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What's up in the 8th

The 8th District hands down about a thousand decisions a year.  Most of them are of little consequence.  That's not to fault the court; that's true of most intermediate appellate decisions.   They usually apply well-established legal principles, or they're so fact-specific that they have no real precedential value, or they deal with some niggling aspect of the law.  But every now and then, an opinion not only addresses an important area of law, but gives a fresh perspective on it.  The 8th handed down only six decisions in felony cases last week, but three of them fall into that category.

State v. Shoulders ordinarily would provide little more than the dog-bites-man story of the State losing another search decision.  One afternoon, the police department's gang impact squad was riding around in several unmarked cars, when they drove past a car wash and saw a person they'd been wanting to question about gang activity.  They pulled into the car wash, jumped out of their cruisers with guns drawn, and ordered everybody to show their hands.  Shoulders, an employee of the car wash, shouted "I didn't do anything," and took off running.  The cops tackled him, and found a gun and 11 grams of marijuana in little baggies, eventually resulting in Shoulders' conviction and 18-month sentence for drug trafficking with a gun spec.

Even those with a rudimentary understanding of 4th Amendment principles -- a subset of the population which apparently does not include the Cleveland Police Department -- would know that, in the absence of any indication of criminal activity, officers cannot conduct a full stop with guns drawn just because they want to question someone.  And so the State is left to argue that Shoulders' act of running gave them reasonable suspicion to stop him, relying on the Supreme Court's decision in Illinois v. Wardlow, where the Court held that "headlong flight. . . is not necessarily indicative of wrongdoing, but it is certainly suggestive of such," and ruled that the suspect's fleeing in that case was sufficient to support the stop. 

Most courts would have upheld the search on that basis, but to its credit, the 8th holds that Wardlow did not create a per se rule that flight invariably supports a stop.  It notes that Wardlow found that the defendant's "unprovoked flight" and "his presence in an area known for heavy drug trafficking" was sufficient.  Here, there was nothing indicating the car wash was known for drug trafficking or to suggest Shoulders or anybody else there was engaged in criminal activity.  Most interestingly, the court finds that Shoulders' flight was not "unprovoked":  given the unmarked cars and civilian clothes, Shoulders may not even have been aware that they were the police.

There might be some appellate nullification going on here.  Shoulders and two other witnesses had testified that he didn't run, but that the police simply came over, forced him on top of a car, and patted him down.  The court couldn't overrule the denial of the motion to suppress on that basis; credibility questions are for the trial judge to determine.  But the opinion does an excellent job of reading Wardlow, and given the frequency with which the flight issue emerges -- or where police say it emerges -- Shoulders is a must-read for cases of that sort. 

State v. Collins also features drugs; in this case, a controlled delivery of some 4500 grams of marijuana, for which the defendant signed a phony name.  When promptly arrested, he taunted the cops, telling them, "You don't have shit on me.  I didn't even sign my real name."  Imagine his surprise months later when he was sentenced to six years in prison for drug trafficking.

His conviction was affirmed, for the most part, with the court kicking out the school spec (no testimony that the school was "open and operating," as the 8th has required) and the possession of criminal tools charge (a cellphone is "so ubiquitous" it's no longer a criminal tool, in the absence of evidence that it was specifically used for that purpose.  But the more interesting issue is the drug trafficking charge, with the dissenting opinion and the opinion concurring only in judgment focused on that.  Both argue that the "preparation for sale" statute (which is what Collins was convicted under) "requires some evidence that the offender actually prepares a drug for shipment, or ships a drug, or transports a drug, or delivers a drug, or prepares for distribution a drug, or actually distributes a controlled substance."  As the concurring judge notes,

What has evolved in this district is a pattern where an offender, by receiving a quantity of drugs that suggests trafficking, is automatically presumed to have committed a "preparation for shipment" offense. . . Often, no direct evidence of conduct by the offender is offered as to the elements listed above. The inference is because an offender receives a quantity of drugs, that offender is inferred to have violated the elements of R.C. 2925.03(A)(2).

The judge finds himself bound by a prior case (of which he provides an excellent analysis), but argues that case should be looked at again; a "plain reading" of the statute

indicates that it requires an offender to take some action in furtherance of the goal of accomplishing trafficking by doing one or more of the proscribed acts under the statute. Receipt of drugs alone is not one of the enumerated methods of violating the "preparation for shipment" statute.

It's not a major point; the penalties for possession and trafficking are about the same, except that juvenile and school specs don't attach to possession charges.  But if you've got a case like this, it's worth an extended look.  Ohio used to have a "possession with intent to distribute" statute, but it doesn't any more, and the present statute shouldn't be regarded as the equivalent.

James Freeman was a maintenance man for a hotel around here, and befriended the 15-year-old daughter of one of the tenants.  One discussion led to whether the girl smoked marijuana, which resulted in her winding up in his van, dressed only in her pajamas, and puffing away on a doobie.  Hard to see how anything's going to go wrong with that.  After the third hit, the girl felt "really zoned out" but not "zombie like."  A bout of oral and vaginal sex resulted in Freeman's conviction of four counts of rape under the "substantial impairment" section of the statute.

In State v. Freeman, the court affirms, but the majority opinion ponders the metaphysical question of just when impairment becomes substantial.  The term is undefined, and the only Supreme Court decision on it, nearly a quarter century ago, did little to clarify the issue, saying only that the term "must be given the meaning generally understood in common usage."  Perhaps the most pro-defendant case is the 8th's decision three years ago in State v. Doss, which acknowledged the "fine, fuzzy and subjective line between intoxication and impairment," and found that "every alcohol consumption does not lead to substantial impairment."  The Freeman court agrees that the statute is "not intended to criminalize sexual conduct as the result of an alcohol or drug-induced state of lowered inhibitions."  The court finds that "there is a continuum between impairment and unconsciousness, somewhere in between being the line of what is legally sufficient to establish substantial impairment."  Good language, and useful in future such cases.  Freeman, alas, falls on the wrong side of the line, the court decides.  But substantial impairment, like beauty, is in the eye of the beholder; it's just a guess on my part, but I get the feeling that the outcome would have been different if the girl had been 20 instead of 15.


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