What's Up in the 8th
One of the problems with trying a case to the bench rather than a jury, as I've pointed out, is that you give up the likelihood of winning an appeal on evidentiary issues. Judges usually let everything in and sort it out later, a policy reinforced by the appellate courts' presumption that a judge considered only "relevant, material, and competent evidence."
That presumption took some major damage in the 8th District's decision last week in In re C.T.
The case involves an alleged rape, and although the ages of the participants aren't disclosed, they were apparently two teenagers, both in high school band. One thing led to another during a trip to a football game, and what it led to was the girl performing oral sex on the boy in a car. Whether this was consensual was the issue at trial, and to help prove its case, the State sought to introduce evidence of two other sexual escapades of C.T. very similar to the one here, one for which he was found not delinquent, and the other to which he pled to gross sexual imposition. The trial court admitted it, found him delinquent of the rape, and sent him off to ODYS for a minimum of one year.
The 8th District has done some excellent work in 404(B) evidence, and that continues here. The State, of course, argues that the previous incidents show a "common scheme, plan, or system," but last year in State v. Williams (discussed here), the court held that this type of evidence is only relevant when it's part of the immediate background of the current case, or goes to proof of identity. Why? Because the rationale behind the "scheme, plan, or system" exception to the general prohibition against admitting evidence of prior bad acts is that the acts serve as a "behavioral fingerprint": if one commits a crime in a fairly idiosyncratic manner, there's a greater likelihood that he was the one who committed other crimes in a similar fashion. Of course, if identity isn't at issue, then there's no point to admitting that evidence. Here, there was no question of C.T.'s identity; the only issue was consent.
That doomed the State's second argument, that the evidence was admissible under the "absence of mistake or accident" exception to 404(B), the court finding that "C.T. never alleged that he was mistaken about anything." But it's a closer call than might be assumed at first glance. As the court noted, C.T. testified that the girl never said anything about wanting to stop or not wanting to participate in the conduct. Had this been a situation where C.T. admitted she'd said no, but thought that "no" meant "yes," that would have raised the issue of mistake and allowed introduction of the prior acts.
But the State's third argument deserves special mention. It seeks refuge in the presumption above: although the judge admitted the evidence, it can be presumed that she didn't consider it if it wasn't admissible. The problem with that logic is clear, and the court disposes of it in a nifty two sentences:
When the juvenile court admits evidence over an accused juvenile's objection, it is counterintuitive to conclude that the juvenile court would then proceed to disregard that same evidence as being irrelevant, immaterial, or incompetent when rendering its judgment. If that were true, the juvenile court would have been bound to sustain the defense objection and exclude it in the first place.
What this means is that the presumption is reversed: in a bench trial, where the court admits evidence over defense objection, it will be presumed to have considered that evidence unless it expressly states the contrary. That's huge.
L'amour, in its less savory forms, also features in State v. Ricks. I recently read a New Yorker article about the centennial of the sinking of the Titanic which quoted an historian claiming, probably hyperbolically, that "the three most-written about subjects of all time are Jesus, the Civil War, and the Titanic." I'm guessing that "how to pick up women" comes in a close fourth. Lonell Ricks eschewed the more subtle approach in favor of simply going up to a young lady in a shopping mall and offering her $500 if she would let him lick her body.
Alas, the young lady was a year away from the age of majority, so the question was not merely whether Ricks was an annoyance, but, as the court put it, "whether an offer of cash to lick the victim's body constituted an act of sexual activity for purposes of the statute" prohibiting soliciting a minor to engage in sexual activity for hire. The court makes a much more serious go at it than I would have been capable of, its attention focused on whether the trial judge properly inferred that "the offer to lick the victim's 'body' included erogenous zones." One comes away from Ricks with the abiding belief that the whole thing would have served much better as a Monty Python skit than an appellate court decision. In a footnote, the court seems to suggest that henceforth assignments of error regarding sufficiency of the evidence and manifest weight have to be argued separately, but I was giggling too hard by that time to make sure.
Finally, you can find some wonderful information on the Internet. Some of it is even true. As the plaintiff and his lawyer learn in Lebron v. A&A Safety, even if it is true, that doesn't mean you can use it court. Lebron had downloaded his workers comp records from the BWC web site and attached them to his motion opposing summary judgment on his claim that he'd been fired for filing a claim, but the court affirms the grant of the judgment, holding that a court need not take judicial notice of such material because "it is impossible to determine the credibility and reliability of documents purportedly printed from a website."
On the other hand, we can hope that the court's own website is not "credible and reliable," because if it is, fees for civil complaints are going to be jacked up from the present Franklin to a whopping $275. That includes $75, which is also to be added to criminal costs in each case, to go to a "special project fee" for "technology upgrades, renovation of court facilities and education of Judges and Court staff, and enhancement of jury operations." A couple of years ago, one of the ways the county commissioners dealt with the budget crunch was to take the water coolers out of the jury deliberation rooms. Maybe reinstalling them will be the method by which "jury operations" will be "enhanced."