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What's Up in the 8th

The constitutional ramifications of "hey little girl, want some candy?" are the centerpiece of this week's work by the 8th District, as misdemeanor defendants fared very well, civil appellants did pretty good, but felony defendants... not so much.

Back in May, I wrote about Pamela Ghaster, whose chances of winning the Mr. Rogers Memorial Good Neighbor Award received a setback when, in the same week, the 8th upheld her convictions for menacing by stalking a neighborhood resident and obstructing official business by terrorizing the cops who were investigating the matter.  Third time's not the charm; in Rauser v. Ghaster the court reverses the denial of a petition for a protective order.  The court shoots down the Rauser's claim that res judicata should entitle them to an order, since they were the victims of the earlier menacing by stalking conviction, but finds that the evidence clearly warranted the granting of the order:

Ghaster repeatedly told the Rausers such things as "you will be sorry" and "pay back will be a b----," as she camped near their house for hours at a time.

Yep.  Don't know about what she said, but the camping part does it for me. 

Rauser was one of seven civil decisions, five of which were reversed.  In Adams v. Bennett, the plaintiff had obtained a cognovit judgment, which was set aside because it didn't meet the requirements for one.  The plaintiff later obtained a default judgment, but had never actually served the defendant with a copy of the complaint; without doing that, the 8th holds, the trial court never obtained personal jurisdiction over the defendant, so the default judgment gets reversed.  Cincinnati Ins. v. Cleveland involves litigation resulting from one of the city's water mains blowing, an event which occurs with numbing regularity.  The case could serve as a bar exam question, with the opinion dealing extensively with issues of contract law and third-party beneficiaries, with sovereign immunity thrown in for good measure, so if you're going to be taking the bar, it's worth a read; otherwise, wait 'til it comes out on video.

With one exception, which I'll discuss tomorrow, the felony cases all get affirmed.  Not much notable there:  the defendant's conviction for raping a six-year-old in State v. Jordan is affirmed, his argument that the trial court failed to properly impose post-release controls largely mooted by the fact that he was sentenced to life without parole, and his contention that the evidence was insufficient greatly complicated by the finding of semen with his DNA in the girl's underwear. 

State v. Hominsky reminds us that while he who laughs last may laugh best, he who squeals first gets a better plea bargain.  Hominsky was sleeping in the passenger seat while his girlfriend drove them home from a party.  She ran down and killed a bicyclist, and woke Hominsky shortly thereafter and told him what happened.  He eventually got rid of the car, she eventually told the cops what happened.  She got six months, he pled to tampering with evidence and got five years.  The court rejects Hominsky's arguments on appeal, including that the sentence was disproportionate, because no evidence of sentences received by similar offenders was introduced.  This seems to be an unnecessarily narrow reading of the disproportionality requirement:  should it not also refer to the sentences other people imposed on others involved in the crime?  It seems bizarre that someone can get six months for killing someone, and somebody else can get five years for trying to hide that.

The defendant in Cleveland v. Cieslak found himself charged with a crime for having pulled up at the curb in his pick-up treck and beckoning a 12-year-old to "go for a ride."  The crime was the municipal counterpart of RC. 2905.05.  When the statute was originally enacted in 1996, it provided that no person could "knowingly solicit, coax, entice, or lure any child under fourteen years of age to enter into any vehicle."  In 2001, though, the legislature amended the statute to its present reading, and the reading found in the municipal statute under which Cieslak was convicted, which prohibits coaxing the child to accompany the person in any manner.  

Normally, one cannot argue that a statute is constitutionally overbroad, if it would unquestionably apply to him.  That's not so in First Amendment law; a law which could arguably infringe upon constitutionally protected expression will be struck down, even if the particular defendant's rights weren't violated.  And so it is here.  While the statute was obviously intended to prevent child abductions, it doesn't require an intent to commit any unlawful act; the court quotes extensively from a 2nd District opinion noting the resultant expansiveness of the statute:

As [the defendant] points out, the statute very well might criminalize a senior citizen asking a neighborhood boy to help carry her groceries, to help her across the street, or to rake leaves in her back yard for money.  Moreover, because the statute applies to any 'person,' and not just to adults, it very well might criminalize a thirteen-year-old boy asking his thirteen-year-old friend to accompany him on an afternoon bike ride or a trip to the ball field.  In each of the foregoing examples, the only potential defense to a criminal charge under R.C. 2905.05(A) would be the existence of permission, which may or may not have been obtained.

That's some good lawyering there; probably about half the defense lawyers who were presented with that type of situation wouldn't have even realized the constitutional implications of the statute.  Kudos to Cullen Sweeney and Scott Hurley over at the county PD's office, who did.

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