[Cite as State v. Smith,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-22-053

Appellee Trial Court No. 2021CR0220

v.

Samon Latrice Smith DECISION AND JUDGMENT

Appellant Decided: May 26, 2023

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant

*****

ZMUDA, J.

I. Introduction

{¶ 1} Appellant, Samon Latrice Smith, appeals the judgment of the Wood County

Court of Common Pleas, sentencing her to three years of community control after

accepting her guilty plea to one count each of improperly handling firearms in a motor

vehicle, endangering children, and petty theft. For the following reasons, we dismiss this

appeal as moot. A. Facts and Procedural Background

{¶ 2} On June 3, 2021, a four-count indictment was filed, charging appellant with

one count of improperly handling firearms in a motor vehicle in violation of R.C.

2923.16(B) and (I), a felony of the fourth degree, two counts of endangering children in

violation of R.C. 2919.22(A) and (E)(2)(a), misdemeanors of the first degree, and one

count of petty theft in violation of R.C. 2913.02(A)(1) and (B)(2), a misdemeanor of the

first degree. A one-year firearm specification under R.C. 2941.141(A) was also attached

to the charge for improperly handling firearms in a motor vehicle. The charges stemmed

from an incident that occurred on April 15, 2021, in which law enforcement officers

stopped appellant’s vehicle after loss prevention officers observed her shoplifting at a

Wal-Mart store in Perrysburg Township. At the time of the stop, officers observed

appellant’s two-year-old daughter and seven-week-old son improperly secured in the

back seat, as well as a loaded semi-automatic handgun in her glove box.

{¶ 3} On July 23, 2021, appellant appeared before the trial court for arraignment

and pled not guilty to the aforementioned offenses. Thereafter, the matter proceeded

through pretrial motion practice and plea negotiations. Eventually, the parties reached a

plea agreement, under which appellant agreed to plead guilty to improperly handling

firearms in a motor vehicle, one count of endangering children, and the petty theft charge,

in exchange for the state’s dismissal of the remaining endangering children charge and

2. the firearm specification. Additionally, the state agreed to recommend a community

control sentence at sentencing.

{¶ 4} On May 10, 2022, a plea hearing was held, at which appellant withdrew her

not guilty plea and pled guilty to improperly handling firearms in a motor vehicle,

endangering children, and petty theft, as described above. Following a Crim.R. 11

colloquy, the trial court asked the state to recite its factual basis for the charges. The state

responded:

Had the matter proceeded to trial the state would have called the

relevant witnesses and submitted documentary evidence to prove each and

every element of the offenses beyond a reasonable doubt. More

specifically, the State would have called representatives from Wal-Mart

loss prevention as well as officers from Perrysburg Township Police [who]

collectively would have testified the officers received a call from Wal-Mart

loss prevention indicating two females in the store were shoplifting. While

en route, loss prevention indicated the females had left the store and gave

descriptions of one of the vehicles.

Ultimately that vehicle was pulled over in which defendant Samon

Smith was driving, also in the car was her two-year-old daughter, initials

A.B., seven-week-old son, initials same A.B. They were both in the back

3. seat. The seven-week-old son was in a car seat but it was not in a car base

nor was it secured with a seat belt.

Upon talking with Ms. Smith, she admitted to stealing a Roku stick

from Wal-Mart. There were groceries in the vehicle that she had paid for.

However, upon a search of the vehicle, they found many more items that

had been stolen, as well as in the glove box a 9-millimeter Zingana PX-9, a

semi-automatic handgun which had a live bullet in the chamber, also a

magazine located in the passenger seat, also a box of 9-millimeter rounds in

the defendant’s purse. The value of the items stolen was $276.21, which

Miss Smith admitted to taking.

{¶ 5} At the conclusion of the Crim.R. 11 colloquy and the recitation of the facts,

the trial court accepted appellant’s guilty plea. The court then ordered the preparation of

presentence investigation report and the matter was continued for sentencing.

{¶ 6} Appellant’s sentencing hearing was held on July 29, 2022. At the hearing,

the trial court heard statements from the parties in mitigation, and ultimately sentenced

appellant to three years of community control.

{¶ 7} Among other conditions of appellant’s community control, the court ordered

appellant, who was pregnant at the time, to “get regular checkups at an OB-GYN or at the

Health Department for the baby that you expect to give birth to. You’re going to have to

get checkups every four weeks for the first 28 weeks, checkups every two weeks from

4. weeks 28 to 36, and every week thereafter.” Appellant’s defense counsel objected to the

foregoing community control condition, arguing that the condition was “an overreach of

the Court.”

{¶ 8} On September 1, 2022, appellant filed her timely notice of appeal. While

the appeal was pending, on February 28, 2023, the state filed a motion to supplement the

record with two exhibits under seal pursuant to App.R. 9, and to file those exhibits

instanter. The first exhibit is a birth certificate evidencing the birth of appellant’s

daughter, Al.B., on October 25, 2022. The second exhibit is an order from a magistrate

of the Lucas County Court of Common Pleas, Juvenile Division, reflecting that Al.B. was

placed into shelter care and the interim temporary custody of Lucas County Children

Services on October 28, 2022.

{¶ 9} Thereafter, on March 7, 2023, the state filed a suggestion of mootness under

6th Dist.Loc.App.R. 10(I). In its filing, the state argued that the issue of whether the

community control condition requiring appellant to attend prenatal visits was proper has

been rendered moot by Al.B.’s birth on October 25, 2022. Appellant did not respond to

the state’s motion to supplement the record or the state’s suggestion of mootness. The

matter is now decisional.

B. Assignments of Error

{¶ 10} On appeal, appellant assigns the following error for our review:

5. The trial court abused its discretion by ordering Appellant to obtain

medical treatment during her pregnancy.

II. Analysis

{¶ 11} In her sole assignment of error, appellant argues that the trial court erred in

ordering her to obtain medical treatment during her pregnancy.

{¶ 12} Before we reach the merits of appellant’s argument, we must first address

the state’s contention that this issue was rendered moot when appellant gave birth to

Al.B. on October 25, 2022.

{¶ 13} “Evidence that a case is moot can come from outside of the record.” Darr

v. Livingston,

,

, ¶ 16 (10th Dist.), citing State ex rel.

Cincinnati Enquirer v. Dupuis,

,

,

.

Therefore, we find it appropriate to supplement the record with the two exhibits attached

to the state’s unopposed February 28, 2023 motion to supplement the record. The state’s

motion is well-taken, and the same is hereby granted.

{¶ 14} “The role of courts is to decide adversarial legal cases and to issue

judgments that can be carried into effect.” Cyran v. Cyran,

, 2018-

Ohio-24,

, citing Fortner v. Thomas,

,

(1970). Referencing the mootness doctrine, the court in Cyran stated that “American

courts will not decide cases in which there is no longer an actual legal controversy

between the parties. * * * Thus, when parties ‘lack a legally cognizable interest in the

6. outcome,’ a case becomes moot.”

quoting Powell v. McCormack,

,

,

(1969).

{¶ 15} The only issue raised by appellant in this appeal is whether the trial court’s

imposition of a community control condition requiring appellant to seek medical

treatment during her pregnancy was proper. Appellant is no longer pregnant, and thus the

challenged condition no longer applies. Consequently, there is no longer an actual legal

controversy between the parties and, absent an exception to the mootness doctrine, this

appeal must be dismissed.

{¶ 16} While appellant has done nothing to challenge the state’s assertion that this

appeal is moot given the birth of her daughter, the state preemptively raised the only

arguably applicable exception to the mootness doctrine, namely that the issue raised by

appellant here is capable of repetition yet evading review.1 Since the state raised it, we

will briefly examine this exception.

1 Another exception to the mootness doctrine applies in the criminal context where the defendant, having been convicted and having completed the defendant’s sentence, will suffer “some collateral disability or loss of civil rights from such judgment or conviction.” State v. Wilson,

,

, syllabus (1975). However, this exception does not apply where the defendant “only challenges [her] sentence and not [her] convictions.” State v. Ambriez, 6th Dist. Lucas No. L-04-1382,

. This exception is not applicable here, since appellant will suffer no collateral disability or loss of civil rights stemming from the trial court’s community control condition.

7. {¶ 17} “An issue is capable of repetition yet evading review if the challenged

action is too short in duration to be fully litigated prior to its cessation and there is a

reasonable expectation that the parties will be subject to the same action again.” State ex

rel. Casanova v. Lutz, --- Ohio St.3d ----,

, --- N.E.3d ----, ¶ 3, citing

M.R. v. Niesen,

,

,

. “‘It is not

enough for an issue to be capable of repetition between some parties; the issue must be

capable of repetition between the “same” parties.’”

quoting

, quoting

United States v. Sanchez-Gomez, --- U.S. ----,

,

(2018).

{¶ 18} This exception is plainly inapplicable in this case. Here, there is no

reasonable expectation that appellant will be ordered to submit to pregnancy-related

medical treatment again as part of this community control sanction. Indeed, the trial

court’s pregnancy-related condition explicitly applied only to “the baby that you expect

to give birth to,” namely Al.B. Thus, no such condition would apply to a future

pregnancy during the remainder of appellant’s community control.

{¶ 19} At most, appellant may contend that she will likely violate the law again at

a time when she is pregnant. However, courts “have consistently refused to ‘conclude

that the case-or-controversy requirement is satisfied by’ the possibility that a party ‘will

be prosecuted for violating valid criminal laws.’” U.S. v. Sanchez-Gomez, --- U.S. ----,

,

(2018), quoting O'Shea v. Littleton,

. 497,

,

(1974). Further, we must assume that litigants like

appellant “will conduct their activities within the law and so avoid prosecution and

conviction as well as exposure to the challenged course of conduct.”

{¶ 20} In light of the foregoing, we find that it is not reasonable to expect that the

issue of whether the trial court erred in ordering appellant to undergo pregnancy-related

medical treatment as a condition of her community control will arise again between the

same parties. As such, it is not capable of repetition yet evading review. Instead, this

issue became moot at the moment appellant gave birth to her daughter. There is no

longer a legal controversy between the parties.

III. Conclusion

{¶ 21} For the foregoing reasons, we find that appellant’s appeal of the judgment

of the Wood County Court of Common Pleas is moot. Therefore, we dismiss appellant’s

appeal, and order that appellant pay the costs of this appeal pursuant to App.R. 24.

Judgment moot.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

9. State of Ohio v. Samon Latrice Smith WD-22-053

Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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