From the Mailbag, Part I
How quaint. Two members of my unnumbered hordes of regular readers sent me missives this week, by snail mail no less. Some good points on the Supreme Court's decision in Ricks last week, and another one suggesting I highlight the 8th District's recent decision in State v. Roscoe. Good suggestions both, so let's take a look, starting with Roscoe.
Timing is
everything. If we hit the time
machine and went back to Ancient Greece, getting a conviction reversed for
insufficient evidence would've been the 13th Labor of Hercules. The victim in Roscoe claims that she was minding her own business, driving around
Cleveland looking for someone to sell her crack cocaine. She approached three men at a gas station, asked
if they knew where to find drugs, and eagerly accompanied them when they
offered to lead her to a place where she could buy them. Things took a dark turn at that point, where
the three robbed her and, after the other two left, the remaining member of the
trio led her into the backyard of a house, where he raped her. Hey, who could've seen that coming, huh?
Roscoe's DNA was found in the victim, and his story
dovetailed with hers, except for the part about the two other guys, the robbery,
and the rape: he claimed the sex had
been consensual. The judge in a bench
trial didn't buy it, finding Roscoe guilty of rape and aggravated robbery, and
running the sentences consecutively; along with two gun specs, that came out to
nineteen years.
Both of Roscoe's aggravated robbery convictions go away on
appeal. The one for causing serious
physical harm involves a matter of timing:
the rape undoubtedly caused serious physical harm, but according to the
victim, that was after the two other men had taken her jewelry and left. There are cases holding that where the two
offenses are "so intertwined," the harm from the rape carries over into the robbery,
but this wasn't one of them.
When is a "gun" not a
gun? The second aggravated robbery,
alleging use of a deadly weapon, goes away, too. This, and the attendant firearm specs on all
the counts, was based upon the victim's testimony that she felt a "small, cold,
hard object" to the back of her neck when he led her into the backyard. As we all know, the State doesn't have to
offer the gun into evidence to convict on this; the basic law is that the
presence of a gun can be inferred from the circumstances, even if it could be
something like concealing your hand in your pocket. The law on this is all over the place, and the
dissent trots out a number of cases which can be used to hold that what Roscoe
did was sufficient, but the majority finds that it isn't. That's the proper takeaway from the case: this is a useful case for the defense. These "did he have a gun" cases are very
fact-specific, but anytime you can find one where the appellate court concluded
he didn't, especially on a sufficiency argument, it's definitely a case you're going
to mention in your Rule 29 argument. That's
a lot more impressive to a trial judge who has to make a decision right now
than to an appellate judge who has the luxury of spending months having people
research it.
Roscoe doesn't get completely off the hook: the court finds that there's sufficient
evidence to convict him of robbery ("inflicting, attempting to inflict, or
threating to inflict physical harm").
Interestingly, the court finds that "Roscoe's act in holding an object
to the back of the victim's neck is sufficient evidence of a threat to inflict
physical harm." Even if it wasn't a gun,
I guess.
But that's a felony two, not a one, and six years of gun
specs go away. Anytime you can chop six
years -- nearly one-third of your client's total time -- off his sentence in an
appeal, you've earned your pay, and more.
Good job.
We'll talk about Ricks
tomorrow.
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