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What's Up in the 8th

Just a month back, I talked about the tendency of several judges up here to sentence low-level felony offenders to a "time served" sentence. However long they'd spent in jail -- two days or two months -- would be their sentence, and out the door, thus avoiding the costs of having the probation department monitor them for the next year or so. The 8th District had consistently struck that down, holding that judges had to sentence a defendant to either prison or community control sanctions; there was no third option. My commentary then was prompted by the latest in a string of such cases, that one being State v. Cox. But lo and behold, just a week later, the court's en banc decision in State v. Nash apparently green-lighted that procedure.

But what the court giveth, it can taketh away, and it does that this week in State v. Ogle.

Why the switch? Timing. Nash was sentenced back in March of 2011, while Ogle (and Cox for that matter) were sentenced after September 30 of last year. (In fact, a footnote in Nash distinguishes Cox on that basis.) The significance, the court finds, is in RC 2929.13(B)(1), which gives the judge the option of sending a defendant to prison or to community control sanctions. But the option is this: the court has to make certain findings in order to impose a prison sentence, and if it can't make those findings, "the court shall sentence the offender to a community control sanction of at least one year's duration." So "time served" goes by the boards, at least in most courtrooms; asNashindicated, the judge who sentenced him had pretty much ignored the court's reversals in previous cases.

The court misses one point in Ogle. Ogle cross-appealed, claiming that the trial court erred in denying him treatment in lieu of conviction without a hearing. The statute specifically allows that, though. Not content to reject the argument on that basis, the court goes on to say that "the statute requires the recommendation of the prosecuting attorney [and] the state did not recommend intervention in lieu of conviction here." But the statute requires the recommendation only if the defendant has previously been convicted of a felony; the opinion notes elsewhere that Ogle had no criminal history, and so no recommendation was necessary.

A couple of speedy trial cases. There's both a constitutional and a statutory right, and in State v. Lewis the court holds that there can't be a violation of the constitutional one if the statutory time hasn't expired; Lewis' conviction gets reversed on other grounds, though, which we'll discuss tomorrow. In State v. Duncan, the court again distinguishes between the constitutional and statutory right. Here, Duncan pled guilty, so that waives the latter, but not the former. There's no constitutional violation either, though, because although there are a bunch of factors to be used in determining a violation, you don't get to that analysis unless the delay is "presumptively" prejudicial -- "approaching" one year -- and here Duncan had been held for only six months.

The biggest decision, besides Lewis, was State v. Cowen, where the defendant was convicted of raping a young boy. One issue was the doctor's testimony that, after examining the child, he made a diagnosis of "child sexual abuse." Cowens argues that this runs afoul of State v. Boston, which prohibits an expert from testifying as to the veracity of the child. But the court in Boston said the expert could testify as to his diagnosis, so Cowen's argument is rejected. Here, though, the doctor's diagnosis was unbuttressed by any medical findings, and was instead based solely upon what the child told him. Under those circumstances, the practical distinction between telling the jury "I diagnosed the child has having been sexually abused" and "the child is telling the truth about being sexually abused" is one that eludes me.

Of far greater significance to the outcome of the case were the evidentiary rulings. The critical piece of evidence was a tape of a phone conversation between the victim and his grandmother, in which he told her that the abuse didn't happen. The defense first brought up the tape on the 4th day of trial, and the trial judge excluded it; later, when the grandmother testified at trial, the judge refused to allow the defense to question her about the victim's denial of abuse.

The court rejects Cowen's claim that the exclusion was error, for a variety of reasons, none of which particularly resonate. The court notest that the trial judge found "the tapes appear to have been manufactured for trial by an interested party who tried to coach a seven-year-old child over the telephone," but that goes to weight, not admissibility. The case against Cowens had been initiated here upon a referral from a Florida children's agency, and the judge had ordered no mention of that; the tape referred to incidents in Florida, though, and so the court found that "admitting the tapes would therefore have negated the trial court's ruling to protect Cowen from the improper admission of 'other acts.'" The key words in that last sentence are "to protect Cowen"; if he felt that using the tape offered a better chance of acquittal than the "protection" offered by the court's ruling, that was his decision to make.

The court also hangs its hat on the fact that "defense counsel did not disclose the existence of the tapes in a timely manner as required by Crim.R. 16." But what does Rule 16 require the defense to disclose? "Tangible objects," among other things, but a few years back in State v. Blazer the court held that a tape of a victim's statement wasn't a "tangible object," any more than a written statement would be, and under both the old and new rules you don't have to disclose a statement of a witness unless you're the one who'll be calling the witness; here, the victim was the State's witness, not the defense's. The new rule adds something the old rule didn't have: you're obligated to turn over "any evidence that tends to negate the guilt of the defendant," and the tape might have fallen into that category. Even so, the question would be whether exlcusion was the appropriate remedy, especially in light of the defendant's constitutional right to present a defense, a factor the court found controls over the discovery rules just last year in State v. Fussell (discussed here).

But certainly all that's avoided in whether the defense should have been allowed to ask the grandmother about the child's denials? How could the judge have prohibited that?

Every year, the Ohio State Bar Assocation does a seminar here on criminal advocacy, a basic-to-intermediate course. I do the session on evidentiary issues, and every year I point to cases that were won or lost simply because one side or the other messed up on an evidentiary rule. This year, I'll be using Cowen as an example. What the lawyer tried to do at trial is called "impeachment by prior inconsistent statement" under EvidR 613, and it's used all the time. But to do that, you have to "lay the foundation": if you're going to later use somebody's inconsistent statement, you have to first give the person an opportunity to deny making it. And the defense attorney here, a very experienced and skilled one, never did that: he never asked the victim if he admitted to the grandmother that no abuse occurred. Without that, the grandmother can't testify to the victim's statement. Cowen would probably have been convicted anyway -- there's some pretty solid evidence -- but the evidence in a case determines the outcome 100% of the time. If you don't know how to keep evidence out, or get evidence in, you're going to lose trials you should win.

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