What's Up in the 8th
Joe grabs his twelve-year-old stepdaughter and runs his leg
up her thigh as he tries to kiss her.
The stepdaughter pulls away, tells Mom, and Joe's charged with gross
sexual imposition and kidnapping. "Kidnapping"
under Ohio law isn't what a layman would ordinarily think: throwing somebody in a trunk, driving them
across town, and sending a ransom note to the family. Here, kidnapping is any restraint of
liberty. The jury, duly instructed, returns
a verdict of guilty of both. The gross
sexual imposition is punishable by a maximum of three years; the kidnapping, by
a sentence of ten years to life. The
State gets to elect which offense the defendant is sentenced on, and guess
what?
That's pretty much what happened to Paul Bonneau, and his
appeal focuses on the illogic of the situation:
the legislature in its wisdom decided that three years in prison was an
appropriate penalty for gross sexual imposition with a twelve-year-old. The Supreme Court has held that kidnapping -
a restraint of liberty -- is inherent in every rape, and indeed in a number of other
crimes, like robbery and felonious assault.
Or gross sexual imposition.
That's a key factor for allied offense analysis: the two crimes merge if the kidnapping is "merely
incidental" to the rape, gross sexual imposition, or whatever. Bonneau tries to take it one step further,
arguing that if the kidnapping is "merely incidental," it cannot serve as a
separate, cognizable offense, and he can only be sentenced on the GSI. It falls to the 8th District in State
v. Bonneau to explain that this is not the law in Ohio, and off Bonneau
goes to serve a 5 to 25 year prison sentence.
(This was a pre-SB 2 offense.)
With two exceptions, one of which we'll talk about tomorrow,
the only other substantive decision which didn't deal with sentencing was State
v. Torres, a murder case involving a neighborhood dispute that
degenerated into gunfire, and which involved enough witnesses to stock the cast
of a Cecil B. DeMille
movie. The opinion's factual recitation
consumes 18 pages, and halfway through I started a flowchart to keep track of
the various characters. Again, our motto
here at The Briefcase: we read the cases
so you don't have to. You might want to
wait until this one goes to video.
In any event, Torres' first argument is that the trial court
erred in refusing to give an instruction on cross-racial identification: the witnesses were black, and he was
Hispanic. There's abundant psycho-social
evidence of problems with cross-racial identification, and there's case law
from New Jersey and California holding that such instructions are necessary in
certain types of cases. But this isn't
New Jersey or California, and the court holds that Ohio's jury instruction on
eyewitness identification works just fine.
When the shots were fired, the neighborhood dispute
dissolved into a mass exodus from the scene, which prompted a flight instruction
from the judge. Torres argues that this
was wrong, too. I've complained about
this before - a flight instruction should be reserved for those situations
where the defendant takes affirmative steps to avoid apprehension, like leaving
the jurisdiction, rather than simply not having the good grace to remain at the
crime scene until the police arrive. Torres serves as the latest, but
probably not the last, example of how unimpressed the 8th is with my argument.
In sentencing, a dichotomy seems to have appeared between
consecutive sentencing and everything else.
Just last
week I mentioned Judge Gallagher's concurrence in State
v. Barnett, in which he addressed the two approaches n the 8th on appellate
review of consecutive sentencing:
requiring the judge to make the specific findings required by the
statute, or divining the findings by sifting through what the judge said at
sentencing. That appears close to resolution: In State
v. Hodges and State
v. Gill, the court remands consecutive sentences, the panel in the
latter decision flatly holding that ""'substantial compliance' with the
statutory requirements for the imposition of consecutive sentences is not
sufficient." Strict compliance
means the judge has to make the findings, not the court of appeals.
But several other decisions last week suggest that the imposition
of consecutive sentences might soon be the only real basis for a sentencing
appeal. In State
v. Kopilchak. Kopilchak got
maxed out on a burglary conviction; while severely intoxicated and high on drugs,
he'd broken into an 86-year-old woman's apartment while she was sleeping and
stolen her TV and various other items. After
quoting the trial judge extensively, the court concludes that "Kopilchak's
sentence is not clearly and convincingly contrary to law." The argument in State
v. Liuzzo is more focused: Liuzzo
appeals from his ten-year sentence for child porn, claiming that the judge didn't
give adequate consideration to the mitigating factors, specifically his
contention that his reason for having child porn was that he himself had been
abused as a child, and the abuser had taken videos; Liuzzo was simply checking
to see if any of those videos were out there.
This argument founders on the fact that Liuzzo had used computer search
terms for "young girls engaged in inappropriate relationships with older men."
The most interesting result, though, comes in State
v. Akins. Akins claimed that the
judge didn't consider his psychiatric history in imposing a seven-year sentence
for attempted rape. Instead of doing
what the Kopilchak court did and
reviewing the record to see whether the judge did in fact consider it, the
panel here announces that it doesn't matter.
Essentially, the court holds that if the sentence is within the
statutory limits, and the trial judge stated he considered the relevant statutory factors, the sentence
is unreviewable: "Akins argues that the
length of his sentence resulted from the court's refusal to give more weight to
factors in mitigation. R.C. 2953.08(A) gives us no authority to review this
claim. . . "
Arguing that the judge had imposed too stiff a sentence by
not giving adequate consideration to various mitigating factors was always
pretty much a forlorn task. The result
of Akins is that it is virtually
impossible to even make the argument.
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