western District of Michigan, sitting by designation.

OPINION: ORDER

Brandon Lee Flagner appeals a judgment for the defendants following a bench trial in a civil rights case that he had filed under 42 U.S.C. ?1983. His case has been referred to a panel of this court pursuant to Rule 9(a), Rules  of the Sixth Circuit. Upon examination, the panel agrees that oral argument  is not needed in this case. Fed. R. App. P. 34(a).

Flagner alleged that the defendants had violated his rights under the first amendment by confiscating his incoming mail while he was being held at the Cuyahoga County [*2] jail. Flagner is a convicted child molester who had been indicted for the kidnapping and murder of an eight year-old girl. The evidence at Flagner's civil trial indicated that two letters had been confiscated because they contained pictures of children. One of these letters was from Flagner's sister and the other was from an eleven year-old girl, whom Flagner had apparently solicited as a pen pal. On January 8, 1991, the district court entered a judgment for the defendants. It is from this judgment that Flagner now appeals.

The district court found that the only material which had been confiscated from Flagner's mail were the two letters which contained pictures of children. Flagner argues that other material was confiscated. However, the court's finding was not clearly erroneous because it was supported by the testimony of several witnesses. Cf. Fed. R. Civ. P. 52(a). The district court also found that Flagner had not alleged a due process claim, and Flagner has not challenged this finding on appeal. He has, therefore, waived any argument that he might have had regarding a due process violation for purposes of appellate review. See McMurphy v. City of Flushing, 802 F.2d 191, 198-99 (6th Cir. 1986). [*3]

Restrictions on incoming prisoner mail do not offend the first amendment if they are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987). The district court correctly held that the confiscation of the two letters was justified under this standard "by a reasonable fear for the safety of potential victims." Cf. Thornburgh v. Abbott, 490 U.S. 401, 403 n. 1 (1989) (approving 28 C.F.R. ?540.71(b) (1988), which restricted circulation of publications in federal prisons that might "facilitate criminal activity"). The district court also correctly held that the defendants could not be held legally responsible under a theory of respondeat superior. See Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989).

All of Flagner's remaining arguments are without merit. The district court did not abuse its discretion by failing to enforce a subpoena duces tecum because it was reasonable to credit the defendants' representation that the requested materials were no longer available to them. The court did not abuse its discretion in rejecting several of Flagner's exhibits because they were arguably irrelevant [*4] to the two pieces of mail that were at issue in his case. See Fed. R. Evid. 402, 403. The district court did not exceed its discretion in denying Flagner's motion to add Assistant Prosecutor Marino as a defendant, because Flagner had a reasonable opportunity to discover Marino's involvement before trial, and Flagner's testimony clearly evidences his knowledge of Marino's involvement as early as March of 1985.

Finally, Flagner argues that the district court erred in denying his motion to authorize preparation of his transcript without prepayment of cost. It appears that Flagner's court appointed counsel ordered the transcript at his own expense when this motion was denied. The correct procedure would have been for counsel to file a motion with this court for preparation of the transcript before expending his own funds. Nevertheless, this argument will be construed as a motion by Flagner's counsel for reimbursement of the cost of the transcript and that motion will be granted because the preparation of the transcript was of service to the court in determining the merits of Flagner's appeal. Cf. 28 U.S.C. ?753(f); Hardy v. United States, 375 U.S. 277, 279 (1964). [*5]

Accordingly, the motion of Flagner's counsel for reimbursement is granted and the district court's judgment is affirmed. Rule 9(b)(3), Rules of the Sixth Circuit.
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Frank Papesh, Who Mobilized Hundreds
By ZINA VISHNEVSKY; PLAIN DEALER REPORTER
Plain Dealer (Cleveland, Ohio) - January 30, 1993
SECTION: BUSINESS; Pg. 6D

Frank Papesh, who mobilized hundreds of volunteers to look for his daughter Tiffany after her 1980 abduction, died Thursday at Cleveland Clinic Hospital after heart surgery.

He was 51.

In 1985, a Cuyahoga County jury convicted former Elyria resident Brandon Lee Flagner of murder in the case, although Tiffany's body was never found.

Mr. Papesh said then he did not believe the case had been solved.

"When society and the courts or this sleazebag, Flagner, can hand me something to bury, maybe I'll be able to close the case," Papesh said. "Unfortunately, we don't have the death penalty."

Ohio did not have capital punishment when Tiffany, 8, disappeared.

Mr. Papesh waged a campaign to restore the death penalty to abductors who harm or kill children. Three months after his daughter disappeared, Mr. Papesh went to Columbus to enlist the help of Gov. James Rhodes in passing such a law.

"What I wanted to do was declare war on these animals in our society who prey on our most precious asset - children," he said after meeting with the governor.

Tiffany disappeared when she went to a convenience store within sight of the family's Maple Heights home. At the time, Mr. Papesh was manager of Granger Garage Sales & Equipment in Maple Heights.

Since then, Mr. Papesh had worked as an ironworker on various projects in Cleveland. He retired from that job when high blood pressure made the work too dangerous for him.

Recently he had been a maintenance superintendent at several Bedford Heights apartment complexes.

The Papeshes lost a Bedford Heights home to fire in 1989 while on a shopping trip.

Papesh is survived by his wife, Debra, and their children, Frank Edward, Paul Joseph and Katherine Marie, all at home; and three children, Tiffany's brothers and sisters, by a previous marriage: Gina of Streetsboro, Mary Lynn of Mountville, and Richard of Cleveland; four grandchildren; and eight brothers and sisters.

Services will be at 9:30 a.m. Monday at Holy Trinity Catholic Church, 24821 Columbus Rd., Bedford Heights.

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Mystery, Tears Still Fresh For Tiffiny; Body Was Never Found, And Now Confessions of Convict Questioned
By MICHAEL SANGIACOMO; PLAIN DEALER REPORTER
Plain Dealer (Cleveland, Ohio) - June 13, 1995 Tuesday, FINAL / ALL
SECTION: NATIONAL; Pg. 1A


There is no gravestone to mark the final resting place of Tiffiny Jennifer Papesh, the 8-year-old girl who walked out of a Maple Heights convenience store and into oblivion 15 years ago today.

Her father, Frank Papesh, could not bring himself to buy a marker or hold a memorial service, as if the acts would have been an admission his daughter truly was gone. Frank Papesh died in 1993, never knowing what happened to Tiffiny.

In 1983, convicted child molester Hbrandon Lee Flagner confessed to abducting and killing the girl. Two years later, a Cuyahoga County jury convicted him of murder and kidnapping, largely on the evidence of that confession, and he was sentenced to life in prison plus seven to 15 years.

Now, Flagner, 43, denies that he had any part in Tiffiny's disappearance. It's not an unusual claim for a convicted criminal. Flagner, who was serving time in a Texas prison on another child molestation conviction, says he confessed so authorities would keep him in prison long enough to get into a treatment program for child molesters.

But police and Tiffiny's relatives don't believe Flagner is her killer, either, and information that supports his alibi - information not introduced at his murder trial - raises questions about whether he could have committed the crime.

Maple Heights Police Chief M.D. Canter and Detective Ron Arko, who still occasionally pursues leads in the case, don't believe Flagner did it, although the department cooperated with the prosecution in presenting evidence against Flagner at the trial.

"We checked into his alibi when he was arrested for bothering the Papesh family" a month after Tiffiny disappeared, Arko said. Flagner had come to the Papesh home offering to sell T-shirts with a picture of Tiffiny to raise money for the search.

"His [Flagner's] car was searched for evidence; we interviewed him," Arko said. "It all checked out. We wrote him off as a suspect then. We looked into it again when he first confessed in 1983, and came to the same conclusion. I don't see how Flagner could have done it."

Flagner's alibi, supported by a mechanically stamped time card, is that he was working in Wayne County until minutes before the abduction. Little was presented at the trial to support the alibi, as Flagner's court-appointed lawyers pursued a defense attacking the legal basis for Flagner's arrest and prosecution.

Both attorneys say Flagner was a difficult client, at times confusing and at other times uncooperative, but they don't believe he killed Tiffiny.

Neither does Tiffiny's mother, Lois Feldkamp of Fort Lauderdale, Fla., or Tiffiny's stepmother, Debbie Papesh. Neither woman knows who might have been responsible, but they were convinced by the evidence and by letters from Flagner that he did not commit the crime. And before he died in 1993, Frank Papesh said he no longer thought Flagner was guilty.

Arko, who has worked on Tiffiny's disappearance since 1982, keeps a dog-eared folder on the case in his office's "open" file, occasionally checking tips or sightings of women who resemble a grown-up Tiffiny. At the Papesh family's request, retouched photos showing what Tiffiny might look like as an adult were produced and distributed nationally by the National Center for Missing and Exploited Children.

First Assistant Cuyahoga County Prosecutor Carmen Marino, who became interested in the case in 1983 while reviewing some unsolved murder investigations, is convinced of Flagner's guilt. Armed with Flagner's 1983 confession to the FBI, Marino took the case to a grand jury, and later to trial.

But Marino admits that, with the exception of Flagner's confession, there is no evidence linking him to the crime, and "there is always room for doubt in a circumstantial case."

Flagner made numerous confessions in 1983 and 1984 to ministers, police, the FBI and the media. There were contradictory statements in many of them, and Flagner's lawyers say information in the statements could have been taken from newspaper and television reports.

Marino is unimpressed with Flagner's denial.

"He admitted he did it, the jury found him guilty - what more is there to say?" Marino said. "It's over. If someone admits to a crime like that, I grab them and throw them before a jury. That's what I did."

Debbie Papesh wishes she had Marino's conviction that the person who killed Tiffiny is behind bars. She still fears for the safety of her family.

The last time Debbie Papesh saw the stepdaughter she raised from the age of 4, Tiffiny was walking out to get hamburger buns for the family to take on a camping trip. She was wearing sneakers, shorts and a red T-shirt that read, "Let's face it, I'm cute."

And she was cute: a bright little girl with black hair and shining dark eyes. She had a smile interrupted by a prominent gap between two front teeth. And when she smiled, which her family says she did frequently, dimples dominated her tiny face.

She bought the buns, walked out of the store half a block from her home and "disappeared off the face of the earth," as Marino puts it. Despite local and nationwide searches, no trace of her body or clothing was found. Debbie Papesh holds a faint hope that Tiffiny is alive, but said she knows the child probably is dead.

For the Papesh family, the pain is as fresh 15 years later as the day of Tiffiny's disappearance.

"Just the other day I was in Bedford Heights Park and found myself wondering if she could have been buried there somewhere," said her stepmother. "Whoever killed Tiffiny killed Frank and killed me. I ask Flagner or whoever did this, if they have a human heart, please put this all to rest and let us begin to live again. Tell us where Tiffiny is so she can be buried with her father."

Flagner has given different reasons over the years for confessing to killing Tiffiny. He said recently he was about to be released from prison in 1983 after serving time for child molestation and wanted to remain in custody until he got treatment, which he has never gotten. He claims to have molested more than 435 girls since 1977, the youngest 4 years old.

"I knew as soon as I got out that I would go after young girls and molest them," he said. "I had a bad history of that. I was waiting to get into a program for child abusers in Maryland, but it was months away. The prison officials would not keep me in until that time, and I was afraid to leave. I confessed to eat up time until that program started. I figured the police would figure out I was lying."

Previously, he said he confessed to "smoke out the real killer," although he is not clear how that would have happened.

Marino said it was not his job to "figure out rational reasons for what a twisted mind" comes up with, or to check out alibis and defense. He said that was what the defendant's lawyers get paid for.

That was the job of attorneys Robert Tobik and Alan H. Kraus. They relied heavily on a technical, legal defense and much less on Flagner's alibi that he was at work 52 miles away in Wayne County around the time of Tiffiny's disappearance. Tobik said that in his experience, juries seldom believe alibis.

"We argued, quite convincingly I thought, that the prosecution never proved that a crime had been committed," Tobik said. "There was ... no proof" that a crime occurred. "We also tried to prevent the inclusion of 'other acts' in this case, testimony of acts of child molestation [that Flagner had committed], and exclude some of his confessions. But the judge permitted it all.'

In the face of the testimony presented by Marino detailing Flagner's crimes against children in other cases, the defense's arguments about legal technicalities seemed puny.

"The only way to win was to have a jury of automatons who could see through to the legal black and whites of the issue and ignore all the horrible things they heard," Tobik said.

"You should have seen the looks on the jurors' faces as the girls from Texas testified" about how Flagner had molested them, Kraus said. "No one wants to admit that they convicted a man not for what he did, but for what he is, but that's what happened."

As Robert Ingersoll, the lawyer who filed Flagner's unsuccessful appeal to the Ohio Supreme Court, viewed it, "The idea for the prosecution was to get the jury to say that, even if he didn't kill her, this guy deserves to be put away."

Even Flagner sees the logic.

"They looked at me, at the things I have done, and they saw a monster who should not be allowed on the streets," he said.

Three jurors interviewed for this article would not admit to that line of thinking, but said they were not impressed with the defense's legal arguments.

"It seemed like everything went against him," said Donald Zabo, a juror in the 1985 trial. "He seemed to always be around, he was in the search for her. His background as a molester had a lot to do with our decision. We took a poll right off and we all felt he was guilty from the start. I don't remember being very impressed with his alibi."

Flagner's alibi was simple.

His time card showed he was working at Sta-Co in Creston, Wayne County, more than an hour away from Maple Heights, until 2:36 p.m. on the day Tiffiny disappeared. Tiffiny went to the store at 2:45 p.m. and the search for her began at 3 p.m.

John Copus, the owner of the family-run Sta-Co, said his records showed the company manufactured 805 bags of insulation on June 13, 1980, using a five-man crew that included Flagner.

"The [assembly] line started at 8 a.m. and went until 11:30 a.m., when we stopped for lunch," Copus said. "It resumed at 12 noon and went until 2:30 p.m., when we stopped for the day. That's when everyone checked out. He could have not left before that, or the run would have stopped."

Copus and Flagner's four co-workers, interviewed recently, said they couldn't recall that specific work day 15 years ago, but all agreed that five is the minimum number of workers needed on the production line. Flagner's four co-workers all said they did not stamp his time card for him, noting that they were aware of his pedophilia and that they disliked him. They said clocking someone else out could get them fired, and that they would not take that risk for a man they disliked.

"If anyone was missing, the line could not run," Copus said. "They would have noticed, that's for sure. We would have just pulled in someone else and paid him for that day if someone was missing. But we did not pay anyone else that day. We paid Flagner."

Copus said he knows this because Maple Heights police called the company on July 14, 1980, at the time of Flagner's arrest for bothering the Papesh family, and asked them to pull the time cards and records to check his alibi for the day Tiffiny disappeared. Copus gave them the information. A few days later, police called again, and Copus and his wife Carol double-checked the information. Marino said he didn't doubt Flagner's time card showed he was at work, but believes it was falsified.

Flagner's attorneys interviewed Copus and his wife to bolster their case; they did not talk to his co-workers. Carol Copus testified at the trial and John Copus submitted a written statement about Flagner's time card.

Tobik's associate measured the distance from Sta-Co in Creston to the convenience store in Maple Heights - 75 minutes to drive the 52-mile route.

Marino dismissed the alibi, saying, "Anyone could clock someone else out," and noted that no one testified to actually seeing Flagner at work at 2:30 p.m.

During the trial, Marino argued that a company payroll ledger showed Flagner to be at work on July 14, 1980, at a time when he was being arrested by Maple Heights police.

However, a review of the court transcript shows that the Sta-Co records did not show Flagner was at work on July 14, only that he had worked a certain number of hours for a two-week period that ended July 14.

Two of the four co-workers contacted recently said they were not interviewed by either prosecution or defense attorneys or police during the investigation. The other two recalled speaking briefly with plainclothes officers.

All four men agreed on two points: Flagner was an outcast and no one would have - or could have - punched out his time card.

"I didn't like him at all," said Terry Holcomb, who now lives in Lakeville, Ohio. "He was kind of a spooky guy. We all knew about his past, his child molestations, and that made my blood boil. Punch out his time card? Why would I ever do that for him?"

"John [Copus] would have fired anyone who did that," said Vaughn Burr of Rittman. "I wouldn't run that risk for Flagner, a guy I didn't like."

Holcomb said the time clock was next to Copus' office and that Copus would have noticed someone punching out two cards because he always watched the men clock out.

"I guess I was the closest thing Hbrandon had to a friend," said his former Sta-Co co-worker, Ken Hartman, who still lives in Creston. "I would sometimes talk to him, say hello. That's more than anyone else would do. But I didn't punch him out because it just could not be done. In a place that small, during a production run, you need every man there."

Flagner became a target of the police investigation in 1983, when he admitted killing Tiffiny in a letter to a woman whose 12-year-old daughter Flagner had molested and impregnated. The woman gave police the letter. He denied the confession in later letters to the woman.

Flagner also gave a confession in 1983 to the FBI, which had been assisting Maple Heights police. However, Flagner contradicted himself in certain areas, such as in details about disposal of the body and weapons used. He altered his statement several times to account for the information once the FBI determined parts of the story were not true.

Marino criticized the FBI's involvement in the case.

"They gave him a lie detector test [in 1983] and did not ask him if he killed Tiffiny Papesh," Marino said. The results were not used as evidence in the trial.

"Unbelievably, they didn't ask him if he hurt, touched or molested her. I don't know what they asked him, but they did not ask him what they should have."

The FBI declined to comment.

Flagner said he did not expect a new trial or anything to come out of his recent denials. He said he knows he has 10 years before he can go before the parole board.

Marino said a new trial could occur if new evidence in the case is uncovered and a common pleas judge, or a higher judge on appeal, could be persuaded to grant it.

"Such a new trial has been granted on the common pleas level once in 25 years in Cuyahoga County," he said.

While Flagner sits in his cell and considers his fate, Debbie Papesh said Tiffiny's death had condemned her to a life of pain.

"Do you know what it is like to fear that it will happen again?" said Papesh. "I fear from the time I put [my children] on the school bus until they are home. I can't work because I feel I have to watch them every minute. I try to never let them out of my sight, even for a minute. I know how swiftly things can happen."

Debbie and Frank Papesh stayed together until his death in 1993. Often, parents whose children are murdered or kidnapped divorce because of the enormous emotional upheaval.

Frank Papesh was an early suspect, but was cleared by police. Debbie Papesh said he passed a lie detector test and said she reached him at work at 3 p.m., 15 minutes after Tiffiny disappeared. She said she never believed her husband was involved.

She still feels guilt about Tiffiny's disappearance, and has battled depression in the 15 years since her daughter vanished.

"I've had three nervous breakdowns," she said. "And I feel terrible that I could not be strong for Frank. He needed me to be there, and I couldn't handle the strain."

She said that sometimes her husband would get angry and blame her for Tiffiny's disappearance.

"If only I had not sent her to the store, if I had just gone myself, none of this would have happened," she said, crying. "I know he didn't mean it, he had to unload. But I blame myself. I lost her. I lost Frank, because this killed him too, and I lost my own life that day."

She said that on his deathbed, her husband tried to make things right.

"He said he loved me and that he did not blame me," she said.


GRAPHIC: PHOTO BY: PLAIN DEALER FILE; The disappearance of Tiffiny Papesh had a profound effect on her family. Family members are shown here talking to reporters shortly after the 8-year-old girl vanished 15 years ago today.

From left are her brother Ricky; her father, Frank Sr.; her brother, Frank Jr.; and stepmother, Debbie.; PHOTO BY: NO CREDIT; Tiffiny Papesh; PHOTO BY: MIKE LEVY/PLAIN DEALER PHOTOGRAPHER; Maple Heights police Detective Ron Arko holds a file box of records about Tiffiny Papesh, who disappeared 15 years ago near her Maple Heights home.; PHOTO BY: NO CREDIT; Tiffiny Papesh: The 8-year-old girl disappeared 15 years ago after walking to a convenience store near her Maple Heights home.; PHOTO BY: TERRY WILLIAM HARRIS/PLAIN DEALER PHOTOGRAPHER; Assistant Cuyahoga County Prosecutor Carmen Marino is convinced Hbrandon Lee Flagner killed Tiffiny Papesh.

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Hbrandon Flagner, the man convicted of kidnapping & murdering Tiffany Papesh 15 years ago, says he molested hundreds of young girls; Flagner's confession on missing girl raises questions-il
Plain Dealer - June 13 Jun, 1995, pg. 4 sec. A


If anyone has a copy of this article please forward it to The Awareness Center.

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Grooming Rules Eased For Jewish Inmate
By BILL SLOAT; PLAIN DEALER REPORTER

Plain Dealer (Cleveland, Ohio) February 15, 1997 Saturday, FINAL / WEST

SECTION: OHIO; Pg. 5B


CINCINNATI  A federal magistrate says Brandon Lee Flagner has become a Hasidic Jew while serving a life sentence for the 1980 kidnapping and murder of 8-year-old Tiffany Papesh.

Because of Flagner's beliefs, said Magistrate Jack Sherman, Ohio prison officials should no longer be allowed to cut the inmate's sidelocks and whiskers.

Sherman said the prison system's grooming regulations would "substantially burden" Flagner's religious beliefs.

Flagner, the only Hasidic Jew among the state's 46,000 inmates, has contended that shaving his beard and cutting his sidelocks would be a sin. Prison officials forcibly cut his hair last July.

The Ohio attorney general's office is appealing. It asserts that sidelocks and beards are not necessary under Jewish law.

Flagner, 45, keeps the hair on his head short but had grown a full beard and traditional long strands that originate where the skull and jawbone meet.

Flagner was convicted in 1985 of killing Tiffany, who vanished from a Maple Heights convenience store near her home. Her body has never been found.

Flagner grew up in Elyria under the name Chico Virgilio Tenorio. He legally changed it to Flagner in 1977.

He confessed to the kidnapping, then recanted, while serving time in a Texas prison. Maple Heights police dismissed the confession in 1983 as a "big hullaballoo over nothing."

Cuyahoga County Assistant Prosecutor Carmen Marino got an indictment.

Under prison security rules, male inmates must keep their hair cut to three inches from the scalp. Beards have to be neatly trimmed and cannot exceed a half-inch in length.

After four years of studying the religion, Flagner converted to Judaism in 1991 at Mansfield Correctional Institution.

Several rabbis who work as prison chaplains are satisfied he is practicing his faith.

Menachem M. Kalmanson, the contract rabbi at Lebanon Correctional Institution, wrote three months ago that Flagner "has been a regular member of the local Jewish community" and that he should be recognized "as an Orthodox Jew."

Two years ago, a prison chaplain wrote in Flagner's inmate records that he had "fully verified" Flagner was Jewish "and must be supplied with a strict kosher diet."

Sherman, the federal magistrate, said prison officials for years allowed Flagner to practice his religious beliefs without incident, and his sidelocks and beard were not cut until July 1996. He said the delay "weakens the argument that prison officials had a compelling security interest in cutting his hair."

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Jewish prisoner alleges anti-Semitism
United Press International January 7, 1998, Wednesday, BC cycle
SECTION: Domestic News


CINCINNATI, Jan. 7  A convicted murderer at the Madison Correctional Institution has filed a federal lawsuit against the warden and staff at the Lebanon Correctional Institution, alleging anti- Semitism. Brandon Flagner's lawyer, Michael O'Hara, said physical and verbal assaults against his client were in retaliation for a 1996 religious discrimination lawsuit. Flagner's latest legal action, filed this week in federal court in Cincinnati, seeks unspecified damages and names as defendants LCI Warden Harry Russell, five correction officers and a dietitian. The latest legal action said Flagner was denied beverages with his kosher meals and dietitian Ron Haft told him to drink from the toilet. Flagner, 46, of Cleveland, also says a prisoner who brought him his meals threw urine at him and said: ''They should have killed all you Jews in the Holocaust.'' Another prisoner told Flagner the food was ''compliments of Hitler.'' Flagner was allowed to transfer to MCI in November 1996. The chaplain serving LCI, Rabbi Mendy Kalmanson, told UPI today the 1996 legal action was filed after Flagner was placed into lockdown for trying to grow a beard. Flagner was convicted of the kidnapping and murder of an 8-year-old Cleveland area girl, whose body was never found. Ohio's December prison population was 47,732, of whom 42 prisoners identified themselves as Jewish. ---

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Ohio inmate's religious-liberty suit gets go-ahead
The Associated Press - August 31, 1999

CINCINNATI — A federal judge has ruled that Ohio prison officials didn't give specific justification for forcing a prisoner to shave his beard and sideburns in what the prisoner says was a violation of his Orthodox Jewish faith.

"The law requires some basis in actual fact for the justifications posed by prison officials, not merely unsupported generalities," U.S. District Judge Susan Dlott wrote in her ruling last week.

Dlott rejected the state's request to dismiss the lawsuit filed by prisoner Hbrandon L. Flagner.

The state was considering whether to appeal the judge's ruling, said assistant attorney general Marianne Pressman. Otherwise, Dlott would schedule Flagner's lawsuit for trial.

Ohio's prison regulations require inmates to keep facial hair neatly trimmed, within a half inch of the skin, so that they cannot hide weapons or other illegal items, Pressman said. Flagner was treated no differently than other prisoners, she said.

Flagner, 47, confined in the Ross Correctional Institution, has been in the state prison system since January 1986 on his Cuyahoga County convictions for aggravated murder and kidnapping. He previously was in prison from 1978 to 1980 on a Lorain County conviction for breaking and entering.

He said he was forced to shave while imprisoned in 1996 at Lebanon Correctional Institution and 1998 in Madison Correctional Institution. Flagner says that cutting his sideburns or beard violates his religious beliefs.

The judge ruled that state officials failed to show that prison concerns overwhelmed Flagner's freedom to practice his religion.

"We're cheered by the judge's decision," said Michael J. O'Hara, Flagner's attorney. "We got our chance for a jury and that was Mr. Flagner's hope from the outset."

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Hbrandon Lee Flagner v. Reginald Wilkinson, et al.
No. 99-4145

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.

No. 96-00887--Susan J. Dlott, District Judge.

Argued: October 16, 2000

Decided and Filed: February 22, 2001

Before: NELSON and MOORE, Circuit Judges; WILHOIT, District Judge.

http://pub.bna.com/cl/994145.htm

http://www.michbar.org/opinions/us_appeals/2001/022201/9447.html


KAREN NELSON MOORE, Circuit Judge. The plaintiff, Hbrandon Lee Flagner, filed a 42 U.S.C. § 1983 action alleging that an Ohio prison grooming regulation violated his constitutional right to practice his religion. The defendants ask this court to reverse the district court's order denying the defendants' summary judgment motion based on qualified immunity, arguing that Flagner has not alleged a constitutional violation and that the regulation has a valid penological basis. Based on our precedent in Pollock v. Marshall, 845 F.2d 656, 659-60 (6th Cir.), cert. denied, 488 U.S. 897 (1988), we REVERSE the district court's denial of the defendants' motion for summary judgment based on qualified immunity. We also conclude that Flagner may bring an as-applied challenge to the Ohio prison grooming regulation and that there is a factual dispute on the issue of whether the defendants have a valid penological interest. Accordingly, we REMAND to the district court so that Flagner's claims for declaratory and injunctive relief may proceed.


I. BACKGROUND

Flagner has been incarcerated with the Ohio Department of Rehabilitation and Correction (ODRC) since 1986. Flagner is a practicing Orthodox Hasidic Jew who brought a §1983 suit against prison officials challenging the enforcement of Ohio Administrative Code §§5120-9-25 (D) and (F),1 a prison grooming regulation which requires Flagner to cut his beard and sidelocks, also referred to as "peos," in contravention of the tenets of his religious faith.2 The defendants are ODRC employees who work at either the Lebanon Correctional Institution (LeCI) or the Madison Correctional Institution (MaCI). Flagner was imprisoned at LeCI from July 8, 1994 to November 20, 1996, and transferred shortly thereafter to MaCI. Prior to his transfer to LeCI, Flagner resided at the Mansfield Correctional Institution. He is currently incarcerated at Ross Correctional Institution.

In 1987, Flagner began studying Judaism and formally converted to Orthodox Judaism in 1991 while incarcerated at the Mansfield Correctional Institution. His religious affiliation has been recognized by the defendants and is not in dispute in this case. Flagner testified during the preliminary injunction evidentiary hearing held on December 3, 1996, that between 1991 when he converted to Judaism and prior to his transfer to LeCI in 1994, Mansfield prison officials did not make any effort forcibly to cut his beard or sidelocks. In fact, a period of five years passed between the time Flagner converted to Orthodox Judaism in 1991 until his first forced cutting in 1996.

On January 26, 1996, Flagner was given a direct order by Defendant Bobby Couch of LeCI, to comply with the grooming regulation, but Flagner refused, stating his religious tenets prevented compliance. On February 16, 1996, the Rule Infractions Board found Flagner guilty of disobeying the order and sentenced him to time in a disciplinary isolation unit. On June 21, 1996, Flagner received another direct order from Defendant Couch to comply with the grooming regulation. Flagner then filed a grievance on June 28, 1996, which was reviewed by Defendant David Gardner, Inspector of Institutional Services, on July 11, 1996. In his disposition, Defendant Gardner stated that Flagner was in violation of §5120-9-25(D) and was required to comply with the regulation. Failure to comply would subject Flagner to "appropriate disciplinary action [] [w]hich may include requiring [Flagner's] hair to be cut or trim[med] against [his] will." Joint Appendix ("J.A.") at 135 (Disposition of Grievance Form). Flagner continued to refuse to comply with the regulation. On July 29, 1996 and in April 1998, the defendants forcibly cut Flagner's beard and sidelocks. Between the time of Flagner's forced cuttings in July 1996 and April 1998, the defendants exempted him and four Native American inmates from the grooming regulation.

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Beards are part of religious freedom
The Post: Athens, Ohio – Ohio University
Februrary 23, 2001

CINCINNATI - An Orthodox Hasidic Jew serving a life term can sue Ohio prison officials on his claim that they violated his right to freedom of religion when they forcibly cut off his beard, an appeals court ruled yesterday.

However, the 6th U.S. Circuit Court of Appeals said that Hbrandon Lee Flagner cannot try to collect money damages from prison officials. Those officials are legally immune from such lawsuits in carrying out their official duties, the court ruled.

Flagner, 49, was sent to prison in 1986 after being convicted in Cuyahoga County of aggravated murder and kidnapping. He also was convicted of breaking and entering in Lorain County.

He said his beard and sideburns were cut in 1996 and 1998, in violation of his religious beliefs.

Prison officials say Flagner was treated no differently than other inmates. The state's prison regulations require inmates to keep beards and sideburns neatly trimmed, within a half inch of the skin, so that they cannot hide weapons, drugs or other illegal items.

Michael O'Hara, Flagner's lawyer, said he has seen photographs showing Flagner's beard reaching about 4 inches below his chin. O'Hara does not know whether the beard is longer now.

The defense presented testimony that Flagner and four American Indian prisoners were exempted from the grooming regulation between the time his beard and sideburns were cut in 1996 and 1998.

On fewer than five occasions, prison officials required Flagner to run his fingers through his beard and sideburns while they watched to see if he had hidden anything illegal. Nothing illegal was ever found, according to testimony.

In a 2-1 ruling, the appeals court said Flagner had presented enough evidence about the prison system's on-again, off-again attitude toward cutting his beard that a trial jury should be asked to decide whether his First Amendment right of religious freedom was violated.

In a dissent, Judge David Nelson said he believes that Ohio has the constitutional authority to make Flagner comply with the grooming regulation.

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Supreme Court Round-Up - Child Killer Allowed To Keep His Beard
The White House Bulletin - December 10, 2001 (Bulletin Broadfaxing Network, Inc.)
SECTION: IN THE WHITE HOUSE AND AROUND TOWN

The Supreme Court refused today to intervene in the case of a convicted child-killer who successfully sued the state of Ohio for trimming his beard, which he says, as a Hasidic Jew, violated his right to freedom of religion. Twenty states joined Ohio in urging the Supreme Court to consider the case, because they said if similar lawsuits are allowed then "the ability of prison officials to maintain security will inevitably falter, thereby placing the safety and welfare of prison staff, inmates, and the general public at risk." The case is Wilkinson v. Flagner, 01-324.

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BEARD SUIT MOVES AHEAD
The Cincinnati Post - December 10, 2001

Ohio can be sued for cutting the beard of a Jewish inmate. The Supreme Court refused today to intervene and block the trial.

Ohio leaders argued that the case could provoke thousands of lawsuits.

In prisons around the country inmates are forced to follow grooming rules intended to control contraband and gang activity.

Courts have generally sided with authorities in rules fights.

But in this case an appeals court said Hbrandon Lee Flagner, a Hasidic Jew, has a legitimate case that he ...

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Ohio prisoner can sue state over grooming policy
By The Associated Press - December 11, 2001
http://www.freedomforum.org/templates/document.asp?documentID=15511


WASHINGTON — The Supreme Court refused yesterday to intervene in a dispute over prison grooming rules in Ohio, allowing the state to be sued for cutting the beard of a Jewish inmate.

Ohio leaders argued that the case could provoke thousands of lawsuits.

In prisons around the country inmates are forced to follow grooming rules intended to control contraband and gang activity. Courts have generally sided with authorities in rules fights.

But in this case, Wilkinson v. Flagner, an appeals court said Hbrandon Lee Flagner, a Hasidic Jew, had a legitimate case that he was wronged by officials who twice cut his beard and sideburns.

Justices refused to take Ohio's appeal in the case that pits public safety against an individual's freedom of religion.

Flagner claims he is not a security risk and has a First Amendment right to follow his religious beliefs and traditions, including letting his facial hair grow.

Twenty states joined Ohio in urging the Supreme Court to consider the case. Attorneys for those states said if exemptions are allowed, "the ability of prison officials to maintain security will inevitably falter, thereby placing the safety and welfare of prison staff, inmates, and the general public at risk."

Ohio requires inmates to have neatly groomed mustaches, beards and sideburns, cut within a half inch of the skin to keep inmates from hiding weapons or drugs.

Officials put Flagner, a convicted murderer, in isolation for refusing to follow the rule, then eventually cut his hair.

Although a divided three-judge panel of the 6th U.S. Circuit Court of Appeals sided with Flagner in ordering a trial, the judges said he could not try to collect damages from prison officials who have immunity.

A trial challenging the rule has been on hold, pending the high court's decision.

Flagner is incarcerated in the Ross Correctional Institution near Chillicothe. He was sent to prison in 1986 after being convicted in Cuyahoga County of aggravated murder and kidnapping.

Flagner claims to have molested hundreds of girls. He is serving a life sentence in the 1980 disappearance of an 8-year-old girl who was last seen at a convenience store, wearing a T-shirt that read, "Let's face it, I'm cute." Flagner confessed to killing her, but her body was never found.

He became a Hasidic Jew in 1991 while in prison and was at times exempted from the prison's grooming regulations. He said his beard and sideburns were cut against his will in 1996 and 1998.

Ohio Attorney General Betty Montgomery said if Flagner wins this case, other inmates will file challenges of rules dealing with things like library access, visiting procedures, drug testing, job assignments and housing.

"That judgment carries significant real-world adverse consequences for prison administrators," Montgomery told the justices in court filings. "The reactive-not-proactive approach to rule-making and rule-enforcement in the prison context is both dangerous and unworkable."

Yeshiva University law professor Daniel Pollack said prison managers have to balance security with inmates' religious practices.

"When push comes to shove, they're much more concerned about safety issues than what they might consider spiritual niceties," Pollack said.

In 1979, the Supreme Court upheld federal prison restrictions on books and packages for inmates, finding that prison officials must ensure safety. Ohio argues that this case is very similar.

There have been multiple recent court fights over prison restrictions.

In this case, the Cincinnati-based 6th Circuit said that an essential facet of Flagner's religion involves his facial hair and "enforcement of the grooming regulation would require the plaintiff to violate this very tenant."

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Inmate Can Sue Ohio Over Grooming
By Gina Holland

Associated Press

WASHINGTON –– Ohio can be sued for cutting the beard of a Jewish inmate. The Supreme Court refused on Monday to intervene and block the trial. Ohio leaders argued that the case could provoke thousands of lawsuits. In prisons around the country inmates are forced to follow grooming rules intended to control contraband and gang activity. Courts have generally sided with authorities in rules fights. But in this case an appeals court said Hbrandon Lee Flagner, a Hasidic Jew, has a legitimate case that he was wronged by officials who twice cut his beard and sideburns.

Justices refused to take Ohio's appeal in the case that pits public safety against an individual's freedom of religion. Flagner claims he is not a security risk and has a First Amendment right to follow his religious beliefs and traditions, including letting his facial hair grow.

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Convicted killer in religious dispute
By Colette M. Jenkins - Beacon Journal religion writer
The Associated Press contributed to this report.
Akron Beacon Journal. - Tuesday, December 11, 2001


Inmate who confessed to rape and murder of girl can sue Ohio over right to long beard, sideburns

Frank Papesh went to his grave not knowing what happened to his 8-year-old daughter, Tiffany.

``My brother could never accept the fact that she was dead. It tore him up,'' said Edward L. Papesh of Bedford Heights. ``To have her disappear, without really knowing what happened to her, was something he could never deal with.'' Tiffany Papesh vanished on June 13, 1980, while running an errand to a convenience store in her Maple Heights neighborhood. Her body was never found.

Five years later, Brandon Lee Flagner, who had confessed to kidnapping and killing the girl, was convicted of aggravated murder in the case and sentenced to life in prison by a Cuyahoga County Common Pleas Court judge.

Today, Flagner is in the news again, at the center of a dispute involving the religious rights of prison inmates.

In 1991, he became a Hasidic Jew and changed his name to Hbrandon Lee Flagner. He is now suing the state of Ohio for forcing him twice to cut his beard and sideburns.

In an attempt to block a trial on the issue, Ohio filed an appeal, saying the prison grooming rule requires inmates to have neatly groomed mustaches, beards and sideburns, cut within a half inch of the skin to keep inmates from hiding weapons or drugs.

Yesterday, the U.S. Supreme Court said Flagner has a legitimate case and ordered the trial to go forward.

``I don't see how someone in prison -- a convicted, self-admitted rapist and child murderer -- has the right to object to a prison rule,'' said John Papesh, who also lives in Bedford Heights. ``Military people who have served this country -- our heroes don't have a right to object to a haircut, but this creep can? Where is the justice in that?''

Edward and John Papesh said their younger brother Frank died about four years ago of a heart condition. It was an ailment he never had until his daughter disappeared.

``It was a heck of a burden and it put a lot of stress on him,'' John Papesh said. ``He could never forget and he could never stop wondering what really happened to Tiffany. It drove him crazy not to be able to put a closure to his daughter's death.''

Flagner, who claimed to have molested hundreds of girls, contends in his suit against the state that he is not a security risk and has a First Amendment right to follow his religious beliefs and traditions, which include letting his facial hair grow. He says he was at times exempted from the prison's grooming regulations, but that his beard and sideburns were cut against his will in 1996 and 1998.

A divided three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati decided that an essential facet of Flagner's religion involves his facial hair and ``enforcement of the grooming regulation would require the plaintiff to violate this very tenet.'' The court said Flagner cannot try to collect damages from prison officials who have immunity.

Twenty states had joined Ohio in the case before the U.S. Supreme Court, saying that if exemptions are allowed, ``the ability of prison officials to maintain security will inevitably falter, thereby placing the safety and welfare of prison staff, inmates, and the general public at risk.''

Ohio Attorney General Betty Montgomery said if Flagner wins, it will open the door for other inmate challenges of rules dealing with issues like library access, visiting procedures, drug testing, job assignments and housing.

Courts have generally sided with authorities in fights over rules. For example, in 1979, the U.S. Supreme Court upheld federal prison restrictions on books and packages for inmates, finding prison officials must ensure safety. Ohio has argued that this case is similar.

Although Flagner had confessed to killing Tiffany Papesh in letters written from a Texas prison, he refused to enter a plea to the charges when brought to Ohio to stand trial. A judge entered an innocent plea on his behalf.

During his trial, defense attorneys argued that Flagner had fantasized the crimes. They said Flagner was at work in the village of Creston in Wayne County up until about a half-hour before the disappearance and could not have been in Maple Heights, some 55 miles away, when Tiffany disappeared.

Flagner was an inmate at a prison in Palestine, Texas, when he wrote the confession letters to a Mennonite minister in Wooster. In 1981, he had been charged with four counts of sex crimes involving children in Arlington and Hurst, Texas.

``Burying a child is one of the hardest things a person can do,'' John Papesh said yesterday. ``And Frank never even got a chance to do that. I have nothing but bitterness, nothing but hatred in my heart for (Flagner). I'll go to my grave hating him. He's lucky I'm not cutting his beard.''

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Jewish inmate in Ohio may keep beard, high court rules
By  Tom Diemer, Plain Dealer Bureau
Plain Dealer (Cleveland, Ohio) - December 11, 2001 Tuesday
SECTION: NATIONAL; Pg. A15
Washington - An Ohio inmate may keep his flowing beard as a result of the U.S. Supreme Court's refusal yesterday to intervene in a challenge of state rules on prisoners' facial hair.

The high court without comment let stand a 6th Circuit Court of Appeals ruling giving inmate Hbrandon Flagner, a Hasidic Jew, an exemption from Ohio's beard-length rule.

The state argued that a decision in the Elyria native's favor could invite a flurry of lawsuits over prison grooming rules.

"We are disappointed," said Joe Case, spokesman for Ohio Attorney General Betty Montgomery.

As a practical matter, Case said, the state will have to "vigorously defend" its ability to make grooming rules on a case-by-case basis to assure the safety of prison employees and inmates.

Twenty other states joined Ohio in asking the Supreme Court to reconsider the lower court opinion.

Ohio has prohibited inmates from growing beards longer than one-half inch from the skin, a rule intended to deprive prisoners of a place to hide contraband. But the federal circuit court said Ohio cannot enforce that rule against the 50-year-old Flagner because it did not demonstrate that his full-length beard posed a safety threat.

State prison officials said yesterday that Flagner, serving a life term in the Ross Correctional Institution near Chillicothe, has a beard about 12 inches long. Flagner, citing his religious convictions, maintains that state prison officers trimmed his beard and long sideburns to regulation length against his will in 1996 and again in 1998.

Flagner was convicted in 1986 of kidnapping and murdering 8-year-old Tiffany Papesh of Maple Heights, who disappeared in 1980 and was never found. He was also convicted of breaking and entering in Lorain County.

Last February, the 6th Circuit Court said the bearded Flagner did not appear to be a security threat, as no contraband has been found in his whiskers and his facial foliage has never been mistaken for a gang symbol - another reason prison officials give for keeping inmates' beards tidy.

At a minimum, State Solicitor David Gormley said, "we almost certainly must exempt this prisoner from the short beard requirement" unless weapons are discovered in the beard.

Flagner's lawyer, Michael O'Hara, argued in a brief that Ohio's worry about a wave of inmate lawsuits is pure hyperbole since the 6th Circuit Court decision related specifically to his client's unique circumstances. "The lower court has not broken new legal ground and does not expand the rights of those incarcerated," O'Hara said.

Flagner, who changed his name from Chico Virgilio Tenorio in 1977, began his challenge in a U.S. District Court suit in Cincinnati, asserting that the beard regulation violated his right to religious freedom. The case now goes back to the district court where Flagner first sought an injunction against the beard rule on First Amendment grounds.

However, the 6th Circuit has already ruled that he cannot collect financial damages against the state.

After entering the prison system, he converted to Judaism in 1991, joining a Hasidic sect and growing long sideburns and a full beard.

The state has not questioned the legitimacy of Flagner's religious affiliation.

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High Court Denies Ohio's Appeal; Prisoner Can Keep Beard
By Jack Torry, Dispatch Washington Bureau
Columbus Dispatch (Ohio) December 11, 2001 Tuesday, Home Final Edition
SECTION: NEWS; Pg. 04C


WASHINGTON  The U.S. Supreme Court upheld a lower-court ruling yesterday that prevents Ohio officials from forcing a state prisoner to shave off his beard despite his argument that it violated his religious beliefs.

The decision by the justices not to hear the case means that Hbrandon Lee Flagner, a Hasidic Jew serving a life sentence at the Ross Correctional Institution in Chillicothe for aggravated murder, can continue to wear his beard long.

Ohio officials forcibly shaved his beard twice, arguing that regulations limit prisoners to very short beards that cannot be used to hide weapons or drugs.

A federal appeals court in Cincinnati ruled earlier this year that the state could not enforce its beard-trimming policy on Flagner without violating his constitutional guarantee of freedom of religion.

Attorneys for Flagner had pointed out that he had never tried to hide a weapon in his beard and had never attempted to escape.

The high court did not issue an opinion yesterday.

Instead, it rejected without comment an appeal from Ohio Attorney General Betty D. Montgomery to overturn the ruling by the U.S. 6th Circuit Court of Appeals in Cincinnati.

The outcome of the case gave state officials at least a partial victory.

As part of its ruling, the 6th Circuit Court decided that state officials were immune from paying financial damages to Flagner for having shaved his beard in 1996 and '98.

Joe Case, spokesman for Montgomery, said the state was disappointed that the nation's high court rejected Ohio's appeal.

"This denial by the court to hear this case opens the real possibility for other inmates to file numerous and different types of lawsuits based upon the fact that they don't like the way the department enforces rules," he said.

Officials of the Ohio Department of Rehabilitation and Correction require that state prisoners cannot have beards longer than one-half inch. They contend that in addition to using a beard to hide a weapon, an escaped prisoner could quickly alter his appearance by shaving his beard.

Flagner, 50, who was convicted in 1986 of aggravated murder in Cuyahoga County, became a Hasidic Jew in 1991. Hasidic Jews observes a strict version of Jewish law, including not cutting or trimming their beards.

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Prisoner made to cut payes and beard can sue
By Sharon Samber
Jewish Telegraphic Agency - December 14, 2001


WASHINGTON -- The U.S. Supreme Court's decision this week to enable an Orthodox prisoner to sue the state of Ohio for cutting his beard signals a step forward for the religious rights of U.S. inmates.

The high court refused to block a lawsuit brought by Hbrandon Lee Flagner, who maintains that an Ohio prison grooming regulation violated his constitutional right to practice his religion.

Flagner, who became a Chasidic Jew while imprisoned for the murder of an 8-year-old girl, brought the lawsuit after prison officials twice cut his beard and sidelocks.

Ohio is one of many states that requires prisoners to follow grooming rules intended to control drugs and gang activity.

The Supreme Court has in the past determined that prison regulations alleged to infringe constitutional rights are judged under a "reasonableness" test that is less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.

Monday's decision to let Flagner proceed with his lawsuit leaves prisoner advocate Isaac Jaroslawicz optimistic that courts are acknowledging basic freedoms for inmates.

"There needs to be respect for legitimate religious practices in the prison environment," said Jaroslawicz, the executive director of the Aleph Institute, a not-for-profit national organization that provides religious, educational, advocacy and humanitarian services to nearly 4,000 Jewish men and women in federal and state prisons.

Flagner was at times exempted from the prison's grooming regulations, but his beard and sideburns were cut against his will in 1996 and 1998.

Abba Cohen, director and counsel of the Washington office of Agudath Israel of America, a fervently religious organization, also lauded the decision, adding that it is right to put the burden on the state to make its case.

But Betty Montgomery, Ohio's attorney general, has said Flagner's case could spark other inmate challenges to prison rules.

Attorneys for 20 other states that joined Ohio in its appeal urging the Supreme Court to consider the case said if exemptions are allowed, "the ability of prison officials to maintain security will inevitably falter, thereby placing the safety and welfare of prison staff, inmates, and the general public at risk."

Also Monday, the Supreme Court declined to take a case that argues student-led prayers at public high school graduations violate church-state separation.

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High court backs inmate´s lawsuit

Ohio can be sued for cutting the beard of a Jewish inmate, the U.S. Supreme Court ruled. The high court refused Monday to block the lawsuit brought by an inmate who became a Chasidic Jew after being imprisoned for the murder of an 8-year-old girl. Citing his First Amendment right to follow his religious beliefs, Hbrandon Lee Flagner brought the lawsuit after prison officials twice cut his beard and sidelocks.

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Hasidic prison inmate can sue Ohio over trimming of his beard
By Gina Holland, Ap

The Jerusalem Post, December 23, 2001, Sunday

SECTION: JEWISH WORLD; Pg. 7


WASHINGTON - Ohio can be sued for cutting the beard of a Jewish prison inmate, as the Supreme Court has refused to intervene and block the trial.

Ohio leaders argued that the case could provoke thousands of lawsuits.

In prisons around the country inmates are forced to follow grooming rules intended to control contraband and gang activity. Courts have generally sided with authorities in rules fights. But in this case, an appeals court said convicted murderer Lee Flagner, a hasidic Jew, has a legitimate case that he was wronged by officials who twice cut his beard and sideburns.

Justices refused to take Ohio's appeal in the case that pits public safety against an individual's freedom of religion.

Flagner claims he is not a security risk, and has a First Amendment right to follow his religious beliefs and traditions, including letting his facial hair grow.

Twenty states joined Ohio in urging the Supreme Court to consider the case. Attorneys for those states said if exemptions are allowed "the ability of prison officials to maintain security will inevitably falter, thereby placing the safety and welfare of prison staff, inmates, and the general public at risk."

Ohio requires inmates to have neatly groomed mustaches, beards and sideburns, cut within a half inch of the skin to keep inmates from hiding weapons or drugs.

Officials put Flagner, a convicted murderer, in isolation for refusing to follow the rule, then eventually cut his hair.

Although a divided three-judge panel of the 6th US Circuit Court of Appeals sided with Flagner in ordering a trial, the judges said he cannot try to collect damages from prison officials who have immunity.

A trial challenging the rule has been on hold, pending the high court's decision.

Flagner claims to have molested hundreds of girls. He is serving a life sentence in the 1980 disappearance of an eight-year-old girl who was last seen at a convenience store, wearing a T-shirt that read, "Let's face it, I'm cute."

Flagner confessed to killing her, but her body was never found.

He became a hasidic Jew in 1991 while in prison and was at times exempted from the prison's grooming regulations. He said his beard and sideburns were cut against his will in 1996 and 1998.

Ohio Attorney General Betty Montgomery said if Flagner wins this case, other inmates will file challenges of rules dealing with things like library access, visiting procedures, drug testing, job assignments and housing.

"That judgment carries significant real-world adverse consequences for prison administrators," Montgomery told Supreme Court in court filings. "The reactive-not-proactive approach to rule-making and rule-enforcement in the prison context is both dangerous and unworkable."

Yeshiva University law professor Daniel Pollack said prison managers have to balance security with inmates' religious practices.

"When push comes to shove, they're much more concerned about safety issues than what they might consider spiritual niceties," Pollack said.

In 1979, the Supreme Court upheld federal prison restrictions on books and packages for inmates, finding that prison officials must ensure safety. Ohio argues that this case is very similar.

There have been multiple recent court fights over prison restrictions.

In this case, the Cincinnati-based 6th Circuit said that an essential facet of Flagner's religion involves his facial hair and "enforcement of the grooming regulation would require the plaintiff to violate this very tenant."

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Inmates become crimefighters in new AG program
By Vic Gideon
(NBC) WKYC - November 5, 2007


MAPLE HEIGHTS -- The Tiffany Papesh case will be one of the first used by the Ohio Attorney General's office in a new program to warm-up cold cases.

The eight-year-old girl disappeared on a sunny Friday afternoon in June of 1980 on her way home from buying hamburger buns at the corner store.

"She goes, 'POOF!' and we never see her again," says Lt. Joe Ehrbar, a man who's worked on the case for 25 years. "If you saw it on a teevee movie, you'd say, 'This is ridiculous. It can't happen.' But it happened."

The Maple Heights Police Department has worked on the case for more than a quarter century. Brandon Lee Flagner eventually confessed to the crime and a jury convicted him in 1985 but he now proclaims his innocence. Investigators still question if Flagner had a role in the disappearnace and Tiffany's body was never found. The Maple Heights Police Department has one goal in the case.

"To be able to go to the remaining family members and say, 'This is what happened,'" says Detective Gerald Prusha, the man who will take the case from Lt. Ehrbar when the lieutenent retires.

In an effort to help departments like Maple Heights and solve cold cases, the Ohio Attorney General's Office will start a program to make documentary movies about these missing children cold cases. They will be shown to inmates after being made by inmates.

"They are going to be the cameraman and they will be helping edit the video," says Brent Currence of the Ohio Attorney General's Office. "The investigator is very excited about the prospects that this program might be able to create as far as giving him a new tip or lead or a new way to go as far as a way with the investigation."

"One thing that we learn as we investigate crimes is the average criminal, the average person that commits a crime, tells somebody about it," says Prusha about why inmates are the perfect audience for getting leads.

Ohio will model its program after similar programs in Florida and South Carolina. South Carolina has solved six of the eleven cases they've shot.

"My hope is to resolve one case," says Currence. "I mean, if we could solve one case and bring closure to a family or recover a child, I would feel this is a very, very successful program."

The first movie in the program is tentatively scheduled for Victim's Rights Week in April or Missing Children's Week in May. The A.G.'s Office will also print playing cards with missing kids' faces and detail of the crimes to try to get inmates talking as well.

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HBRANDON LEE FLAGNER - legal filings/documents
December 10, 2001

 534 U.S. 1071; 122 S. Ct. 678; 151 L. Ed. 2d 590; 2001 U.S. LEXIS 11055, *

REGINALD A. WILKINSON, DIRECTOR, OHIO DEPARTMENT OF REHABILITATION AND  CORRECTION, ET AL. v. HBRANDON LEE FLAGNER

01-324

SUPREME COURT OF THE UNITED STATES

534 U.S. 1071; 122 S. Ct. 678; 151 L. Ed. 2d 590; 2001 U.S. LEXIS 11055; 70 U.S.L.W. 3383

December 10, 2001, Decided

PRIOR HISTORY: [*1] Reported below: 2001 U.S. App. LEXIS 2560.

JUDGES: Rehnquist, Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas,  Ginsburg, Breyer.

OPINION: The motion of respondent for leave to proceed in forma pauperis is  granted. Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit denied.

__________________________________________________________________________________

2001 U.S. App. LEXIS 11609, *

HBRANDON LEE FLAGNER, Plaintiff-Appellee, v. REGINALD A. WILKINSON, ET AL.,  Defendants-Appellants.

99-4145

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

2001 U.S. App. LEXIS 11609


May 25, 2001, Filed

NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION

PRIOR HISTORY: Original Opinion of February 22, 2001, Reported at: 2001 U.S.  App. LEXIS 2560.

JUDGES: BEFORE: NELSON and MOORE, Circuit Judges; and WILHOIT, * District  Judge. * Hon. Henry R. Wilhoit, Chief United States District Judge for the Eastern District of Kentucky, sitting by designation.

OPINION: ORDER

The court having received a petition for rehearing en banc, and the petition  having been circulated not only to the original panel members but also to  all other active judges of this court, and less than a majority of the  judges having favored the suggestion, the petition for rehearing has been  referred to the original panel.

The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.

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Federal appeals panel: Jewish inmate can sue Ohio over forced shaving
Associated Press - February 26, 2001
http://www.the-review.com/Site%20Archive/Site%20Pages/010223/010223apwire.html
http://www.freedomforum.org/templates/document.asp?documentID=13195

CINCINNATI (AP) — An Orthodox Hasidic Jew serving a life term can sue Ohio prison officials on his claim they violated his right to freedom of religion when they forcibly cut off his beard.

However, the 6th U.S. Circuit Court of Appeals said that Hbrandon Lee Flagner cannot try to collect money damages from prison officials. Those officials are legally immune from such lawsuits in carrying out their official duties, the court ruled.

Flagner, 49, was sent to prison in 1986 after being convicted in Cuyahoga County of aggravated murder and kidnapping. He also was convicted of breaking and entering in Lorain County.

He said his beard and sideburns were cut in violation of his religious beliefs.

The state's lawyers are reviewing the ruling and deciding their next step, said Joe Case, a spokesman for Attorney General Betty Montgomery. He said they are concerned that the ruling could expose Ohio to many similar claims by bearded prisoners.

Prison officials say Flagner was treated no differently than other inmates. The state's prison regulations require inmates to keep beards and sideburns neatly trimmed, within a half inch of the skin, so that they cannot hide weapons, drugs or other illegal items.

Michael O'Hara, Flagner's lawyer, said he has seen photographs showing Flagner's beard reaching about 4 inches below his chin. O'Hara does not know whether the beard is longer now.

The defense presented testimony that Flagner and four American Indian prisoners were exempted from the grooming regulation between the time his beard and sideburns were cut in 1996 and 1998.

On fewer than five occasions, prison officials required Flagner to run his fingers through his beard and sideburns while they watched to see if he had hidden anything illegal. Nothing illegal was ever found, and there is no evidence that he has ever tried to escape from prison, according to testimony.

In a 2-1 ruling, the appeals court said Flagner had presented enough evidence about the prison system's on-again, off-again attitude toward cutting his beard that a trial jury should be asked to decide whether his First Amendment right of religious freedom was violated.

In a dissent, Judge David Nelson said he believes that Ohio has the constitutional authority to make Flagner comply with the grooming regulation.

The case now returns to U.S. District Judge Susan Dlott in Cincinnati for trial.

Flagner has been at the Mansfield, Lebanon and London prisons. He is now in the Ross Correctional Institution near Chillicothe.

The issue of long hair on inmates and prison guards, and the authority of prison officials to order it cut as a potential security risk, has been fought in courts in various states.
Associated Press - February 26, 2001

http://www.the-review.com/Site%20Archive/Site%20Pages/010223/010223apwire.html

http://www.freedomforum.org/templates/document.asp?documentID=13195

CINCINNATI (AP) — An Orthodox Hasidic Jew serving a life term can sue Ohio prison officials on his claim they violated his right to freedom of religion when they forcibly cut off his beard.

However, the 6th U.S. Circuit Court of Appeals said that Hbrandon Lee Flagner cannot try to collect money damages from prison officials. Those officials are legally immune from such lawsuits in carrying out their official duties, the court ruled.

Flagner, 49, was sent to prison in 1986 after being convicted in Cuyahoga County of aggravated murder and kidnapping. He also was convicted of breaking and entering in Lorain County.

He said his beard and sideburns were cut in violation of his religious beliefs.

The state's lawyers are reviewing the ruling and deciding their next step, said Joe Case, a spokesman for Attorney General Betty Montgomery. He said they are concerned that the ruling could expose Ohio to many similar claims by bearded prisoners.

Prison officials say Flagner was treated no differently than other inmates. The state's prison regulations require inmates to keep beards and sideburns neatly trimmed, within a half inch of the skin, so that they cannot hide weapons, drugs or other illegal items.

Michael O'Hara, Flagner's lawyer, said he has seen photographs showing Flagner's beard reaching about 4 inches below his chin. O'Hara does not know whether the beard is longer now.

The defense presented testimony that Flagner and four American Indian prisoners were exempted from the grooming regulation between the time his beard and sideburns were cut in 1996 and 1998.

On fewer than five occasions, prison officials required Flagner to run his fingers through his beard and sideburns while they watched to see if he had hidden anything illegal. Nothing illegal was ever found, and there is no evidence that he has ever tried to escape from prison, according to testimony.

In a 2-1 ruling, the appeals court said Flagner had presented enough evidence about the prison system's on-again, off-again attitude toward cutting his beard that a trial jury should be asked to decide whether his First Amendment right of religious freedom was violated.

In a dissent, Judge David Nelson said he believes that Ohio has the constitutional authority to make Flagner comply with the grooming regulation.

The case now returns to U.S. District Judge Susan Dlott in Cincinnati for trial.

Flagner has been at the Mansfield, Lebanon and London prisons. He is now in the Ross Correctional Institution near Chillicothe.

The issue of long hair on inmates and prison guards, and the authority of prison officials to order it cut as a potential security risk, has been fought in courts in various states.

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