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What's Up in the 8th

Take three sentencing cases, add two search decisions, toss in a couple of Colon issues and a pinch of some weird sex case, bring to boil, simmer for twenty minutes, and you've got the normal 8th District weekly stew.  Let's take a look...

The moral of State v. Bell is that if you're going to beat someone half to death with a rock, it's probably not a good idea to do it in a place where they have video surveillance.  The sentencing judge took a look at the video and gave Bell maximum consecutive sentences of twenty years for attempted murder and aggravated robbery, despite Bell's rap sheet consisting of only a 1995 theft conviction, and the court affirms.  In State v. Quinones, the defendant claims the judge didn't consider 2929.11 and 2929.12 in the sentencing, and sure enough, there's nothing in the record indicating he did.  Doesn't matter; the court holds that "where the record is silent, a presumption exists that the trial court has considered the factors."  I know this is the law, but it's stupid; how in the world would you ever overcome this presumption?  If you're going to have statutes which require a sentencing judge to consider certain factors, is it too much trouble to require him to at least mumble something about how he did that?

A couple of Colon cases, too, including  a rare reversal on that issue.  In State v. Dzelajlija, the defendant had been convicted of robbery with physical harm and robbery by force.  No mens rea was specified in the indictment for either one.  The court holds that the proper intent element was "recklessness" for both, and that the failure to include that in any aspect of the trial mirrored the situation in Colon, and was therefore structural error requiring reversal.  The defendant doesn't fare as well in State v. Hodges, where the kidnapping statute is at issue.  That statute says a person can't restrain another "for the purpose of" engaging in some other felony, and the court says that's all the intent that's necessary.

As for civil cases, you gotta love it.  Doctor treats patient for the soft tissue injuries from two auto accidents.  Patient runs up $15,000 bill.  Doctor sues patient.  Patient files counterclaim for malpractice, claiming bills were excessive for care rendered.  Counterclaim dismissed, so doctor sues patient's attorney for abuse of process.  Here's where it gets weird.  (Here???)  The difference between abuse of process and malicious prosecution is that in the former, the lawsuit's valid but is being used for an ulterior purpose, while in the latter the lawsuit's bogus.  In fact, the first element of abuse of process is that the lawsuit was "properly initiated and supported by probable cause."  In Kavlich v. Hildebrand, the doctor asserted that the lawyer unilaterally filed the malpractice counterclaim without getting his client's approval, to force a settlement of the fee dispute.  But that means the suit wasn't "properly initiated"!  So the court affirms the summary judgment against the doctor, and you can read the decision for yourself, and then your head will hurt just like mine did.

Finally, the early nominee for Skeevy Case of the Year goes to State v. Hartman, which proposes to answer the question:  if a 50-year-old man offers an 8-year-old girl forty bucks to do a lapdance on him, can he defeat a conviction for importuning -- soliciting someone under 13 to engage in sexual activity -- by claiming that the request for a lap dance fell short of the definition of sexual activity, because an 8-year-old wouldn't know what a lap dance was?  The answer is no, but it could be that Hartman simply picked the wrong 8-year-old; this one did know, the detective testified, because her two cousins were strippers.  One might imagine that Hartman's case was not helped by his admission to the detective "that it was possible that [the victim] could see his exposed penis because of the way he had been sitting."

I always pay careful attention to how I'm sitting to avoid just that problem, and I'd suggest you do, too.

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