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8th District Roundup

Sometimes reading cases teaches me stuff I didn't know.  Sometimes it just reinforces things I already knew.  This is what I learned/relearned from the 8th District's decisions last week.

You know when you do a no-contest plea, and the court asks the prosecutor to put a factual basis for the plea on the record?  As the court notes in State v. Baumgartner, that's not necessary:  a no contest plea admits the truth of all the allegations in the indictment, and if that's enough to charge an offense, that's all it takes.  I thought they might be wrong on this, so I did some checking, and they're not; there's plenty of case law, including this Ohio Supreme Court case (check page 387), to back it up. 

I also learned about the statute of limitations and RC 2913.61.  What happens if you're the account clerk for a firm, and write a check to yourself each week for eight years?  As you can see from the statute, as long as you're stealing money from a single employment or relationship, it's all one offense.  But that means, as the court explains in State v. Preztak, that the statute of limitations doesn't start to run until you stop stealing; that money you stole more than six years ago still counts. 

In State v. Naoum, I learned that the 8th is still pretty disposed to granting plea withdrawals because a court didn't properly do the advisement about immigration consequences for foreign defendants.   There are three potential consequences of a plea for such a defendant:  1) deportation, (2) exclusion from the US, and (3) denial of naturalization.  The easy thing to do if you're a judge is just to read RC 2943.031.  If you don't, and don't advise them of all three consequences, it's coming back.

In State v. Lucic, I re-learned that it doesn't pay to be an asshole.  Lucic parked illegally in front of a club, earning the attention of an off-duty cop who was working security there.  The cop asked Lucic to move the car, and Lucic told the cop he didn't have to, because the cop was "off duty."  Some more words were exchanged; the cop decided to write Lucic a parking ticket, and asked to see his driver's license.  Lucic didn't have it on him, so the officer arrested him.  By this time, another cop who was working security helpfully began an inventory of Lucic's car, and found a gun in the console. 

There's a few search issues out there -- you can't arrest someone for not having their license on him, as I've explained before -- but the only argument raised on appeal was sufficiency of the evidence, on the grounds that the state didn't prove the car belonged to Lucic, and thus that he knew the gun was there.  The court decided that there was enough circumstantial evidence to support the conviction, namely,

Lucic's demeanor leads to the natural inference that he was aware of the gun's presence.  Rather than conducting himself in a cooperative manner, his knowledge that he had a powerful weapon nearby allowed him to act arrogantly toward an "off-duty" police officer.

It's kind of a stretch to believe that Lucic figured he could mouth off, because he always had the option of blowing the cops away if they chose to ticket him.  Me, I'm thinking that the natural inference is that if I've got something I don't want the cops to find, I'm going to take pains not to give them a reason to look for it. 

I also learned that some things don't change.   A year ago, I commented on the fact that the 8th's 4th Amendment jurisprudence was a defense lawyer's dream, while its rulings on hearsay questions ran the gamut from simply wrong to outright bizarre:

The moral to this story is that if you come to Cleveland, don't worry about whatever evidence the police find on you, because it'll get thrown out.  But if the case actually goes to trial, anything anybody ever said to anyone else is going to come into evidence.

So in State v. Alexander, the police testify that when they arrested the defendant, he told them that he "can't take this rap," he has "another big drug case" pending, involving "a lot of money, a lot of drugs."   No problem; the 8th decides last week that the evidence can come in as an admission against interest under EvidR 801(D)(2)(a). 

That provision does indeed allow one party to offer an opposing party's statement.  But that doesn't mean it's automatically admissible; it just means that it's not hearsay.  It still has to clear the other hurdles for admission, like that its probative value (nil in this case) outweighs its prejudicial effect (huge).

Finally, I learned that in a rape case if there's not enough material left on the rectal swab -- eewwwww -- for the defendant's expert to test it for DNA, that's too bad, as long as the state didn't act improperly to deny him access.  State v. Gaines also contains a short explanation of the difference between the anus and the rectum, which reminded me of a Richard Pryor joke I won't repeat here.


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