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Case Update

Two weeks of cases to sort through, and I begin by learning what "viticulture" means:  the growing of grapes.  That's distinct from vinting, which is the making of wine from grapes, and the distinction is critical in Terry v. Sperry, which involves a zoning dispute.  The court's syllabus says it all, at least as far as I'm concerned -- "the exemption from township zoning in R.C. 519.21(A) does not require for its application that viticulture be the primary use of property engaged in the vinting and selling of wine" -- and so, with our vocabulary suitably expanded, we move on.

The big decision was unquestionably State v. Williams, holding that the Adam Walsh Act was punitive, rather than remedial.  That decision deserves its own post, which will appear here on Wednesday.  A sign-o'-the-times decision was Hobbs v. Mullen, involving the Solomonic feat of splitting the baby between a lesbian couple.  Mullen and Hobbs had been living together and had a child, with Mullen being artificially inseminated with the sperm from one of Hobbs' friends.  The pair had entered into numerous agreements regarding the child, and then split up after several years, with Mullen denying Hobbs futher access to the child.  The question for the court was whether "a parent's conduct with a nonparent created an agreement for permanent shared legal custody of the parent's child."  The result, as is often the case, was dictated by the standard of review:  the appellate court affirmed on the basis that the basis that there was "reliable, credible evidence" supporting the juvenile court's finding that the parties had not done so -- although everybody pretty much agrees that if the court had come to the opposite conclusion, there was plenty of "reliable, credible evidence to support that outcome, too -- and the Supreme Court affirms on that basis, 4-3.  The majority suggests parties in such a position can apply for an order from the Juvenile Court under RC 2151.23(A)(2); unaddressed is whether such an order might run afoul of Ohio's constitutional amendment barring not only gay marriage, but prohibiting the State from creating or recognizing "a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."  Pfeifer may not be the justice on the court who provides the most penetrating legal analyses, but he has an uncanny ability to get to the heart of the matter, and he does so in his dissent:

Mullen was able to use the law as a weapon because same-sex coparents lack legal rights. The law has not caught up to our culture, and this court has failed to craft a rule that addresses reality... Mullen taught her daughter to call another woman "Momma" and to love her as a mother. She now wishes she hadn't, and for the majority, that's enough.  It shouldn't be.

Lots of stuff in the courts of appeals from the past two weeks, so let's sift through the criminal decisions there...

Defendant charged with inducing panic because of his refusal to allow entry into apartment to police officers responding to domestic violence call; 1st District reverses conviction, says police can't be "'inconvenienced' within the meaning of the inducing-panic statute when they were simply asked to perform their duty of enforcing the law"... 6th District upholds search of victim's residence which discovered certain items belonging to defendant boyfriend, says that while defendant was an overnight guest there on some occasions, did not have standing to object to search because no evidence that he was going to be an overnight guest on this occasion...  2nd District affirms conviction after bench trial of trafficking in marijuana, but remands case for determination of whether transaction was a sale or a gift; conviction of latter would only be a third degree misdemeanor under RC 2925.03(C)(3)(g)... 10th District rejects State's argument that trial court couldn't grant Rule 29 judgment of acquittal where state failed to prove venue, since venue isn't an element of the crime; it's not, but the State still has to prove it, and if they don't, a Rule 29 is appropriate...2nd District rejects contention that trial court can't deny motion for treatment in lieu of conviction based on defendant's juvenile record...  8th District notes that while case law holds that operate" a vehicle for purposes of OVI or DUS statutes requires only that key be in ignition, statute was amended in 2004 to define "operate" as "to cause or have caused movement of a vehicle"; that didn't happen where defendant got in and out of car that had motor running, but car never moved... Defense counsel's claim in opening statement that shooting of wife was accidental opened door to other acts testimony about previous violence between defendant and wife, says 12th District...

Gun rights update.  In State v. King, the 2nd District examines the question of whether the 2nd Amendment prohibits a conviction for improperly handling a firearm in a motor vehicle.  The court finds that it doesn't, which is probably correct, but its analysis is pretty muddled.  There's still some question as to whether a gun restriction has to be evaluated under a strict scrutiny or intermediate scrutiny test, as discussed here, but the 2nd uses a rational basis test -- "legislation will not be invalidated unless the challenger establishes that is unconstitutional beyond a reasonable doubt" -- which is completely inappropriate.  In other places, they cite the Ohio Supreme Court's 2003 decision in Klein v. Leis upholding the carrying concealed weapon statute against challenge under the Ohio Constitution, holding that regulations are "constitutionally permissible if they impose reasonable limitations upon an individual's right to bear arms"; Klein was before both DC v. Heller and McDonald v. Chicago, and there's little to suggest that "reasonable" limitations can suffice to restrict a fundamental right.  I'm a big fan of the 2nd District; they usually provide some of the best-written opinions of any court in the state.  This wasn't one of their better ones.

Next time I'll just shut up.  The bad news for the defendant in the 10th District's decision in State v. Chandler was that the court rejected his arguments that his attorney had been ineffective and the trial judge had erred in admitting hearsay testimony.  The worse news was that he'll wind up serving almost six months more than he would've if he hadn't appealed.  The State cross-appealed, and the appellate panel agreed that, although he was in jail for 255 days before trial, 169 of those came from the revocation of his probation in a previous case, and he wasn't entitled to jail credit for those.

Yeah, that'd make a difference.  In State v. Bryant, the State had obtained a search warrant for drugs largely based on the allegation that the defendant's propery had a much higher rate of electricity consumption, an indication of a drug grow operation, than a neighboring property.  The neighboring property belonged to an Amish family.  The 5th District tossed the search.

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