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What's Up in the 8th

I had an oral argument in the 8th a few weeks back, and one of the judges told me, "some of our cases indicate" something contrary to the position I was taking.  "That's one of the nice things about this district," I replied.  "You can find case law to support just about any position."  The judges laughed, because there's more than a little grain of truth in that.  Still, the judges are aware of their precedents, and seem to be developing consistency in various areas.

One of them is in consecutive sentencing.  State v. McGee and State v. Davila present identical situations:  a judge imposes seemingly well-deserved consecutive sentences on a defendant, only to be reversed for failure to make one of the findings required by RC 2929.14(C)(4).  In both cases, the State argues that the record justifies consecutive sentences, and in some districts, the courts will sift through the record and determine whether the trial judge could've made the necessary findings.  The 8th isn't one of them.  The judge doesn't need to say the "magic words" precisely, but it has to be a reasonable approximation.  Another thing:  I'll bet that 90% of the reversals are because the judge didn't make the second finding, that consecutive sentences aren't disproportionate to the defendant's conduct or the danger he poses to the public.  That's the problem in both McGree and Davila. 

The judge in State v. Carman gets it right, but the opinion provides some interesting language:  "the trial court delineated each necessary finding under R.C. 2929.14(C)(4) when it imposed its sentence, and the trial court supported its findings with facts from the record." Does that mean the trial court has to support its findings with facts from the record?  No, since appellate courts, including the 8th, have consistently held that under HB 86, unlike pre-Foster law, a judge need not give reasons in support of the findings.  But it's something to throw in to a brief, and it's a movement in the right direction:  it encourages judges to talk, and the more a judge says, the better the chances are that the judge actually gave the issue some thought, and the easier it is for the appellate court to review it.

Other than consecutive sentences, though, appeals of sentences are forlorn endeavors, as demonstrated by State v. WhiteWhite hardly presented as a sympathetic figure:  after pleading to felonious assault for throwing boiling water on his girlfriend, causing extensive second degree burns, he used the sentencing hearing to claim it was an accident and blame her for causing it.  Unimpressed, the judge gave White five years.  White pursues the same line on appeal, claiming that the judge didn't give proper consideration to various seriousness and recidivism factors under RC 2929.12, such as... well, that the victim facilitated the offense, or that the defendant was provoked.

This is a non-starter.  I've seen cases successfully arguing that the judge shouldn't have found a 2929.12 factors; there's case law, for example, holding that a finding that the victim was a minor (one of the "more serious" factors) is inappropriate where the offense involves a minor, for example, child porn.  But there's simply no case law holding that a judge erred in imposing a sentence because he didn't make a finding, or didn't give proper weight to one.

Another situation where the 8th has enunciated a clear body of law is in the area of searches involving trash pulls.  The detective in State v. Jones takes a minimalist approach to police work.  He hears that a woman named Lauren, who's described as black and overweight, cooks meth.  Three months later, he's at the Justice Center, where he sees a black overweight female talking to assistant prosecutor.  He asks the prosecutor the name of the woman (she was victim of burglary), and learns that it's Lauren.  He gets her address and the police go over, do trash pull, find various items used in meth production, and use that to get warrant.  If all criminal investigations were like this, Law and Order episodes would be twenty minutes long.  And, if the show was based in this county, the search would get tossed.  A bright line rule in the 8th:  a single trash pull is not sufficient to provide probable cause for a warrant.  There has to be something else:  multiple trash pulls, surveillance and observation of heavy pedestrian traffic, or controlled buys. 

A police mistake also causes a problem in State v. Ellison:  the detective sent the defendant's DNA sample off to BCI labeled "Brandon C. Lewis" instead of "Brandon C. Ellison."  For whatever reason, the prosecution attempts to overcome this problem by introducing the log of the BCI analyst, which indicates she called the detective and he told her that the sample was really from Ellison.  The panel finds that the log was admissible under the "recorded recollection" exception to the hearsay rule.  This is kinda sketchy; that exception requires that the declarant not have any present recollection of the matter, and that doesn't seem to fit the BCI analyst's situation.  The court, though, correctly concludes that this doesn't solve the problem:  there's "hearsay within hearsay," i.e., there still has to be an exception for the statement of the detective, and there isn't any.

But here's where the decision goes off the tracks:  the court proceeds to analysis of the assignment of error alleging insufficient evidence, rejects that, and concludes that since the evidence was sufficient, the error in the admission of the detective's statement was harmless.

This analysis is wrong.  The test for harmlessness is whether error contributed to the verdict, and since this is constitutional error (confrontation), the State must show beyond a reasonable doubt that it didn't.  The test for sufficiency, on the other hand, is simply whether any rational juror could have voted to convict defendant.  Showing that a rational juror could have voted to convict the defendant has nothing to do with whether juror was influenced by inadmissible evidence.  You can find harmless error where evidence is overwhelming, not where it's merely "sufficient."

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