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What's Up in the 8th

Ohio is the only state in the Union to impose the burden of proving self-defense on the defendant.  Brian Porter takes a run at changing that.  We learn things about sex offenses that we didn't know.  Two sentencing cases and a rush to justice round out this week's review of my favorite appellate court.  (Really.  No, really.)  Let's take a look.

In State v. Porter, the panel finds that while the instruction on self-defense was "arguably incomplete," the defendant wasn't prejudiced by it.  The dissent makes a pretty compelling case that he was.  But the big argument is whether RC 2901.05(A), which requires the defendant to prove self-defense by a preponderance of the evidence - something no other state does - is constitutional.  Porter runs into a huge barrier:  the US Supreme Court upheld that scheme in 1987 in Martin v. Ohio.  Porter contends that that's changed by the Supreme Court decisions in Heller and McDonald, which held that the 2nd Amendment provides an individual, rather than collective, right to own and possess a gun, based on the inherent right of self-defense.  Some good lawyering, but all for naught.

Maybe the National Rifle Association could be employed to change this.  They've done an excellent job here in Ohio, and elsewhere, of expanding the right to shoot people, including the addition of two separate varieties of the Castle Doctrine.  This might not have been the case to do it, though.  One of the other successes of the NRA has been in pushing "concealed carry" laws; only Illinois lacks one.  Porter had a concealed carry permit.  Oops.

The NRA would certainly approve of the result in State v. Shepherd, though.  Shepherd and his brother case a store for 45 minutes before trying to rob it, the brother pulls out a gun, and the clerk pulls out a bigger gun.  Shepherd makes insufficiency and manifest weight claim that he wasn't complicit in the robbery, but that goes nowhere. 

State v. Mohamed also provokes a spirited dissent.  Mohamed, a taxi driver, gets a little frisky with one of his passengers, and we learn that "the offense of gross sexual imposition does not require skin-to-skin contact," which is certainly good to know.  The bigger issue is whether the kidnapping statute, which reduces that crime to second degree felony if the victim is released unharmed, requires the harm to be physical.  Again, the dissent makes a good case that psychological harm is also included - the argument to the contrary is based on a 7th District decision - but the limitation to physical harm been the recent law in the 8th, and it continues to be.

In State v. Jones, the judge imposes the maximum 18-month sentence on a 4th degree felony, and Jones argues that this violates principle of sentencing that a judge should use the minimum sanctions necessary to accomplish sentencing goals without putting an undue burden on governmental resources.  This has been tried before, never successfully, and that streak continues.  The panel holds that the judge has discretion to determine how to do that, and the argument devolves, as it usually does, into whether the trial court considered the statutory factors, not how he applied them. You've never going to win that argument, but as I explained in my review last week of State v. Marcum, you might not have to.  In Marcum, the court appeared to hold that an appellate court must review the application of the sentencing factors under a standard of whether the record "clearly and convincingly" failed to support the sentence.

State v. Davis comes back on appeal after a remand for failure to make findings for consecutive sentences.  At the resentencing, the judge shaved a year off original sentence on one count, reimposed consecutive sentences, then asked defense counsel, "Are you going to waive the findings on the record for consecutive sentences?"  The attorney did, but the panel finds that consecutive sentences without the findings are contrary to law, and that requires reversal.

That's probably wrong.  The failure to make the findings does mean the sentence is contrary to law, but that doesn't make it void.   Admitting hearsay statements which don't qualify under an exception is "contrary to law," too, but if the attorney specifically waives any objection to it, it's not coming back.

Still, that shows the problem of judges trying to speed up their handling of cases.  That happens in State v. Norton, too, but with a different result.  Norton had planned to call three witnesses at 9:00 AM, but the witnesses were delayed by inclement weather, so he asked for a ten-minute continuance, which the court denied.  The panel acknowledges the shortness of the delay, and that the request was weather-related, but nonetheless rejects the argument, finding that "this court must weigh concerns such as the trial court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice against any potential prejudice to a defendant." 

It didn't have to be this way.  There was a question as to whether the witness' testimony would have been admissible, and a serious question of whether it would have impacted the trial.   But instead of disposing the argument on those grounds, we now have a court of appeals opinion saying that the judge has the discretion to exclude defense witnesses if they're ten minutes late and have a good reason for that.  I'm sorry; if you're going to balance a 10-minute delay against the prejudice to the defendant, I'm going to come down on the latter side ten times out of ten.


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