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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Case Update

When is domestic violence violent?  That was the basic issue in the Supreme Court's decision last week in State v. Castleman.  Castleman had moved to dismiss his Federal indictment for possessing a gun while having been convicted of a "misdemeanor crime of domestic violence."  The District Court and the 6th Circuit bought his argument that the misdemeanor crime, which involves "the use or attempted use of physical force," requires "violent contact" to fall within the Federal firearm prohibition.  SCOTUS wasn't buying, though, and reversed.  The 6th Circuit had relied heavily on the Supreme Court's decision four years ago in Johnson v. US, in which the Court held that a conviction for simple battery did not count as a conviction of a "violent felony" under the Armed Career Criminal Act.   Sotomayor's opinion in Castleman, which is heavy on statistics about domestic violence and guns, easily disposes of that contention; among other things, while it's unlikely that Congress meant to incorporate the common-law meaning of "force" into the definition of "violent felony," it is likely that "Congress meant to incorporate that misdemeanor-specific meaning of 'force' in defining a 'misdemeanor crime of domestic violence.'"

The 12th District provides an excellent discussion of the "enterprise" element of Ohio's Corrupt Practices Activity Act, modeled after the Federal RICO statute, in State v. SparksSparks had been convicted in Warren County, on the basis that he cultivated marijuana in Butler County, which wound up being distributed it to others, who then distributed it to people who sold it in Warren County.  A bridge too far, says the 12th; while the State proved that the group's common purpose was to make money, "there is no evidence that they joined together to make money for the same enterprise."  It's an easy decision under these facts, but if you've got an OCPA case, this is a good place to start for discussion of the elements. 

In State v. Heyder, the defendant was charged with robbing a grocery store with a knife.  The trial devolved into a Marx Brothers routine:  the State presented the witness with a knife found on Heyder, a folding knife described as a "buck knife," but the witness insisted that the robber had used a Swiss Army knife, which, I suppose, is one step up from using a fork.  The trial judge wondered why the knife would be relevant, but finally decided that not admitting it would lead to possible jury confusion.  The State echoed this position on appeal, arguing that the "trial court had discretion to decide how best to explain the presentation of the knife evidence at the trial."  The 10th District chose not to follow the State down that particular rabbit hole, reversing and holding that "The fact that the state wanted to explain to the jury why the knife was presented to the victim does not change the irrelevant nature of the evidence."

The 8th District holds that the log regarding the calibration of a Breathalyzer can be introduced without the testimony of the person who calibrated it in State v. Kilbane. . . Thinking of raising that claim of selective prosecution for your client?  Tall order, as the 2nd District points out in State v. Bakhshi:  not only do you have to show that you've been prosecuted where others similarly situated have not, but that the prosecution was based upon considerations like "race, religion, or the desire to prevent the exercise of constitutional rights". . . In State v. Thompson, the 8th District comes perilously close to saying that introduction of hearsay (mother's testimony about what child told her) is harmless error if declarant (child) was subject to cross-examination. . .

Opinions I never finished reading.  Couldn't get past the second paragraph of the 8th District's decision in State v. Mayes, which begins, "By his own count, this is the tenth appeal Mayes has filed in this court."


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