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What's Up in the 8th

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I'd like to think that this blog is the go-to place for fashion tips for those of the criminal persuasion.  A few years back I warned of the perils of wearing sagging pants while trying to perpetrate a bank robbery or multiple homicide.  The dangers posed by facial tattoos -- such as when the witnesses claim that someone name "Dooney" committed the crime, and your contention that it's your cousin they're talking about is met with skepticism because you've got "Dooney" tattooed on your neck -- have also been mentioned on several occasions.  Well, here's today's helpful advice:  while skinny jeans may be all the rage among fashionistas, they're not the best sartorial choice for hiding the fact that you're carrying a gun in your pants.

That was the downfall of the defendant in State v. Travis, one of two cases last week where the 8th District handed the State a win on a search case, something that last occurred during Clinton's second term.  While Travis features a mundane scenario --  traffic stop for no turn signal, followed by the officer's observation of Travis "trying to shove a large object down into his pants" <your joke here> --  what's really worth a read is the concurring opinion, which we'll talk about tomorrow.

What we'll talk about today, though, is the court's biggest decision, in State v. Johnson.  When Devito Parker was arrested for trafficking, he claimed that Johnson was his supplier.  The cops put Johnson's house under surveillance, but didn't observe anything.  A couple weeks later, Parker filed a complaint alleging that Johnson had fired shots at his car after a dispute at a red light.  The cops got a search warrant, but the search turned up only a black safe in the basement with some cocaine residue.  Johnson was acquitted of all the charges relating to the alleged assault on Parker, but convicted of drug possession and possession of criminal tools, both fifth degree felonies.  The judge gave him 11 months on each, just one shy of the maximum, and ran them consecutively. 

The panel's 30-page opinion first works its way through the search issues.  Johnson argues that the affidavit for the warrant contained a false statement, and that the warrant didn't authorize the seizure of the items that were taken.  There was a false statement -- that other officers had reported Johnson shooting at Parker's car, while Parker actually served as the solely basis for the claim -- but if you take that out, probable cause still existed.  As for the safe, the observation of the trace of white powder inside it made its incriminating nature sufficiently apparent that it could be seized.

Then we come to Good Part Number One about the opinion.  The only people living in the house were Johnson's wife and child, but the court nonetheless concluded that the inference that Johnson was the one responsible for the cocaine residue wasn't sufficient:  the safe was found under a pile of clutter, he wasn't anywhere near it, and his fingerprints weren't on it.  More significantly, the court finds that the state didn't provide sufficient evidence of mens rea.  Back in 1998, the Supreme Court held in State v. Teamer that "the quantity of a controlled substance is not a factor in determining whether a defendant may lawfully be convicted of drug abuse."  (You'll want to keep a copy of that decision handy for the next time that a client tells you that he can't be convicted for just having residue, which, if your client base is similar to mine, should be sometime in the middle of next week.)  The State argued in Johnson that Teamer makes the amount of contraband irrelevant in determining guilt of possession, but the panel disagrees:  it "may still be a relevant factor in determining whether a defendant knowingly possessed drugs."  In other words, if it's so minimal that you can't see it, how can you know it's there?  The effect of the decision is somewhat muted; someone carrying a crackpipe, as was the defendant in Teamer, is going to be hard-pressed to benefit from it.  But it's there.

The criminal tool convictions go the same way, vacated for insufficient evidence, and that should be the end of things, right?  Wrong.  Remember that part about Johnson being sent to prison for two fifth-degree felonies?  HB 86 provides for "mandatory probation" for fourth and fifth degree felonies in certain cases, and the court decides that the "unusual circumstances" of this case require it to address the sentencing, even though the convictions have been vacated.

Here's the key sentence from the new version of RC. 2929.13(B)(1):  a court has to impose a sentence of community control sanctions if "the offender previously has not been convicted of or pleaded guilty to a felony offense or to an offense of violence that is a misdemeanor and that the offender committed within two years prior to the offense for which sentence is being imposed."  (There are some other factors which can disqualify the defendant, like having a gun during the crime, causing physical harm, or violating the conditions of bond; none were present in Johnson's case.) 

As I explained back in January of last year, this poses a question:  does the two-year lookback period apply just to misdemeanor offenses of violence, or to any felonies?  That's a big deal to Johnson:  he had CCW and drug possession convictions in 2000, and another conviction for RSP in 1994.  I argued then that the statute was at best ambiguous, and since any ambiguities have to be resolved in favor of the defendant, that means prior felonies don't disqualify the defendant, as long as they're more than two years old.  The panel comes to the same conclusion: "where a defendant has previously been convicted of or pleaded guilty to a felony offense, but that conviction or guilty plea occurred more than two years before the current sentence is imposed," community control sanctions are mandatory.

Needless to say, that's huge, and enjoy it while it lasts:  my guess is that's not what the legislature intended, and don't be surprised if they change it.  But it's the correct result for right now.

Finally, you know that part in the trial where the prosecutor, after having a witness relate in damning detail the depredations of the perpetrator of a particular crime, asks,Identify.jpg "and do you see that man in the courtroom today?"  And the witness will point to the guy sitting next to you and exclaim, "Yes, that's him"?  Well, regardless of the pro forma nature of the identification process, it turns out it's not just for grins and giggles.  James Tate sits through a trial listening to three girls testify about how he accosted them at a library, and in State v. Tate the panel tosses his convictions for kidnapping, importuning, gross sexual imposition, and public indecency because none of them was ever asked to identify him.  There may be more to the story; I did some checking, and there's some question as to whether identity was in issue:  Tate's defense might have been that he didn't do anything, not that he wasn't the guy who did.  But if you've got an appeal from a trial, here's something else to look for.

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