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What's Up in the 8th

Last year, the Plain Dealer ran a series of articles claiming that County Prosecutor Bill Mason consistently pursued prosecutions that were, as they say in the appellate courts, "devoid of merit."  As I mentioned when I discussed the articles, I didn't find much support for the contention; in my experience, Mason's office was no more guilty -- pardon the word choice -- of presenting questionable cases than any other prosecutor's office I've dealt with.

I did indicate, though, that the office had a penchant for overindicting, and the defendant in State v. Taylor can certainly confirm that.

There are certain people who are cut out for a life of crime.  Taylor, for good or ill, is not one of them, perhaps because of his unfamiliarity with modern technology.  In his job cleaning service bays for an auto dealer, Taylor attempted to steal a surveillance camera, which recorded him trying to steal it.  He was caught and fired, but the dealership decided not to get the police involved when Taylor returned the camera.  A few days later, he returned to pick up his last paycheck.  At night, after the store was closed.  The opinion notes that the "security camera footage clearly shows appellant sneaking around the building," wearing a ski mask, throwing a breaker switch to turn off the lights to the service bay, and "running from the building" shortly after encountering a night watchman.  Taylor was acquitted of theft, but was convicted of burglary and disrupting public services, which prohibits impairing "television, radio, telephone, telegraph, or other mass communications service; police, fire, or other public service communications; radar, loran, radio, or other electronic aids to air or marine navigation or communications; or amateur or citizens band radio communications being used for public service or emergency communications."

I know, you're saying, "Gosh, Russ, why'd you leave the stuff out about how he disrupted public services?"  I didn't.  See that part in the preceding paragraph about "throwing a breaker switch to turn off the lights to the service bay"?  That was the basis for the disrupting public services charge.  I've seen some dumb things come out of the grand jury -- as I recounted in this post -- but this sets a new standard.  The court notes that "there is no evidence that appellant disrupted any form of communication, emergency or otherwise," and vacates the conviction for that.   Presumably, the prosecutor in charge of presenting cases to the grand jury will focus his attention on working a count of violating RC 2927.21, imposing a duty to "report escape of certain animals," into his next indictment.

The State is constrained to make a similarly ludicrous argument in State v. Orr, where Orr had pled guilty in the municipal court to failure to comply with a police order, then, arising out of the same incident, had pled guilty to a felony charge of failure to comply, in return for dismissal of a breaking and entering charge.  After a somewhat Byzantine legal procedure, Orr finally arrived back at the trial court, which granted his post-conviction relief petition claiming that his conviction of the felony failure to comply charge was barred by double jeopardy.  The State appeals, claiming that it isn't, an argument greatly complicated by the fact that the statute and the municipal ordinance are identically worded, except for the aggravating circumstances which apply to the felony.  The State also argues that at least the judge should have held an evidentiary hearing on the matter, but this goes nowhere, too, the court noting a hearing isn't necessary when the documentary materials are sufficient to decide the matter, as they were here.  But there's a catch:  since the failure to comply charge is vacated, it revives the B&E charge, and so the case is remanded for Orr to stand trial on that.

 State v. Widner, which I handled, combines an interesting legal issue with a horrific set of facts.  Widner, then 45 years old, took a 10-year-old neighborhood boy to a street carnival, then to lunch and out shopping.  After that, he bundled the boy up in duct tape, took him back to his apartment, raped him, held him overnight, raped him again the next morning, then dropped him off in the neighborhood.  He was indicted on multiple counts of rape and gross sexual imposition, each accompanied by a kidnapping charge, and wound up pleading to two counts of rape and two of kidnapping, for which he was given 35 years, on top of another five for a sex case involving his daughter.

Rape and kidnapping, of course, are allied offenses:  the restraint of liberty necessary to commit a rape invariably requires a kidnapping, two.  One can still be convicted of both if there's a separate animus, such as prolonged detention, substantial asportation, or an increased threat of harm.  There's no question that there was a sufficient animus in this case to support both a kidnapping and rape conviction, and there were two rapes as well.  But shouldn't the two kidnapping convictions have merged?

The State argued that there were actually two kidnappings as well -- one by stealth or deception (the trip to the carnival, lunch and shopping), and the other by force.  This presents the question of whether a continuous restraint of liberty, accomplished through several different means, can support separate convictions of kidnapping. 

The appellate panel bought it, citing three cases to support its conclusion.  Only one of them actually does; the 10th District upheld separate convictions for kidnapping by deception and kidnapping by force in a case a quarter century ago, while the other two cases cited deal only with the separate animus for kidnapping and rape (in fact, in each case the defendant was charged with only a single count of kidnapping).  Still, it's at least a tenable argument that one can be convicted of two counts of kidnapping, one by force and one by deception, even though only one continuous restraint of liberty is involved. 

More problematic is the court's suggestion in several places that there could have been multiple separate charges of "kidnappings by force":

these kidnappings [my emphasis; note plural] (when Widner threatened the victim with a gun, forced him to undress, and then tied him up with duct tape; when Widner forced the victim into the tote bag, snuck him into his apartment,forced him to stay there overnight; when he drove the victim around the next morning) were not allied offenses of the rapes and did not merge with the rape convictions.

I have no quarrel if the court means to suggest that the rapes did not merge with the kidnapping; I conceded as much.  But it's an entirely different thing to argue that individual acts -- holding the victim at knifepoint, forcing him to another room, say -- can be parsed into individual crimes.  No one would seriously suggest that three counts of robbery could be supported by the taking of the victim's watch, ring, and wallet, and it's difficult to see the difference.

In fact, the case serves to emphasize the disconnect between our tendency to look at things with legal precision, as opposed to the more common approach.  I doubt if any layman would listen to the rendering of the terrible account of this crime and respond, "Oh, the poor boy!  And he was kidnapped twice, too!"

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