[Cite as State v. Flynn, 2024-Ohio-941.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

MAHONING COUNTY

STATE OF OHIO,

Plaintiff-Appellant,

v.

BRIAN FLYNN,

Defendant-Appellee.

OPINION AND JUDGMENT ENTRY

Case No. 23 MA 0076

Criminal Appeal from the

Youngstown Municipal Court, Mahoning County, Ohio

Case Nos. 2022 CRB 1356Y – 2022 CRB 1369Y

BEFORE:

Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:

Affirmed.

Atty. James Vivo and Atty. Adam V. Buente, Youngstown City Law Department, for 

Plaintiff-Appellant and

Atty. Keith A. Washburn and Atty. Kay E. Cremeans, Fraternal Order of Police, for 

Defendant-Appellee.

Dated: March 13, 2024
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Case No. 23 MA 0076

HANNI, J.

{¶1} Plaintiff-Appellant, the State of Ohio, appeals from a Youngstown Municipal 

Court judgment dismissing 14 misdemeanor counts of dereliction of duty against 

Defendant-Appellee, Brian Flynn. 

{¶2} At all relevant times, Flynn was employed by the Youngstown Police 

Department (YPD) as a lieutenant. Flynn’s job duties included investigating potential 

Internet Crimes Against Children (ICAC). Suspicions arose that Flynn was not properly 

following procedures regarding these investigations. These suspicions lead to an Internal 

Affairs (IA) investigation by the YPD. Lieutenant Brian Butler, a staff inspector for the 

YPD, was assigned to handle the IA investigation. 

{¶3} In February 2021, Lt. Butler gave Flynn a “Garrity” notice. In the next month, 

Flynn made several statements in the IA investigation, which were reduced to writing (the 

Garrity material). The Garrity material, along with other material that Lt. Butler compiled, 

was delivered to Attorney Jeffrey Moliterno, an assistant prosecutor with the Youngstown 

City Law Director’s Office, where it remained for some time.

{¶4} The Youngstown City Law Director at the time, Attorney J. Jeffrey Limbian, 

arranged for an outside agency to conduct a criminal investigation into Flynn’s actions, 

separate from the IA investigation. He contracted with Detective Brian Breeden from the 

Summit County Sheriff’s Office to investigate the matter. In reviewing material provided 

to him from the Law Director’s Office, Det. Breeden identified some Garrity materials, 

which he kept separate from his criminal investigation. 

{¶5} On October 24, 2022, 14 complaints were filed against Flynn in the 

Youngstown Municipal Court. The complaints alleged Flynn was the designated contact 

person within the YPD to receive, assess, and act upon “Cyber Tips” from the ICAC Data 

System and although Cyber Tips were received, Flynn intentionally failed to review, 

assess, and act upon them. The complaints further alleged Flynn intentionally instructed 

subordinate officers to ignore and disregard the Cyber Tips. Each complaint charged 

Flynn with one count of dereliction of duty, a second-degree misdemeanor in violation of 

R.C. 2921.44(B). The affidavit of Attorney Limbian accompanied each complaint. 

{¶6} This case concerns the potential use of “Garrity” materials. 
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{¶7} A Garrity statement is “a public employee’s statement given during an 

internal investigation under the threat of the employee's termination from office[.]” State 

v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621, 927 N.E.2d 574, ¶ 1, citing Garrity v. 

New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). The United States 

Supreme Court has held that the protection against self-incrimination prohibits the use of 

statements made under threat of removal from office in later criminal proceedings. Id. at 

¶ 13, citing Garrity, at 499-500.

{¶8} The Supreme Court later held that when a person is granted immunity to 

compel his or her testimony, that testimony and any evidence derived from it cannot be 

used against the declarant in a later criminal proceeding. Id. at ¶ 14, citing Kastigar v. 

United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The State may not 

make direct or derivative use of an employee’s statement that was compelled under threat 

of the employee’s removal from office in a subsequent criminal proceeding. Id. 

{¶9} On February 23, 2023, Flynn filed motions for a Kastigar hearing and orders 

prohibiting any use of Garrity statements/evidence and an alternative motion to dismiss 

the charges against him. 

{¶10} The trial court held a hearing on Flynn’s motions on May 4, 2023, where it 

heard testimony from Det. Breeden and Lt. Butler. The trial court found there was no 

evidence to contradict Det. Breeden’s testimony that he did not use any Garrity materials 

in conducting his criminal investigation or in reaching his conclusions. The court noted, 

however, there was no evidence presented by either party to indicate whether the Garrity

materials were or were not used in the criminal investigation by individuals other than Det. 

Breeden. It also stated there was no evidence presented as to whether Garrity materials 

were or were not used by the State in deciding to charge Flynn nor was there any 

evidence presented as to whether Garrity materials have or have not been used by the 

State in the preparation of the criminal case for trial. The court found the State did not 

prove that the evidence it intended to use at trial was derived from legitimate sources 

wholly independent of the Garrity materials. 

{¶11} Based on its findings, the trial court found that Det. Breeden was aware of 

the Garrity materials but that he did not use them in completing his part of the criminal 

investigation. However, the court also found that the State failed to affirmatively prove 
– 4 –

Case No. 23 MA 0076

that no other person was involved with the criminal investigation. And furthermore, the 

court found the evidence clearly showed that the Garrity materials were in the possession 

of the Law Director’s Office for months prior to the charges being filed. Thus, the court 

found that the State failed to affirmatively establish that the Garrity materials were not 

used in the criminal investigation nor in the Law Director’s decision to file charges. 

Additionally, it found the State did not affirmatively prove that the evidence it intended to 

use at trial was derived from legitimate sources wholly independent of the Garrity 

materials. Accordingly, the court dismissed the charges against Flynn.

{¶12} The State filed a timely notice of appeal on July 5, 2023. It now raises three 

assignments of error.

{¶13} The State’s first assignment of error states:

THE TRIAL COURT ERRED IN ITS APPLICATION OF THE 

GARRITY/KASTIGAR PRONGS BECAUSE THE STATE OF OHIO 

SUCCESSFULLY PRODUCED SUFFICIENT EVIDENCE NECESSARY 

TO PERMIT THE CASE TO PROCEED TO TRIAL.

{¶14} Here, the State asserts that it met its burden of proof at the Garrity hearing. 

It claims it proved by way of Det. Breeden’s testimony that the evidence he compiled was 

derived from legitimate, independent sources. The State asserts that Det. Breeden’s 

testimony was itself the required denial of the use of Garrity material. And it points to Det. 

Breeden’s testimony that he knew to keep his investigation separate from any internal 

investigation and that he did not use any personnel information. Finally, the State notes 

that the trial court found there was no evidence to contradict Det. Breeden’s testimony 

that he did not use any Garrity materials in his investigation and there was no evidence 

indicating whether Garrity materials were used by someone other than Det. Breeden. 

{¶15} Quoting State v. Conrad, 50 Ohio St.3d 1, 4, 552 N.E.2d 214 (1990), the 

Ohio Supreme Court has explained the relevant test:

“[T]he Kastigar court established a two-prong[ed] test that the prosecution 

must satisfy where a witness makes the claim that his or her immunized 

testimony was used: (1) the government must deny any use of the 

accused’s own immunized testimony against him or her in a criminal case; 
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Case No. 23 MA 0076

and (2) the government must affirmatively prove that all of the evidence to 

be used at trial is derived from sources wholly independent of immunized 

testimony.” (Emphasis sic.) 

Jackson, 2010-Ohio-621, at ¶ 18. The Court went on to hold that: “the state makes 

derivative use of a Garrity statement both when the prosecutor presents to the grand jury 

testimony from a witness to a Garrity statement and when the prosecutor reviews a Garrity

statement in preparation for trial.” Id. at ¶ 25. Again citing Conrad, the Court stated that 

when compelled testimony is used against the witness who provided it, any error cannot 

be harmless. Id. at ¶ 29, citing Conrad, at 5. The remedy is dismissal of the indictment. 

Id. “When the state fails to prove that it did not make any use of a Garrity statement in 

obtaining an indictment, the indictment must be dismissed.” Id. 

{¶16} In the present case, Flynn was charged with misdemeanors, not felonies. 

So there was no indictment. But Garrity and Kastigar apply equally to misdemeanors. 

See State v. Kirk, 12th Dist. Clinton No. CA2009-09-015, 2010-Ohio-1287; State v. 

Brocious, 2d Dist. Clark No. 2002CA89, 2003-Ohio-4708. The burden then was on the 

State at the hearing to prove that it did not use any Garrity materials in deciding to file the 

misdemeanor charges against Flynn or in preparation of trial.

{¶17} At the hearing, Det. Breeden testified as follows. In 2021, Det. Breeden’s 

supervisor assigned him to investigate the matter regarding Flynn after his supervisor 

was contacted by the YPD. (Tr. 20-21). The detective testified that when his investigation 

involves a police officer, he proceeds in a manner so as to avoid using information 

gathered in the officer’s personnel or disciplinary file. (Tr. 22-23). He stated that his 

criminal investigation must be conducted separately from any internal investigation so as 

to comply with Garrity. (Tr. 23). 

{¶18} In investigating Flynn, Det. Breeden stated that he requested certain 

information from the YPD. In an email “dump”, he did receive an email between internal 

affairs and Flynn. (Tr. 25). Det. Breeden testified that he disregarded that email because 

he could not include it in his investigation. (Tr. 25). He compiled a binder of all of the 

information he obtained during his investigation. (Tr. 25). The detective delivered that 

binder to the YPD. (Tr. 26). Det. Breeden testified that he was fully aware of the inability 

of the State to use Flynn’s IA investigation in a criminal case and that he prepared his 
– 6 –

Case No. 23 MA 0076

binder relating to the criminal case independently of any of the prohibited areas of 

information. (Tr. 27). 

{¶19} As part of his investigation, Det. Breeden requested from the YPD all emails 

and communications related to ICAC and Flynn. (Tr. 36). A few of the emails he was 

provided in response contained Garrity material. Exhibit C was an email between Flynn 

and Flynn’s FOP representative discussing responses to the IA questions. (Tr. 31-32). 

Exhibit E was an email from Lt. Butler to Flynn containing follow-up questions in the IA 

investigation. (Tr. 33-34). Exhibit I was an email from Flynn to Lt. Butler containing the 

answers to the lieutenant’s IA questions. (Tr. 38). Det. Breeden saw and disregarded 

each of these Garrity emails. (Tr. 32, 34, 38, 40). When Det. Breeden returned the 

records he had received to the Youngstown City Law Department, he advised the law 

director that there were some items within his records request that he believed were IA 

related and which the detective disregarded. (Tr. 40). 

{¶20} Lt. Butler also testified. He stated that he runs the IA division at the YPD. 

Lt. Butler testified that Flynn was given his Garrity rights on February 23, 2021. (Tr. 60). 

He stated that at some point during his investigation, the Youngstown City Law 

Department asked him for a copy of his IA file dealing with Flynn. (Tr. 60). In response, 

Lt. Butler provided the law department with a binder containing his IA investigation. (Tr. 

61). The lieutenant stated that the binder included Flynn’s answers to IA questions, in 

other words, Garrity materials. (Tr. 61, 71). He could not remember the date he provided 

the binder to the law department but he testified the binder remained with the law 

department for months before he retrieved it. (Tr. 61). Lt. Butler stated that he gave the 

binder to the law department at the request of law department attorney, Jeff Moliterno, 

who was representing the city at a pre-disciplinary meeting with Flynn. (Tr. 62). Atty. 

Moliterno’s supervisor was Atty. Limbian, the city law director. (Tr. 62). 

{¶21} The evidence presented supports the trial court’s findings. It revealed the 

following. 

{¶22} Lt. Butler conducted the IA investigation. Det. Breeden conducted the 

criminal investigation. Thus, the two investigations were conducted independently from 

each other. Det. Breeden became aware of the existence of Garrity materials obtained 

during the IA investigation, but he was able to put them aside and not consider them. The 
– 7 –

Case No. 23 MA 0076

trial court believed Det. Breeden’s testimony that he did not consider the Garrity material 

in conducting his investigation. 

{¶23} But “Jackson, Conrad, and Kastigar specifically prohibit any use by the 

prosecutor of a witness' immunized statement.” Kirk, 2010-Ohio-1287, ¶ 18. Prior to the 

criminal charges being filed, Lt. Butler turned over his binder containing all of the 

information obtained during his IA investigation, including the Garrity materials, to the 

Youngstown City Law Department. Turning over the Garrity materials from the IA 

investigation to the law department created a substantial burden for the City to overcome 

to comply with the Kastigar test. The city law department, at the request of one of its 

attorneys, was in possession of the IA binder including the Garrity materials for quite 

some time. When Lt. Butler was asked how long the binder was in the possession of the 

city law department, he responded: “You know, I want to say months. But I, it seemed 

like a longer period. To my memory it seemed like a very long time.” (Tr. 62). And each 

of the misdemeanor complaints filed against Flynn was accompanied by a probable cause 

affidavit of the city law director.

{¶24} The State bears the burden to prove that “no use was made of the 

immunized statement[.]” Id. In this case, the State was unable to meet its burden. While 

the State was able to prove that Det. Breeden did not use the Garrity materials, it did not 

offer any evidence, let alone prove, that the Garrity materials were not used by the law 

department in deciding to file the complaints against Flynn. The Garrity materials were 

in the possession of the law department for a significant amount of time and the law 

director is the one who filed the probable cause affidavits to charge Flynn. The State 

could not explain exactly how long the Garrity materials were with the city law department 

or how those materials were protected from infiltrating the criminal investigation. In light 

of these facts, the State had to present evidence demonstrating that it did not use the 

Garrity material at all in deciding to file charges against Flynn. The burden was on the 

State and it did not meet this burden

{¶25} Accordingly, the State’s first assignment of error is without merit and is 

overruled. 

{¶26} The State’s second assignment of error states:
– 8 –

Case No. 23 MA 0076

THE TRIAL COURT ERRED IN DISMISSING THE CHARGES AGAINST 

FLYNN BECAUSE THE LAW DEPARTMENT’S MERE POSSESSION OF 

THE GARRITY MATERIALS DID NOT, IN ITSELF, CONSTITUTE A 

GARRITY VIOLATION. 

{¶27} The State claims the fact that it possessed both Garrity-protected material 

and an independent investigation report at the same time is not dispositive of whether a 

Garrity violation occurred. Instead, it claims the court was to look to whether it used the 

immunized material. 

{¶28} The State is correct so far as the fact that it possessed Garrity materials is 

not dispositive of whether a Garrity violation occurred. But as discussed in the first 

assignment of error, the burden was on the State to prove that it did not use the Garrity

materials in its possession. And the State did not offer any evidence to prove this. It only 

presented evidence that Det. Breeden did not use the Garrity materials in his 

investigation. The burden was not on Flynn to show that the State used the Garrity

materials. 

{¶29} Accordingly, the State’s second assignment of error is without merit and is 

overruled. 

{¶30} The State’s third assignment of error states:

THE TRIAL COURT ERRED BECAUSE ITS DISMISSAL OF THE 

CHARGES IS INCONSISTENT WITH THE APPLICATION OF FIFTH 

AMENDMENT PROTECTIONS. 

{¶31} The State argues here that the trial court erred in dismissing the indictment 

after it found that neither party provided evidence that a Garrity violation in fact occurred. 

It asserts there was no evidence that the internal affairs investigation was used to procure 

the charges against Flynn. Thus, the State contends dismissal of the charges was 

inconsistent with the application of the Fifth Amendment. 

{¶32} The State’s argument here takes issue with the fact that the trial court found 

neither party provided evidence that a Garrity violation in fact occurred. 

{¶33} In examining a Garrity case, the Second District set out the protections of 

the Fifth Amendment:
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Case No. 23 MA 0076

“The Fifth Amendment provides that no person ‘shall be compelled in any 

criminal case to be a witness against himself.’ The Amendment not only 

protects the individual against being involuntarily called as a witness against 

himself in a criminal prosecution but also privileges him not to answer official 

questions put to him in any other proceeding, civil or criminal, formal or 

informal, where the answers might incriminate him in future criminal 

proceedings.” 

State v. Schimmel, 2017-Ohio-7747, 85 N.E.3d 774, ¶ 16 (2d Dist.), quoting Lefkowitz v. 

Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), citing McCarthy v. 

Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 69 L.Ed. 158 (1924).

{¶34} And the Ohio Supreme Court has held that when the State fails to prove 

that it did not make any use of a Garrity statement in obtaining an indictment, dismissal 

is the appropriate remedy. Jackson, 2010-Ohio-621, ¶ 29. Thus, dismissal of the charges 

against Flynn in this case was the proper remedy. 

{¶35} Accordingly, the State’s third assignment of error is without merit and is 

overruled.

{¶36} For the reasons stated above, the trial court’s judgment is hereby affirmed. 

Waite, J., concurs.

Robb, P.J., concurs.
[Cite as State v. Flynn, 2024-Ohio-941.]

For the reasons stated in the Opinion rendered herein, the assignments of error 

are overruled and it is the final judgment and order of this Court that the judgment of the 

Youngstown Municipal Court, Mahoning County, Ohio, is affirmed. Costs to be taxed 

against the Appellant.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.