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What's up in the 8th

If you wind up on trial for murder, it's best if the prosecution is not able to introduce a picture from your MySpace page showing you holding a gun, next to the inscription, "Pow!  One in the head, now you're dead."  This was one of the lessons provided by the 8th District's decision this past week in State v. Greer

Greer provides some other instruction as well, particularly on the hearsay exception for present sense impression.  The victim had told someone over the phone, just moments before he was killed, that the defendant had just arrived.  That comes in; the statement is explaining someone's current perception.  The victim's earlier text message that the defendant was "trippin'" -- that is, upset -- shouldn't have come in, because it wasn't clear that the victim was describing a current event.  Doesn't matter, of course, because admission of the latter was "harmless error," the aforementioned cullings from the MySpace page no doubt contributing to the court's perception of the weight of the evidence.

It's nice when you can completely summarize the three key holdings of a particular decision in three sentences, and that's the case with State v. BanksFirst, robbery and kidnapping are allied offenses.  (In State v. Winn, the Supreme Court had held that aggravated robbery and kidnapping are allied offenses; the same analysis applies.)  Second, in that situation the kidnapping (or the robbery) conviction isn't vacated; the case gets remanded back to the trial court so that the prosecutor can elect which charge to obtain the conviction on.  Finally, the kidnapping statute provides that the crime is a first degree felony, unless the victim is left in a safe place unharmed, which reduces it to a second degree felony; although that's in the nature of an affirmative defense, where there's no evidence that the victim wasn't left in a safe place unharmed, the evidence is insufficient to support a conviction for the first degree felony.

I didn't say they were short sentences.

A couple of minor notes.  In State v. Horne, we learn that if the jury comes back with a guilty verdict and at sentencing the judge says that if he'd been the factfinder, he might have reached a different conclusion, it means that you (or your client) made The Wrong Decision, not that the verdict is against the manifest weight of the evidence.  And State v. Darling is a must-read if you've got a drug case involving a schoolyard specification:  the court vacates the spec because

there was no evidence that St. Mary's school was either open or operating as a school, and that it could easily have been abandoned or closed since no evidence was produced to show that it was operating as a school pursuant to the standards set by the State of Ohio School Board pursuant to R.C. 3301.07.

State v. Hunter presents an intriguing 4th Amendment question.  Hunter and two others were roaming the mall engaged in activities -- trying to pass checks on accounts that had insufficient funds, exchanging checks and ID's -- which eventually attracted the attention of the security staff.  An officer accosted Hunter, advised him of his Miranda rights, and asked to see identification.  Hunter began pulling pieces of paper out of his pockets, one of which was a folded check.  The officer picked it up and opened it, and learned that it was for $5,000, written on the account of one person and made payable to another, neither of which was Hunter.

Hunter argued that the opening of the check was an impermissible seizure, and so the court took a look at the "plain view" exception to the warrant requirement.  Under that exception, the incriminating nature of the contraband must be readily apparent.  Hunter argues that it wasn't until the officer opened it, but the court takes a more expansive view, following a 1986 Ohio Supreme Court decision which held that

the 'immediately apparent' requirement of the 'plain view doctrine' is satisfied when police have probable cause to associate an object with criminal activity.

Of course, a week in the 8th wouldn't be complete without at least one head-scratcher, and that's provided by State v. Carte.  Carte and two co-defendants were charged with attempted murder and two counts of felonious assault.  She claimed on appeal that the trial court had erred in not turning over grand jury transcripts.  The court rightly rejects that argument, but its treatment of another claim of error is puzzling.  The trial judge had inexplicably instructed the jury on conspiracy, even though the indictment contained no charge for it.  The court decided this was permissible, since both complicity and conspiracy are found in RC 2923.03, and since the section permits complicity to be charged in the indictment "as stated in terms of this section, or in terms of the principal offense," therefore... 

Well, I'm sorry, there's just not any way of making a lot of sense out of all that.  Complicity and conspiracy are not interchangeable:  complicity is a way of committing a crime, while conspiracy is a crime in itself.  You don't have to be indicted as an aider and abettor to be convicted as one; you do have to be indicted for conspiracy to be convicted of that offense.  In any event, the damage to Carte, if any, was de minimis:   while her compatriots were convicted of all counts, the jury found her guilty only of misdemeanor assault, and since she'd already spent 226 days in jail awaiting trial, that was that.


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