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What's Up in the 8th

You'd think that with fifteen criminal decisions from the 8th District last week, we'd find something major, some new twist in the law, some interesting analysis, or, at minimum, something for me to bitch about.  (Or -- and here's a fascinating idea -- a case where the defendant actually wins.  Nah... lost my head there.)  Alas, it's not to be; after tossing out the opinions on consecutive sentencing or the pro se "motions to vacate a void sentence" (and whoever is handing those out in the prisons please stop) and some others, we're left with three decisions of any consequence, and that only because they teach us something we might not have known.  This will be on the test.

First up is State v. Basis, which involves a bar fight.  (And they say there's nothing new under the sun.)  A rather one-sided bar fight, at that.  Balis starts arguing with another guy, threatens to "beat the shit" out of him, then proves true to his word:  after Balish slaps the guy a couple of times, the victim takes a swing, and Balish punches him, knocks him down, drags him out to the parking lot, and proceeds to kick his face in.  (That's not an exaggeration:  the victim had orbital fractures, a broken nose, and a hole in his cheek.)  Balish appeals his conviction for felonious assault, arguing that the judge -- this was a bench trial -- "disregarded" evidence of provocation and should have found him guilty of aggravated assault.

The defendant has the burden of proof of provocation, and that comprises two steps, the first objective and the second subjective.  The defendant has to show that the victim did some act which a reasonable person would regard as sufficient to incite rage.  (Which sort of translates to what it would take to make a reasonable person act unreasonably.  But stick with me here.)  Then, the defendant has to show that he was indeed acting in a fit of rage or passion.

The opinion sort of flubs this last one, noting that Balish "did not report feeling threatened."  That's relevant to self-defense, not provocation.  Still, this again shows the perils of trying the case to a judge.  If this were a jury trial and the judge refused to instruct the jury on the lesser included offense, you'd at least have an argument.  But here, you're essentially contending that the judge's decision not to convict on the lesser offense was against the manifest weight of the evidence.  That's a long uphill slog in any event, and given the facts of this case, you're not going to get anywhere near the top.

We get a tour of burglary law in State v. BellBell breaks into the home of a dead woman and steals a bunch of stuff, and complains on appeal that the house wasn't an "occupied structure," nor was any person present or likely to be present, the latter of which elevates it to a second degree felony.  The definition of when a structure is an "occupied" one is rather elastic:  it need only be "maintained as a permanent or temporary dwelling," even if it's temporarily unoccupied.

The second issue, whether a person would be present, doesn't depend upon the expectation of the burglar, but on whether it's objectively likely.  "Likely," though, has nothing to do with probability, as Bell makes clear.  The homeowner's daughter stopped in from time to time to check on things, at first daily, and then every week or so.  According to the panel, "if the evidence demonstrates that the caretaker in possession of the former occupant's key has the right of access to the home regularly, then there will be sufficient evidence that a person is 'likely to be present.'" 

Oddly, that's a more relaxed standard than if the homeowner is alive, at least if he's working.  There are a number of 8th District decisions, the most recent of which is State v. Richardson, which holds that when a person is at work, unless he occasionally goes home during working hours, he's not "likely to be present" for the burglary. 

I've had my share of dead-end appeals, so I'm feeling the pain of the appellate lawyer in State v. Rivera.  Rivera took her child into an emergency room for treatment; the child had been beaten by Rivera that day, suffering a perforated bowel, a lacerated spleen, and a fractured rib.  The child had also suffered previous injuries, including other rib fractures and severe frostbite, which would eventually require amputation of five of his toes.  One of the police officers observed an open sore on the bottom of the child's foot, with "partially exposed bone matter." 

The child was almost four years old.  He weighed twenty-seven pounds.

Rivera wound up with a 19-year sentence, and a claim that the judge didn't tell her that the sentences could be run consecutively goes nowhere -- a judge doesn't have to -- nor does an argument on allied offenses.  The third contention is that the family put together a video to show at sentencing, and Rivera complains that the judge shouldn't have viewed it.

So here we learn some law.  When the victim is a minor child, RC 2930.14(A) requires a court to allow a victim's representative to make a statement at sentencing; under RC 2930.14(B), the court must consider that in fashioning sentence, but if the statement contains new material, the court must continue sentencing hearing to afford defendant an opportunity to respond.  But the defense attorney didn't object or request a continuance to respond, so that goes nowhere, too.

Frankly, I can't imagine what the response would've been.

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