 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
JAIL TIME CREDIT: NO CREDIT FOR TIME SPENT ON ELECTRICALLY MONITORED HOUSE ARREST. State v. Shearer, No. WD-98-078 (6th Dist. Ct. Apps., Wood Co., 12-17-99). In 1997, James Shearer was convicted of an unspecified offense. The trial court granted an appellate bond, but ordered electronically monitored house arrest. The appellate court reversed the conviction. Shearer either pled guilty or was tried a second time (the opinion fails to say). At a sentencing hearing on October 13, 1998, Shearer asked the trial court to grant jail time credit for the time Shearer spent on the house arrest while prosecuting his appeal. The trial court refused and Shearer appealed. The Wood County Court of appeals affirmed. A convicted defendant is unentitled to jail time credit for time spent on house arrest. SEARCH AND SEIZURE: OBSCENITY MAY BE SEIZED WITHOUT A WARRANT WHEN. State v. King, No. WD-99-031 (6th Dist. Ct. Apps., Wood Co., 12-23-99). The state appealed from the trial court's granting the defendant's motion to suppress. Lake Township Police Sergeant James Goodenough, while in uniform, was patrolling as he monitored a CB radio channel. A male truck driver announced he had adult videos for sale. Sergeant Goodenough expressed interest in the videos and the person on the radio directed him to a truck stop, where Edward King sat in his truck. Approaching King's truck, the officer saw a video box cover depicting what the officer believed to be obscene nudity. King denied knowing that selling such videos is illegal. Having consulted with the prosecutor, the officer seized seventeen tapes and arrested King. After the officers watched two of the videos, they charged King with pandering obscenity, R.C. 2907.32(A)(2). The trial court granted the defendant's motion to suppress the evidence. Reviewing first amendment cases, which usually require a prior determination that matter is obscene, the appellate court reversed. The court held that the mobility of the truck and the existence of probable cause that the material was obscene justified an immediate seizure. The court remanded for trial. EXPERTS: TESTIMONY REGARDING BEHAVIOR OF PARENTS OF ABUSED CHILDREN ADMISSIBLE, WHEN. State v. Wells, No. 17501 (2nd Dist. Ct. Apps., Montgomery Co., 1-7-2000). Thomas Wells was charged with one count of attempted rape and two counts of rape, the alleged victim being the eight-year-old son of Wells's live-in girlfriend. The victim's mother, Traci Smith, testified that she saw the defendant on his knees, hunched over the genital area of her sleeping son. When Wells saw Ms. Smith, he quickly arose and left for work. After discussing the incident with friends, Ms. Smith called the police. During trial, Ms. Smith testified that her son had experienced behavioral problems over the last year and that he had told her "some particulars" of prior incidents. She did not describe those particulars. A jury acquitted the defendant on the attempted rape but was unable to agree on the two rape charges. At the retrial on the two charges, Ms. Smith testified as she had at the first trial. Additionally, an expert on child abuse, Dr. Ralph Hicks, testified that the child's failing to report the incidents sooner was consistent with behavior by victims of child abuse. Dr. Hicks also testified that his experience with parents of sexually abused children told him that Ms. Smith's behavior (failing to immediately call police) was consistent with the reaction of other parents in similar circumstances. The defendant was convicted and he appealed. Without addressing the legal question, the court held that Dr. Hicks's testimony about Ms. Smith's reaction "does not mean Dr. Hicks was vouching for her veracity." The court affirmed the conviction on one count. Holding the evidence insufficient to prove penetration on the second count, the court ordered that charge reduced to attempted rape. The appellate court remanded for resentencing. [Ed. Note: Query: Do we now have a "parents-of-abused child syndrome?"] TRESPASS: DRUG EXCLUSION ZONE ORDINANCE CONSTITUTIONAL. State v. Burnett, No. C-981003 (1st Dist. Ct. Apps., Hamilton Co., 12-23-99). On February 7, 1998, Burnett was arrested for a drug-related offense in Over-the-Rhine, an area of the city of Cincinnati that had been designated by ordinance as a "Drug-Exclusion Zone." Burnett was issued a "Notice of Exclusion" that prohibited him from entering Over-the-Rhine for ninety days. The notice also provided that Burnett would be subject to arrest for criminal trespass if he was found within Over-the-Rhine within the specified ninety-day period. On February 25, 1998, following his conviction for the drug offense, Burnett was issued a second Notice of Exclusion pursuant to Cincinnati Municipal Code Chapter 755. This notice prohibited Burnett from entering Over-the-Rhine for one year and provided that violation of the exclusion order would subject him to prosecution for criminal trespass. Thereafter, on June 23, 1998, police saw Burnett in Over-the-Rhine. They arrested him and charged him with criminal trespass. Overruling Burnett's motion to dismiss the charge, the trial court, sitting as the fact-finder, convicted Burnett. In September 1996, in an effort to curb the concentration of drug-related activity associated with specific areas of Cincinnati, the city council modified the Cincinnati Municipal Code by ordaining Chapter 755, entitled "Drug-Exclusion Zones." Chapter 755 permits the council to designate specific areas within the city as drug-exclusion zones based on the higher incidence of drug-related crimes in those areas. To date, the only designated drug-exclusion zone is Over-the-Rhine. Pursuant to this designation, a person arrested within Over-the-Rhine for drug abuse, or any drug-abuse-related activity, is subject to exclusion from the public streets, sidewalks, and other public ways within Over-the-Rhine for a period of ninety days. If that person is later convicted of the drug offense, he or she is then subject to a second exclusion, which continues for a period of one year. Furthermore, if an excluded person is found in Over-the-Rhine during one of these two exclusion periods, that person is subject to immediate arrest for criminal trespass pursuant to R.C. 2911.21. Burnett argued the ordinance was overly broad because it prohibited protected conduct, interfered with the right to assemble, and interfered with the right of travel. The appellate court dismissed the last claim by observing that the constitution protected only interstate travel. The court held that the ordinance was a narrowly tailored remedy rationally related to the significant governmental interest of curbing drug trafficking. The court also rejected the argument that the ordinance usurped the authority of the General Assembly. Judge Painter, in a concurring opinion, wrote that he would apply not the rational basis test but the "intermediate scrutiny" test, applicable to some rights that fall short of fundamental rights but are too important to allow regulation under the rational basis test. BILL OF INFORMATION: WAIVER MUST BE IN WRITING: WHAT "IN WRITING" MEANS. State v. Willis, No. WD-99-015 (6th Dist. Ct. Apps., Wood Co., 12-30-99). Christopher Willis was charged with burglary. At his initial appearance in the Bowling Green Municipal Court, the defendant was represented by court-appointed counsel. The Municipal Court's judgment entry provided "Def. waives right to GJ indictment." On the same document, appear the words "I waive PREL. H." followed by Willis's signature. By the time the defendant appeared in the common pleas court, he had changed his mind. The court appointed new counsel at the defendant's request. The case went to trial on a bill of information that had been filed after initial appearance. After the jury had been sworn, the defendant moved to dismiss on the ground that he had been denied his right to indictment. The trial court overruled the motion and the defendant was convicted. The Wood County Court of Appeals reversed. Crim. R. 7(A) provides that "after the defendant has been advised by the court of the nature of the charge against the defendant and of the defendant's right to indictment, the defendant may waive that right in writing and in open court." The trial court had said that the defendant's "oral waiver" was sufficient. The appellate court held that Crim. R. 7 requires the waiver to be in writing. The court reversed. [Ed. Note: Apparently the only issue that concerned the court was that the waiver was not "in writing." The opinion says nothing suggesting that the appellate court was disturbed by the waiver's occurring in municipal court or that the municipal judge had failed to explain the defendant's right to indictment. The opinion also fails to explain why the defendant's signature on a document, part of which contains the words "Def waives GJ indictment" is an "oral waiver."] |
