Ohio Supreme Court: “All or Nothing” Defense Does Not Prevent Instruction On Lesser Included Offenses

The case is State v. Wine, No. 2014-Ohio-3948.

The Ohio Supreme Court has held that a defendant who presents an “all or nothing” defense in a criminal trial does not have the right to prevent a trial court from giving lesser-included-offense jury instructions.

In this case, the defendant had been charged with rape based on the allegation made by his mother-in-law that the defendant had inserted his finger into her while she was sleeping.  She testified at trial that she had fallen asleep with one of the children after getting in bed with him to tell him a story. She awoke and saw the Defendant kneeling down at the side of the bed with his face very close to hers.

The Defendant told the police that he remembered being in bed with his mother-in-law. He told the interviewer that he may have touched his mother-in-law. He also stated, “I may have touched her, I mean I almost think I did. But the truth is I thought it was my wife.”

In a later interview he told the police said that it was possible that something had happened, but that he had no memory of it and no memory of ever touching his mother-in-law inappropriately.

At trial, he testified that he was never in the room that the alleged victim was in on the night in question and that he did not lay his hands on her in any way.  The court explained:  “The defense was thus unequivocal—[The Defendant] was never in the room on the night in question and there could be no gradations on what might have occurred.”

The trial court decided to instruct the jury on the lesser included offenses of of sexual battery under R.C. 2907.03(A)(1) and gross sexual imposition under R.C. 2907.05(A)(1).

In Ohio, the law permits a jury to find a the defendant not guilty of the crime charged but guilty of an inferior or lesser included offense.  The court explained:

This rule originally developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged. But it has long been recognized that it can also be beneficial to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.

The concern, however, is that jury could reach a “compromise” verdict, therby convicting a defendant of an offense even when there is not proof beyond a reasonable doubt in order to have a “clear conscience.”

The court established the following rule:  “If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense.”

In regards to an “all or nothing defense, thc court explained why the jury should stuill be permitted to consider lesser included offenses:

Whether or not a defendant raises a complete defense to the charged crime, the state has the burden to prove beyond a reasonable doubt all of the elements of the crime charged. The fact that the evidence could be interpreted by the jury as questionable on a single element does not mean that the defendant committed no crime. Simply put, a jury can both reject an all-or-nothing defense—e.g., alibi, mistaken identity, or self-defense—and find that the state has failed to meet its evidentiary burden on an element of the charged crime. In such a case, “if due to some ambiguity in the state’s version of the events involved in a case the jury could have a reasonable doubt regarding the presence of an element required to prove the greater but not the lesser offense, an instruction on the lesser included offense is ordinarily warranted.” Solomon, 66 Ohio St.2d at 221, 421 N.E.2d 139.

Based on this reasoning, the conviction of the defendant was upheld.

 

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Ohio Supreme Court Holds That Attorney Is Required for Resentencing Hearing

The Ohio Supreme Court has held that a defendant is entiled to an attorney at a resentencing hearing. The court explained that “a resentencing hearing is a critical stage of a criminal proceeding to which the right to counsel attaches.”

The case is State v. Schleiger, Slip Opinion No. 2014-Ohio-3970.

In this case, an appellate court determined that the trial court did not properly impose postrelease control. Therefore, the case was remanded to the trial court for resentencing.

At the resentencing hearing, the court offered to appoint counsel for the defendant, who had represented himself during the appeal. The defendant told the court that he wanted to represent himself.

The trial court then imposed the same sentence, this time including the statutorily requiredthree years of mandatory postrelease control upon release from prison.

The Right to Counsel is guaranteed by the Sixth Amendment ot he United States Constitution. A defendant is entiled to counsel during “Critical Stages”
of criminal proceedings.

In Gardner v. Florida, 430 U.S. 349, 358, (1977), the U.S. Supreme Court explained that sentencing is a critical stage of the proceedings, and stated that “[t]he defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.”

The Ohio Supreme Court reasoned that “a resentencing hearing held for the limited purpose of properly imposing statutorily mandated postrelease control is a critical stage of a criminal proceeding.” This is because the terms of postrelease control are a part of the actual sentence.

The court explained that an attorney may be useful at the resentencing hearing:

counsel’s presence assures that the court complies with the directives of the statute, that it does not exceed the scope of the hearing, that the defendant understands the imposition of postrelease control, and that issues are properly preserved for appellate review.

In this case, however, the trial court acted appropriately in resentencing the defendant without an attorney because the defendany knowingly, intelligently, and voluntarily waived his right to counsel.

Justice Lanzinger wrote a dissenting opinion. Justic Lanzinger believes that “An attorney is unnecessary at this stage of proceedings because at most, the court is” correcting a prior decision. “The hearing is not de novo and is limited to the performance of a ministerial act.”

 

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Ohio Supreme Court Issues Unusual Criticism of Court of Appeals

The Ohio Supreme Court reinstated kidnapping and other convictions from a man who had been previously acquitted by an Appeals court on sufficiency of evidence grounds.  The court said that the evidence in the case was “overwhelming, undisputed, and not mentioned in the court of appeals’ opinion.”

The case is State v. Tate, Slip Opinion No. 2014-Ohio-3667.

The case involved a 2011 incodent with a 14-year-old girl.  The defendant met the girl outside a library, walked her home, and solicited oral sex.  He claimed that he had innocent motives, had not known that she was underage, and that he had not used deception or force to obtain sexual contact.

The court of appeals had vacated all of the Defendant’s  convictions, sua sponte, after finding that there was insufficient evidence to prove his identity as the man who had committed the offenses.

The court noted that, in fact, “there was no conflicting evidence on the issue of identity— [the Defendant] agreed that he was the man with [the girl].”  Neither party, according to the court, argued otherwise.

The Supreme Court was very critical of the Court of Appeals.  The court said that this case was “light-years away from the exceptional case warranting reversal on manifest-weight grounds.”  The court also added that the sua sponte review of the issue was improper:  “appellate courts should not decide cases on the basis of a new, unbriefed issue without “giv[ing] the parties notice of its intention and an opportunity to brief the issue.” State v. 1981 Dodge Ram Van, 36 Ohio St.3d 168, 170.”

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What Has To Be In An OVI Motion to Suppress? Ohio Supreme Court Clarifies Standard

The case is State v. Codeluppi, Slip Opinion No. 2014-Ohio-1574.

The Ohio Supreme Court has held that a
 highly detailed pleading of the facts and law is not required to trigger the right to a hearing on a motion to suppress.

In this case, the defendant was was charged with operating a vehicle while intoxicated (“OVI”).

There was no video recording of the traffic stop and the field sobriety tests conducted. The police report indicated only:

the law- enforcement officer administered the three field sobriety tests that are standardized by the National Highway Traffic Safety Administration (“NHTSA”) guidelines: (1) horizontal-gaze nystagmus, (2) walk and turn, and (3) one-leg stand. The report described Codeluppi’s actions and the law-enforcement officer’s findings, but did not describe the instructions and demonstrations given by the officer prior to each test.

Under Ohio law, the results of the field sobriety tests are not admissible at trial unless the state shows by clear and convincing evidence that the officer administered the test in substantial compliance with NHTSA guidelines.

The Defendant filed a motion to suppress the evidence obtained during the traffic stop.  The State objected, arguing that the defendant motion lacked “sufficient particularity on the issue of alleged improper administration of field sobriety tests.”

The judge denied the motion, and she later plead no contest and was sentenced.

Ohio Criminal Rule 47 governs motions.  The Rule provides that a motion “shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It shall be supported by a memorandum containing citations of authority, and may also be supported by an affidavit.”

The Supreme Court has previously interpreted this rule to mean that a defendant must state the motion’s legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided.

The court explained that a motion “does not require that a defendant set forth the basis for suppression in excruciating detail. Instead, the question is whether the language used provides sufficient notice to the state.” In this case, the defendant’s  motion met this standard by alleging that the officer had not conducted the field sobriety tests in substantial compliance with NHTSA guidelines.  The court concluded, “This statement was sufficient to identify the issues [the defendant] was raising . . . .  [T]he state could have no doubt about the basis for the motion to suppress.”

 

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Court of Appeals Reverses Felony Domestic Violence Conviction. Engel represented Defendant.

An Ohio Court of Appeals has reversed a domestic violence felony conviction for a woman in Greene County.

J. A. Engel and Mary Martin from Michael K. Allen & Associates represented the defendant.

The case is available to read here:  State v. Zumwalde,  2014-ohio-1285

In January, 2013, the defendant was arrested on a charge of domestic violence after an incident with her husband. She did not dispute that her conduct constituted the offense of domestic violence, but she challenged whether the State could prove that this was a felony offense. In Ohio, a second or subsequent offense of domestic violence is a felony. A first offense is a misdemeanor.

The Defendant had a prior conviction for attempted assault, but the indictment did not identify the victim of her previous conviction for attempted assault as a family or household member. The court said that she could not have been convicted of a felony:

Upon review, we conclude that by pleading no contest to “domestic violence,” as charged in the indictment, Zumwalde essentially admitted to nothing more than a misdemeanor of the first degree absent the essential element that the prior conviction involved a family or household member. Although the indictment charges Zumwalde with having previously been convicted of Attempted Assault, it does not charge that the offense resulting in that conviction involved a victim who was a family or household member at the time of the offense; therefore, the allegations set forth in the indictment in the case before us state, at most, a misdemeanor offense.

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Unusual Criticism From Prosecutor After Appeals Court Dismisses Another Drug Case for Improper Venue

An Ohio Appeals Court dismissed drug trafficking case for improper venue, promoting unusual public criticism from an elected prosecutor.

The court had previously dismissed a related case for a similar reason.

The case is State v. Sparks, 2014-Ohio-1130.

In 2011, the Warren County Drug Task Force began investigating an alleged marijuana trafficking ring.  Undercover officers purchased marijuana on three different occasions in the Mason, Warren County, Ohio area.

The Task Force determined that the dealer had purchased his marijuana from a married couple in Hamilton Countyand from someone who grew marijuana in Butler and Hamilton Counties.  The Defendant grew marijuana for one of the suppliers at a house in Hamilton County. In exchange for growing and processing marijuana, the Defendant was allowed to stay in the house rent-free, and received a few hundred dollars every month.

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Ohio Supreme Court: Prosecutions’ Use of Autopsy Report Did Not Violate Confrontation Rights

The Ohio Supreme Court has held that the admission of an autopsy report into evidence at trial does not violate a defendant’s Sixth Amendment confrontation rights.

The case is State v. Maxwell, Slip Opinion No. 2014-Ohio-1019.

The Defendant had been sentenced to death for the murder of his girlfriend.

In 2005, the Defendant had assaulted his girlfriend.  She sought a protection order and was asked to testify before the grand jury.  The Defendant attempted to get her to change her story.  When she said that she had just told the truth, the Defendant told a friend, that “the bitch was going to make him kill her.”  He later shot her in view of her child.

A medical examiner with the Cuyahoga County coroner’s office, conducted the victim’s autopsy.  He concluded that she had died from gunshot wounds of the head and that the death was a homicide.

The defendant argued that his constitutional right of confrontation was violated when the court allowed another doctor, who did not conduct the autopsy, to testify about the autopsy results at the trial.

The Sixth Amendment’s Confrontation Clause provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be   confronted with the witnesses against him . . .”  This means that an out-of-court statement of a witness who does not appear at trial is in most circumstances prohibited.

The Confrontation clause applies only to “testimonial statements.”  Which are statements made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later.

In this case, the court concluded that a substitute examiner, on direct examination, may at least testify as to his or her own expert opinions and conclusions regarding the autopsy and the victim’s death.   The court also concluded that an autopsy report was a no testimonial business record and that its admission did not impinge on a defendant’s confrontation rights.  The court explained:

Autopsy reports are not intended to serve as an “out-of-court substitute for trial testimony.” Instead, they are created “for the primary purpose of documenting cause of death for public records and public health.”  . . . .

Although autopsy reports are sometimes relevant in criminal prosecutions . . . they are not created primarily for a prosecutorial purpose.  . . . other courts have held that coroners are statutorily empowered to investigate unnatural deaths and authorized to perform autopsies in a number of situations, only one of which is when a death is potentially a homicide.

 

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Ohio Supreme Court Rules That Child-Enticement Statute is Unconstitutional.

The Ohio Supreme Court has held that Ohio’s child-enticement statute is unconstitutionally overbroad because it sweeps within its prohibitions a significant amount of constitutionally protected activity.

 

The case is State v. Romage, Slip Opinion No. 2014-Ohio-783.

 

The Defendant in this case was charged with criminal child enticement after he asked a child to carry some boxes to his apartment in exchange for money.

 

The Statute, R.C. 2905.05(A), provides:

 

No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including entering into any vehicle or onto any vessel, whether or not the offender knows the age of the child, if both of the following apply:

(1) The actor does not have the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity.

(2) The actor is not a law enforcement officer, medic, firefighter, or other person who regularly provides emergency services, and is not an employee or agent of, or a volunteer acting under the direction of, any board of education, or the actor is any of such persons, but, at the time the actor undertakes the activity, the actor is not acting within the scope of the actor’s lawful duties in that capacity.

 

A law can be found to be unconstitutional if it is so broadly written that it may have a deterrent effect on free expression.  The United States Supreme Court has held that for a statute to be facially invalid on overbreadth grounds, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court.” Members of Los Angeles City Council v. Taxpayers for Vincent, 466 U.S. 789, 798, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984).

The Ohio Supreme Court observed that the purpose of the child enticement statute is to prevent child abductions or the commission of sexual acts with children. However, this admirable goal was not sufficient to save the statute.  The court wrote:

Certainly, the safety and general welfare of children is even more deserving of governmental protection. But a statute that defines criminal conduct should not include what is constitutionally protected activity. Even though the state has a legitimate and compelling interest in protecting children from abduction and lewd acts, a statute intended to promote legitimate goals that can be regularly and improperly applied to prohibit protected expression and activity is unconstitutionally overbroad. R.C. 2905.05(A) is such a statute. Although the statute uses the word “knowingly,” the word modifies “solicit.” The statute fails to require that the prohibited solicitation, coaxing, enticing, or luring occur with the intent to commit any unlawful act.

The court noted that many innocent acts would seem to fall under the language of the statute, including, “a primary-school coach offering to drive a team member home to retrieve a forgotten piece of practice equipment; a parent at a community facility offering to drive another’s child home so she does not have to walk; a senior citizen offering a 13-year-old neighborhood child money to help with household chores; a 14-year-old asking his 12-year-old friend to go for a bike ride.”

In summary, the court held that the statute was unconstitutional because “There is no requirement that the offender be aggressive toward the victim. One need not have intent to commit a crime.”

Justice French, dissenting, suggested that the word “solicit” in the statute could be read narrowly “with its neighboring operative verbs—‘coax, entice, or lure’” so that “one can reasonably find a more sinister connotation.”

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Ohio Supreme Court Suggests That People Living Together Are Couples for Purposes of Domestic Violence Statute

The Ohio Supreme Court has held that a boyfriend can be convicted of domestic violence for an assault on his live-in girlfriend, even where the state did not prove they shared living expenses.

The case is State v. McGlothan,  Slip Opinion No. 2014-Ohio-85.

In 2011, the defendant had been living in his girlfriend in her apartment for “about a year.” He slept overnight at her apartment every night and helped her put things up on the wall when he moved into the apartment.

The Defendant’s charges arose after an argument about where he had been earlier in the day. The Defendant pushed his girlfriend and grabbed her by the shirt, detaching a permanent tracheostomy tube which enabled her to breathe. They called 911 and the tube was re-inserted without surgery.  The girlfriend told the medical staff that “her boyfriend purposely pulled her trach out.”

The Defendant was found guilty of attempted felonious assault and domestic violence.  He was sentenced to two years in prison.

The issue in this case involved whether the state was required to prove that the couple shared any living expenses, such as rent and utilities, which would demonstrate shared familial or financial responsibilities in order for the domestic violence statute to apply.

The domestic violence statute provides, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.”   A “family or household member” is defined to include spouses and “person living as a spouse,” which means someone who is cohabiting with a partner.

In a prior decision, the Ohio Supreme Court had explained that the offense of domestic violence “arises out of the relationship of the parties rather than their exact living circumstances,” State v. William. The domestic violence statute applied in this case because the defendant and his girlfriend “were not strangers but rather lived together and were in a relationship from which the domestic violence arose.”

Justice Lanzinger  dissented.  The Justice warned that “merely living in the same residence will satisfy the element of cohabitation for the domestic-violence statute.”  Justice French, joined by Justice O’Neill, also dissented.  Justice French suggested that “cohabitation requires proof that the offender and victim shared in either the ‘familial or financial’ responsibilities of the household.”

 

 

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Defendant Who Wins An Appeal Cannot Receive Harsher Sentence Motivated By Retaliation Or Vindictiveness

An Ohio Court of Appeals has held that a defendant who wins an appeal cannot then receive a harsher sentence motivated by retaliation or vindictiveness by the trial judge.

The case is State v. Seymour , 2014-Ohio-72.

In 2011, the defendant was sentenced to 13 years in prison after pleading guilty to seven counts in the Butler County Court of Common Pleas. The indictment included one count of domestic violence, one count of aggravated burglary, two counts of assault, one count of grand theft, one count of failure to comply with an order or signal of a police officer, and one count of violating a protection order.  The aggravated burglary conviction accounted for six years of that prison term.

The court of appeals reversed part of his sentence in 2012, holding that the domestic violence, aggravated burglary, and violating a protection order offenses were “allied offenses of similar import that should have been merged” for a single sentence.

The case was sent back to the Common Pleas Court for resentencing.  The state chose to proceed under the aggravated burglary charge.  The court imposed a seven year sentence on this count – one year more than the prior sentence.

The Defendant again appealed.  He alleged that the trial court violated his due process of law when, motivated by retaliation or vindictiveness for a defendant’s successful appeal, the court resentenced him to a harsher sentence.

The court of appeals agreed.  The court noted that there is a presumption that an enlarged sentence was the product of vindictiveness by the trial court.  The court explained:

Although a court may still impose an enhanced sentence on remand, it must demonstrate that the enhanced sentence was not motivated by vindictiveness toward the defendant for exercising his rights. Thus, in order to ensure that a nonvindictive rationale supports the enhanced sentence . . . whenever a judge imposes an increased sentence after a successful appeal, there is a presumption of vindictiveness that can be rebutted only by objective information in the record justifying the increased sentence.

In this case, the defendant was entitled to a new sentencing hearing because the same trial judge presided over both sentencing hearings, but failed to explain the rationale for the enhanced sentence. At the new hearing, if the trial court decides to impose a harsher sentence than the sentence imposed originally, then the trial court must affirmatively state the reasons for imposing the harsher sentence. Those reasons may come to the judge’s attention from a variety of ways, including a new presentence investigation, the defendant’s prison record, or other sources.

 

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