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Coming Attractions

Doug Wine wanted to roll the dice.  When the judge presented the proposed jury charge in Wine's rape case, it included an instruction on the lesser offense of gross sexual imposition.  Wine's attorney objected, but the judge gave the instruction.  Sure enough, the jury acquitted Wine of rape, but convicted him of the lesser offense.  So last week, in State v. Wine (link is to video of oral argument, and that has links to briefs in the case, etc.),  the Supreme Court heard oral arguments on Wine's proposition:  that due process gives the defendant a veto right over whether an instruction on a lesser offense is given to the jury. 

The argument had some logical incoherence, because Wine's lawyer conceded early on that if the State had asked for the instruction, the judge would have been bound to give it.  Here, the judge had proposed the instruction sua sponte.  In fact, that appears to be the reason the court agreed to hear the case, and the lawyer's decision to concede that point was dictated by the fact that there are any number of decisions that say that the prosecutor has the right to seek one.  But it's tough to argue that your due process rights are violated if the judge gives the instruction on his own, but they're not violated if he gives it because the State asked for it.  From the looks of it, Wine's going to be hard-pressed to find any votes for his argument, let alone four.

Two other cases, State v. Tate and State v. McGlothan, show that Cleveland men are no slouches at beating up women.  Tate was charged with domestic violence, and the parties stipulated to his two prior convictions of the same offense -- with the same victim -- elevating the crime to a third degree felony.  RC 2945.75(B) specifies the manner in which a prior conviction can be proven:  a certified copy of the journal entry conviction, coupled with evidence that the defendant was the person referred to in the journal entry.  On appeal from Tate's inevitable conviction, the 8th District determined that the stipulation went only to the authenticity and genuineness of the document, and wasn't a stipulation as to identity, an issue neither party had raised.

I think the court's going to come down with a decision for Tate, albeit reluctantly.  There was a concern about gamesmanship here; the judge, not the parties, had specified that the stipulation was to genuineness.  But if you're going to try cases like this, and especially if you have the burden of proof, you've got to learn what the difference is between stipulating that something is a journal entry and stipulating to the fact of a prior conviction.  (A note here:  normally, a journal entry is self-authenticating, and thus wouldn't require a stipulation as to genuineness and authenticity.  Here, though, the "journal entry" was actually a faxed copy from Franklin County, so the defense's stipulation to it was significant.)

When I discussed the 8th District's decision on McGlothan when it came down, I summed up the facts succinctly:

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.

His case involved the issue of just what constitutes "cohabiting" under the domestic violence statute.  Back in 1997, the Supreme Court had held that the elements of cohabitation were (1) a sharing of familial or financial responsibilities and (2) consortium.  The 8th had reversed McGlothan's conviction, finding no evidence to show that the two shared any financial responsibilities. 

In fact, it's not clear what the two shared:  that the two were "boyfriend and girlfriend" was the only information the prosecutor elicited regarding the sexual aspect of the relationship, and both were getting their own disability payments; the oral argument degenerated at points to a discussion of whether something like taking out the garbage was evidence of "shared familial responsibilities." 

I think an equally reluctant affirmance might be forthcoming in McGlothan, too.  Even -- perhaps especially -- at the Supreme Court level, the facts are so important.  The court could decide to expand its definition of what constitutes cohabiting, and probably should; if two people are living together in a sexual relationship, it's unclear why you have to even get into financial or familial responsibilities to conclude that abuse would implicate the concerns which prompted the enactment of domestic violence statutes.  But it appeared from oral argument that the record of the sexual relationship really wasn't strong enough in this case to let the court go in that direction.

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