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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

Lots of cases from Columbus this week, perhaps the biggest being Barnes v. University Hospitals of Cleveland, concerning "private" judges and punitive damages.  I'll have more on that tomorrow. 

Hageman v. Southwest Gen. Hospital shows how easy it is for a lawyer to get into trouble.  I'd blogged about the case when it hit the court of appeals; basically, the plaintiff had been involved in some custody litigation, and his psychiatric records had been subpoenaed by the wife's attorney.  The plaintiff later sued the hospital, doctor, and attorney for violating the confidentiality of his medical records.  The 8th District affirmed the grant of summary judgment to the doctor and hospital, saying that the plaintiff's filing of the custody suit constituted a waiver of the right.  The plaintiff had also been charged with domestic violence, though, and the wife's lawyer had given the records to a prosecutor.  The 8th District said that was a no-no, and the Supreme Court affirmed its reversal of summary judgment for the lawyer.

In State v. Baker, the Supreme Court reverses the 9th District's hypertechnical reading of what is required for a final journal entry under CrimR 32(C). I'd blogged about this last year:  The 9th District had read the rule to require that an entry require not only a statement that the defendant had pled guilty, but a further "finding of guilt" by the court; absent that language, the 9th District held that the entry was not a final appealable order, and thus dismissed the appeals. The Supreme Court reverses, holding that a statement that the defendant pled guilty is sufficient. 

Finally, in Ohio Civil Rights Comm. v. Akron Metro. Housing Authority, the court held that a landlord can't be held liable for not evicting a tenant whose racial harassment of another tenant was creating a "hostile housing environment." 

On to the courts of appeals...

Criminal.  Convictions for forcible rape and rape of a person under 13 do not merge, because each requires proof of an element that the other does not, says 1st District... 10th District holds that licensed social worker's interview with child abuse victim not testimonial under Crawford... A bunch of cases from the 8th:  reverses conviction for corrupting another with drugs, holds that police testimony as to age of juvenile was hearsay and not sufficient for conviction... says that where defendant made an oral statement to police, but refused to make a written statement, state can introduce oral statement and refer to refusal to explain absence of written statement without improperly showing defendant's post-arrest silence... and reverses gross sexual imposition conviction on plain error analysis for trial court's failure to conduct examination to determine competency to testify of 4- and 5-year old witnesses... 5th District says that defense request for jury instruction on accident didn't preserve error where defense didn't thereafter object to instructions; Supreme Court rejected this approach 10 years ago in State v. Mack... 9th District says that trial court lost jurisdiction to consider defendant's post-conviction motion to vacate plea once appellate court had affirmed defendant's conviction on appeal...

Civil.  Plaintiff subpoenas records from independent medical examiner re his income from performing such examinations; 2nd District dismisses appeal from denial of motion to squash subpoena, saying denial isn't a final appealable order... 10th District upholds trial court's refusal to enforce a mahr -- agreement in Islamic divorces that husband will pay wife a upon divorce or death of husband -- on 1st Amendment grounds, also says that mahr was not a valid prenuptial agreement... Where plaintiff employee sued employer for failure to take precautions against store being robbed after two prior robberies, 2nd District says that employer's conduct did not rise to level of intentional tort...

I'd put the odds substantially lower than that.  In State v. Stephens-Tun, the defendant, a 26-year-old who used the Internet chat name of "come_ride_and _chill_with_me," hit on a 13-year-old named Destiny, who of course was not 13 years old; she was 26, and was working with group called Perverted Justice, which, in cooperation with the Darke County Sheriff's office, had set up a sting operation for Internet predators.  After traveling two hours to meet "Destiny," the defendant was instead confronted by Chris Hansen of NBC's "Dateline:  To Catch a Predator."  Note to future predators:  you might want to turn down the interview request.  From the court's opinion:

During his interview with Hansen, which was shown to the jury, Stephens-Tun admitted that he believed Destiny was a thirteen-year-old girl, and that he had brought two six-packs of Mike's Hard Lemonade for her to consume. He also stated that there was a "fifty-fifty chance" that he would have had sex with the girl.


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