I’ve got a trial this week, so time is short.  Fortunately, a couple of members of my vast legion of faithful readers have provided me with the fodder for a quick post on what’s necessary to get beyond a motion to dismiss for failure to state a claim, and what the State has to show in order to prove a prior conviction.  There’s diversity for you…

For those of us who practice civil law to some extent, having a case thrown out for failure to state a claim under Civil Rule 12(B)(6)  is about as low as you can go.  The standard for getting past such a motion is minimal:  numerous Ohio decisions have established that for such a motion to be granted “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.”

Well, maybe.  Back in 2007, in Bell Atlantic v. Twombly, the US Supreme Court enunciated a higher standard.  The case involved an anti-trust allegation, which in that case required proof of an agreement between several corporations.   The plaintiff didn’t have any direct proof, but relied instead on evidence of “parallel conduct”:  the defendants were acting in the same manner, so it could be inferred that this was the result of an agreement between them.  Not enough, said the Court:  the plaintiff had the burden of setting forth facts showing that such an agreement was not only conceivable, but that it was plausible.

So why are we talking about this?  Because, as one of my readers pointed out to me, buried in the 8th District’s decision three months back in Gallo v. Westfield Nat’l Ins. is a statement adopting the Twombly test.  It’s the only reference in any Ohio decision to Twombly since that case came down.

The court need not have done this; US Supreme Court decisions on the Federal rules of procedure have no binding effect on anything other than the Federal courts.  The decisions are “persuasive,” since there’s a great deal of similarity between the Federal and state civil rules, but that was truer when the state rules were first adopted, and there was no body of law interpreting them.  There are no end of cases on Ohio’s Rule 12(B)(6), though, so Twombly’s application isn’t required.  Nonetheless, it’s arguably been adopted here in the 8th District, and it’s something attorneys handling civil cases should be aware of.

Criminal lawyers, on the other hand, should be aware of what my buddy Paul ran into the other day.  He’s got a felony domestic violence case, which requires the state to prove the defendant’s previously been convicted of that crime.  What exactly does the state need to do that, he asked me?

This crops up a lot:  there are a number of other crimes, like drunk driving, which can also be “enhanced” by prior convictions, and then there are repeat violent offender or major drug offender specifications.  In fact, it crops up so frequently that the legislature specified how the prior conviction has to be proved in RC 2945.75(B)(1):

Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.

What is “sufficient proof of identity”?  Just how tricky this can be is demonstrated in this 1995 case.  The state was trying to prove that the defendant had been convicted of aggravated burglary in 1984.  It introduced the mug shot and fingerprints of the defendant in the current case, and the mug shot and fingerprints of the defendant when he was booked in 1984.  A state’s witness testified that the fingerprints were the same.  The state then introduced a certified copy of the journal entry of the 1984 conviction.  Not enough, said the 6th District:  there was nothing tying the 1984 booking sheet in with the 1984 conviction — the state’s witness had testified that there was no way to correlate the booking sheet with the case number. 

This isn’t to suggest that you battle this out in every case.  In the vast majority of cases, the state will ask you to stipulate to the prior conviction, and it’s probably in your best interests to do so.  Do you really want to have the state troop in several witnesses and spend forty-five minutes demonstrating beyond a doubt that yes, your client did the same thing he’s on trial for now once before?

But not always.  I was going to tell Paul that he’d be better off stipulating until he mentioned that the prior conviction was in New Philadelphia.  And that none of the witnesses on the State’s response to discovery were from New Philadelphia.  Well, that’s going to be a problem, then…