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What's up in the 8th

A possible new starring vehicle for Damon Wayans, the court looks sympathetically, if naively, upon those faced with the prospect of re-entering society after a prison sentence, and the "one stab, one count" theory goes by the wayside.

Marcus Carter was apparently a homeless person with attitude:  when his soon-to-be victim refused his entreaties, Carter wound up rushing him with a pair of scissors.  A wrestling match ensued, with the victim getting much the worse of it:  some minor cuts to his right arm, but a much more serious cut on his left arm and side.  Carter was convicted of two counts of felonious assault -- one for using a deadly weapon and one for causing serious physical harm.  Back in 2008, the 8th affirmed this result, deciding that the offenses weren't allied because one could cause serious physical harm without using a deadly weapon, and vice versa.  I found this puzzling at the time, but more more of a stretch was the court's determination that even if the offenses were allied, the wounds to the left arm and the right arm were "separate acts."

In State v. Brown and State v. Harris, the Ohio Supreme Court held that the two forms of felonious assault were indeed allied offenses, and ultimately vacated the decision in Carter and remanded it back for consideration in light of Harris.  The court gets the hint, merging the two convictions, and Judge McMonagle, who dissented the first time around, eschews the opportunity to write the shortest concurrence in legal history:  "I told you so."  Even better, the court determines that since "there was no break in the time continuum" between the injuries inflicted by Carter, they were committed with a single animus, and thus constitute one offense.

State v. Williams presents one of those rare drug cases here in Cuyahoga County.  Williams pled guilty to a third-degree felony, and received five years in prison for it, but his complaint was that the trial court added insult to injury by imposing the mandatory $10,000 fine, despite his having filed an affidavit of indigency.

The law on this is not what you might expect; it doesn't prohibit imposing a find on an indigent defendant, and in fact, imposition is required if the affidavit isn't filed prior to sentencing.  The court must then determine whether the defendant has the ability to pay the fine, but the court's decision is reviewable only for abuse of discretion.

Williiams ' lawyer had luckily filed the affidavit in advance, and Williams claimed that his obligations as a family man -- he was responsible for supporting not only his four children, but their four mothers as well -- left him with no money to pay a fine.  The judge was unmoved, noting that he had a "flourishing drug business," as evidenced by the fact that the police had found over $15,000 in cash in his house when they conducted the drug raid.

But that money was forfeited, the appellate court notes, and the mere possibility that a defendant may be able to pay the fine in the future -- the court had stayed payment until he got out of prison -- isn't sufficient to warrant imposing it.  In a footnore, the court expressed another reason:

Of additional concern to this court is that if the fine was imposed, Williams may feel compelled to return to a life of crime in order to pay the mandatory fine once he is released from prison.

The court's compassion is certainly laudable.  Perhaps I'm overly jaundiced, though, but my guess is that upon his release from prison, Williams' career choices will be dictated by the fact that no legitimate ones would allow him to accumulate $15,000 in cash in his house in any foreseeable time period. 

Last, we come to State v. Redon, which requires some reading between the lines of the opinion's recitation of the facts.  Redon, we are told, arrived home about 2:30 in the morning "after spending time visiting his daughter at his daughter’s mother’s house."  According to the court's docket, Redon is 29, so it seems at least plausible that his daughter wasn't the sole object of his late-night visit.   His wife must have surmised as much, because, as the court gently notes, she "rebuffed appellant's advances" when he awoke her and tried to kiss her.   An argument over the remote control for the television ensued, there was some slapping, and he wound up locking her in the bathroom and blocking her car in the driveway.  All this served not only as the potential pilot for a new sitcom on Fox (working title:  "Baby Mama Drama"), but the factual predicate for Redon's conviction of kidnapping and misdemeanor domestic violence. 

The chief complaint on appeal is the trial judge's participation (read:  takeover) of the examination of Ms. Redon; after the defense attorney had impeached her with the statement she gave police, the judge asked her no fewer than eighty-nine questions in an effort to resolve the inconsistencies between that and her testimony.  The problem here is that this is a bench trial; as the court cites from another case,

In a trial before a jury, the court’s participation must be limited, lest the court, consciously or unconsciously, indicates its opinion on the credibility of a witness. Where a jury might infer the court’s opinion of a witness through the persistence, tenor, range, or intensity of its questions, the interrogation is prejudicially erroneous.

But "when there is no jury, there is no one to be prejudicially influenced by the judge’s demeanor," so have at it.

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