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What's Up in the 8th

It's ironic that with all the new means of communication at our disposal, life has become more impersonal than ever before.  Joyce Gaskins strikes back at this, claiming that her employer inflicted debilitating emotional distress upon her by leaving her a voicemail telling her she was being terminated.   The 8th shows her no love, though; in Gaskins v. Mentor Network-REM, it rejects that contention, as well as a public policy discharge claim.  But several civil plaintiffs and criminal defendants fare better.

One of them is not Justin Blashaw, who seems to have set out to single-handedly prove that yes, there are people who deserve maximum consecutive sentences.  He claimed that his plea of guilty to an auto accident involving his two children constituted an expression of remorse, but the appellate panel in State v. Blashaw said you don't get Remorse Points when (1) you're not only driving drunk, but high on drugs; (2) the accident leaves one child with spinal injuries that render her a quadriplegic with a 50% chance of being on a ventilator the rest of her life; (3) when the police get there, you claim someone named "Steve" was driving the car, but won't cooperate with the police in locating this person because you "don't want to give these people up"; (4) you give police the impression that you're more upset that your jacket had to be cut in order to treat you ("that was a good jacket, man") than with the welfare of your child; (5) you make telephone calls while you're in custody, which are of course monitored, admitting that you crashed the car but saying that you know children under the age of ten have a good chance of surviving "so I'm not too concerned."  After all that, the nine prior convictions in Ohio over the past decade for drug paraphernalia, DUI, DUS, and criminal damaging, to say nothing of convictions in other states for burglary, resisting arrest, and DUI, are just icing on the cake. 

The defendant in State v. J.C. fares better; the State had objected to his application for expungement, claiming that he had a 1988 conviction in England for fraud.  The lack of any authenticating evidence of the conviction allowed both the trial and appellate courts to ignore it, but also allows them to dodge an interesting question.  The statute disqualifies from expungement any person who has previously been convicted "in this state or any other jurisdiction," thus certainly leaving open the possibility that convictions from foreign countries count.  But there are a lot of countries which punish things we don't.  I'm not suggesting that somebody's going to be denied expungement because of a 1997 conviction in Saudi Arabia for not wearing a burqa, but it's an intriguing possibility.

Several plaintiffs fared well in cases involving the open and obvious  doctrine.  In Grimmer v. Rocky River, summary judgment for the city is reversed where the plaintiff had crashed due to ice on the roadway, which had formed as the result of a broken fire hydrant.  The court holds that when "reasonable minds could differ with respect to whether a danger is open and obvious, the obviousness of the risk is an issue for the jury to determine."  The court also reverses summary judgment on the same basis in Miller v. Lamrite West, involving a bathroom stall door which did not have a door stop mechanism; when the plaintiff, who was disabled, attempted to close it, it swung inward, causing her to lose her balance and fall.

Dorothy McGuire, on the other hand, is a plaintiff who does not fare well.  With apparently too much time on her hands, she filed suit contesting the city's Domestic Partner Registry, claiming that it violated the Marriage and Home Rule Amendments to the Ohio Constititution.  The former, of course, prohibits the state and its political subdivisions from creating or recognizing "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."  In Cleveland Taxpayers v. Clevelandthe court affirms the dismissal of the complaint, on the grounds that the amendment prohibits only recognizing a legal status that bears all the attributes of marriage, which the domestic partner registry does not.  The legal work for Ms. McGuire was done by the Alliance Defense Fund, a group founded by James Dobson and other fundamentalist Christians, and they will presumably retire now to map out other strategies for combating the Scourge of Homosexuality.

But Tyrone Carroll fares best of all.  Tyrone robbed three stores at the Great Northern Mall, using a simple modus operandi:  just as the store opened, he'd walk up to the clerk and demand all the money while menacingly holding his hand in his pocket.  (That the store wouldn't have as much money at the beginning of the day as at the end apparently didn't dawn on him.)  Indicted for kidnapping and aggravated robbery with gun specs, Tyrone defended himself, took the stand, admitted the robberies, but denied that he had a gun.  The jury believed him, and convicted him of kidnapping and second degree robbery.  The court of appeals found that the kidnapping and robbery convictions should have merged.

But it gets a whole lot better than that.  Kidnapping is normally a first degree felony, but becomes a second degree felony if the victim is left in a safe place unharmed.  The courts have held that this is not an element of the crime, but something for the defense to prove in mitigation or as an affirmative defense.  The evidence was indisputable here that Carroll had left the victims in a safe place unharmed.

The 8th District had a virtually identical situation last year in State v. Banks, where the defendant had argued that  the conviction for first degree kidnapping was against the manifest weight of the evidence.  The court sustained the assignment "to the extent that the evidence only supports a conviction for a second degree felony kidnapping."  Here, though, Carroll had argued that the trial court had committed plain error by failing to instruct the jury on the issue of leaving the victims unharmed, and the court agrees, but rather than simply reducing the degree of the conviction, the court reverses and remands for a new trial.

Not that the outcome will be any different; Carroll's own testimony can be used to establish his guilt of the robberies.  But he was sentenced to twelve years for them, and he's in an infinitely better bargaining positioning than he would have been on a simple remand for correction of sentence.


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