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Insufficient evidence - finally!

In doing my Case Update, which appears here every Monday, I'll skim over all the personal injury, criminal, and civil procedural cases that have come out of the Ohio courts during the proceeding week.  "Skim" is the operative word; I'll read the summary, maybe some of the headnotes.  Most times, if I see that the major discussion in a criminal case is the insufficiency or weight of the evidence, I'll skip it, because getting a case reversed on that basis offers about the same odds as Britney Spears getting inducted into MENSA

But lightning does strike, and last week it struck twice in the 8th District.  The first case was State v. Harris, involving a DWI stop in which the police recovered a gun under the front passenger seat, resulting in the prosecution and conviction of Harris, the passenger, for CCW and having a gun while under disability. 

It's quite common for everyone in a vehicle to be prosecuted if the police find dope or guns in it, and everybody usually concentrates on the concept of "constructive possession":  basically, if you can reach it, you're deemed to have possessed it.  As the court notes in Harris, there's another element, though:  the state also has to prove that the defendant knew that the contraband was there.  The court pointed to the total absence of any evidence indicating that Harris was aware that the gun was there:  it was under the seat, and he didn't make any furtive movement or show any other signs, such as nervousness, indicating that knowledge.

Harris isn't a get-out-of-jail free card, to be sure.  But if you've got a case involving this issue, it's a must-have, because it clearly shows that the police have to do more than than simply point to the fact that the defendant was in the car where the stuff was found.

The second case, State v. DeLuca, sounds like something out of Animal House.  Greg and Michelle Roppell had gone to have their taxes prepared by Ralph DeLuca, their accountant of 20 years.  Michelle gave DeLuca a "friendship hug" upon entering his office.  Forty-five minutes into their work, Greg asked to use the restroom, and DeLuca got up and directed him upstairs.  The court's opinion picks it up from there:

Michelle testified that as appellant was heading back to his desk he asked her for another hug, and she got up walked over to him and gave him a hug. As they were hugging, appellant slid his hands down her pants and underpants and squeezed her buttocks. Michelle testified that appellant then slid his hands up her sides, pulled up her  shirt and bra, and sucked on her breasts for about 15 seconds. Michelle explained that the encounter ended when she pushed appellant away, and that appellant laughed and said that he had been waiting twenty years to do that.

DeLuca probably should've waited another twenty years; he wound up getting convicted of two counts of gross sexual imposition and being branded a sexual offender.  The court vacated his conviction, though, noting that Michelle had specifically testified that

appellant did not use any force to put his hands down her pants, up her shirt, or to pull her bra up. None of her clothing was ripped. She testified that neither she nor appellant said anything during the encounter.

No force, no GSI.  There was also an interesting twist to the issue of the lesser included offense, simple sexual imposition.  That crime involves no element of force.  It does, however, require some proof beyond the victim's testimony.  The corroboration requirement, as the court notes, "is a threshold inquiry of legal sufficiency to be determined by the trial court and is not a question of proof for the factfinder."  In other words, it's a legal question for the judge to decide, not a factual question for the jury.  Since there wasn't any corroboration here, the court couldn't charge, and the jury couldn't convict, on sexual imposition.

I'm not sure that Deluca has much applicability, simply because the facts are so bizarre.  If you've got a case like this, you've got a far more interesting client base than I do.

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