In 1987, Gary Maye was charged with two counts of kidnapping "for the purpose of engaging in sexual activity." The jury found the defendant not guilty of kidnapping but guilty of abduction on the first count and guilty of kidnapping on the second count. The court merged the offenses and sentenced on abduction.

On October 20, 1997, the trial court found the defendant to be a sexual predator subject to the registration and reporting requirements of Chapter 2950.

The defendant appealed. He argued he had not been "convicted" on the kidnapping count because the court imposed no sentence on that count.

The Franklin County Court of Appeals disagreed. Although "convicted" includes a sentence for purposes of Crim. R. 32, the court said, the word has different meanings in different contexts. The court held that the word "convicted" as used in R.C. 2950.01(E), refers only to a determination of guilt and does not require that a sentence be imposed.

Judge Tyack dissented.

HEARSAY: MEDICAL TREATMENT: IDENTITY OF ASSAILANT.

State v. Patterson, No. 97APA12-1682 (Ct. App., Franklin Co., 9-22-98)

Tracy Patterson severely beat his girlfriend, Loretta Campbell, during an argument that started over Campbell's asking Patterson for a cigarette. Campbell escaped through a bathroom window.

The defendant was charged with kidnapping and felonious assault. At trial, the state introduced Campbell's medical records, which included statements that Campbell was "assaulted by boyfriend...punched and kicked and had a TV smashed over her head...she was taken to Park (Medical Facility) and Park called us saying her level of trauma was too high for them to handle...she was assaulted by husband."

The jury returned guilty verdicts on both felonious assault and kidnapping, which the court merged for sentencing.

On appeal, the Franklin County Court of Appeals held that the hearsay statements in the medical reports were admissible under the medical treatment exception. "[T]his court finds that when domestic violence is involved the identity of a victim's assailant is pertinent to treatment."

The court affirmed the felonious assault conviction.

SUFFICIENCY OF THE EVIDENCE.

State v. Patterson, supra

The court found the evidence of kidnapping insufficient. The court explained its finding by saying that "this was a fight between two people" and by saying the following:

If this court were to find sufficient evidence of kidnapping on the facts of this case, we would be upholding an artificial application of the law to the facts. The serious injuries defendant inflicted on Campbell warrant a commensurate response from the state and, in fact, defendant was found guilty of felonious assault, a first [sic.] degree felony. The felonious assault verdict is commen- surate and fits the crime.

The court reversed the guilty verdict on kidnapping.

JURY MATTERS: WAIVER; COURT NEED NOT ADDRESS DEFENDANT PERSONALLY.

State v. Ford, No. 97APA12-1635 (10th Dist. Ct. Apps., Franklin Co., 9-30-98).

Jason Ford was charged with aggravated trafficking. He chose to be tried to the court and signed a jury waiver form that was filed with the clerk.

After the court had convicted Ford in a bench trial, the court granted the defendant's motion for new trial. The trial court found that the jury waiver was ineffective because the court had failed to personally explain the waiver to the defendant.

The Franklin County Court of Appeals granted the state's motion for leave to appeal.

The appellate court held that the trial court's granting the defendant's motion was an abuse of discretion. As R.C. 2945.05 provides procedures for waiving jury and contains no requirement that a trial court personally interrogate a defendant, the court said, no such requirement exists.

The case was reversed and remanded for further proceeding consistent with the opinion.

Judge Tyack dissented.

SENTENCING: TRIAL COURT MAY CONSIDER FACTS OF ACQUITTED CHARGES.

State v. Epley, No. 97APA11-1467, 1468 (10th Dist. Ct. Apps., Franklin Co., 8-25-98)

Leon Epley and another man robbed two delivery men. In each case, the robbers threatened the victim with a gun. One of the victims was told to get out of his car or be shot. When the victim alighted from the car, the robbers took the car. The second victim, however, never saw a gun.

Appellant was acquitted of aggravated robbery but convicted of theft. The jury found the defendant did not have a firearm but that he did indicate that he possessed a weapon. Appellant pled to theft in the case involving the second victim.

The court imposed the maximum, consecutive sentences and the defendant appealed. On appeal, the defendant relied on Columbus v. Jones (1987) 39 Ohio App. 3d 87, in which the Franklin County Court of Appeals had held that a sentencing court could not consider in sentencing facts supporting offenses of which a defendant had been acquitted.

The Franklin County Court of Appeals affirmed, saying only

However, the United States Supreme Court has recently stated that "a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been acquitted." United States v. Watts (1997), __U.S.__, 117 S. Ct. 633.

SENTENCING: APPEAL; SENTENCE APPEALED AS "CONTRARY TO LAW," WHEN.

State v. Wright, No. 5-97-26 (3d Dist. Ct. Apps., Hancock Co., 3-18-98)

Darin Wright entered guilty pleas to two counts of domestic violence. The court imposed consecutive eleven-month terms.

The defendant appealed. He argued on appeal that R.C. 2953.08, the statute that enumerates grounds upon which a defendant may appeal a sentence, unconstitutionally discriminated against those who fall outside the enumerated circumstances. The court essentially held that almost no one falls outside the terms of R.C. 2953.08 as the statute allows a defendant to appeal a sentence that is "contrary to law."

The court ruled against appellant on the merits of the case, however, and affirmed appellant's consecutive sentences.

SENTENCING: APPEAL; SENTENCE NOT "CONTRARY TO LAW," WHEN.

State v. Untied, No. CT97-0018 (5th Dist Ct. Apps., Muskingum Co., 3-5-98).

The Muskingum County Court of Appeals reached the opposite conclusion from the court in Wright.

Jessie Untied was charged with two counts of burglary and two counts of theft. The court imposed a sentence of two years on each burglary and six months on each theft.

The defendant argued on appeal that he had rebutted the presumption in favor of prison and, therefore, his sentence was "contrary to law."

The appellate court disagreed. The court held that R.C. 2953.08(G)(1)(d) is not an expanded ground for appeal. A sentence is "contrary to law," the court said, only if it is outside the range of allowable sentences.

The court affirmed the trial court.

JUVENILE: INVESTIGATION UNDER CRIM. R. 30 UNNECESSARY WHEN BINDOVER MANDATORY.

State v. Gamble, No. 97CA006764 (9th Dist Ct. Apps., Lorain Co., 3-11-98)

Tommy Gamble was visiting a girl who was babysitting for Crystal Champion when Clinton Carter, a friend of Ms. Champion's, came to the house, hoping for a ride. Learning Ms. Champion was absent, Mr. Carter left. Seventeen-year-old Tommy Gamble followed him, stuck a gun in his back, and robbed him.

The defendant was bound over, and convicted of aggravated robbery and a firearm specification. He appealed.

The appellant argued that Crim. R. 30 required the juvenile court to conduct a full investigation, including mental and physical examinations. The Lorain County Court of Appeals held that those provisions apply to discretionary bindovers only. When a bindover is mandatory, because the juvenile uses a firearm, investigation is unnecessary.

The court affirmed the conviction.