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What's Up in the 8th


Americans spend some $4.5 billion a year on sleep medications. About 75 million Americans complain of insomnia.

Well, if you're in the twenty percent of the population which is sleep-deprived, here's a solution you might have overlooked: jury service here in the Cuyahoga County Common Pleas Court. Three years ago, I mentioned a case in which a murder conviction was reversed because several jurors eschewed the tedium of testimony and chose instead to sleep, perchance to dream, the problem finally becoming so severe that the judge threw up her hands; when the prosecutor mentioned once more that a particular juror had drifted off yet again, the judge responded testily, "I saw it. So what. Let him sleep. You guys picked this jury, I didn't."

Andre Wilson is the latest to complain of juror somnolence, in a post-conviction relief petition, which is accompanied by his own affidavit and the letters of two people who'd attended the trial attesting to that. In State v. Wilson, we learn that the jury box in the common pleas courthouse up here is such a good place to catch a few winks that the 8th District has developed an entire body of law regarding sleeping jurors. A defendant needs to show the exact testimony that the juror missed while he was in the Land of Nod. Without evidence that Rip Van Juror missed "large or critical portions of the trial," there's no prejudice. And if the record doesn't indicate the precise moment that the Sandman carried the juror off, "we cannot determine what, if anything, the juror missed." Wilson doesn't add to that body of law; his affidavit can be dismissed as "self-serving," and the two letters can be ignored because they are unsworn.

In other cases, the court muffs a 404(B) issue in State v. Spoon. Modern society presents a virtually limitless array of entertainment opportunities, but the victim inSpoon, Michael Kimmie, goes old school: driving the streets at 3:00 AM, he encounters 20-year-old Ashley Manning, and offers her money to take off her clothes. The two return to Manning's apartment, which she shared with Spoon; as Manning fulfills her part of the bargain, Spoon arrives, and proceeds to rob Kimmie, at least according to the latter's account, and to Manning's, who turned State's evidence. The State's case also includes the testimony of the investigating detective, who relates that while Spoon told him Manning had brought people back to the apartment in the past so that Spoon could rob them, this wasn't one of those times.

The defense argued that the detective's testimony on this point should've been excluded as improper EvidR 404(B) evidence, but the court finds that it went to the issue of Spoon's intent or motive. That's incorrect. The issue here was not whether Spoon had the intent or motive to rob Kimmie, it was whether he robbed him at all; it wasn't as though Spoon was arguing that he robbed Kimmie, but didn't intend to, or that he didn't do it because he had no motive to do so. In fact, the detective's testimony was exactly the kind of evidence that 404(B) prohibits: it sought to show that because Spoon robbed people in previous situations like this, he must have robbed Kimmie.

State v. Petkovic is a troubling case, with troubling facts. Petkovic, who was 48 years old, was convicted of 13 counts of rape of a 17-year-old "developmentally delayed" girl he'd met online, and eventually talked into marrying him. The case revolved around the question of whether the victim's "ability to resist or consent was substantially impaired because of a mental condition."

The State presented a psychologist who'd examined the victim and found her to have an IQ of 73 and to be functioning on "around a fourth of fifth grade level." The psychologist responded affirmatively to the court's question of whether the victim's ability to resist or consent in general was substantially impaired by her mental condition, although she clarified that she did not specifically evaluate her for that purpose, nor for the purpose of determining her ability to consent to sexual activity with Petkovic.

The defense had retained their own expert, and the State agreed that he could have access to all of the victim's records, and that he could administer various standardized tests to her to assess her cognitive functioning. It objected, though, to allowing him to probe the victim's thought processes as to whether she consented to having sex with Petkovic, or to testimony about the victim's prior sexual activity, and the trial court sustained the objection. After his evaluation, the defense expert stated that, given those constraints, he was unable to "evaluate [the victim's] ability to consent to the sexual relationship between her and the defendant," and so the defense chose not to call him at trial.

This presents some extremely complicated issues, but after making the customary observation that the judge possesses wide discretion in evidentiary matters, the panel dispatches those issues with a two-sentence tautology:

Actual consent is distinct from the ability to legally consent. In other words, whether N.P. consented is irrelevant if she was not capable of consenting under the offenses with which defendant was charged.

It's certainly true that one can't consent if one is not capable of consenting, but the entire issue here was that latter point: whether the victim was capable of consenting. There are certainly arguments to be made as to whether the defense expert should have been allowed to testify on that precise point, but one searches the Petkovic opinion in vain for any consideration of those arguments; instead, it seems to stand for the proposition that the whole issue is irrelevant, when it plainly is.

Whatever analysis is lacking in Petkovic is more than made up for in State v. McGlothan, which comes close to producing the mathematically impossible four opinions from a three-judge panel. McGlothan had pulled out the victim's tracheotomy tube when he grabbed her shirt in the midst of an explanation of why he was "tired of this shit," a scene that will probably not find its way into the next Lifetime Movie Network episode about abused partners. This earned McGlothan a conviction for both attempted felonious assault and misdemeanor domestic violence. Although everybody concedes that the offenses are allied, the majority opinion eschews the easy way out, and devotes five pages to an exposition of the sufficiency of the evidence on each count. The majority first concludes that this did constitute the "serious physical harm" required for felonious assault, but then determines that the evidence did not show that the victim was a "household member" for purposes of domestic violence; while the incident occurred in the victim's apartment, and McGlothan had slept there for about a year, "there was no testimony that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities" required to show the two shared a household within the meaning of the statute.

But the majority, like the sands of time, shifts: one judge agrees that McGlothan's guilty of attempted felonious assault and not guilty of domestic violence, one judge concurs with the former but dissents from the latter, and the third judge dissents from the former but concurs in the latter. Me? I'm so confused I'm not sure what to think.


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