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What's up in the 8th

Good news for my mother and her cell phone, bad news for Daniel Clark and his chances of getting that free car wash.  The court seems to be hitting its stride on allied offenses in the wake of State v. Johnson.  Of the 25 criminal cases handed down by the 8th last week, there was but a single victory for defendants, but it was a biggie:  a reversal of an attempted murder conviction because the judge closed the courtroom to take the testimony of a single witness.  We'll talk about that tomorrow; in the meantime, as Paul Harvey would say, here's the rest of the story.

Criminal law has always had problems keeping pace with technology:  the framers of the 4th Amendment, for example, written at a time when there were no organized police forces in this country, could hardly have anticipated helicopter flyovers and infrared searches.  Or cell phones; I live in daily fear that my 82-year-old mother's cell phone will furnish the basis for her conviction of possessing criminal tools, as it has for so many of my other clients.  Relief comes in the form of the 8th's decision in State v. ByersCiting the "ubiquitousness" of such phones and the absence of any evidence that it was used in the drug trafficking offense for which Byers was charged, such as using it to set up a drug deal, the court holds that mere possession of one is insufficient to form the basis of a tools charge.  Alas, the scales in the back seat were quite sufficient for that, but good news there:  Mom stopped carrying them in her car years ago.

The court's still digesting the spate of decisions handed down by the Ohio Supreme Copurt in the closing weeks of 2010.  No fewer than four cases get remanded for correction of post-release controls, but the court correctly notes that the remand is for the limited purpose of properly imposing PRC, not for resentencing.  The last portion of the Supreme Court's opinion on this in State v. Fischer also allows the court of appeals to modify the sentence without a remand, so we'll probably see the court doing that a few weeks from now.

State v. Johnson, which established a new test for allied offenses, also gets a workout in two cases, State v. Porosky and State v. Reed.  Both involve child physical abuse, and in both, the court holds that the failure to summon emergency help after the beating constituted a separate animus which supported convictions for both felonious assault and endangering children.

State v. Williams provides tips for both consumers and trial attorneys.  Say you're walking out of a Rent-a-Center and someone comes up to you and asks you if you want to buy an XBox or Playstyation 3.  You reply that you can't use either, because your TV set was just stolen, so the other guy helpfully offers to sell you a 50-inch TV.  For $300.  Should you accept this offer, you shouldn't be surprised when you show up at some parking lot to consummate the purchase, and the guy and several friends rob you instead.  Just like they did to someone else several months earlier.  The tip for attorneys?  When cases are joined for trial, if you don't renew your motion for separate trials after the close of the state's case, it will be reviewed only for plain error.  I explained why the law on this is bogus five years ago, but nobody listened, and nothing's changed.

Daniel Clark had to take a plane trip in 2007, and decided to avail himself  of the services of Park'n'Fly:  he could park his car there, they'd shuttle him over to the airport and back when he returned, and give him a free car wash to boot.  No boot; it turns out that Park'n'Fly's car wash was inoperable for several months, and when Clark picked up his car it was as filthy as when he drove it in to the lot.  So Clark did what any red-blooded American would do in those circumstances:  he sued.

Of course, failure to provide a free car wash didn't provide much of pot of gold, even under the rainbow known as the Consumer Sales Practices Act, with treble damages and attorney fees,  so Clark tried to stand in for all those Park'n'Fly had similarly aggrieved by seeking class action certification.  The requirements for maintaining a class action are only slightly less complex than obtaining a Catholic divorce, and, as best I can determine, both involve the Pope at some point in time.  In Clark v. Park'n'Fly, the court sets forth the requirements in excruciating detail, but fortunately the discussion doesn't extend beyond the first, which is that the class is readily identifiable. 

This is where Clark may have made a strategic mistake:  instead of proposing that the class be those who used Park'n'Fly during the time the car wash was inoperable -- during which time, it should be noted, the company still advertised the free car wash -- he proposed that it be those customers "who were denied the advertised free car wash in the two years preceding the filing of the complaint in this action."  That's my emphasis, for a reason we'll see in a minute.  The purpose of the requirement is to ensure that "it is administratively feasible for the court to determine whether a particular individual is a member."  Clark argued that he met this requirement:  Park'n'Fly could simply scour its records and determine the names of the people who'd parked there and paid by credit card or check.  (Obviously, they'd have no records of people who paid with cash.)  But, said the court, you specified people who'd been denied a car wash, which meant that the class consisted of people who "would have had to have wanted a car wash, parked there because of the advertised 'free car wash,' and then been denied a car wash because the car wash was inoperable."

The only way to discover this information would be to ask Park 'N Fly's customers, some 400 to 1000 per day according to Park 'N Fly's "midnight count," if they had been denied a free car wash when they believed -- based upon Park 'N Fly's representations -- that they would receive one.

Now that the class action issue is out of the way, the case may be more easily resolved.  Maybe Clark will get his free car wash after all.

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