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What's up in the 8th

Sometimes you need to read a good bit of an opinion before you get the gist of the facts.  Sometimes you don't.  Take, for example, this paragraph from the 8th's decision last week in State v. Blacho:

S.W. testified that appellant was her economics teacher during her junior year at Strongsville High School.  They became friends because of their common interests in music and movies.  She acted as appellant's student aide, a position she described as "kind of just an excuse to hang out with each other."

There are a limited number of ways this can turn out, and one of them is not as the plot outline for an after-school special on the Disney Family Channel.  After that, you can pretty much skip to the end of the opinion, where Blacho's conviction on two counts of sexual battery is affirmed.

Sometimes even when you read the facts, it doesn't do you much good.  Such is the situation in State v. Madera, in which drinking and drug use degenerated into a brawl.  In reviewing Madera's claim of insufficiency of the evidence on his convictions of felonious assault and aggravated robbery, the court notes that

The challenge in this analysis is having to examine the testimony of individuals who are recounting events at a time when they were highly intoxicated.

As best can be gleaned, the salient facts are that during the initial argument, the victim threw money on the floor, and Madera picked it up.  The argument subsequently escalated, and culminated with Madera hitting the victim with a decorative sword, a refreshing change from the denoument in most such cases, which is usually the five words, "and then he shot him."  The court does find the evidence insufficient to prove robbery; the theft and the use of force must be part of one continuous transaction, the court says, and here there was a break between them.

Several lessons, some for lawyers, some for defendants.  Let's say your client is charged with gross sexual imposition.  The indictment also alleges a kidnapping count, a standard practice for prosecutors, on the theory that the victim's "liberty" was "restrained" during the sexual act.  Your client is convicted of both, and of course, they merge.  Can the State choose to proceed with sentencing on the kidnapping instead of the GSI?  The Supreme Court said in State v. Whitfield that the prosecution gets to make the call, and in State v. Workman, that's what happens, albeit in the context of a felonious assault and kidnapping charge.

The defendant in State v. Werber gets schooled in the risks of asking to have your plea vacated.  Charged with a 2nd degree felony, Werber pled to a 3rd degree and an agreed-five year sentence, but then got the plea vacated because of improper imposition of PRC.  He decides to take the case to trial this time, acts as his own lawyer, loses, and gets eight years.  He appeals again, claiming that trying him on the counts which were dismissed as part of the plea deal was a double jeopardy violation.  What plea deal?  That went out the window when you vacated it, the court informs him.

Better news for the defendant in State v. QuinnUsually, post-release controls fall within the ambit of the Adult Parole Authority, but where a defendant is on PRC and pleads guilty or is convicted of a new offense, RC 2929.141 gives the trial court authority to terminate PRC in the old one, which is what the judge did in Quinn's case.  The state appeals, arguing that the statute doesn't apply to mandatory PRC, which is what Quinn had, and that termination has to occur at the time of the plea or conviction.  (Here, it occurred about three weeks later.)  The 8th rejects both arguments.

In the civil arena, the plaintiff in Penzol-Kronstein v. Vaudrin get an award of $25,000 in a personal injury case, which sounds pretty good, until you read that it's all medical bills -- half for past ones and half for future ones.  She appeals, claiming that the jury should have given her something for pain and suffering, but the 8th says no.  The law on this is that the award is inadequate if the injuries are indisputable and the jury gives only damages for medical expenses:  "If the jury determines that any pain and suffering is de minimis or unrelated to the accident, it is within its purview to deny compensation for pain and suffering."   

I'm sorry, but this doesn't make any sense; if the jury "reasonably concluded that any pain and suffering she experienced was de minimis," why did it award her twenty-five large to treat that pain and suffering?  There's no reason for the appellate court to try to divine whether the jury thought the plaintiff suffered any pain; the jury shouldn't have awarded any damages if they didn't.

Still, that makes more sense than Josefina Taylor's lawsuit against Best Buy.  She purchased a stove there, and also paid $49.99 to have the stove installed.  In the category of Things You Wouldn't Know If You Didn't Read This Blog, put down:  "Ohio law requires every gas outlet to have an individual shut-off valve, which is to be located in the same room and within six feet of the appliance served."  When Best Buy's people came out to put in Taylor's stove, they found she didn't have the shut-off valve, and told her she'd need to have a licensed plumber install one before they'd put in the stove.  She paid $68 to a plumber for this service, Best Buy put in the stove, and sent her a courtesy check for $75 when she squawked about the whole thing.

So she sued them for fraud, breach of contract, unjust enrichment, and violations of the Ohio Consumer Sales Practices Act, and sought class action status, no less.  In Taylor v. Best Buy, the court affirms the grant of summary judgment to the defendant, saying the whole thing is so stupid it makes their eyes bleed.  Well, they didn't say that, but they should have.

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