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What's up in the 8th

A couple of good criminal decisions, a couple questionable ones, and I'll even talk about a civil case this week, as I wade through the two dozen or so decisions handed down by the 8th last week.

Although not defined in the statutes, most defense lawyers understand the crime of "aggravated shoplifting:"  someone will pilfer a few items from Wal-Mart, be confronted in the parking lot by the security guard, and push him aside in order to escape, thus changing a petty theft into a felony robbery.  That's the result for the defendant in State v. Davis, but the good news is that while he was convicted of second degree robbery -- robbery while causing physical harm -- the court says that the act of shoving was only sufficient to constitute the third degree felony of robbery by force.  And in State v. Siwik, a defendant gets a resentencing.  The trial court's sentencing entry provided that post release control is a part of this sentence for the maximum time allowed under RC 2967.28," and the court holds that this doesn't cut it:  the entry has to specifically state the required period, which in this case was five years.

More troublesome results are provided State v. Anderson and State v. McNeal.  The former presents a potpourri of issues, among them the mens rea requirements for assaulting a police officer and the one-year firearm specification; i.e., does a defendant have to know, or be "reckless," as to whether the people he's assaulting are actually police officers, or whether he is actually in possession of a gun?  (The latter isn't as far-fetched as it might sound; imagine a passenger in a car, arrested for drugs, with a gun found under the driver's seat.)  The court answers no to both, and there's case law, if not an abundance of logic, on its side. 

More problematic is the court's handling of the mens rea issue regarding the weapons under disability count, which was based on Anderson's status as a fugitive.  Just last year, in State v. Clay, the Supreme Court seemingly resolved that question, holding that the defendant had to know or be "reckless" as to his fugitive status, and last month, in State v. Johnson, the 8th reversed a conviction for weapons under disability because the indictment failed to include a mens rea.  (Johnson, which I discussed in detail here, extended Clay to the prior conviction subsection.)  The court here distinguishes both, noting that because no objection was lodged below the issue has to be analyzed under the plain error standard, and the evidence amply demonstrated that the defendant was aware of his fugitive status:  he'd led nine police cars on a fruitless cross-city car chase two days before he'd been arrested.

That's true, but it essentially holds that the failure of the indictment to include an element of the offense can be cured by sufficient evidence of that element.  What's more, under the State v. Colon analysis, if the indictment doesn't contain the mens rea requirement, the jury isn't instructed on it, and everybody argues as if it's a strict liability offense, the error is structural, and in structural errors you never get to the question of whether the error is harmless.  The case is reversed, and that's the end of it.

The court runs into difficulty in McNeal, too.  The case presented an example of "working up the chain" in drug prosecutions:  Cops bust A, who rolls over on B, who sets up a drug buy from C -- McNeal.  Or so B says:  he testifies at trial that the drugs found in his car were obtained from McNeal, but she said she had nothing to do with it.  The trial court permitted B to testify that he'd previously bought drugs from McNeal. 

The defense argued this was impermissible under EvidR 404(B), relying on a 2nd District case, State v. Pierson, with virtually identical facts:  the defendant denied that he'd purchased drugs from the State's witness, and so the State had the witness testify that he'd purchased drugs from the defendant on previous occasions.  McNeal distinguishes Pierson on the grounds that the issue in the latter was identity, while in this case it's "knowledge, intent, absence of mistake, and common scheme or plan."   Not only is that incorrect, it completely misses the point of Pierson's excellent analysis of the logical underpinnings of the rule:

A reasonable inference arises that the perpetrators of offenses with distinctive, identical modus operandi are one and the same, so that if the defendant is proven to be the perpetrator of the uncharged offense or offenses, then he is also the perpetrator of the charged offense.  This inference loses its logical force if the proof of the similar offenses does not come from an independent source.  Since the State's proof depended upon Fletcher's credibility, his testimony concerning the uncharged prior drug sales added no independent probative value of Pierson's identity as the perpetrator of the charged offense.

The court unquestionably gets one case right, though.  Normally, if a state employee runs into you with his car,  the state is liable; there's a specific exception for that under the sovereign immunity statutes.  There's an exception to the exception, though:  if a policeman (or fireman) is on an "emergency call," immunity still applies.  Last year I did a post on the absurd lengths courts have gone to in interpreting that provision, holding that transporting a prisoner to jail or pulling out into traffic after writing a ticket constituted an "emergency."  In Spain v. Village of Bentleyville, the Village decided to go all-in on that theory:  they argued that the performance of routine patrol duties constituted a response to an "emergency call," and thus rendered them immune.  The appellate panel peered into the abyss, but pulled back; while noting the expansive definition given in other decisions, and making no attempt to distinguish them, the court nonetheless held that the city's position would result in the exception swallowing the rule, and rejected it.

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