Case Update - Appellate Edition
Still two weeks until SCOTUS swings into action, no new decisions from the Ohio Supreme Court, and I haven't looked at appellate decisions in almost a month, so let's do that.
In State v. Smith, the defendant, a Megan's Law sex offender, claims he should be allowed to withdraw his plea to failure to notify of a change of address because the State had to show recklessness as the mens rea. Not so, says the 1st District: it's a strict liability offense. The decision is limited to Megan's Law, but the opinion cites an 8th District decision which held that the same applied to a violation of the Adam Walsh Act.
In State v. Radcliff, the 6th District probes the metaphysical inquiry, when has a defendant committed a substantially sufficient step toward shoplifting to be convicted of attempted theft? The act need not be the last proximate act prior to the commission of the offense, but it "must be strongly corroborative of the actor's criminal purpose." Here, Radcliff had "hunkered down," trying to block the view from the cash register, and had put the panties in her purse, even though she had nothing else in her hands. Then there was the little matter of "her statement to Officer Bronson that she 'fucked up.'" Meanwhile, this is the second case I've seen in a week of someone trying to rip off a dollar store. Can we agree that in light of the legislature raising the felony threshold for theft to $1,000, if you're going to get a criminal record, it might as well be for trying to walk a big-screen TV out of Walmart?
The absurdity of traffic stops and Fourth Amendment law is on display in the 5th District's decision in State v. Kiriakou, where the police officer had stopped the defendant's vehicle because she waited 11 seconds to make a turn at an intersection after the light turned green. The basis for the stop? RC 4511.66, which prohibits being "parked" on a highway. Thankfully, the 5th tossed it.
The 6th District also provides a very nice search decision in State v. Goble, although, like Kiriakou, it would have been a minor catastrophe if it had come out the other way. This was the sum total of the allegations contained in an affidavit for a search warrant for Goble's house: three years earlier, the police had received complaints about Goble growing marijuana; a month before the search, an anonymous complainant had told the police he or she suspected that Goble was growing marijuana; and a trash pull conducted the day before had discovered some marijuana stems, two marijuana roaches, and a prescription bottle with Goble's name on it. The court found the first two items provided stale information, and the third was evidence only of a misdemeanor. The nice touch was that the court found the information so lacking that the warrant wasn't saved by the good faith exception.
The 12th District tackles the co-conspirator exception to the hearsay rule in State v. Eacholes. The upshot: for the statement to qualify, the State has to show that a conspiracy existed, that both the defendant and the declarant participated in it, and that the statement was made during the course of an in furtherance of the conspiracy. The defendant doesn't need to be charged with conspiracy, and in showing that the conspiracy existed, the State need only establish a prima facie case. If the statements are admitted before the conspiracy is shown to exist, that's harmless error if the State subsequently introduces the necessary proof on that point. Left up in the air is whether the statements themselves can be considered in proving the conspiracy; there's no dispositive Ohio law on that point, although the Federal rule specifically provides that the court can consider the statements, as long as there's other evidence on the point.
Does Crawford v. Washington bar the admission of a dying declaration? The 1st District says that it doesn't in State v. Woods, relying on a footnote in Crawford. The footnote isn't as clear as the 1st
District might like - the Court basically says that it doesn't need to decide the issue - but there are a number of other appellate decisions which have come to the same conclusion. And it's probably the right conclusion. Crawford relied on the historical underpinnings of the Confrontation Clause, and the Court has strongly hinted that the exceptions to the hearsay rule which existed at the time of the Framing would not violate the Clause. And there are few exceptions that go back further than the dying declaration.
To reverse a sentence, an appellate court has to find that the sentence is "clearly and convincingly" contrary to law, or unsupported by the record. Here I thought that last one was going to be an impossible hurdle to overcome, but it's not. At least when the prosecutor's appealing: in State v. Fisher, the judge overcomes the presumption for prison in a felonious assault case, and the 10th District decides that the trial court's finding that the defendant's conduct wasn't the result of drug use is "clearly and convincingly" unsupported by the record, and sends it back for resentencing.
The least of his problems. In State v. Winfield, the 6th District affirms the denial of a motion to waive court costs, finding that it's barred by res judicata because it was made after sentencing, and not at sentencing. Winfield had been convicted of aggravated murder.
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