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What's Up in the 8th

When I'm given an appeal, one of my concerns is that I won't find any errors.  This week's body of work from the 8th indicates why that's rarely a problem for lawyers assigned to handle an appeal from a municipal court trial.  It also provides instruction on several burglary issues, and reminds us of the value of watching what you say.

In the latter category we find the defendant in State v. Shearer, who gets into an altercation with his neighbor.  The police are called, and when they arrive Shearer obligingly tells them that he's shot a man once before, and wouldn't mind doing it again.  Unsurprisingly, when he's put on trial for shooting his neighbor shortly after the police left, those statements are admitted, the appellate court pointing out that, no, that's not 404(B) evidence, especially since Shearer claimed self-defense; that put his mental state at issue, and the jury could consider his statements.

While Shearer provides a tip for criminals on what not to say to the police, parenting advice is on tap in State v. Hill:  if you you and hubby are going out of town, it's probably best not to leave your four- and five-year old daughters with your mother-in-law if she's got a live-in boyfriend with an attempted rape conviction.  Hill's repeat violent offender specs get him an additional five years in prison, and Hill claims that that the RVO statute is unconstitutional because it requires judicial fact-finding.  That argument was laid to rest last year in State v. Hunter, where the Supreme Court clarified that it had excised the fact-finding requirements in Foster, and thus judges were free to impose the additional sentence for the RVO specs without making any findings.  So wasn't Hill's attorney bright enough to realize that?  No, he provides a tip for appellate lawyers:  sometimes you have to raise issues simply to preserve them for Federal habeas relief.  You never know.

The burglary statute, RC 2911.12, gets a workout in two cases.  As you can see, the statute actually defines four different offenses.  The elements of the first three vary depending upon whether it's a "habitation" and whether anyone is "present or likely to be present," but each includes the element that the trespass is "with purpose" to commit a criminal offense.  The last offense eliminates that latter element.

State v. Carter raises the issue of the required mens rea requirement.  As we know since the mess created by State v. Colon, every crime must include a mens rea, unless the legislature clearly intended it to be strict liability, and God help us in trying to figure that out.  Anyway, Carter was charged under the first section, but was convicted of the crime defined by the fourth.  That's a problem.  What's the mens rea requirement for the trespass element in each of the offenses?  Trick question.  It doesn't have one; the courts have held that the intent element is provided by "with purpose to."  Clever, huh?  Except that breaks down for the fourth crime, because it doesn't include that element.  The judge winged it and defined the intent element for trespass as "knowingly," which was probably wrong -- the default mens rea is recklessness.  But since "knowing" requires more proof than "reckless," Carter wasn't prejudiced, and so he gets to spend the remainder of his one-year prison term trying to figure it out.  Good luck with that.

That "likely to be present" language is the focus in State v. SmithThe victim of the burglary was a 91-year-old woman, who was working out in her yard when another woman came up to her and began chatting while leading her down the driveway.  That woman also gave the signal to Smith, who entered the home and stole some cash and coins.  An alert neighbor had seen this and called police, who arrived as Smith exited.  He appeals his conviction and sentence, arguing that he should have been convicted of the third-degree offense, instead of the second-degree, because no one was "likely to be present" in the home.  There's some chutzpah in the argument -- it basically translates to "the victim wasn't likely to be present because we kept the victim outside while we robbed her place" -- and it isn't going anywhere:  the law is that the "likely to be present" element is satisfied "where the structure is a permanent dwelling house which is regularly inhabited, the occupants were in and out of the house on the day in question, and the occupants were temporarily absent when the burglary occurred."

Finally we have Garfield Heights v. Winbush, in which Winbush was pulled over for a traffic violation, then took off after the officer got out of his vehicle.  The city's prosecution of Winbush for misdemeanor fleeing and eluding turned on the identification of the driver of the vehicle, but that was resolved by the owner, who testified that she had loaned her car to someone she knew as "Fred," and that "Fred" had called her after the incident and apologized for the chase.  She testified further that when the police showed her a photo array, she immediately recognized Winbush as the person she knew as "Fred."  Most damningly, she testified that she was afraid of reprisals from Winbush, apparently because he was such a bad guy.

Actually, she didn't testify to any of this; she never showed up for trial.  The judge instead permitted the police to testify that she'd told them all this, and for good measure admitted the owner's statement into evidence.  The appellate court devotes the better part of four pages to a discussion of the 6th Amendment right to confront witnesses, whether the statements were "testimonial" under Crawford, and so on, perhaps unnecessarily so; the whole matter could have been disposed of with the summary observation that while the subset of countries which permit this sort of thing is large, it fortunately does not include the United States.


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