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What's up in the 8th

Using the prosecutor's office as a collection agency, reluctant domestic violence victims, and the metaphysical question of whether one can attempt an attempt featured prominently in the 8th District cases last week.  Let's get down to it.

My personal experiences with home contractors led me to conclude long ago that society would be immeasurably improved if every third one was taken out and shot.  The 8th takes a more benign view (what could be a less benign view?) in State v. Waiters, where Waiters agreed to put in a countertop in a home for $2,000, took a grand, then didn't do the work and didn't give the money back.  His defense was that he started to do the work -- he took some measurements in the victim's home, and bought $17.98 worth of supplies at Home Depot.  That would certainly be a basis for a breach of contract suit, but here Waiters was charged with a crime, specifically, theft by deception, and the court vacates Waiters' conviction, holding that "the evidence is insufficient to establish that Waiters had no intent to perform under the contract at the time he accepted the victim's down payment."

Those who drafted Ohio's criminal code paid scant heed to the great philosopher Yoda's admonition,  "Do or do not; there is no 'try.'"  Numerous offenses include not only the completed crime, but an attempt to commit it as well; for example, aggravated robbery is defined as a person "attempting or committing a theft offense."  It's not unusual for a deal to be worked out where the defendant pleads to an attempt to commit a crime which already includes the attempt. 

That's the issue presented again in State v. McCornell, where the trial judge convicted McCornell, a home health care worker, of "attempted assault" for pepper-spraying his 78-year-old patient.  Although some courts have thrown out such pleas on the ground that an "attempt to commit an attempt" doesn't define a cognizable crime, the 8th has generally bypassed the question on the grounds that the defendant can't complain because he benefitted from the plea.  (Making a crime an "attempt" reduces it by one level of felony.)  Not in this case, though, because no plea was involved; the court vacates the conviction and discharges the defendant because assault already includes attempt in its definition.

For those confronting the frequent problem of a domestic violence complainant getting cold feet, State v. Clay is a must-read.   The prosecutor knew the victim was backing down, and warned the jury in voir dire that might happen.  When it did, he cross-examined her with her statement, and the trial court allowed him to introduce the statement as substantive evidence.  Both of those are no-no's, say the 8th:  you have to show surprise in order to cross-examine your own witness (or get the court to call the person as the court's witness), and prior statements can't be used as substantive evidence.  But it's all good:  the victim's statements to the officers are the scene of the crime come in as "excited utterances," so everything else is harmless.

On the civil side, the big player was sovereign immunity.  Brenner v. CCDCFS involved a case against the Children's Services Department for returning custody of a child to a 17-year-old mother, who promptly killed the child.  The 8th had recently rejected sovereign immunity claims twice before in such situations -- discussed here and here -- only to see itself reversed in both by the Supreme Court (discussed here).  Once bitten, twice shy:  the 8th reverses the trial court and holds that sovereign immunity applies, and for good measure holds that a social worker testifying in support of re-unification at the court hearing has absolute immunity for her testimony.

Last year I also did a post on the idiocy of the police emergency exception for sovereign immunity, noting that the courts have interpreted the provision so that virtually everything a police officer does while on duty is considered an "emergency."  That expansive interpretation continues in Longley v. Thailing, in which the officer had pulled over to assist a motorist in the "breakdown" lane.  After concluding that matter, the officer got back into his car, pulled into traffic, and promptly collided with the plaintiff's automobile.  The trial court had rejected the claim that sovereign immunity applied because the officer was responding to an emergency, noting that the accident occurred "after the 'emergency call,' rather than 'in response to' or 'in route to' an emergency call."

No matter, says the 8th:

Under the trial court's theory, the city would be entitled to immunity if the accident occurred when Cuervas was pulling over to investigate and when he was conducting his investigation, but not after.  This court has refused to limit the definition of an "emergency call" temporally.  Under the circumstances of this case, Cuervas's "professional obligation" had not ended; just as he was required by his professional duty to stop, since he remained on duty, he also was required to continue on his way.

Don't feel bad; it doesn't make any sense to me, either.  Why should the officer's immunity apply after he was done investigating the accident?  Why shouldn't there be temporal limits to an emergency call like, oh, maybe when it's over?  How far would the officer have had to "continue on his way" before his "professional duty" ended?  The highway?  The police station?  Home?  Retirement from the force?

Before my blood pressure goes up any more, maybe I ought to think of something more tranquil.  Like home contractors...

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