 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
POST-RELEASE CONTROL STATUTE UNCONSTITUTIONAL. State v. Duncan, No. C-990582 (1st Cir. Ct. Apps., Hamilton Co., 04-14-00). The first District Court of Appeals has joined the Third, Sixth, and Eighth District Courts of Appeals in holding the post-release control statute unconstitutional. Dwain Duncan was released from prison after serving his full sentence for corruption of a minor. Having violated the terms of his post-release control, Duncan was ordered to complete an eighteen month program at the Volunteers of America. He failed to complete the program and was charged with escape. His motion to dismiss having been overruled, Duncan entered a no contest plea. He was found guilty and appealed. The Hamilton County Court of Appeals held that R.C. 2967.28 was an unconstitutional delegation of authority to the Adult Parole Authority. The court also held that appellant had been denied due process because punishment had been imposed upon him without criminal prosecution. As appellant was unlawfully under post-release control, the court concluded, he could not lawfully be charged with escape. The court reversed and ordered the defendant discharged.
EXPERTS: EXPERT MAY BASE OPINION IN PART ON STUDIES NOT ADMITTED, WHEN. State v Flowers, No. 99AP-530 (10th Dist. Ct. Apps., Franklin Co., 05-4-00). Arlest Flowers was charged with two counts of rape and one count of kidnapping. Each carried a specification that the defendant was a sexually violent predator under R.C. 2941.148. The defendant chose to have the court try the specifications. The court acquitted him of the specifications. The jury convicted him of both counts of rape and kidnapping. The defendant became friendly in 1997 with Debra Green. Debra had three children: Aundrea, Tameka and B.J. The defendant dated Debra regularly for a short time, and thereafter visited her about once a month. On September 12, 1998, the defendant visited Debra's apartment for about an hour early in the evening to talk about his grandfather's recent death. Later that evening, Debra went out, leaving Aundrea, Tameka and Tameka's boyfriend at home. The defendant called at about 1:30 a.m. Although Aundrea told him her mother was away, the defendant asked if he could come visit to seek consolation over his grandfather's death. Aundrea agreed. [Ed. Note: The opinion fails to give the ages of either the defendant or the children. However, the context appears to indicate that Aundrea at the time of the offense was an older teenager]. After talking with Aundrea for a while, the defendant tried to kiss and fondle her. She escaped into the house but the defendant pursued her. Ultimately he forcibly performed cunnilingus on Aundrea and forced her to engage in vaginal intercourse. He told her that Debra would have to accept that he was "now going to be Aundrea's boyfriend." Aundrea thought not. She fled to the kitchen and called 911. The police arrested the defendant as he left Debra's house. The usual rape protocol examination at Grant hospital revealed no semen and no vaginal trauma. The emergency room physician testified he rarely saw vaginal trauma in victims of sexual assault. He mentioned a study at a Detroit hospital that found vaginal trauma in only 7% of sexual assault victims. The study was not introduced into evidence and the defendant failed to object to the testimony. On appeal, the defendant argued that the doctor's reference to the study violated Evid. R. 703, which provides: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing. The defendant relied upon State v Chapin (1981), 67 Ohio St. 2d437, in which the Ohio Supreme Court held that a psychiatrist who had never examined the defendant could not offer an opinion based on writings not admitted into evidence. The Franklin County Court of Appeals held the evidence properly admitted. The doctor in the instant case, the court said, based his opinion on his own observations of patients he had treated. Since Dr. Klein's testimony regarding the incidence of genital trauma in sexual assault cases was based in major part upon information perceived by Dr. Klein, there was no violation of Evid. R. 703. Thus the trial court did not error [sic] in permitting that portion of his testimony. The court affirmed the conviction. EVIDENCE, ADMISSIBILITY: LIMITED EVIDENCE OF COURSE OF INVESTIGATION ADMISSIBLE TO REBUT DEFENSE COUNSEL'S OPENING STATEMENT. State v Carey, No. 99AP-517 (10th Dist. Ct. Apps., Franklin Co., 5-4-2000) Helen Carey, a licensed practical nurse at Good Shepard Community Care Center, was charged with two counts of patient abuse and one count of felonious assault, arising from her attack upon a thirty-year-old metally retarded female patient, Robin Halley. Ms. Halley tends to wander away. The defendant saw her leaving and chased her. The defendant knocked Ms. Halley down and kicked her several times. She then dragged her back to the facility. While in the elevator, the defendant shoved the patient's slipper into Ms. Halley's mouth. Ms. Halley suffered a broken tooth and bruises. Although several people saw the attacks, everyone was afraid to intervene. No one called the police. The next day, the nursing supervisor, who had witnessed the attack, reported the incident. The defendant remained on the job for an unspecified time. A signigicant amount of time later, the attorney general's office investigated and, later still, the prosecutor indicted the defendant. In opening statement, defense counsel implied that the state had mishandled the investigation. He told the jury his client had lost her job "but that has nothing to do with the criminal charges." His purpose appears to have been to convince the jury to consider the defendant's conduct or the victim's injuries insignificant, because state officials must have considered them insignificant. The prosecutor called a retired police officer, now employed as an investigator for the attorney general's office, to describe the course of the investigation and ultimate referral to the prosecutor's office. The defendant claimed that this testimony implied that other people had determined that the defendant was guilty. The jury acquitted the defendant on one count of felonious assault and convicted her of one count of felonious assault and the charge of patient abuse. The defendant appealed. The court of appeals held that the trial court acted within its discretion in allowing the prosecutor to present limited testimony rebutting the inferences in defense counsel's opening statements. The appellate court affirmed the conviction. INFORMANTS: INDENTITY PROTECTED WHEN. State v Daniels, No. C-990549 (1st Dist. Ct. Apps., Hamilton Co., 3-17-2000) The state appealed from the trial court's order to reveal the name of a confidential informant. The police watched Alexjandro Daniels and his co-defendant for 72 hours. Daniels and the other person appeared to be selling drugs. The police arranged for a confidential informant to buy drugs. The police then obtained a search warrant for Daniels's apartment. Officers found cocaine inside. The trial court ordered the state to reveal the identity of the informant and the state appealed. The Hamilton County Court of Appeals reversed. The court held that the trial court had abused its discretion. The defendant argued that he was not present at the sale to the informant and that only the informant could verify that. The court observed that the defendant was charged not with trafficking but with possession. Therefore whether he was present during the controlled buy was irrelevant. The court reversed and remanded for trial. INDICTMENT: ILLEGAL USE OF MINOR IN NUDITY ORIENTED MATERIAL REQUIRES ALLEGATION OF LEWD EXPOSITION OR GRAPHIC FOCUS ON GENITALS. State v Moss, No. C-990631 (1st Dist. Ct. App., Hamilton Co., 5-14-200) Marin Moss entered a no contest plea to illegal use of a minor in nudity-oriented material, in violation of R.C. 2907.323 (A)(3), which provides as follows: ***
(A) No person shall do any of the following: The court found the defendant guilty and he appealed. On appeal he claimed that the evidence was insufficient because a person pleading no contest can be found guilty only if the indictment states all elements of an offense. In State v Young (1988) 37 Ohio St. 3d 249, reversed on other grounds, citing Osborne v Ohio (1990), 495 U.S. 103, the Ohio Supreme Court interpreted, R.C. 2901.323 (A)(3) as requiring the nudity to be a "lewd exhibition or ... graphic focus on the genitals." Therefore, the Hamilton County Court of Appeals held, that language must be included in the indictment. Therefore, we must conclude that the facts alleged in the indictment were insufficient to state a punishable offense.... Moss's first assignment of error is sustained. The judgment of the trial court is reversed and [Moss is discharged from further prosecution]. The dissent disagreed that the language must be included in the indictment, believing it sufficient if evidence of graphic focus on genitals is proved. [Ed. Note: Neither the majority nor the dissent comments upon why the defendant was "discharged from further prosecution." As the majority found that the indictment was insufficient to charge an offense, the defendant was never in jeopardy. To be twice in jeopardy one must be in jeopardy. Neither opinion mentions double jeopardy, but that appears to have been the reasoning behind the court's remark that the defendant was excused from further prosecution.] |
