 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
EVIDENCE: WITNESS'S BELIEF THAT DEFENDANT BELONGED TO A GANG ADMISSIBLE TO EXPLAIN WITNESS'S FAILING TO SELECT DEFENDANT'S PHOTO FROM AN ARRAY. State v Kelly, No. 99AP-1302 (10th Dist. Ct. Apps., Franklin Co., 08-02-2000). Antonio Kelly entered an apartment purportedly to buy drugs. Having gained entry, Kelly shot three people and stole some marijuana and a shotgun. The three victims survived and each identified Kelly at trial. One victim, Eugene Flowers, had failed to select Kelly's picture from a photo array. Mr. Flowers testified he had seen Kelly earlier on the day of the offense at a club for teenagers. Mr. Flowers testified over objection that one reason he failed to select Kelly's photograph was that he knew Kelly to be associated with an auxiliary gang of the Bloods called the Choke and Kill Boys. The trial court instructed that the jury was to consider this information not for its truth but only to explain the state of mind of Mr. Flowers. The jury returned verdicts finding Kelly guilty of three counts of felonies assault, one count of aggravated robbery, and four firearm specifications. The court found Kelly guilty of having a weapon while being under disability. On appeal, Kelly argued that the evidence of his gang association was hearsay and additionally, was inadmissible under Evid. R. 403. The appellate court said the evidence was non-hearsay because it involved no "statement." The court also said its probative value was not "substantially outweighed" by its prejudicial effect under Evid. R. 403. Identity, the court continued, was the crucial issue. As the evidence explained why the victim had failed to identify Kelly before trial, the probative value of the evidence outweighed its prejudicial effect. The court affirmed.
BRIBERY: SOLICITING SEXUAL FAVORS SUPPORTS BRIBERY CHARGE. State v Knight, No. C-990425, (1st Dist. Ct. Apps., Hamilton Co., 09-22-2000). A Cincinnati police officer, Patrick Knight, was charged with six counts of sexual battery. In a bench trial, Knight was convicted of one count of sexual battery, and two counts of bribery. Officer Knight stopped a van driven by a friend of Patricia Hill. Knight arrested the driver on an outstanding warrant. As Ms. Hill had no driver's license, Knight refused to allow her to drive the van home. Learning that Ms. Hill had no other way home, Knight told her to wait on a nearby bench until he could drive her home. She waited on the bench for about 10 minutes, while Knight arranged for officers Fangman and Kellher to transport the driver. Knight picked up Hill and drove through a dark, deserted area. When Ms. Hill said she appreciated the ride, Knight told her she could show her appreciation by providing sexual favors. When Ms. Hill refused, Knight told her to get out of his car because his shift ended at 5:00 a.m. and he did not want to bother with her. Ms. Hill got out and went straight to a phone. While speaking to the 911 dispatcher, Ms. Hill said that Knight had driven past her several times and she was afraid. Officer Jerome Johnson responded to the 911 call. He was skeptical and told Ms. Hill she could be charged with filing a false report. Ms. Hill said she would not be intimidated. Having been convicted, Knight argued on appeal that his bribery convictions where supported by insufficient evidence. Bribery precludes soliciting anything of value to corrupt or improperly influence a public official in the performance of his duty. The appellate court, relying on Scott v State (1923), 107 Ohio St. 475, held that sexual conduct is a thing of value. The court further held that a police officer has a duty to avoid leaving a woman alone in a bad neighborhood at 5:00 a.m. Other officers testified that they would never leave a person stranded as Knight had. The sexual battery charge arose from an incident with another victim, Lynn Curtis, under identical circumstances. Because Curtis was on probation, she agreed to have vaginal intercourse with Knight. When Curtis was later arrested on unrelated theft charges, she told the arresting officer about Knight. The appellate court affirmed the conviction. SEXUAL PREDATOR: COURT MAY CONSIDER OFFENSES OF WHICH DEFENDANT HAS NOT BEEN CONVICTED. State v Korecky, No. 00AP-143 (10th Dist. Ct. Apps., Franklin Co., 10-31-2000). The Franklin County Grand Jury indicted David R. Korecky on fourteen counts alleging sexual abuse of eight-year-old Mathew and his sister, six-year-old Joy. At trial, Korecky was convicted of three counts of rape and two counts of gross sexual imposition involving Mathew and three counts of rape and one count of gross sexual imposition involving Joy. The Franklin County Court of Appeals vacated the convictions for offenses naming Joy as the victim "on chronological difficulties arising from the time periods alleged in the indictment" but affirmed the other convictions. Upon recommendation of the Department of Rehabilitation and Corrections, the trial court held a hearing to determine if the defendant should be adjudicated a sexual predator. The state called the defendant as a witness on cross. The defendant admitted he had been convicted in Florida in 1986 of sexual acts against a thirteen-year-old and convicted in Cuyahoga County in 1989 of five counts of GSI or attempted GSI, involving children under thirteen. The state introduced the pre-sentence reports from the earlier cases. The reports alleged other sexual acts against other victims of which the defendant was either not charged or not convicted. Having been declared a sexual predator, the defendant appealed. The Franklin County Court of Appeals affirmed. "[T]he trial court was not limited to consideration of offenses for which appellant had actually been convicted, particularly in his most recent case, and could conclude that appellant=s current offense also involved multiple victims." SEXUAL PREDATOR: IMPERMISSIBLE FACTORS CONSIDERED; DEFENDANT'S EXPERT IGNORED. State v Leonard, No. 00AP-185 (10th Dist. Ct. Apps., Franklin Co., 09-07-2000). In December, 1995, the Franklin County Grand Jury indicted Douglas Leonard on three counts of rape, two counts of felonious sexual penetration, and one count of gross sexual imposition. All charges alleged he used force or the threat of force against the seven-year-old daughter of his girlfriend. In March 1996, the defendant entered guilty pleas to two counts of rape without the force element. Rather than a sentence of life, therefore, the defendant received concurrent sentences of six to twenty-five years. On January 21, 2000, the trial court conducted a hearing to determine if Leonard should be adjudicated a sexual predator. Leonard introduced testimony of a psychologist who opined that the risk that the defendant would re-offend was low. Finding the defendant to be a sexual predator, the court named several factors, including the victim's age and the allegations of force. The court also said that if the defendant were to re-offend "I would be in a pretty bad way[.]" The court failed to remark upon the defendant's psychological evidence. Without holding that a court is precluded from considering force if the force language is dropped in a plea bargain, and without saying that the defendant was prejudiced by the trial judge's remark about how he would appear, the court reversed because, the court said, the trial court had failed to consider the defendant's psychological evidence. Judge Deshler in a concurring opinion writes that, although he agrees the case should be remanded for the court to consider the psychological evidence, he disagrees that the other remarks made by the trial court mean that the trial court considered force or the judge's "appearance" as "factors." The court reversed and remanded for a new hearing. JUDICIAL RELEASE: COURT RETAINS JURISDICTION TO GRANT JUDICIAL RELEASE DESPITE MISSING DEADLINE. State v Riley, No. 00AP-599 (10th Dist. Ct. Apps., Franklin Co., 10-31-00). Having been invited into the home of Warren Carter, Julian Riley and Shawn Powers tied him up and robbed him. Powers severely cut Carter. Riley eventually cut the rope binding Mr. Carter's feet, allowing him to escape. Riley entered a guilty plea to robbery and received a three-year prison term. On August 13, 1999, the defendant filed a motion for judicial release under R.C. 2929.20. The trail court held a hearing on May 5, 2000. The court granted judicial release on May 9, 2000. The state appealed, arguing that the trial court lost jurisdiction when it failed to hold a hearing within sixty days, as R.C. 2929.20 (C) requires. The Franklin County Court of Appeals disagreed. As R.C. 2929.20 (B) allows a court to grant judicial release upon its own motion, the appellate court reasoned, the General Assembly could not have intended a court's delay in ruling on a defendant's motion to divest the trial court of jurisdiction to grant a defendant's motion for judicial release. The court remanded the case because the trial court had failed to give its reasons for granting judicial release, but otherwise affirmed.
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