What's Up in the 8th
Last year, of the 13,520 criminal cases resolved in the Cuyahoga County Common Pleas courts, exactly one was dismissed for lack of speedy trial. There'll be at least one this year, too, because that's what happens in State v. McCaughey.
McCaughey was stopped by the Parma police on May 16, 2016, and arrested for OVI. To avoid being charged with a third-degree felony for conveying an illegal substance into the jail she was destined to go to, she smartly produced a substance from her bra, and told the officer it was cocaine. The OVI charge was resolved a month later.
What about the cocaine possession charge? Well, the State didn't get the lab results back until September, and then didn't get around to indicting McCaughey until nine months after that.
The case involves the question of when speedy trial begins to run when the defendant gets arrested for one offense, and then is indicted for a later offense arising out of the same arrest. The law on that comes from the Supreme Court's decision in State v. Baker. Basically, if the State knows of the facts giving rise to the later charge at the time of the arrest, speedy trial time starts to run at that point. But it doesn't run "when additional criminal charges arise from facts different from the original charges, or the state did not know of these facts at the time of the initial indictment."
The State argues that it didn't know for sure that the substance was cocaine until the lab results came back, relying on an earlier 8th District decision which rejected a speedy trial claim when the substance was admittedly marijuana, but the State waited until the lab report came back as to the weight before indicting. The panel there found that delaying indictment was reasonable: an exact charge couldn't be fashioned until the weight was known. That's not the case here, the panel finds, because McCaughey told the officer the substance was cocaine.
That's a little sketchy; you could make the argument that the amount of cocaine had to be established to charge McCaughey. The State's waiting nine months after it got the lab results certainly didn't help. Besides, this makes up for all the times that speedy trial time gets tolled because the first thing the bailiffs here learn how to write is "pretrial continued at defendant's request."
The law on self-defense in Ohio became more complicated with the passage of the Castle Doctrine, and even more complicated by the fact that we have two of them. RC 2901.05(B) creates a presumption that someone inside his own home or car has acted in self-defense if he uses force to repel an intruder, while RC 2901.09 says a person doesn't have a duty to retreat in his own home.
All that proves to be a mess in Parma v. Treanor. Treanor's estranged son gets a call from his drunk sister saying that Treanor was threatening to kill himself. The son decided to check on Treanor, but, being too drunk to drive -- notice a theme emerging? - had a friend to drive him. Upon entering the house, he found Treanor asleep, and decided this was a good time to wake him and berate him for past grievances, real and imagined. The argument proceeded to the kitchen, where Treanor encountered the friend. He grabbed a nearby firearm and told the pair he'd shoot them if they didn't leave, which they ultimately did.
(Not part of the case, but interesting nonetheless, is that the son returned to his sister's house, where the two "got into it," and the son accidently slammed the door on his sister's finger, severing it. I'm sure you'll find pictures of these people here.)
That got Treanor charged, and convicted, of two counts of aggravated menacing and one of domestic violence. The key issue on appeal is whether the trial court erred in denying Treanor's request for a jury instruction on self-defense and the Castle Doctrine, on the basis that Treanor had only threatened force, but hadn't actually used it.
The panel has no problem disposing of that argument -- self-defense applies to threats as well as the actual use of force. And it agrees that Treanor had no duty to retreat in his own home. The court finds that the evidence was sufficient, if barely so, to show that Treanor's belief that he was in danger of serious physical harm was objectively reasonable, and that he subjectively believed it, to warrant an instruction on self-defense.
But barely mentioned is the other Castle Doctrine, the presumption of self-defense. A few months back the court held that the presumption didn't apply when the victim had been invited into the house; he has to be an "intruder." Here, the panel correctly determines that even if their initial entry into the house was lawful, the son and his friend became intruders when they were told to leave.
The panel concludes that Treanor was entitled to the "no-retreat" instruction, but that "he would still have to prove the remaining elements of self-defense by a preponderance of the evidence." No, he wouldn't; he would have presented sufficient evidence to trigger the presumption that he acted in self-defense, and the City would have the burden of overcoming that.
In State v. Hand (discussed here), the Ohio Supreme Court held that elevation of a penalty (say, non-mandatory to mandatory) based on a juvenile adjudication was unconstitutional. I've argued repeatedly that this should prohibit charging someone with weapons under disability based upon a juvenile adjudication: if you can't use the adjudication to enhance someone's sentence, you shouldn't be able to create a crime out of the adjudication. To the utter astonishment of myself and my unnumbered legions of regular readers, no court has bought this argument, and that unfortunate trend continues in In re C.W.
Finally, a word of warning. It's a crime to operate a jet ski after sunset. I learn that in Cleveland Metroparks v. Sferra. I could have learned more; despite the red flag of this being a pro se appeal, God help me, but I started to read the decision. Until I got to the part where Sferra filed a motion in the trial court stating that he was "reserving his rights under sections 'I-207 also known as 308' of the Uniform Commercial Code." Cue Twilight Zone theme, exit left.
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