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What's Up in the 8th

Joe grabs his twelve-year-old stepdaughter and runs his leg up her thigh as he tries to kiss her.  The stepdaughter pulls away, tells Mom, and Joe's charged with gross sexual imposition and kidnapping.  "Kidnapping" under Ohio law isn't what a layman would ordinarily think:  throwing somebody in a trunk, driving them across town, and sending a ransom note to the family.  Here, kidnapping is any restraint of liberty.  The jury, duly instructed, returns a verdict of guilty of both.  The gross sexual imposition is punishable by a maximum of three years; the kidnapping, by a sentence of ten years to life.  The State gets to elect which offense the defendant is sentenced on, and guess what?

That's pretty much what happened to Paul Bonneau, and his appeal focuses on the illogic of the situation:  the legislature in its wisdom decided that three years in prison was an appropriate penalty for gross sexual imposition with a twelve-year-old.  The Supreme Court has held that kidnapping - a restraint of liberty -- is inherent in every rape, and indeed in a number of other crimes, like robbery and felonious assault.  Or gross sexual imposition.

That's a key factor for allied offense analysis:  the two crimes merge if the kidnapping is "merely incidental" to the rape, gross sexual imposition, or whatever.  Bonneau tries to take it one step further, arguing that if the kidnapping is "merely incidental," it cannot serve as a separate, cognizable offense, and he can only be sentenced on the GSI.  It falls to the 8th District in State v. Bonneau to explain that this is not the law in Ohio, and off Bonneau goes to serve a 5 to 25 year prison sentence.  (This was a pre-SB 2 offense.)

With two exceptions, one of which we'll talk about tomorrow, the only other substantive decision which didn't deal with sentencing was State v. Torres, a murder case involving a neighborhood dispute that degenerated into gunfire, and which involved enough witnesses to stock the cast of a Cecil B. DeMille movie.  The opinion's factual recitation consumes 18 pages, and halfway through I started a flowchart to keep track of the various characters.  Again, our motto here at The Briefcase:  we read the cases so you don't have to.  You might want to wait until this one goes to video.

In any event, Torres' first argument is that the trial court erred in refusing to give an instruction on cross-racial identification:  the witnesses were black, and he was Hispanic.  There's abundant psycho-social evidence of problems with cross-racial identification, and there's case law from New Jersey and California holding that such instructions are necessary in certain types of cases.  But this isn't New Jersey or California, and the court holds that Ohio's jury instruction on eyewitness identification works just fine. 

When the shots were fired, the neighborhood dispute dissolved into a mass exodus from the scene, which prompted a flight instruction from the judge.  Torres argues that this was wrong, too.  I've complained about this before - a flight instruction should be reserved for those situations where the defendant takes affirmative steps to avoid apprehension, like leaving the jurisdiction, rather than simply not having the good grace to remain at the crime scene until the police arrive.  Torres serves as the latest, but probably not the last, example of how unimpressed the 8th is with my argument.

In sentencing, a dichotomy seems to have appeared between consecutive sentencing and everything else.  Just last week I mentioned Judge Gallagher's concurrence in State v. Barnett, in which he addressed the two approaches n the 8th on appellate review of consecutive sentencing:  requiring the judge to make the specific findings required by the statute, or divining the findings by sifting through what the judge said at sentencing.  That appears close to resolution:  In State v. Hodges and State v. Gill, the court remands consecutive sentences, the panel in the latter decision flatly holding that ""'substantial compliance' with the statutory requirements for the imposition of consecutive sentences is not sufficient."  Strict compliance means the judge has to make the findings, not the court of appeals.

But several other decisions last week suggest that the imposition of consecutive sentences might soon be the only real basis for a sentencing appeal.  In State v. Kopilchak.  Kopilchak got maxed out on a burglary conviction; while severely intoxicated and high on drugs, he'd broken into an 86-year-old woman's apartment while she was sleeping and stolen her TV and various other items.  After quoting the trial judge extensively, the court concludes that "Kopilchak's sentence is not clearly and convincingly contrary to law."  The argument in State v. Liuzzo is more focused:  Liuzzo appeals from his ten-year sentence for child porn, claiming that the judge didn't give adequate consideration to the mitigating factors, specifically his contention that his reason for having child porn was that he himself had been abused as a child, and the abuser had taken videos; Liuzzo was simply checking to see if any of those videos were out there.  This argument founders on the fact that Liuzzo had used computer search terms for "young girls engaged in inappropriate relationships with older men." 

The most interesting result, though, comes in State v. Akins.  Akins claimed that the judge didn't consider his psychiatric history in imposing a seven-year sentence for attempted rape.  Instead of doing what the Kopilchak court did and reviewing the record to see whether the judge did in fact consider it, the panel here announces that it doesn't matter.  Essentially, the court holds that if the sentence is within the statutory limits, and the trial judge stated he considered  the relevant statutory factors, the sentence is unreviewable:  "Akins argues that the length of his sentence resulted from the court's refusal to give more weight to factors in mitigation. R.C. 2953.08(A) gives us no authority to review this claim. .  . "

Arguing that the judge had imposed too stiff a sentence by not giving adequate consideration to various mitigating factors was always pretty much a forlorn task.  The result of Akins is that it is virtually impossible to even make the argument.

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