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Case Update - Court of Appeals Edition

Here's what was on tap in the appellate cases last week...

Criminal.  2nd District says battered woman defense not available where defendant testified that husband never hit her and she wasn't afraid for her safety, but that he was "controlling"... 1st District says that trial court, in resentencing due to improper imposition of post-release controls, erred by simply reimposing same sentence previous judge had given without going through sentencing factors... 8th District notes that rape shield statute not absolute, must be balanced against defendant's rights to confront witnesses and present a defense, but holds that proffered evidence must not only impeach but also be probative of an element of crime... I'd say:  Going 100 mph was sufficient proof of recklessness to support an aggravated vehicular homicide conviction, says 2nd District; 17-year-old victim's disemboweled and dismembered body was found thirteen feet up in a tree, while defendant's car traveled another 675 feet after impact... 9th District says that sentencing entry defective where it provided for "post-release control for up to five years," where five-year-period was mandatory... 12th District says that defendant opened door to testimony about his prior sexual misconduct against his daughters by testifying that he would never commit the alleged acts against any child... 3rd District says that breaking and entering and vandalism are not allied offenses...

Civil.  10th District rejects promissory estoppel argument in employment discharge case, says that employment manual's provision of multi-tiered disciplinary process did not alter employee's at-will status... Just because evidence is uncontroverted doesn't mean jury has to believe it, says 12th District in affirming denial of JNOV in auto accident case... 5th District says that workers comp claim involving carpal tunnel syndrome was type of medical case which required expert testimony... While a party's affidavit that contradicts his deposition testimony can't create issue of fact sufficient to defeat summary judgment, rule doesn't apply to non-parties, says 2nd District; absence of explanation for alleged contradiction between expert's deposition testimony and affidavit not required before expert's affidavit could be considered...

Reviving the hearsay rule.  One of the maddening features of 8th District jurisprudence is what might be termed the "police investigation" exception to the hearsay rule:  virtually any statement a cop makes about what a witness told him is sloughed off as being admitted for the purpose of describing what the officer did, rather than for the truth of the matter asserted.  In State v. Platfoot, the prosecutor had the officer testify that a witness had "corroborated" the victim's story of how an auto accident had occurred, relying, of course, on a 1986 8th District decision.  The 2nd District didn't buy it, though, finding "no substantive difference between allowing a police officer to state which of two opposing views an out-of-court witness corroborated and allowing him to recount the actual substance of an out-of-court witness's statement."  Might be something to have in your folder the next time you have to try a case in Cuyahoga County.

If Beavis and Butthead wrote this blog, this sort of stuff would be here every week.  In In re B.M., the 4th District reverses the juvenile's delinquency adjudication for truancy, finding that the evidence was insufficient to "support her adjudication as a 'chronic truant.'"  The opinion concludes,

Accordingly, based upon the foregoing reasons, we hereby sustain appellant's third assignment of error and reverse the trial court's judgment.  B.M. is hereby discharged.

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