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Case Update

The Supreme Court's term ends a week from today, with the two cases on searches of cellphones the only criminal ones still awaiting decision.  That's not to slight the others; usually, the blockbusters come at the end of the term, and this year should be no different:  cases on greenhouse gases, TV broadcast rights, and whether corporations can refuse to offer coverage for contraceptives in their health insurance plans because of religious beliefs will be decided this week.  There was a significant decision last week on patent rights for software, but that is not, shall we say, in my wheelhouse, so any curiosity you might have about that will have to be sated elsewhere.

The Ohio Supreme Court's decision in In re A.G. last week provides Reason No. 112 for Why I Don't Do Divorce Work Anymore.  The (very) short version is that Patrick met Lolita, a Russian citizen, while he was there, the two were married, and returned to America, where they gave birth to a daughter, A.G.  They were divorced three years later, and much of the ensuing decade featured a custody battle in which kidnapping and parental alienation figured prominently.  The issue was whether A.G. was entitled to be present for the custody trial; the trial court held she was not, and the Supreme Court affirmed.  Frankly, I would have paid money not to see it.

The court does have oral arguments in a number of cases this week, with several questions on tap.  Does a defendant have to object at sentencing in order to raise an allied offense issue on appeal?  Does a governor's pardon allow the sealing of a felony conviction record, even if the petitioner has other offenses on his record?  Can someone be convicted of attempted felony murder if he's acquitted of attempted murder?  Will Sheila tell Greg that she's actually carrying Brendan's baby, not his?  Stay tuned.

In the courts of appeals...

The 2nd District has handed down several decisions limiting the impact of Ohio's Corrupt Practices Act, and does so again in State v. Christian.  Christian had engaged two men to set fire to her business and burglarize her home in an effort to defraud her insurance companies, and was convicted of an OCPA violation.  The court looks to Federal decisions - the OCPA was modeled on the Federal RICO statute - that in order to establish the "enterprise" element of the statute, there must be some evidence of "(1) an ongoing organization, formal or informal; (2) with associates that function as a continuing unit; and (3) with a structure separate and apart, or distinct, from the pattern of corrupt activity."  That last factor is critical: the court finds that the relationship between Christian and the two men "had a purpose, but it did not function as a continuing unit and its structure was not separate or distinct from the corrupt activity in which they engaged."  If you've got an OCPA case, this is a must-read.

In State v. Gasser, a police officer spotted a car parked in the turn-around area of a 400-year driveway to a private residence.  Knowing that the homeowners didn't park their cars in that area, and believing that the car might be disabled, the officer approached the vehicle to check on the condition of the driver.  As you might guess, he found the driver emitting an odor of alcohol, with his eyes glassy and bloodshot; to seal the deal, there was an open can of beer in the center console.  The 9th District upholds the search, finding that it fell within the "community care-taking" exception to the warrant requirement.  An easier route would have been to hold that this was simply a consensual encounter:  a police officer has just as much right to walk up to a parked car as does anyone else. 

The 9th District's decision in State v. Stover is a nice case to have if you're defending a domestic violence charge, and deals with a common misunderstanding among lawyers and judges.  When the alleged victim wouldn't testify that the defendant struck her, the prosecutor had her read aloud her statement to the police; the judge permitted it on the grounds that while the statement was hearsay, it was admissible because the declarant (either the victim or the officer) was available for cross-examination.

That's not how it works.   An out-of-court statement doesn't become admissible merely because the declarant is a witness; the statement still must fall within one of the exceptions to the hearsay rule.  The State tries to argue on appeal that it qualified as an excited utterance, noting that the officer found the victim to be "hysterical" when he first arrived.  The panel does a nice job with that, too, observing that the officer waited until the victim "calmed down" before taking her statement, which was flatly inconsistent with the whole theory behind the exception:  if the declarant calmed down before making the statement, she obviously was no longer "excited."

My store of knowledge grows.  Courtesy of the 10th District's decision in State v. Burney, add RC 2937.222 to the ever-growing list of Things I Didn't Know.  The statute allows a judge to deny bail to someone charged with certain offenses if the judge finds by clear and convincing evidence that the defendant very likely committed the offense, that he poses a substantial risk of serious physical harm to the community, and that no release conditions will reasonably assure the safety of the community.  The statute covers not only non-capital murder and other first-degree felonies, as you might expect, but second-degree felonies, aggravated vehicular homicide, felony menacing by stalking, and a felony OVI offense also qualify.

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