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Case Update

The Supreme Court had one decision of interest last week, State v. Pelfrey, in which it affirmed the reversal of a felony conviction for tampering with records because the indictment didn't specify the aggravating circumstance necessary to elevate it from a misdemeanor.  This isn't anything earthshaking -- a jury verdict for nothing more than theft is a misdemeanor conviction, even if the indictment charges that it was for more than $500, which would make it a felony -- except that in this case the jury verdict read, "as charged in the indictment," and the indictment specified the aggravating factor.  Plus, the Court rebuffed the state's claim that the defendant waived any error in the form by not objecting to it at trial.

On to the courts of appeal. 

Civil.  In divorce case, 2nd District finds plaintiff's grounds for extreme cruelty "less than compelling," but affirms divorce on grounds of living separate and apart for more than one year, even though plaintiff never amended complaint to allege that... 5th District says judges must personally sign journal entries; rubber-stamped signature insufficient... 8th District holds that Ohio, not Michigan, statute of limitations applies where Ohio plaintiff was injured in Michigan on trip there through Ohio tour operator... Also holds that contesting motion for summary judgment based upon unanswered requests for admissions constitutes a motion to amend the answers, which trial court has discretion to grant... 5th District upholds determination that mother who worked part-time so as not to interfere with childrens' school activities was voluntarily underemployed...

Criminal.  8th District holds that pretrial electronic monitoring house arrest does not constitute "confinement," defendant not entitled to jail-time credit for that... 5th District holds that prior adjudication of delinquency for domestic violence elevates subsequent charge for same offense in juvenile court from misdemeanor to felony... Trial court loses jurisdiction to modify conditions of probation once appeal is filed, rules 9th District... 6th District holds that defendant has duty to retreat from common area of apartment building in determining self-defense issue...

That answers that question:  In a situation sure to arise with some frequency here in Cuyahoga County, the 2nd District holds that criminal trespass is not a lesser included offense of hunting without permission.  And the 8th District affirms a conviction against a defendant's claim that

his attorney's opening statement amounted to ineffective assistance of counsel because it failed to counter the force of the state's opening... During opening statement, the state gave the jury a detailed statement of what it expected the evidence would show. For his opening statement, Harris' attorney asked the jurors to "sit with an open mind" and apply common sense to the evidence. Counsel did not offer a defense theory of the case.

Frankly, I think most defendants would wind up with a better claim of ineffective assistance if their attorney did offer a defense theory of the case in opening statement.

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