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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.

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