 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
RETALIATION; MUST BE FOR SPECIFIC DISCHARGE OF DUTY. State v. Esway, No. 1999CA00109 (5th Dist. Ct. Apps., Stark Co., 9-27-99). Andrew Paul Esway, III apparently dislikes all prosecutors. He encountered an assistant Canton city law director, Eugene O'Byrne, in a bar. Learning that Mr. O'Byrne was a "prosecutor," Mr. Esway attempted to hit Mr. O,Byrne, tried to choke him, and tore his shirt. Two other patrons had to subdue Esway. While an officer was taking Esway to jail, Esway said something about a family member's being prosecuted and told the officer that prosecutors put innocent people in jail. Esway also told the officer he knew where the officer and the prosecutor lived and that he wanted to confront them when he had his handcuffs off. Although no record of any prosecution of anyone in Esway's family could be found, the state charged Esway with retaliation, R.C. 2921.05(A). That statute prohibits one from "purposely and by force ..."retaliating against "an attorney who was involved in a civil or criminal action or proceeding because the ... attorney, ... discharged the duties of the public servant, ... attorney." Esway entered a no contest plea. On stipulated facts, the court found the defendant guilty of retaliation and sentenced him to one year in prison. Defendant appealed and the Stark County Court of Appeals reversed. The offense of retaliation, the court said, applies only to retaliation for specific conduct. General dislike is insufficient. SENTENCING; JUDICIAL RELEASE; R.C. 2929.20(B)(3) CONSTITUTIONAL. State v. Vincer, No. 98CA007117 (9th Dist. Ct. Apps., 9-20-99). The defendant's having pled guilty to felonious assault, the court sentenced him on September 24, 1997 to a five year prison term. On April 8, 1998, Vincer moved for judicial release under R.C. 2929.20. The court denied the motion because, under R.C. 2929.20(B)(3), a prisoner sentenced to five years but less than ten years is eligible to file a motion for judicial release only after having served five years. The defendant argued on appeal that the statute discriminated against those who received flat sentences of five years because it rendered these people ineligible for judicial release. The appellate court observed that prisoners sentenced to five years could receive bad time and could then ask for judicial release. The court affirmed, however, because only a rational basis is necessary to uphold the statute. Persons who receive longer sentences, the court said, are more dangerous. Therefore, it is logical for the state to insist that they wait a longer time before petitioning for judicial release. DOUBLE JEOPARDY: IMPOSING BAD TIME PREVENTS PROSECUTION. State v. Nutt, No. 98CA36 (4th Dist. Ct. Apps. Pickaway Co., 9-16-99). While serving a sentence for sexual battery, Michael Nutt persuaded his wife to smuggle marijuana into the prison for him. She was caught. The parole board imposed a ninety day bad time penalty upon Michael Nutt. The grand jury also indicted him for complicity to commit illegal conveyance of a drug of abuse into the grounds of a detention facility, in violation of R.C. 2923.03 and 2921.36. The defendant claimed a trial on the indictment would subject him to double jeopardy. After the trial court denied his motion to dismiss, the defendant pleaded no contest and was sentenced to nine months. He appealed. The Pickaway County Court of Appeals agreed with the defendant. Additional incarceration, the court said, was punishment imposed for a new offense and could not be considered part of the original sentence. Therefore, further punishment for the complicity to convey illegal drugs is prohibited. The court reversed the conviction.
LESSER INCLUDED OFFENSES: ARSON UNDER R.C. 2929.03(A)(1) NOT A LESSER INCLUDED OFFENSE OF AGGRAVATED ARSON UNDER R.C. 2909.02(A)(1). State v. LaGray, No. 2898-M (9th Dist. Ct. Apps., Medina Co., 4-28-99). Shawn LaGray was convicted in a jury trial of two counts of aggravated arson arising from his having set two businesses ablaze. On appeal, he argued that the trial court erred in refusing to instruct the jury on the lesser offense of arson. The Medina County Court of Appeals held that arson is not a lesser included offense of aggravated arson. R.C. 2909.02(A)(1) provides that "(n)o person, by means of fire or explosion, shall knowingly ... (c)reate a substantial risk of serious physical harm to any person other than the offender." R.C. 2909.03(A)(1) provides that "(n)o person, by means of fire or explosion shall knowingly ... cause or create a substantial risk of physical harm to any property of another without the other person's consent." The Supreme Court of Ohio has concluded that a crime may be a lesser included offense of another crime when: "(I) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, ever be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense." State v. Deem (1988), 40 Ohio St. 3d 205, paragraph three of the syllabus. The Medina County Court of Appeals said that arson was not an included offense "for two reasons. First, a showing of a substantial risk of harm or physical harm to property is required under R.C. 2909.03(A)(1), but not under R.C. 2909.02(A)(1). Second, R.C. 2909.03(A)(1) requires proof of a lack of consent, but R.C. 2909.02(A)(1) does not. Accordingly, R.C. 2909.03(A)(1) and R.C. 2909.02(A)(1) appear to fail the second Deem requirement, and, therefore, the former does not appear to be a lesser included offense of the latter." The court affirmed the conviction. VERDICTS: INCONSISTENT NOT GUILTY ON LESSER OFFENSE HAS NO EFFECT ON GUILTY VERDICT ON GREATER OFFENSE. State v. Wilson, No. CA-99-1 (5th Dist. Ct. Apps., Perry Co., 9-29-99). Luther Wilson believed that his live-in girlfriend, Katherine Taylor, was having sex with another man. Wilson argued with Taylor throughout a day and night, striking her several times. Finally Wilson shot Taylor in the back, then told her to tell the police that her fourteen-year-old son, Shaun, had shot her accidentally. Wilson told the police three stories: that Shaun had been cleaning the gun when it fired accidentally; that Wilson had been cleaning the gun when it fired accidentally; and that Wilson had fired accidentally when Taylor hit him with a cup. The grand jury charged Wilson with attempted murder and felonious assault. The court instructed on negligent assault as a lesser included offense of felonious assault. The jury returned verdicts of not guilty of attempted murder, guilty of felonious assault, and not guilty of negligent assault. On appeal, the defendant argued that the acquittal on the lesser included offense precluded a conviction on the greater offense. The Perry County Court of Appeals disagreed. The verdicts reflected the jury's understanding, the court said, that there could be only one guilty verdict on the count charging felonious assault. As the jury found appellant guilty of felonious assault, and knowing it was not supposed to return two guilty verdicts on the same count, the jury took the superfluous step of returning a not guilty verdict on negligent assault. As the evidence of felonious assault was sufficient, the court continued, the conviction was valid. DIVERSION: COURT ENCROACHES UPON DUTY OF PROSECUTOR, WHEN. State v. Curry, No. 19188 (9th Dist. Ct. Apps., Summit Co., 7-28-99). Samuel Curry, Jr., was charged with grand theft. Having been accepted into the prosecutor's diversion program, Curry, on December 13, 1996, entered a guilty plea. On January 12, 1998, the prosecutor discharged Curry from the diversion program because he had failed to make restitution to the victim. Sentencing was set for January 20, 1998. The court gave the defendant several continuances to allow the defendant to make restitution. On June 10, 1998, the defendant proved he had made full restitution. The court sentenced him to six months unsupervised probation. After a short recess, the court changed its mind, sua sponte declaring that the defendant, having made restitution, had complied with the conditions of diversion. Therefore, the court dismissed the indictment. The state appealed and the Summit County Court of Appeals reversed. Under R.C. 2935.36, the court said, the prosecutor has authority to decide whether diversion is appropriate. The court's right to dismiss charges under R.C. 2935.36, is conditioned on the prosecutor's recommendation that charges be dismissed. A court may not dismiss charges under R.C. 2935.36 sua sponte. The appellate court reversed and remanded for sentencing. |
