Welcome to The Briefcase

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

×

What's Up in the 8th

State v. Colon, the Supreme Court's decision last year on when an indictment is defective because it fails to include a mens rea element (discussed here), rears its ugly head in two more 8th District decisions this week.  The first is State v. Lawrence, or State v. Ray; the defendant is identified as "Ray Lawrence, aka Lawrence Ray."  Instead of being charged with lack of imagination, Lawrence was indicted for aggravated vehicular assault.  He pled out, but claimed on appeal that the indictment was defective under Colon.  Doesn't matter, says the court, following other decisions which have held that a defendant waives any claims regarding defects in the indictment by pleading guilty.

In State v. Ginley, though, the court does uphold a Colon claim.  Colon involved a robbery charge under 2911.02(A)(2) (causing or threatening physical harm), while Ginley was charged with aggravated robbery under 2911.01(A)(2) (causing or threatening serious physical harm).  The court sees no reason to distinguish between the two statutes. 

The distinction between insufficiency of the evidence and manifest weight is the featured attraction in Moreland Hills v. Bursky, involving a stop sign violation.  Unfortunately, the case doesn't do much to increase our understanding of that distinction.   The question is whether the cop could see if the Bursky had stopped at the stop line, and the panel determines that "there is no evidence to support a conclusion that Bursky did not stop at the stop line."   Given that a seasonable argument could be advanced that "no evidence" = "insufficient evidence," that takes care of that, right?  Nope; the court holds that "Bursky's conviction, although sustained by sufficient evidence, is against the manifest weight of the evidence."   If the conviction had been reversed for insufficient evidence, that would have barred retrial.  Now everybody goes back to have another trial on the same facts, the purpose of which eludes me. 

Speaking of déjà vu, State v. Holloway comes before the court for the third time.  After the second decision, which remanded the case for a Foster resentencing, Holloway filed a motion to withdraw his plea, which the court denied without a hearing.  The state conceded that was error, but the court disagreed, noting that "a trial court does not have jurisdiction, upon remand, to entertain a Crim.R. 32.1 motion to withdraw a plea after a judgment of conviction had been affirmed by the appellate court."

Defense counsel works overtime and comes up with 13 assignments of error in State v. Foster, a rape case; his efforts come to naught, as the court disposes of each of them in a paragraph or two.  Most of it is unremarkable, except one:  the victim had recanted, and a social worker and a detective had testified that victims recant in 15 to 20% of cases, and explained reasons why they recant.  The panel says that the witnesses simply "testified generally about their personal experience with victims of sexual crimes," and "neither opined why [victim] recanted her earlier allegations."  I'll bet the jury was able to make that distinction, too. 

A couple of civil cases of note.  (Yes, I do still talk about those on occasion.)  The lesson Ivanicky v. Pickus teaches is a simple one:  if you're going to file a motion to enforce a settlement in a civil case, it's a pretty good idea to submit evidentiary materials or an affidavit setting forth what the settlement was supposed to be.  And if you're a judge and you grant the motion with a hearing to determine what the settlement agreement was, you're going to get reversed.  And Ament v. Reassure America Life Ins. is an undue influence case notable for its discussion of that subject, and the use of the "state of mind" exception to the hearsay rule to allow statements by the deceased of her intent and motive for her actions.

See you tomorrow, when we'll do a Year in Review on sentencing cases.

Search

Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions