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Case Update

Nothing from SCOTUS this week, except for a stay of the 4th Circuit's decision declaring Virginia's ban on gay marriage unconstitutional.  State officials had urged the Court to accept the stay application as a formal petition for the Court's review to allow the Court "to decide the constitutionality of the Virginia's ban as quickly as possible.  Not so fast; the Court declined to do so, it's order stating that the lower court ruling is "stayed pending the timely filing and disposition of a petition for a writ of certiorari."  That's Courtese for "we'll take our own sweet time on this one, Sparky."

No decisions from Columbus, either, but oral arguments in a couple of cases.  First up was State v. Ruff.  Ruff had been convicted of aggravated burglary and raping three women and assorted other crimes, which earned him a 40-year stretch in the State pen.  The First District reversed, though, holding that aggravated burglary and rape in this instance were allied offenses.  There have been a host of decisions holding that burglary doesn't merge with the crime committed after entry, on the theory that the burglary is complete upon entry, and therefore is a separate offense.

That argument runs into problems here, though, because Ruff was charged with aggravated burglary under the (A)(1) section:  trespassing in a structure where another person is present and "the offender inflicts, or attempts or threatens to inflict physical harm on another."  That means the burglary isn't complete until the harm - in this case, the rape - is completed.  That might be enough to get the court to get past the facts of the case:  The three women Ruff raped were a 74-year-old, one living in a group home because of mental illness, and a diabetic who used a wheelchair because her feet had to be amputated due to the disease.  His defense?  Consent.

State v. Beverly tests the limits of Ohio's Corrupt Practices Act, specifically, what is required to prove an "enterprise."  Beverly and his confederate, Branden Imber, went on a crime spree for three months in late 2010, stealing cars and burglarizing homes.  Most of the resulting convictions were for third or fourth degree felonies, but the State had also tacked on a CPA count, which was a first degree felony; some creative and heavy-handed sentencing left Beverly facing 66½ years in prison.

The 2nd District found the sentence excessive, and also reversed the CPA conviction, based mostly on Federal cases interpreting the RICO statute's "enterprise" element to require a showing that the organization is a structure separate and distinct from the pattern of activity in which it engages.  Whether that's a proper interpretation of the RICO statute isn't certain; there's a 2009 US Supreme Court case that calls that into question.  What's more, the CPA and RICO might not be co-extensive:  the CPA was passed later, with the assertion that it was the most comprehensive such law in the country.  Several justices had trouble with the idea of using the statute to sweep up small-time miscreants like Beverly and Imber, but as Chief Justice O'Connor pointed out, two people combining to engage in repeated burglaries and thefts over three months does indeed sound like an enterprise.

In the courts of appeals...

There's case law which holds that a judge can't make what would normally be a discretionary decision on the basis of policy, such as refusing to take pleas to misdemeanors, or to take pleas on the day of trial; the theory is that that's not an exercise of discretion, but a refusal to exercise discretion.  That forms the basis of the 1st District's reversal of the denial of expungement for a fourth-degree misdemeanor domestic violence conviction in State v. Clark.  As the dissent points out, it's not clear that it was a policy; the judge said she was "not really a big one for dismissing domestic violence," and that she "was not willing to expunge a domestic violence."  But that was enough for the majority.

In the 6th District's decision in State v. Murray, the State introduces the testimony of a police officer that she's responded to a domestic violence call, was told by a woman at the scene that she'd gotten into a fight twenty minutes earlier with the father of her child, whom she identified as Murray.  The woman then pointed to a nearby house where she claimed Murray lived.  The court finds that the officer's testimony that the woman (who didn't show up at trial) was upset was sufficient to make it an excited utterance, and calls it a day.

This clearly does not satisfy the "emergency" exception to Crawford and its progeny:  there was no longer any ongoing emergency.  The only mention of Crawford in the opinion, though, is its recitation of Murray's third assignment of error:

$$ The trial court erred by allowing officer Kenney's testimony to be admitted into evidence thus allowing the state to elicit such testimony apparently citing exigent circumstances and thus an exception to the prohibition expressed in Crawford v. Washington 541 U.S. 36 (2004).

It's not entirely the court's fault; the wording is incredibly awkward.  Still, ten years after Crawford, you'd expect courts to understand that a statement may fall within a hearsay exception, but still be testimonial and barred by Crawford.  


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