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What's Up in the 8th

As you know, every Tuesday I do a summary of the 8th District's decisions from the previous week.  Last week there were 28 of them.  Maybe I'll move to Athens, Ohio.  I'll not only get to ogle college coeds, but reporting on the goings-on of the 4th District is about as challenging as being the weatherman in San Diego; last week the 4th came out with exactly zero, zilch, nada decisions.   Oh, well, in for a penny, in for a pound...

We'll start out with a civil case, Bohan v. Dennis C. Jackson Co., LPA, in which Bohan lodges a simple grievance:  his father was the owner of a revocable trust, of which Bohan was to receive a measly 90% at death, with the remaining 10% to go to a church group.  Bohan took an attorney from Jackson's firm out to the nursing home to meet the father, who executed a handwritten statement directing the firm to amend the trust agreement to make Bohan the sole beneficiary.  When Papa died two days later, the firm hadn't gotten around to preparing the amendment, so Bohan sued them for malpractice.

Two problems:  first, last year in Nat'l Union Fire Insurance v. Werth, the Supreme Court held that a law firm couldn't be sued for malpractice, since only individuals can engage in the practice of law.  The retroactive application of the ruling to Bohan is a bit harsh -- Werth came out just a couple of days before the judge dismissed Bohan's suit -- but the bigger problem is that there's another recent Supreme Court case which holds that an attorney isn't liable to a third party unless the third party is in privity with the client, and Bohan wasn't.

Several criminal decisions of note.  A judge has the right to modify a sentence up until the point where the defendant enters prison.  But does that apply if the defendant is out on bond during appeal, and loses?  That's the question presented in State v. Carlisle, where the defendant had been sentenced to three years imprisonment for gross sexual imposition on his six-year-old foster daughter.  He remained free on an appeals bond, and when the 8th District affirmed his conviction, successfully moved the trial court to modify his sentence to community control sanctions, claiming that he was in end-stage renal failure.  The State appeals, and the 8th reverses, holding that when it issued its ruling, the mandate -- the part telling the lower court what to do -- specifically remanded the case "to the trial court for execution of sentence."  The trial court couldn't modify that sentence unless it found extraordinary circumstances, and the panel decides that Carlisle's medical condition, which predated his conviction, didn't qualify.

You'll be glad to hear that the number of rapes, robberies, and murders here in Cleveland have apparently plummeted, allowing the police to focus on less serious matters; in the past two weeks, I've gotten two cases involving the sale of $20 worth of marijuana to a snitch.  Two other drug cases show up on the 8th's docket this past week.  In State v. Harris, the defendant is convicted of possession of criminal tools, "to-wit:  money/cell phone."  The "money" was the buy money received from the "confidential drug informant," identified in the opinion by his nickname, "Squid," and the court holds that buy money is definitely a criminal tool.  The cell phone is, too.  Although there are numerous references in the opinion to Harris having made phone calls regarding the buys, there's nothing about whether he did it on the cell phone, leaving unanswered just how much evidence is necessary to show that the phone was "intended for criminal use."  Something I should've kept in mind when I bought my 82-year-old mother that cell phone last Christmas. 

State v. Young addresses the sufficiency of evidence of drug trafficking, under the "preparing for distribution and sale" portion.  Young was found with 12 grams of crack, all in a single bag, and argues that the lack of any accouterments of sale -- individual bags, packaging materials, scale, weapons -- makes the evidence insufficient to warrant a trafficking conviction.  The accouterments argument cuts both ways, says the panel:  Young didn't have the paraphernalia, like a crack pipe, associated personal use on him, either, and the jury could've concluded that the amount also wasn't consistent with that theory.

State v Edmiston provides enough grist for three Beavis and Butthead episodes.  Edmiston was polite; when getting on an elevator with a woman, he always asked her if she minded if he masturbated.  Not unfailingly so; regardless of her answer, he'd proceed to do so.  This got him convicted of both public indecency and pandering obscenity, leading the court to ponder the old "special provision v. general provision" argument. 

Back in 1988, the Supreme Court confronted a situation in which the defendant had been convicted both of possessing a gambling device, a misdemeanor, and of possessing criminal tools, the same device being the basis for both.  In State v. Volpe, the court held that the "special provision" (the gambling device charge) prevailed over the "general provision," and the defendant couldn't be convicted of the latter.   This gets into an allied-offense-type of analysis, where the elements of the two crimes are compared to see if one can be committed without committing the other.  Two members of the panel conclude that it can be.

From that point, the court addresses sufficiency issues, particularly whether masturbating with the expectation of being watched is a "performance" within the meaning of the pandering statute.   The most notable argument here is appellant's claim that the statute requires that the conduct affront the sensibilities of "a person of common intelligence," and that one of his victims, a 21-year-old nursing student who professed never to have seen male genitalia outside a clinical setting, didn't qualify.  The argument certainly affronted the court's sensibilities:

We refuse to find, as appellant seems to suggests, that a person of common intelligence would not be affronted upon entering an elevator and discovering a man, with his penis exposed, who appeared to be masturbating.

As my homeys would say, I'm down with that.

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