What's Up in the 8th
Whatever Christmas you had was probably better than James Ingram's. He was convicted of stealing $11,000 from his grandmother, based on the fact that (A) he knew where grandma kept the money, and had a key to her house, (B) there was no sign of break-in when the grandmother found money missing, (C) shortly after the money went missing, Ingram opened an account with a deposit of $9,900, despite (D) never having held a job, as best anyone can figure. He appeals, claiming that the verdict of not guilty of burglary was inconsistent with the finding of guilty of theft. It's not, and it wouldn't really matter if it were; as the court explains in State v. Ingram, the law on that is that an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count. That happens from time to time, I suppose, although offhand I can't remember the last time it did.
A good holiday season for Megan's Law sex offenders. Anthony Beasley was convicted of rape in 1997, and was classified as a sexually oriented offender under Megan's Law, required to register annually for ten years. When the Adam Walsh Act was enacted in 2007, Beasley was reclassified as a Tier III offender, required to register quarterly for life. He pled guilty in August 2008 to failing to verify his address, two months after he'd verified according to his yearly reporting requirement. He pled guilty and was sentenced to three years in prison. In State v. Beasley, the court reverses the trial judge's denial of his motion to vacate the plea. A post-sentence motion to vacate a guilty plea requires a showing of manifest injustice, and considering that Beasley was innocent of the crime he was convicted of, that wasn't hard to do: his verification requirement in August of 2008 was based upon an unconstitutional reclassification. The more interesting aspect of Beasley is the court's conclusion that the Megan's law requirements were repealed with the passage of the AWA, and weren't reinstated until the Supreme Court's decision in June of 2010 in State v. Bodyke, which held that retroactive classification wasn't permissible. Thus, the court holds, Megan's law offenders had no duty to register or verify during that period of time.
While Beasley seems an easy call, the facts of State v. Williams are tougher. Williams was convicted of importuning in 2002, and also became a sexually oriented offender by operation of law. He was reclassified as a Tier I offender when AWA into effect, the only change being that Williams had to register annually for fifteen years instead of ten. He was charged in 2011 for failure to provide a change of address, and the trial judge granted his motion to dismiss the indictment, finding that the defendant couldn't be prosecuted for the violation of an Adam Walsh reporting requirement if he was unlawfully reclassified. The State argued that his reporting requirements were the same under the new law as the old; not good enough, though, and the court affirmed the dismissal, consistent with its previous decisions which essentially make the it impossible to prosecute a Megan's Law offender for violation of reporting requirements.
Williams and Beasley operate from the premise that the AWA repealed Megan's Law, and therefore the latter's requirements no longer exist. That's not quite correct. For example, the failure to notify of change of address at issue in Williams was simply renumbered: under Megan's Law, it was RC 2950.05(E)(1), and under AWA the precise provision became RC 2950.05(F)(1). Williams was indicted under the latter provision, but if he'd been indicted under the latter, would it have been valid? There's a case from the 8th pending before the Ohio Supreme Court on that very issue, so it'll probably get sorted out sometime this year.
A good holiday season for judges, too, at least in regard to their pet peeve of post-release controls. Normally, errors in imposition of post-release control require re-sentencing, where the poor schlub is brought back from prison to spend five minutes listening to the judge tell him about PRC. To avoid that, most judges here do the resentencing through some patched-up video teleconference from the prison, where the quality of the reception and audio are vaguely reminiscent of the Dharma Initiative documentaries in Lost. The Supreme Court's decision last year in State v. Fischer actually allowed appellate courts to modify the entry to reflect the correct imposition of PRC, and so in State v. May that's exactly what the 8th does, sending it back to the trial judge only to reflect the correction of the journal entry.
Not a good holiday season for the State, at least on appeals questions. In State v. Hatfield, the judge granted a motion in limine to keep out a tape of the conversation about a drug deal between an informant and the defendant because the informant wasn't being called as a witness. Rather than appealing, the State went forward, argued the point at trial, then filed a notice of appeal at that point. The judge continued with the trial nonetheless, ultimately granting a Rule 29. The appellate court says that the judge shouldn't have continued with the trial because the notice of appeal divested him of jurisdiction, but rejects the State's claim that this means the grant of the Rule 29 was void, and Hatfield can be tried again. It's a messy decision, but then it was a messy case below; the result is probably best explained by the opinion's observation that "prosecutorial error, discovery delays, and inappropriate gamesmanship contributed to untimely evidentiary rulings."
The State's position in In re M.M. is more puzzling. The juvenile court judge had granted a motion in limine excluding certain testimony. The State could have appealed it at that point under CrimR 12(K), which permits the State to appeal a pretrial ruling that essentially eviscerates its case. Instead of doing so, the State proceeded with the adjudicatory hearing, seeking to admit the same evidence the judge had excluded, with predictable results: the evidence stayed excluded, and M.M. was acquitted. At that point, the State sought leave to appeal, which the court granted.
Here's where it gets tricky. Obviously, double jeopardy precludes retrying M.M., regardless of whether the evidence should have been excluded or not. That seems to result in any decision by the appellate court on that issue being an advisory opinion, but back in 1990 in State v. Bistricky, the Supreme Court held that a court of appeals did have discretion to hear an appeal by the State under RC 2945.67, as long as the final verdict wasn't being appealed. The appellate panel in M.M. decides that Bistricky is limited to appeals involving issues which "are capable of repetition, yet evading review." Although Bistricky mentions this standard, it doesn't find it controlling; it simply reversed the lower court decision (an 8th District decision, no less), finding that the court hadn't exercised its discretion to determine whether it should accept the appeal, without really setting forth any standards by which the court should exercise that discretion. M.M.'s approach -- the "capable of repetition yet evading review" standard -- seems like the best bet. But it's difficult to see how that situation could arise in this context. It would be one thing if there were no mechanism for interlocutory review of evidentiary questions, but there is: Rule 12(K). The State just seems to have missed the ball here.
The biggest decision, though, was State v. Clark, which involved Crawford and hearsay statements of a child sex victim under hearsay under EvidR 807. We'll discuss that one tomorrow.