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What's Up in the 8th

I once had a client named Bobby, who pled to a low-level drug offense.  This was back in the days before SB2 and post-release control, so the judge offered him an choice at sentencing.  "Bobby," the judge said, "I'll give you six months in prison, and when you get out, you're done.  Or, I'll give you a year's probation, but if you screw up and test dirty, you'll go away for a year."

Bobby didn't even have to think about it.  "I'll take some of that probation."

Two months later, he tested positive.

There's an old saying that good judgment comes from experience, and experience comes from bad judgment, but that's not always true;  some people consistently exercise bad judgment.  Those people are called "defendants":  they hang around with the wrong crowd, say and do the wrong things at the wrong time.  They make the wrong decisions, like Bobby did, and like the defendant in State v. Smith did.  After pleading guilty to third degree felony robbery, she was offered a choice by the judge:  one year of prison, or two years of community control sanctions, with a 5-year prison sentence if she violates. 

Sure enough, she took what was behind Door No. 2, and sure enough, six months later she hit the probationee's trifecta:  she tested positive, failed to report, and then picked up another felonious assault case for stabbing her stepfather.  She appeals the sentence, and the appellate panel, instead of simply chuckling and affirming, launches into a four-page exegesis of the wasteland that is Ohio's sentencing law.  (Although Smith was given concurrent sentences, the opinion even includes a discussion of State v. Hodge and Oregon v. Ice.)

The court feels similarly constrained to expound upon sentencing law in State v. Heard, despite the fact that the defendant isn't appealing the sentence iteself; the appeal centers around claims that the judge had ex parte communication with social worker and improperly took into consideration allegations that defendant had previously abused the victim, his 5-year-old son.  The panel rejects them, but also sees fit to discuss Kalish and Foster and RC 2929.11 and RC 2929.12 and all that other good stuff.

If you are familiar with Ohio sentencing law, there's little suspense in the outcomes of Smith and Heard.   In fact, a fun game for those of you playing at home is to come up with a scenario in which an appellate panel would reverse a sentence.  Other than the trial judge saying something like, "It's my policy to send colored people to prison," I'm drawing a blank.

The defendant in State v. Littlejohn also finds himself victimized by his own bad decisions, such as deciding to smoke marijuana in a car in the parking lot of an apartment building (as opposed to doing so in the privacy of his own dwelling), and then duking it out with the cops instead of just submitting to arrest.  The central issue is the sufficiency of the state's evidence of serious physical harm to the police officers, which appeared ample:  one officer missed a month's work, another two weeks, and both testified to lingering effects of the injuries, all of which was sufficient to demonstrate the "temporary, substantial incapacity" which satisfies the serious physical harm element.  Not content with this, though, the opinion reiterates prior case law from the district that evidence the victim sought -- not required, mind you, just sought -- medical treatment is sufficient.  The problem with this approach should be obvious:  a precautionary emergency room visit for the purpose of ruling out serious injury would have the legal effect of establishing the existence of one.

Sometimes it's the victims, not the defendants, who make poor decisions.  Among that subset is the people who sought the services of Bella Derm Medi Spa, whose slogan was "the feel of a spa, the care of a physician."  Alas, the defendant, who ran the place, was a mere cosmetologist.  The featured treatment was something called mesotherapy, which probably is mentioned prominently in North Korean torture manuals; according to the opinion's description of the procedure,

Annable would numb the clients' skin with ice packs, and while [an employee] held the clients' skin "tight," Annable would apply a roller with needles to the area.  The employee testified that the clients would usually bleed from the rollers, and that she saw the same roller being used on more than one patient.  According to the employee, "these people were in a lot of pain."

Hell, I was in pain just reading about it. 

The central aspect of the appeal in State v. Annable is the trial court's determination that the charge of practicing medicine without a license is strict liability.  The court sifts the tea leaves to determine whether the General Assembly intended it to be strict liability, and concludes that it did not, and so the required mens rea defaults to recklessness.  The result makes little sense.  You can certainly be reckless with regard to whether you have a valid driver's license; you may not have gotten notice of a suspension.  But how can you be reckless about whether you have a medical license?  "Gee, I thought I went to med school and spent three years in a residency, but I guess I didn't."  Still, this isn't the fault of the court:  it's not like the panel got to decide whether the crime should be strict liability or recklessness.  As I said, recklessness is the default. 

Nonetheless, the court rejects the claimed error in the trial judge's failure to instruct on recklessness or any other mens rea, primarily because the defense failed to object to it, and because the evidence showed that Annable at least acted recklessly.  At least.

Two other conclusions in the opinion are a bit more troubling.  During Annable's cross-examination, he was confronted with a tape of a radio advertisement in which he was referred to as "Dr. Annable."  The evidence showed that the ad was created by Clear Channel, on its own, with the intent of inducing Annable to purchase air time for it.  He didn't, and the ad was never aired.  The court nonetheless holds that this introduction of the tape was proper:

Annable's position at trial was that he never held himself out to his clients or the public as a doctor.  The tape was admitted into evidence to attack Annable's credibility by showing that he was believed to be a doctor.

There's a step missing here.  Whether Clear Channel believed Annable to be a doctor is not dispositive of the question of whether Annable held himself out to be one.  Cross-examination of Annable as to what he might have done to lead Clear Channel to believe that he was a doctor, or testimony by Clear Channel on the same subject, would certainly have been proper.  And cross-examination of Annable on the ad would clearly be permissible if he'd authorized its use.  But there is nothing in the opinion to indicate any of the above, and absent that, it shouldn't have been admitted.

The other troubling part is highlighted by the partial dissent of Judge Stewart.  Annable was also convicted of a count of theft, apparently on the premise that his customers were promised treatment by a doctor, and weren't given it.  As Stewart points out, this is a civil matter; "the victims may not have received entirely what they bargained for, but any shortcomings in what was agreed to versus what was delivered is purely a matter of contract."   It's a small point in Annable's case -- it's hard to argue that he didn't deserve his 4 years in prison -- but it's a good point to keep in mind; I've seen too many occasions when the prosecutor's office allowed itself to serve as a collection agency.


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