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What's Up in the 8th

Like virtually all rust-belt cities, Cleveland has been losing population for decades.  It has apparently reached the point where we're having trouble finding enough people to serve on juries, because of the six criminal opinions handed down by the 8th last week, four were after trials, and three of those were trials to the bench.  The people that are left here, though, are certainly possessed of colorful names:  among the defendants we find Kimmy Knuckles, Fidel Kemp, and Romeo Fulton.  That does them little good.  In fact, in the only "win" for defendants, the defendant would have been better off not appealing at all.

Charles Roberts heard a noise in his basement one night, and on inspection found Knuckles entering through a broken window.  Knuckles' story was that he was the he was visiting a man named "Scott" who was supposedly a tenant in Roberts' basement, knocked on the window to gain "Scott's" attention, and lo and behold, the window broke.

To refute this, the State introduced evidence of other burglaries committed by Scott, relying on the exception to EvidR 404(B) allowing other acts testimony to establish lack of mistake or accident.  The panel in State v. Knuckles correctly concludes that this doesn't fit the bill:  the other acts must be so similar to the conduct in the charged offense as to constitute a "behavioral fingerprint," and in this case, the other crimes "did not share any distinct features that would establish an identifiable scheme."

The court's conclusion that the admission of the evidence was harmless -- especially in light of the fact that much of it came in when Knuckles took the stand and was impeached with the prior convictions -- is likely correct, but the opinion also fluffs it off because "the trial court, as the trier of fact, would only consider proper evidence."  This is in keeping with the long-established rule that an appellate court will indulge in the presumption that "in a bench trial in a criminal case the court considered only the relevant, material, and competent evidence in arriving at its judgment unless it affirmatively appears to the contrary."  One might think that when a defense attorney stands up and objects to the introduction of certain evidence and the judge overrules her, that would be a sufficient "affirmative showing to the contrary," but there's little indication that the case law breaks that way.  I've said before that when you choose to try a case to the bench instead of a jury, you forfeit a lot of your appellate issues, especially on evidentiary rulings, and this is another example.

And while we're in the I Told You So mode, check out State v. KempTwo police officers were doing what a lot of cops do here:  running license plates of cars they see on the road, just to find out if anything pops up.  In this case, it did:  Kemp was driving a car whose owner was under a financial responsibility suspension, which requires that the car be seized, regardless of who's driving it.  The officers stopped the car and arrested Kemp, put him in the back of the police cruiser, then searched the car, finding drugs.

Aha, you say, this sounds suspiciously like the factual situation in Arizona v. Gant, the decision several years which held that police couldn't search a car incident to an arrest if the occupant no longer had access to the car and the police had no reason to believe that the vehicle contained any contraband or evidence of the crime for which the occupant was arrested.  Ditto here:  the police wouldn't find any evidence of an FRA suspension in the car.  But, as I've mentioned, Gant wasn't quite as sweeping as a lot of people think it is.  It invalidates searches incident to arrest under those circumstances, but searches under other exceptions to the warrant requirement are valid.  Here, it was the inventory search:  the police had the right to seize the car, and if the car is legally impounded, they have the right to do an inventory search.

Several other cases emphasize legal points we need to remember, or simply emphasize life lessons we should have learned.  The moral of State v. Holloman, for example, is that it's going to be tough to claim you didn't have constructive possession of drugs if a bag of them is found under your leg while you're sitting in a car.  Holloman, though, who also waived his right to trial by jury, is more amply rewarded for doing so:  he was acquitted of the drug trafficking charge and the attendant firearm specification.  State v. Fulton features a gas station robbery involving a cast of characters larger than that found in some movies, and more than actually necessary to rob a gas station.  Especially unsuccessfully:  when the sign says that the clerk doesn't have a key to the safe, it means the clerk doesn't have a key to the safe, and if you need a key to get into the safe, that means nobody's getting into the safe.  The legal points here are that operability of firearm necessary for conviction of the firearm specification can be proved by circumstantial evidence, such as threats to shoot the victim. And just because you're not the one with the gun doesn't mean you can't be convicted of the spec; an unarmed accomplice to a robbery is just as guilty as the armed principal.

One thing I've found about doing appellate work is that your clients, at least those in prison, have an awful lot of time on their hands, which they often use to look up the law.  (Or, at least, what they think to be the law; I recently had one client with a failure to comply charge (the old "fleeing and eluding") tell me that Ohio law required that for conviction of such a charge, the State had to prove that the police chase had to be at least four miles long.)  I've also found that there are no shortage of fellow inmates who are more than willing to provide legal advice.

Last year, Robert Moore filed a "motion to vacate and void sentence" in his two 2009 drug trafficking convictions, claiming that the sentences were void because the trial court hadn't imposed the mandatory fines.  I'm not sure whose idea this was, Moore's or a prison "lawyer," but it proves incontrovertibly disastrous.  The trial judge overrules the motion, but in State v. Moore the appellate court agrees that Moore is right:  the court was required to impose the mandatory fine unless an affidavit of indigency was filed before the sentencing entry was journalized, and here that didn't happen.  But if you look up "Pyhrric victory" in the dictionary, you'll now find Moore's glum visage staring back at you:  the court decides that this doesn't render the entire sentence void, but only that part pertaining to the imposition of the mandatory fine, and it remands the case back to the trial court to do just that.

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