What's Up in the 8th
In doing this blog, I read a lot of cases. The downside to that is, I read a lot of cases. The upside is that every now and then I'll come across an opinion which contains a line like this: "The victim recalled seeing Holsey’s penis before she lost consciousness."
Well, who among us hasn't experienced something like that, right?
The facts of State v. Holsey are taken from one of the "All in the Family" episodes of the Jerry Springer show. Holsey and his two half-sisters were in a bar attempting to achieve new heights of inebriation, when the two women started arguing. Holsey, ever the gentlemen, broke it up and escorted one of them out to his car and put her in the backseat. The last thing she remembered was seeing the aforementioned penis, but Holsey tells a different story: she came on to him, and despite his moral misgivings "of having sex with his half-sister," the two engaged in consensual intercourse.
He claims his resultant convictions of kidnapping, two counts of rape -- one for force and one for substantial incapacity -- and two counts of sexual battery -- ditto -- were unsupported by either the sufficiency or the weight of the evidence. Considering that the trial judge merged the five convictions, this raises an interesting question: need the appellate court review each of the convictions to determine if the evidence supported them, or is proof of one enough? The court agrees that it "need not dwell on the quantum of evidence supporting the victim's intoxication," noting the testimony of other witnesses and the security video, and culminating with this little tidbit:
Holsey also testified that at the conclusion of sexual intercourse, the victim became incontinent in the back seat of the car. This indicates that the victim was so intoxicated that she had lost control over her bodily functions.
The court is not continent -- er, content -- to limit itself to the substantial incapacity issue, but examines each of the counts and decides the evidence supports them. Much more of this, though, and I'll think that spending my Saturday mornings watching Saw IV would offer a less queasy alternative to reading the 8th District opinions.
State v. Bobo comes up again. In 2009, when Bobo violated his community control sanctions for the third time, the judge dropped the hammer, and a 12-year hammer at that. The 8th reversed, finding the evidence of a violation insufficient: Bobo claimed that the violation, a failure to report, was due to a communications error, and that he had reported the following week. The probation officer was not there to contradict this testimony, or offer any of her own. And so the case went back, the trial judge held another probation violation hearing, the probation officer attended, and the result was the same -- violation found, 12-year sentence imposed. It goes up again, and the court reverses again. A finding that the evidence is insufficient to support a probation violation has the same consequence as a finding that the evidence was insufficient to support a conviction: the State doesn't get a do-over. Since Bobo's probation would have terminated three weeks ago, he's discharged.
Before 1973, aggravated murder in Ohio required proof of premeditation. The statute was changed that year to require prior calculation and design. The vagaries of these standards are on display in State v. Bolan. Jerome Fears was walking through a neighborhood with a friend, Basheer Wheeler, and made the mistake of walking past a group of males while wearing a hoodie. Bolan, one of the males, told Fears to take off the hoodie. Fears complied, but this apparently didn't satisfy Bolan; he asked his compatriots, "who got a hammer?" and one of them gave him a gun, which he used to fire six shots at the two, killing him Fears; Wheeler escaped.
The court notes that "prior calculation and design can be found even when the killer quickly conceived and executed the plan to kill within a few minutes," and, relying on the Ohio Supreme Court's decision in State v. Conway, finds that Bolan's action met this standard. Conway doesn't provide as much support for the conclusion as one might like. In Conway, after his brother was stabbed, the defendant went to his car and retrieved a gun, then returned and killed the victim, a process that, according to witnesses, took between a minute and a half to two minutes. The opinion in Bolan doesn't note how long it took for him to be handed the gun, but it was certainly within seconds, since, unlike Conway, Bolan did not have to pursue the victims to shoot at them.
On the other hand, it might be argued that the court is correct in focusing on the aspect of "calculation and design," rather than on wholly arbitrary time considerations. Bolan had to form the intent to kill, and had to use other means of procuring a gun since he didn't have one. Whether this is sufficient to justify conviction is arguable, but from the standpoint of appellate review, defensible. The demarcation here is blurred; had Bolan pulled out his own gun and killed Fears, that might well have sufficed under the premeditation standard, but would not have established prior calculation and design. It may be that the best the appellate can do is set the outer limits; if you're going to win a case on an issue like this, you're going to do it at trial, or not at all.
Bolan also reminds us that you're not going to win something at trial if you don't raise it below. One of the key witnesses against Bolan was allowed to testify with the courtroom cleared of spectators. Earlier this year, in State v. Woods, the 8th District had reversed a murder conviction (discussed here), "notwithstanding the overwhelming evidence of the [defendant's] guilt," because of the trial court's failure to make the necessary findings to support it. Not so here. Why? Because in the earlier case, the defendant objected, and here the defense not only failed to object, but affirmatively waived any claim of prejudice.
There's an old movie, a comedy, where the husband is caught in bed with another woman by his wife. The wife starts yelling and screaming, during which time the man and woman get out of bed and very calmly get dressed, and the woman leaves, as though nothing happened; by the end of the scene, the wife isn't sure she actually saw anything. Frank Quinonez must have seen the same movie. He goes into a car dealership and tries to buy a Mercedes with a counterfeit check, and when that doesn't work, he just hops in the car and takes off. This results in an hour-long police chase down I-77, until Quinonez crashed the car into a ditch. He claimed at trial, and on appeal, that the police got the wrong man; it wasn't him that did any of that. Apparently, the court of appeals saw the movie, too; in State v. Quinonez they easily reject his claim, noting that several police officers got a good look at him during the chase and identified him at trial, as did the officer who pulled him out of the car after the crash. And, most damningly, Quinonez had left his drivers license at the dealership. I'm sure there's a movie where that happens, too.