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What's Up in the 8th

Eighteen decisions this week from the 8th District in criminal cases, and only two were wins for the defense.  And the outcome in one, State v. Rodriguez, was governed by binding precedent in the form of the en banc decision in State v. Mace:  a journal entry saying that post-release controls are imposed "for the maximum period allowed" doesn't cut it.  Let's hit the highlights.

Bad things happen to women who get too drunk, or rather, men do bad things to women who get too drunk.  The victim in State v. Jones had between ten and twenty shots of tequila, plus "two alcoholic drinks," the opinion tells us.  (Probably those "two alcoholic drinks" -- the apocryphal "couple of beers" -- did her in.  The upshot is that the police come across Jones with his pants around his ankles outside the back seat of his car, having his way with the victim, who's passed out unconscious.  The court discusses the cases on what constitutes substantial incapacity in a rape charge, but wherever the line for that is, Jones crossed it. 

His was not the only case to depend on the victim being sloshed; in State v. Keeler, she'd downed "10 to 14 shots of Bacardi" in a mere 90 minutes.  The interesting aspect of that case is that she claimed there were two people who took her from the bar, a white man driving and a black man in the back seat, and both eventually raped her.  At the trial of Keeler, the black guy, a white guy, Billy Joe Clark, testified at having driven the woman and Keeler to a hotel, and that the woman was sober as most judges.  The opinion notes archly that "it is unclear from the record whether Clark was ever considered a suspect in the case." 

Plenty of shootings, of course -- in State v. Catron, gunfire erupts over two half-brothers' dispute about a cigarette lighter -- but the more challenging issues are presented in State v. Carter.  Carter, 17 at the time, was bound over from juvenile court on aggravated murder and aggravated robbery charges, and pled to the robbery and involuntary manslaughter, with an agreed sentencing range of 13 to 20 years.  The judge gives him 19, and the only good news for Carter is the panel's rejection of the State's argument that by agreeing to a sentencing range which required consecutive sentences, Carter waived any appeal whether the two offenses merged.  (RC 2953.08(D)(1) does say that a sentence can't be appealed if it's jointly recommended by the parties and imposed by the court.  Oddly enough, the State apparently raised waiver only with regard to the merger; the court fully reviews the consecutive issue, and finds against Carter on that.) 

The bad news for Carter is that the panel rejects his argument, along with the contention that the mandatory bindover statute is unconstitutional, because it wasn't raised in the trial court.  There are some good recent decisions, from the US Supreme Court and elsewhere, on the lesser culpability of juveniles because of their underdeveloped thought processes, and it may be time to start raising that argument at the trial level.

State v. Herrington is another case on 404(B) evidence involving sex offenses.  The victim, Herrington's step-granddaughter, testified that there were four incidents which occurred when she was between the ages of 14 and 18, all involving inappropriate touching, and the last three after Herrington had offered to give her driving lessons.  Another woman, 37 at the time, testified that when she was 20, Herrington, a family friend, had raped her after giving her a driving lesson. 

The panel draws heavily on the Supreme Court's decision in State v. Williams (discussed here).  Williams involved a male teacher charged with raping a 14-year-old student, and the State introduced evidence that the teacher had consensual sex with a 16-year-old student; the court found the similarities in the two situations, especially the evidence of "grooming" by the teacher, to be sufficient to meet 404(B)'s "scheme of plan" requirement.  Fitting Williams into the fact pattern here is a stretch:  other than the "driving lesson," there's really nothing similar about the crimes.  To be sure, there's a fine line between proving scheme or plan and simply showing propensity, but the dissent makes a good point here:  when the lead witness for the State is the one who presents the 404(B) evidence, you can make a good argument that it's really about conformity, not scheme or plan.

When can a police officer pat you down before placing you in a police cruiser?  All day, every day, but it's a trick question:  the real one is, when can a police officer place you in the cruiser?  That's the issue in State v. Holder.  The cops had stopped a driver for excessive speed, found him to be drunk, and arrested him.  They told the passenger they were going to impound the car, and asked if he had someone to pick him up.  He said his girlfriend would be there shortly, and the nice police officer told him he could sit in the cruiser until she got there.  Of course, that necessitated the pat down, which revealed a gun.

The law on that comes from the Supreme Court's 2001 decision in State v. Lozada:

During a routine traffic stop, it is reasonable for an officer to search a driver for weapons before placing the driver in a patrol car, if placing the driver in the patrol car during the investigation prevents officers or the driver from being subjected to a dangerous condition and placing the driver in the patrol car is the least intrusive means to avoid the dangerous condition.

The State made a number of arguments:  this happened on a busy road, and Holder was safer in the cruiser, and besides, the officer told Holder he was going to be patted down, and Holder consented to it.  The bottom line is that here, without some suspicion that you're armed or up to no good, putting you in the cruiser is not an option.  Maybe the cops will get away with that in some other district, but the 8th will bounce that all day, every day.

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