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What's Up in the 8th

Not too much to talk about this week.  The 8th handed down only a bakers dozen decisions, and only four of them were criminal cases.  But it does give us an opportunity to learn - or relearn - some law, so that's something.

Iran Doss, for example, learns the difference between "not guilty" and "innocent."  He was convicted of raping a drunken woman, but conviction of rape under the substantial incapacity subsection requires the State to prove that the defendant knew or had reasonable cause to believe the victim was incapacitated.  On appeal, the 8th held that the State hadn't cleared that bar, and vacated Doss' conviction for insufficient evidence.

So Doss goes back to the trial court, seeking compensation for wrongful imprisonment.  The trial judge agrees, reading the panel's decision as meaning "that either plaintiff Doss was innocent of the charges upon which he was convicted, or that no crime was committed by plaintiff Doss, or both."  That's the requirement for compensation.  The 8th affirmed, but the Supreme Court reversed, holding that the standard for a finding of wrongful imprisonment

is not satisfied by an acquittal or a finding of legal insufficiency of the evidence.  The General Assembly requires a showing of innocence to be made affirmatively and adjudicated de novo before a claimant can be found to be eligible for compensation in a wrongful-imprisonment action.  Not every person who is released from prison because of a successful appeal is entitled to compensation.

So it goes back for a trial, and there's a good bit of testimony that never made its way into the criminal trial.  And if it had, it's fairly clear that the original panel wouldn't have found the evidence for conviction insufficient.  Doss has to show his innocence by a preponderance, and the trial court finds that this time Doss is the one who can't clear the bar, and the court affirms.

The defendant in State v. Vialva makes a valiant effort to get out from under his plea to multiple counts of rape of a child and the agreed sentence of twenty to life.  He argues first that the judge didn't advise him of the nature of the charges, but the judge isn't required to ask a defendant if he understands the charges or to inform him of elements.  Basically, unless record indicates defendant was confused on that point, this is a loser. 

Vialva's second argument is a novel one:  while the judge advised him of his right not to testify, he didn't tell him he had a right to testify.  Sadly, novelty appears to be its sole redeeming feature; one looks in vain for any rule, statute, or case law which requires the judge to do that.

Vialva's not a citizen, and his final argument is that the judge didn't tell him that deportation was mandatory.  But that's the lawyer's job; the judge need only advise him that there may be immigration consequences.  The attorney put on the record that he had discussed the deportation consequences with Vialva, and there's no claim that in those discussions the lawyer gave incorrect advice.  Besides, if we're talking about kicking foreign kids out of the country, you gotta figure if you rape kids you're long gone from America if you ever get out of prison. 

If.  Remember the last time you read the headline, "Child Rapist Paroled"?  Me neither.

In State v. Phillips, the defendant appeals his conviction for felonious assault, claiming that the court erred in permitting the victim testify as to what she overheard Phillips tell a third person, which essentially admitted to the crime.  He claims that the statement, even if actually made, was admissible only as a declaration against interest as a hearsay exception under EvidR 804(3).  That requires corroborating circumstances indicating the trustworthiness of the statement, and here there were none introduced.

True that, but here's the problem for Phillips:  it was Phillips' statement, offered by the opposing party, and under EvidR 801(D)(2)(a), it isn't hearsay at all.

Finally, a municipal court decision of note.  The defendant in Lakewood v. Gordon - it's unpublished, but the Lexis cite is 2017 Ohio Misc. LEXIS 11 - crashed his car in the early morning, and when police got there, they smelled alcohol on his breath.  They took Gordon to the nearby hospital, and asked him to submit to a blood test.  He refused, and among the bevy of charges made against him was one for violation of RC 4511.19(A)(2), which makes it a crime to refuse a chemical test if you've got a prior DUI.

The US Supreme Court pretty much put the kibosh to that last year in Birchfield v. North Dakota (discussed here).  In a situation virtually identical to Gordon's, the Court held that a blood test was a search which required a warrant, and a person couldn't be punished for exercising their constitutional right to refuse to consent to a warrantless search.

We're not done with the 8th.  Tomorrow we'll discuss an oral argument and a very interesting suggestion on what to do with Ohio's sentencing laws.


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