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Case Update

Three decisions out of Columbus, two in criminal cases, neither result a surprise.  The issue in State v. Dunlap was the mens rea requirement for gross sexual imposition involving a victim under 13.  As I explained when I wrote about the oral argument, the case law held that the statute was strict liability, but those decisions concerned the age of the child; here, the defense argued that the act of touching itself required proof of recklessness, while the State responded that another section, which defined the sexual contact as touching "for the purpose of sexual gratification," supplied a purposeful intent.  Why, might you ask, is the State arguing for a heightened level of intent?  Because the case was tried back in the glory days of State v. Colon, and while the trial judge had included the "purpose" definition in the jury instructions, it hadn't included a definition of recklessness; had the Supreme Court bought into the defense theory, Dunlap would have earned a new trial.  At least, back in those days he would have; Colon, of course, was overruled a year ago.

Dunlap's conviction is thus unaffected by the decision, but it does impact him in another way.  He committed the crime in 2007, but wasn't convicted until March of 2008.  The reason for the delay in the court's decision -- oral argument was back in January of 2010 -- was that it held the case, first for the decision in State v. Bodyke, and then again for the decision in State v. Williams.  The latter, discussed here, held that the Adam Walsh Act classifications couldn't be applied retroactively to people who committed their crimes before its effective date of January 1, 2008.  So the court reversed Dunlap's Tier III classification and sends the case back so that he can be reclassified under Megan's Law.

The second criminal decision last week was State v. Barker, and I'd also discussed the oral argument on that in June.  I'd told you to bet the ranch on a State victory, and if you didn't, you have only yourself to blame, or the fact that no one reading this blog is likely to own a ranch.  The case involved the question of whether a plea was invalid because the trial judge had informed Barker only that he had a right to "call" witnesses, rather than that he had a right to compulsory process, as is stated in the rule.  The 6th had vacated the plea, finding the admonition insufficient, but there were a number of problems with that opinion, chiefly that there was a written plea agreement which contained the full statement from the rule.  The court's ruling is a bit broader than I would've liked:  the first half of the opinion is spent discussing why "call" is sufficient to imply a power to coerce appearance, although the latter half does make it clear that the "totality of the circumstances" surrounding the plea -- especially when there's a plea agreement -- can be considered.  The opinion does suggest that "strict" compliance with the rule won't be all that strict, especially since it relies on State v. Ballard, a 1981 decision in which it held that a trial judge's telling a defendant that "neither a judge nor jury" could make any inference from his refusal to testify adequately apprised the defendant of his right to jury trial.  In any event, future decisions like the one two years ago in State v. Smith are unlikely; there, the 8th District vacated a plea because the trial court hadn't told the defendant he had the right to subpoena witnesses, even though he had used the exact words of the rule:  "you have the right to compulsory process."

The civil case, Dominish v. Nationwide, simply holds that if an insurance policy says you have a certain time to file suit, and you don't file suit, you're out of luck, at least as long as the insurance company has clearly denied liability for your loss and has done nothing to induce you to forego filing suit earlier.

On to the courts of appeals...

In State v. Maggard, the 1st District reverses defendant's no contest pleas to rape because the trial judge repeatedly told him that there was no mandatory prison time; RC 2929.13(F)(2) specifically requires imprisonment for rape.  The defendant had also pled no contest to four kidnapping charges, and the appellate court holds those are unaffected.  Interestingly, the result might have been otherwise had there been a plea agreement; the court cites an earlier case where it vacated an entire plea because "trial court's failure to comply with Crim.R. 11 clearly implicated not only [defendant's] guilty plea on the rape count, but the entire agreement between the parties."  Here, though, Maggard had pled no contest to each count of the indictment... In State v. Ferguson, the 2nd District holds that the trial court did not err in permitting the State to amend the indictment for child endangering by adding the intent element of recklessness; this did not change the identity of the offense... In State v. Walker, the 8th District holds that the fact that the victim, an 11-year-old girl, was functioning at a 2nd grade level did not render counsel ineffective for failing to ask the court for a hearing to determine the child's competence as a witness...

Say a defendant is sentenced on two counts of felonious assault back in 2007; can he argue that his sentencing is void because the convictions should have merged as allied offenses under State v. Johnson?  The 1st District, in State v. Gonzalez, doesn't think so, noting that "the Ohio Supreme Court has not held that a judgment of conviction is rendered void by the imposition of multiple sentences in violation of R.C. 2941.25"... A good discussion of the law on using pre-arrest silence as substantive proof of guilt comes in the 2nd District's decision in State v. ForbusForbus made the unfortunate decision to shoot at people who also had guns, and who shot back at him; the police shortly thereafter found Forbus bleeding from his neck, but he refused to answer any questions.  The State argues that use of his pre-arrest silence wasn't a problem, because he wasn't a suspect at the time; it wasn't until later that the police found out he'd been the aggressor.  The 2nd rejects this distinction, but nonetheless holds admission of the evidence was harmless error... In State v. Stiles, the defendant had pled guilty to a count of misdemeanor theft, but the trial court had awarded restitution of $3,833; the 12th District says that since misdemeanor theft is of $500 or less, that's the maximum amount that can be ordered...

Bullshit Traffic Stop of the Week.™  In State v. Jones, the 3rd District upholds a search which began with a traffic stop after the driver exited the interstate without using a turn signal.

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