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What's Up in the 8th

A different perspective on a notorious Cleveland case, the 8th District cements its reputation as the most sex-offender-registration-hostile court in the state, and I have a good week/bad week. Actually, my clients do, but it's really all about me, isn't it?

Walter Triplett killed a man outside a Cleveland bar several years ago. His subsequent conviction and prison sentence of eighteen years was reversed last year, as I explained in this post. The basis for the reversal was the court's confusing instructions on defense of another -- Triplett claimed to be acting to protect his sister -- but the opinion seemed to offer a some new insights into the "one-punch" cases: it held that Triplett was entitled to an instruction on non-deadly force, because deadly force requires a substantial risk that it will result in death, and someone throwing a punch may not anticipate that result.

So Triplett was tried again, and convicted, and last week the 8th affirmed. The trial judge gave the proper instructions defense of another, and on non-deadly as well as deadly force, but either the State did a much better job of trying the case, or this panel picked up some things that the first one missed. The "defense of other" argument didn't go very far: the victim was standing behind Triplett's sister when someone in front of her swung at her and missed; Triplett interceded at this point, but punched the victim, who hadn't done anything. And punch him he did, so hard that it broke bones in the victim's face and lifted him off the ground. One witness described it as the hardest punch she'd ever seen. If you're going to defend a one-punch case, those aren't the facts that you want.

In State v. Knox, Knox gets out of prison as a Megan's Law offender, goes down to the Sheriff's office, and registers as a sex offender, just like he's supposed to do. He lists a local men's shelter as his address, and when the sheriff checks, he finds Knox was banned from there months earlier. He's indicted for failure to register and tampering with records, but the court holds he can't be convicted of either. Registration is complete upon submission of the registration form, the court holds, regardless of whether the information on it is true or not; if it's not, the state's proper course of action is to charge a failure to verify under a different portion of the statute. As for the tampering charge, that requires an intent to defraud, and there was evidence the ban wasn't permanent, and thus Knox could have believed he'd be accepted. This brings the state's record in sex-offender registration cases here in the 8th District to something that makes Charlie Brown's baseball team look like the 1927 Yankees.

A bit of a befuddling decision in State v. Watters. Watters had pled guilty to aggravated murder, and thereafter appealed, claiming his sentence was excessive, the judge should have allowed him to withdraw his plea, and shouldn't have terminated his phone and mail privileges while he was in jail. (The judge did so because Watters was allegedly using them to line up false testimony and intimidate the state's witnesses.) The court notes that the notice of appeal stated only that it was appealing "from the judgment of conviction," and that he included no information "in the section designated for a brief summation of anticipated assignments of error," an apparent reference to the court's docketing statement. (The appellate lawyer, who was assigned, could hardly be expected to know what error he'd assign, not having read the transcript by that time, but the court notes he didn't seek to amend the statement, either.) Nor did he include separate journal entries in the notice for the denial of the withdrawal of plea and termination of phone privileges, and that therefore defendant "has failed to separately appeal these issues."

The court's ruling is unquestionably correct as to the denial of the motion to withdraw the plea; the motion wasn't filed until after the sentencing. But what about the phone privileges? The law has always been that all of a court's rulings merge into the final judgment. For example, if you're appealing from a conviction at trial, you don't have to separately appeal or cite the as error the denial of a motion to suppress, or the grant of a motion in limine. It would have been easier to dispense of this claim by noting that there was no way the denial of privileges could be prejudicial error, especially on a guilty plea.

In State v. Hersh, the defendant had been convicted of menacing by stalking in 2006; this case resulted from her prosecution on the same charges against the same victim, a woman named Weiss, four years later. There were two additional charges of the same offense, with the alleged victim's being Weiss's mother and father. This was a bit of prosecutorial overkill: the incident with the father involved Hersh seeing him at City Hall, and approaching and shaking her hand; with the mother, being in the same coffee shop with her; and with Weiss, Hersh inadvertently entering the same grocery store Weiss was in, and remaining there for about two minutes, with the two observing each other but having no other contact. The judge in a bench trial acquitted Hersh for the first two incidents, but convicted her of the encounter with Weiss. Menacing by stalking requires proof of a pattern of conduct, and I argued that the state couldn't use the incidents with the mother and father to establish that, because Hersh had been acquitted of them. There's no law on that specific point, and the 8th decides not to make any, instead finding the evidence insufficient because there was nothing about those incidents which would have led Weiss to believe that Hersh intended to harm her.

I wasn't as lucky in State v. Rumbaugh. He'd attended a party at a friend's house, and at some point the woman who lived there had gone to bed, and then, she claimed, awoke from an erotic dream to find Rumbaugh on top of her. She pushed him away, she testified, then the next day told her boyfriend that Rumbaugh had raped her. The two discussed it, and settled on a plan: they would ask Rumbaugh to cut his hair as an act of atonement. No, I am not making this up. Even more absurdly, they claimed to have gotten the idea when they called the 800 number for the rape crisis center, and the operator suggested it, apparently blessed with enough insight to know that Rumbaugh even had hair, let alone that he prized it enough that cutting it would render him so emotionally distraught that it would be adequate punishment for committing a rape.

Unfortunately, Rumbaugh's trial had gone without a hitch, and so I was left only with an argument that the conviction was against the manifest weight of the evidence. The standard for that is whether "the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." I suggested a slightly different test: "whether, after hearing the testimony of the state's key witnesses, the average person would respond, 'Are you guys on crack?'" The court decided to stick with the old test.

Well, I tried.

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