What's Up in the 8th
I get beaten like a rented mule in two cases, that's what's up. My week was worse than Corinne Whiteaker's, slightly better than Ed Pawloski's, and infinitely better than Elvester Jackson's.
Jackson was part of arguably the most underpriced drug transaction in history: he served as the middleman of a $100 purchase of crack cocaine, which somehow resulted in 11.1 grams of the stuff changing hands. Jackson was convicted of sale, preparation for distribution and sale, and possession. The judge gives him six years on each, merges the sale with the possession, and sentences him to consecutive time on that and the trafficking. This is the correct result under Cabrales, says the court in State v. Jackson: comparing the elements in the abstract, though "not exactly," one can offer to sell drugs without possessing them, so those offenses don't merge, but one can't prepare drugs without possessing them, so those do. Again, the proper result under Cabrales, though perhaps not under any coherent scheme of allied offenses.
Ed Pawloski almost gets away with it: he takes his car in to have the brakes repaired, and when told that the bill is slightly north of a grand, retrieves it by "self-help," i.e., driving onto the lot and taking it after hours. The garage's video surveillance cameras -- doh! -- catch him in the act, and get him convicted of B&E, plus two counts of theft, one by deception and one by taking property without consent. Pawloski appeals, arguing that he was never given a written estimate for the work, as required by the Ohio Consumer Protection Act. What's that got to do with anything? Well, cases have held that the common-law garageman's lien is voided if the garageman doesn't comply with the OCPA, and in State v. Pawloski the 8th agrees. The court still concludes he's guilty under the theft by deception count, which is a bit of a stretch: that would require proof that Pawloski never intended to pay for the repairs, rather than deciding that he wasn't going to pay them when he found out what they were.
Corinne Whiteaker makes a clean break. Two weeks ago, the court affirmed her husband's conviction for theft for stealing $4,000 worth of coins from his parents. In State v. Whiteaker, over a dissent the same panel concludes that the evidence is insufficient to show Mrs. Whiteaker "knew the coins came from the victim's home or that her husband had taken them without the victim's permission." A note for attorneys here: by renewing her Rule 29 motion at the close of all the evidence, she preserved any error in the court's denial of the motion at the end of the state's case, and thus the appeals court doesn't consider any inculpatory evidence she may have presented in her case.
Asja Williams and her friends decided to go shoplifting at one of the area's finest stores, and were having a grand time of it, until they were spotted by a security guard. Asja took off running, and the guard's pursuit was abruptly halted when one of Asja's accomplices pulled out a gun and killed him. In State v. Williams, the court affirms Asja's conviction for felony murder.
Well, not quite. Actually, the accomplice had tripped the security guard. The guard stumbled, but didn't fall, but that was still enough to constitute "force," and the judge in a bench trial convicts Asja of robbery, telling her that any act of her accomplice is automatically imputed to her. And appointed me to handle the appeal.
Let's go back to the hypothetical: would Asja have been guilty of felony murder if her friend had shot the security guard? There's not much law in Ohio on this, but the basic common-law rule is that you are liable for the "reasonably foreseeable" actions of a co-defendant. If you and your buddy decide to knock over a convenient store, and you know he's got a gun, you're going to be hard-pressed to claim you didn't have any reason to think he's actually use it. But that's an easier sell if you've only gone shoplifting, and have no idea your accomplice is packing.
So I made what I thought was a clever argument ("clever" = an argument I can make without giggling uncontrollably): the judge had wrongly assumed that my client was strictly liable for any actions of the co-defendant, and this was structural error, no different from the judge in a jury trial telling the jury that the defendant was strictly liable, as opposed to correctly informing them that the defendant was responsible only for those of the co-defendant's acts which were reasonably foreseeable.
Interesting argument, but bad facts: the court could have easily said that the accomplice's acts were reasonably foreseeable, and called it a day. Instead, the opinion devotes three pages to holding that the indictment wasn't defective -- an issue I'd never raised -- because it included the reckless mens rea for robbery, and the complicity statute provides that the intent element for the accomplice is that of the principal. As for the judge's statement, well, the judge in a bench trial is presumed to know the law, a presumption the panel apparently deems conclusive.
It's hard to fault the result, though, given the facts. The most interesting part of the decision was the concurring judge's excoriation of the lack of prosecutorial discretion employed in the case:
One of the duties of the prosecutor is to use his or her discretion to distinguish the culpability of the actors involved in a criminal incident; a crime should not be viewed as "one size fits all." Otherwise, as in a case like this, justice is not really served.
The prosecutor easily could have taken the facts presented herein into consideration before taking the case to trial; in view of appellant's role in the incident, a robbery conviction was unnecessary to achieve a just result.
Somehow, I doubt that's going to make it onto the bulletin board of the prosecutor's office.
And my other beatdown? We'll talk about that tomorrow.