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What's Up in the 8th

Getting a criminal case reversed on weight or insufficiency of the evidence is a truly Quixotic task, but last week featured not one, but two decisions from the 8th District doing precisely that.

In State v. Gatson, the defendant had been convicted of domestic violence and intimidation on his girlfriend, the latter charge being based on the fact that when the girlfriend called the paramedics, she didn't tell them that Gatson had been the assailant because he was standing in the other room and she felt "afraid."  That's not enough, says the court; Gatson never threatened her, and her "apprehension or fear of Gatson alone, even if justifiable, is insufficient to support a felony conviction of intimidation."

State v. Hanna-Duffield featured an argument between two female apartment tenants that wound up in a hair-pulling contest, with the victim claiming that the tussle spilled into her apartment.  That was sufficient to get the defendant convicted of aggravated burglary.  All the other witnesses testified that it stayed in the hallway, enough to persuade the court that the jury lost its way in deciding that the defendant had "knowingly trespassed" into the victim's apartment.  How anybody got indicted, let alone convicted, for a first degree felony on this bullshit is beyond me, and I'm kinda guessing that's what the appellate court figured, too.

The other notable criminal case was State v. Sopko, which presented the Boston issue of a social worker testifying about the victim's veracity.  Social workers classify child abuse cases as "substantiated," "indicated," and "unsubstantiated," and the 8th has consistently allowed them to testify on this.  In this case, though, the social worker had testified that she "substantiated sexual abuse of [victim] with David Sopko as the perpetrator."  The court found the identification of the defendant as the perpetrator "troublesome," and so do I.  So did the dissenting judge, but not the majority, which affirmed the defendant's sentence of life without parole.

In the Honorable Mention category:  in State v. Hanni, the court affirms the view that running sentences concurrently doesn't remedy failing to merge them, but concludes that a 20-year sentence -- 10 for the underlying crime, and 10 for the RVO spec -- is not a disproportionate penalty for the forced anal rape of a 54-year-0ld mentally retarded woman, a proposition I find impossible to argue against.  Gross sexual imposition and kidnapping aren't allied offenses, the court tells us in State v. Teague, as the commission of GSI "will not automatically result in the commission of the offense of kidnapping under R.C. 2905.01(A)(4) because no restraint or removal is involved."   According to State v. Bahr, a trial court can't modify a lifetime driving suspension for a felony OVI, even to grant occupational driving privileges, until 15 years have elapsed, under RC 4510.04.

Some civil cases of note.  The lesson of Militiev v. McGee is that when there areJohn Doe defendants in the case, and the one-year period for serving them has not expired, a grant of summary judgment to the named defendants is not a final appealable order without the necessary 54(B) language.   In D'Amore v. Matthews, the court reverses the unexplained denial of a motion for leave to amend the plaintiff's complaint, noting that the motion to amend was filed just two months after the original complaint.  What's more, the court notes, a motion for leave to amend wasn't even necessary; although the defendant had filed a motion to dismiss, a plaintiff can amend without leave prior to the filing of a responsive pleading, which a motion to dismiss isn't. 

Dzina v. Dzina is a divorce case, involving no fewer than five separate lower court case numbers, which tells me all I need to know about that.

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