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What's Up in the 8th

As I mentioned on Friday, there are few things more discouraging if you're doing an appeal than completing your review of a lengthy trial transcript and realizing that the judge ran a clean trial.  Oh, sure, you always have manifest weight and sufficiency issues, but if patriotism is the last refuge of the scoundrel, those are the last refuge of the appellate attorney.  You can count on the fingers of one hand the times that's been successful.

Well, get another hand, because last week the 8th reversed no fewer than five cases for insufficiency or manifest weight.

Leading the parade was State v. KozloskyKozlosky was convicted of murder; during a crack binge, he broke into some poor guy named Coleman's house three times and finally shot him.  Whoops, sorry; it was Coleman who was on a crack binge and broke into Kozlosky's house three times, and the last time was in the process of beating up Coleman's girlfriend when Kozlosky shot him, after Coleman "reached behind his back for his gun."  That's interesting phrasing in the opinion; no gun was in fact found.  Of course, you don't need one for self-defense; if you reasonably believe there's a gun, that's just as good.  Kozlosky knew that Coleman had killed a man in 1990 and had been convicted of carrying a concealed weapon, and that was more than sufficient for the court to conclude that Kozlosky had a bona fide belief that he was in danger, and that the jury lost its way in not acquitting him on self-defense grounds.

The news stories about the reversal played up Ohio's Castle Doctrine as an angle, with the defense attorney complimenting the court for "carefully analyzing" the doctrine, and county prosecutor Bill Mason suggesting that it would be a good case for the Supreme Court "to interpret the new law and clearly explain the use of the Castle Doctrine in Ohio."  Well, that's not going to happen.  Although several assignments of error concerned the doctrine, especially the jury instructions on it, the court deemed them moot by the reversal.  The limited discussion about the doctrine the court did engage in was somewhat confusing.  There are actually two doctrines -- the Classical Castle Doctrine, in 2909.01(B), which simply codifies the common law rule that one does not have a duty to retreat in his own home, and the New, Improved Doctrine, in 2905.01(B), which creates a presumption that one who uses deadly force against an intruder in his home has acted in self-defense -- and the opinion treats them as the same thing.  The facts of Kozlosky made it an ideal vehicle for an in-depth analysis of the (new) Castle Doctrine, but the court's resolution of the case, while very probably correct, will make further review unlikely; the Supreme Court doesn't do error correction.

It might take a look at State v. Collins, though.  Collins had been convicted of drug trafficking, based on his receipt of two packages of marijuana, one weighing about 14 pounds and the other about 10.  Back in June, the 8th had rejected a challenge based on insufficiency, but on reconsideration it changes its mind.  Trafficking requires proof that the defendant either (1) prepared the drugs for shipment, (2) shipped, transported, or delivered them, (3) prepared them for distribution, or (4) distributed them.  "While we can rationally assume that Collins did not receive this quantity of marijuana simply to sit in his living room and smoke it all by himself, the act of 'receiving' is not one of the enumerated elements under R.C. 2925.03(A)(2)."  The signficance of this is somewhat lessened by the fact that, in most cases, the penalties for possession (and Collins' conviction of that was affirmed) are equal to those for trafficking, although not in this case:  Collins' trafficking charge had a schoolyard spec, which elevated the crime by one degree, while those specs don't attach to possession.

Speaking of trafficking and reconsiderations, some relevant news from the Supreme Court on this.   Back in State v. Cabrales, the Supreme Court held that drug possession and trafficking -- prep for sale or distribution -- were allied, because one had to possess the drugs in order to prepare them, but that drug possession and sale weren't allied, because one could sell or offer to sell drugs without actually possessing them.  But that was the court's first attempt to "clarify" the muddled state of allied offenses jurisprudence under State v. Rance, which required an abstract comparison of the elements of the offensesLast December, the court jettisoned the abstract comparison test in State v. Johnson, holding that the test was whether the defendant had committed the offenses with the same conduct.  I'd questioned the continued vitality of Cabrales here, and last February discussed the 8th District's decision in State v. Goodson, in which the court had faithfully tracked Cabrales in upholding separate convictions for sale and possession resulting from a single transaction.  I'd questioned the result, and the fact that the decision didn't even mention Johnson, a failure I likened to "a court in 1956 considering a racial segregation case without mentioning Brown v. Bd. of Education."  Cullen Sweeney of the local PD's office took it up, but the Supremes denied review.  Sweeney, remembering some mumbled long-ago advice about what to do if at first you don't succeed, asked for reconsideration, and last week the court granted the motion, vacated the decision, and remanded it back to the 8th to consider it in light of Brown v. -- er, State v. Johnson.

Sweeney was also the attorney in the other aggravated murder case the court reversed last week on manifest weight grounds, State v. Williams  That, my friends, is what we in the appellate practice call a Good Week.  (Truth be told, most of us would call it a Good Year.)

Finally, a questionable result in State v. LalainLalain was charged with 1st degree theft -- that's right, theft of over a million dollars -- for taking certain documents from his employer.  He walked out with a 5th degree felony and community control sanctions, but with a tab for $63,121 in restitution, based upon his employer's letter stating that it had spent that amount of money investigating the crime and identifying and valuing the property.  Lalain argues on appeal that the award was error, contending that the award didn't represent the employer's actual economic loss, and that the court should have held a hearing.  The latter claim founders on the fact that the defendant didn't lodge a specific objection to the award at the time of the hearing.  That's an arguable point; it's clear that the defendant did object to a portion of the award.  More troublesome is the fact that, as the dissent points out, there's plenty of case law holding that the court can't order restitution in an amount greater than the maximum for the offense:  Lalain pled guilty to a 5th degree felony, which is $500 to $5,000, so $5,000 is the most that the court could nick Lalain for.  Not so, says the majority, because Lalain agreed to pay restitution at the time of the plea.  Not for 63 large, says the dissent, noting that the first notice Lalain had of the employer's letter asserting that amount was at the sentencing hearing.  The majority seems largely motivated by the fact that Lalain got off so easily, but the dissent has the better argument.

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