 | Written and Edited by Joyce S. Anderson, Former Chief Counsel Appellate Division, Franklin County
MULTIPLE COUNTS: PANDERING SEXUALLY ORIENTED MATERIAL INVOLVING A MINOR AND ILLEGAL USE OF A MINOR IN NUDITY ORIENTED MATERIAL, SEPARATE. State v. Bloom, No 22103, (2d Dist. Ct. of Apps., Montgomery Co., 4-11-08). The defendant was convicted on one count of pandering sexually oriented material involving a minor in violation of R.C. 2907.322(A)(5) and seven counts of illegal use of a minor in nudity oriented material, in violation of R.C. 2907.323(A)(3). The defendant argued the offenses should merge under the facts of his case. The Second District Court of Appeals, however, observed that the Ohio Supreme Court has held that the merger issues under R.C. 2941.25 depend not on the particular facts of any case but on the statute as written. As R.C. 2907.322(A)(5) and R.C. 2907.323(A)(3) each has an element that the other does not, the court held, the offenses are separate and the defendant could be sentenced on each count of the eight counts separately. The appellate court affirmed.
POST CONVICTION: WITNESS RECANTS; DIFFERENT JUDGE MAY DETERMINE CREDIBILITY WITHOUT A HEARING. State v. Hines, No. 89848, (8th Dist. Ct. Apps., Cuyahoga Co., 4-24-08). Having been convicted of drug possession, drug trafficking, and possession of criminal tools, Stephen Hines filed a post conviction petition, to which he attached an affidavit of a co-defendant, Anthony Mason, who had testified for the state at trial. Mason's affidavit, 1) recanted his testimony; 2) accused the police of coercing his testimony by threatening his sister; and 3) accused the prosecutor and the police of suborning his perjury. The judge who presided over the trial had been appointed to the federal bench. A different judge dismissed the petition without a hearing, and the petitioner appealed, asserting that a judge who had never seen Anthony Mason could not decide the credibility of his affidavit. Relying on State v. Calhoun, (1999) 86 Ohio St. 3d 279, the Cuyahoga County Court of Appeals affirmed. The Ohio Supreme Court held that a trial court may judge the credibility of affidavits without holding a hearing. Moreover, as the Cuyahoga appellate court observed, courts have always been suspicious of recanting witnesses. Although the judge who dismissed the petition had not seen Anthony Mason, the appellate court held, the judge could consider the record, which included other evidence of the defendant's guilt; consider the status of the affiant, who had after trial been convicted of perjury in an unrelated matter; and consider the over-the-top accusations in the affidavit, to decide that the truth and Mr. Mason were unacquainted. The court affirmed.
BURGLARY: SUFFICIENT EVIDENCE; SEPARATE ROOM OF CHURCH. State v. Zylko, No. CR-463657, 476735, (8th Dist. Ct. Apps., Cuyahoga Co., 6-12-08) 2008 Ohio 3032. Lawrence Zylko telephoned our Lady of Angels Church in Cleveland, making an appointment to meet with Deacon Thomas Senn. Although the two men had never met, Deacon Senn agreed to meet Zylko at the church. They talked in a waiting area, adjacent to the church secretary's office. Deacon Senn left Zylko alone in the waiting room to retrieve a bag of food and two gift cards for a local grocery, which he gave to Zylko. After Zylko left, Deacon Senn discovered that over $3,000.00 in gift cards were missing from the office of the temporarily-absent secretary. Zylko admitted to police that he took the cards. He was convicted of, among other charges, burglary. On appeal he argued the state had failed to prove trespass as he had permission to be at the church. The appellate court easily rejected that argument for two reasons: Zylko did not have permission to enter the office and, it is reasonable to infer that permission to be in an occupied structure is revoked when the invitee commits a crime therein.
INTIMIDATION OF A WITNESS: WEIGHT OF EVIDENCE: VAGUE, IMPLIED THREAT. State v. Zylko, supra. After being charged with burglary and theft, Zylko was released. He left a message on Deacon Senn's answering machine saying that he couldn't believe he was being charged with a crime after Deacon Senn had touched him inappropriately on the leg during their talk. Police charged him with intimidation of a witness. The defendant claimed the state failed to prove that he "threatened" Deacon Senn with "any calumny," as required by R.C. 2905.12, which serves as a predicate for an offense of intimidation under R.C. 2921.04. The defendant was convicted of witness intimidation and he appealed. The Cuyahoga County Court of Appeals held that it could be inferred that the defendant's message was intended to coerce Deacon Senn into declining to testify by threatening to spread malicious, false, rumors that would harm Deacon Senn's reputation. The court affirmed all three convictions. SENTENCING: FACTORS IN R.C. 2929.11(B); RAISE IT OR WAIVE IT. State v. Acevedo, No. 90098, (8th Dist. Ct. of Apps., Cuyahoga Co., Released 5-29-08; journalized 6-10-08) 2008 Ohio 2814. Pursuant to a plea agreement, Vincente Acevedo entered guilty pleas to seven charges and specifications, including drug charges, possession of criminal tools, and having a weapon while being under disability. The state asked the court to enter a nolle prosequi to each of several other similar charges. The trial court sentenced him to a total of eleven years. On appeal he argued his convictions should be reversed because nothing in the record showed that the court had considered whether the sentences were "consistent" with sentences for other offenders, as required by R.C. 2929.11(B). The appellate court affirmed saying, essentially, 1) Acevedo should have told it to the trial judge; 2) trial courts no longer have to explain themselves; and 3) Acevedo got the sentences he deserved.
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