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While I was gone...

...on vacation, the 8th District wasn't, and handed down several decisions of significance.  A quick summary:

First up is State v. Henderson, where the defendant's charged with murder and having a weapon under disability.  Under the law, the defendant can choose to bifurcate the case, and have the judge determine the disability charge.  In this case, the judge started the case by announcing that's what he was going to do.  The appellate court tosses it, saying that when a defendant chooses to bifurcate and have the judge decide the weapons charge, the court has to comply with the normal requirements for a jury waiver:  the waiver has to be in writing, signed by defendant, filed, made part of record, and made in open court.

Then there's State v. Aponte, another bench trial, in which the defendant was charged with receiving stolen property, and the judge found him guilty of an attempt.  The defendant argued that there was no way the judge could have found him not guilty of the completed crime, but guilty of an attempt, but the panel held that the judge wasn't required to find him not guilty of RSP before finding him guilty of the attempt to commit the crime.  The case law generally holds that conviction of a lesser offense is an implicit acquittal of the greater offense, but the court holds that an attempt is "more closely related to an offense of inferior degree."  The opinion gets funky in a major way at that point, delving into mitigating factors, abandonment, affirmative defenses, and just about everything except the rule against perpetuities.

The key case of the lot is State v. Holder, a child-molestation case in which the defendant was charged with five counts of rape and gross sexual imposition, and two counts of sexual battery.  They were "carbon-copy" or "copy-cat" indictments:  there was nothing to differentiate any of the rape counts from the other rape counts, ditto the GSI and battery counts.

I'd talked about this problem before, with regard to the 8th District's decision last fall in State v. Ogle, along with the 6th Circuit's decision in Valentine v. KontehThe upshot of those decisions is that such "copy-cat" indictments pose double jeopardy problems:  if two counts are indistinguishable, and the defendant is convicted of one and acquitted of the other, how do you tell what he was convicted of and acquitted of?  While the defendants in Ogle and Valentine made that argument on appeal, the defendant in Holder decided on a pre-emptive strike:  he filed a motion under Rule 12(C) to dismiss the indictments because they presented a double jeopardy problem.  The trial judge agreed, and dismissed all but one count of each of the three charges.  The state appealed, but the panel noted that it had never sought to amend the indictment or bill of particulars, so Holder's argument was valid.

The upshot:  if you've got a case where the prosecution alleges that your client raped somebody x number of times over several years -- which is a common feature in those cases -- and there's nothing in the indictment or the bill of particulars to distinguish one count from the other, the court's got to kick out all but one.

Last, we bring you State v. Langford, a felonious assault case featuring what is commonly known here in Cuyahoga County as a "baby's mama drama":  two women, one dating a particular gentlemen and the other having had a child with him, get into a tiff.  The victim in this case happened to have had $600 on her, which the assailant allegedly stole. 

The highlight of the case was the testimony that the perpetrator hid money in her crotch, and what happened to it after that.  Think you want to be a police officer?  Read this from the court's opinion: 

Defendant's testimony that she kept the money in her pocket at all times and that it could not have been soiled when she became incontinent was simply unbelievable given the very graphic testimony by the institutional guard who found the money and the police officer who had the task of counting the money after it had been recovered from her. 

Eeeewwwww.

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