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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. RoscoeGood 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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