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What's Up in the 8th

After the massacre last week, in which the State suffered no fewer than eight reversals, things return to normal, with defendants winning only two cases.  Both of them are sex offender registration and notification cases, and they raise the intriguing question of how the State will ever win another one.

State v. Greenlee is the first opinion along that line, and suffers somewhat from an inadequate exposition of the facts.  Greenlee had been adjudicated as a juvenile of delinquency in Iowa, for the crime of assault.  The opinion tells us that the prosecutor charged Greenlee with failure to register, contending that the Iowa adjudication was the substantial equivalent of gross sexual imposition under Ohio law, and thus Greenlee was a sexually oriented offender.  The opinion gives no further background on the basis for the State's argument in that respect.  The trial judge had dismissed the indictment, and the State appealed, claiming that dismissal was improper:  that was tantamount to a summary judgment in a civil case, and there is no equivalent in criminal law.

The court gets that exactly right.  Normally, in deciding whether to dismiss an indictment, a court can't look beyond it:  the only determination is whether it is defective.  Earlier this year, in State v. Ortega-Martinez, the 8th recognized an exception to that rule:  where "the motion did not embrace what would be the general issue at trial."  Greenlee relies on that; here, the issue at trial would be whether Greenlee had in fact failed to register, and that's not the issue raised by the motion to dismiss.

But what is the issue raised by the motion to dismiss?  The opinion isn't clear.  The State seems to be arguing that the defendant had a duty to register as a sexually-oriented offender, but the opinion veers into a discussion of whether a reclassification under the Adam Walsh Act can serve as the basis for the crime of failure to verify, and decides, as it has in every case where that issue has arisen, that it cannot.  Again, when (or even if) Greenlee was reclassified under the AWA isn't mentioned.

The same result obtains in State v. Grunden, under a vastly different procedural setting.  Grunden, convicted of attempted rape in 2004 and reclassified as a Tier III offender under AWA in 2008, had been charged in 2009 with failure to provide notice of a change of address.  He pled guilty, received a four-year sentence, and then filed numerous post-conviction relief petitions.  The court reverses the trial judge's denial of this latest one, finding once more that "convictions arising from reporting violations under the AWA for any individual reclassified under its provisions are also contrary to law."

The State had agreed that the classification was invalid, but argued that Grunden had violated the registration requirements that he had under Megan's Law.  True, said the court, but the penalties under AWA were substantially stiffer than they were under Megan's Law.  (A violation of the latter could be no more than a 3rd degree felony, and as low as a 5th degree felony; under AWA, it's at least a 3rd degree felony unless the underlying offense was a misdemeanor, in which case it's a 5th degree felony, and can be as high as a 1st degree felony.  What's more, a second offense earns a mandatory prison sentence of at least three years.)

But there's a catch:  how does the court know that the AWA penalties will be imposed?  It doesn't; the offenses are in the exact same sections as they were under Megan's Law, and are phrased the exact same way.  (In fact, the sections defining offenses weren't even amended by the AWA.)  It's not unusual for the legislature to stiffen penalties for various crimes, and as long as those increased penalties aren't applied to an individual who committed the crime before they went into effect, there's no ex post facto problem.  That doesn't appear to be an option here, at least in the 8th:  prosecution of anyone wrongfully reclassified is not permitted, even if they violated a duty they would have had if they hadn't been reclassified, and even if the prior penalty would be imposed upon them for the violation.

One more thing:  the State had also argued that Grunden's petition for post-conviction relief was untimely.  Doesn't matter, says the court:  since his conviction was void, it's "not subject to principles of res judicata and remained subject to collateral attack at any time."  If you have a client who was convicted of a registration or notification offense within the past three years, you might want to drop him a line.

The State has better luck in the remaining cases, and there's little of note in any of them, save possibly State v. Murphy, where the defendant had taken pictures of his sleeping girlfriend in various compromising photos.  Severely compromising photos, we might add, involving the insertion of sex toys and other objects.  If you've been wondering whether this is a good idea -- and who among us hasn't? -- it's not.  The girlfriend had apparently testified that she believed that she'd been drugged, and Murphy argued that her testimony was incredible on this account, but the court finds it doesn't matter:  even if she'd been merely asleep, that was a "substantial incapacity" under the sexual battery statute.  Equally doomed is the defendant's argument in State v. Washington that the verdict in a bench trial was against the manifest weight of the evidence.  I've mentioned before that waiving a jury severely impacts the chances of a successful appeal, and arguing that a judge, who is presumed to have considered only relevant, admissible evidence, got it wrong on the credibility of the witnesses has about as much chance of success as Mel Gibson has of being the emcee at the annual dinner of the American Jewish Committee.

The court proves plaintiff-friendly in two personal injury cases.  In Mason v. Pawlowski, it upholds a $9,351 judgment resulting from a bar fight between two women which began when the defendant, who was involved in a love triangle with the plaintiff, tried to show the plaintiff a nude picture their common squeeze had just sent her on his cellphone.  (Jane Austen this was not.)   The plaintiff's injuries, caused by being hit over the head with a beer bottle (hell, it's not even Taylor Swift), consisted of a laceration to her scalp, blurred vision, a concussion, dizziness, and headaches, although she presented no doctor's testimony as to any of that.  The rule is that you need expert testimony to prove anything that is beyond the common understanding of laymen.  A laceration certainly qualifies; the others arguably do not.  The court nonetheless affirms, on the questionable basis that since the laceration didn't need expert testimony, whether the others did is "harmless error."

Skowronski v. Waterford Crossing involves case where a 16-year-old boy went flying over the handle-bars of his bike, sustaining serious injuries, after the bike lost a wheel when it hit a slab in the sidewalk that was three inches higher than the adjoining one.  This meets the wholly arbitrary "two-inch" rule, which holds that a defect less than that is insubstantial as a matter of law.  The defendant argues the open-and-obvious doctrine, and to its great credit, the court decides that this is a jury question, and reverses the grant of summary judgment, holding that "where reasonable minds could differ with respect to whether a danger is open and obvious, the obviousness of the risk is an issue for the jury to determine."

The court also holds that whether something is open and obvious doesn't require someone to be looking constantly downward.  That's a salutary development; when I used to write about the doctrine, which I did a lot, it was mainly to bemoan some court holding that a condition was open and obvious merely because it could be seen if the person went around looking directly at where they were walking.  About the only people I've ever seen walking around and looking down at the ground where they were going happened to be wearing four overcoats in the middle of August and mumbling about how they'd just seen Jesus get off the loop bus.

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