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What's Up in the 8th

Here's a tip:  if you're lead counsel on a rape case, and your office mate and co-counsel starts talking about coming up with $50,000 for the victim as a "compensation package," run.

Marc Doumbas wishes he'd done that.

Back in November of 2013, he and the other attorney, Tim Marshall, were convicted of bribery for trying to pay off two rape victims to "say something nice at sentencing" for the client.  (The client had pled to sexual battery, so there was a possibility of probation.)  The "say something nice" came from Marshall, to another attorney he was trying to recruit to represent one of the victims.  The case against Marc was paper-thin; even the State agreed that he was nothing more than an accomplice.  I got a lot of love from the panel at oral argument.  (The 8th District judges recused themselves and kicked it down to the 10th.)  Marshall's conviction was affirmed a month ago, but I wasn't terribly concerned about that; he was pressing a legal argument that I didn't make.

But climbing that insufficiency of the evidence mountain is a long, hard climb, and we didn't make it to the top.  

One who did was the defendant in State v. EvansHe'd grabbed a cell phone from the victim's hand and told him that he'd smash it unless the victim gave him $20.  For this, he gets convicted of third degree robbery and sent to prison for two years.

Third degree robbery requires the use or threat of force against another.  You're thinking that the force could be the grabbing of the cell phone, but there's some case law which holds that the force has to have at least some potential for physical harm, and this doesn't cut it.  Instead, the State argues that the force can be against an object and not just a person.  The court's not buying:  "another" means a person, and therefore a cell phone can't be "another."  Something like that, anyway; the court reverses and remands Evans' case back to the trial court for conviction and sentencing for theft, the lesser included offense of robbery.

"Force" is also featured in State v. Clark.  Clark is charged with raping his fourteen-year-old stepdaughter, but claims he can't be guilty because the State failed to prove that he used force.  Back in 1988, the Ohio Supreme Court was confronted the same claim in State v. Eskridge, where the defendant raped his four-year-old daughter.  The 8th District had found that no force was applied, but the Supreme Court reversed:

In the within case, we are confronted with a child being told to do something by an important figure of authority, and commanded not to tell anyone about it. In such a case, we find nothing unreasonable about a finding that the child's will was overcome. Consequently, the forcible element of rape was properly established.

If you think Eskridge is limited to situations involving parents and very young children, think again.  As the Clark opinion details, it's been applied where the victim is in her mid-teens, and the perpetrator was an uncle.  The bottom line is that force is going to be found anytime there's a family relationship.

Rape is also featured in State v. Mason.  (And who says I can't do segues?)  A rape that happened a very long time ago, twenty-one years ago, to be precise.  That presents some problems for the State, since the statute of limitations for rape is twenty years.  The prosecution seeks refuge in RC 2901.13(B), which provides that the statute is tolled "during any time when the accused purposely avoids prosecution," claiming Mason did exactly that, thereby tolling the statute for 947 days.

And how did Mason "purposely avoid prosecution"?  By leaving the State?  Changing his identity?  Growing a beard?  Nope; he was capiased out of municipal court because he missed a court date for a speeding and seatbelt violation, although he did eventually come in and pay the waiver fee for that.  And in two other cases, involving jaywalking and hitchhiking, a capias was issued because he left court after entering no-contest pleas, but without paying the fines and costs.  He ultimately did pay those, too, but the State argues that the time between the issuance of the capias and when he paid tolled the statute of limitations on the rape.

The State should be credited for coming up with a novel argument but, alas, the panel finds that novelty is its sole redeeming feature.  It affirms the dismissal of the indictment, but not without bemoaning the fact that "the purported victim is denied justice in this case because of an arbitrarily defined time limitation," and suggesting that "the only complete remedy for dealing with John or Jane Doe defendants is to treat rape offenses in the same manner as aggravated murder or murder where no statute of limitations applies."

Well.  I'm all for not denying people justice, which is the reason I do what I do.  And victims deserve justice every bit as much as defendants do. 

But here's the thing.  The reason we have statutes of limitation is to encourage timely prosecution.  Mason's case, and others like his, weren't timely prosecuted because the police sat on their butts, and rape kits sat untested in police evidence lockers, for nearly two decades.  If a case gets thrown out because the police didn't do their job, maybe that's a way to make sure the police do their job. 

By the way, the statute of limitations for rape was recently raised to 25 years. 


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