 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
NEW TRIAL: TRIAL COURT ABUSED ITS DISCRETION BY GRANTING MOTION FOR NEW TRIAL WHEN NO FINDING THAT RESULT WOULD PROBABLY BE DIFFERENT. State v Luckett, No. 77527 (8th Dist. Ct. Apps., Cuyahoga Co., 4-26-01). The state appealed from the trial court's granting the defendant's motion for a new trial. Frederick Luckett was indicted for two counts of rape, two counts of kidnapping, and two counts of aggravated robbery arising from separate attacks on two women occurring on the same day, August 4, 1979. He was convicted of both counts of rape and kidnapping and two counts of robbery. Seventeen years later, the defendant filed a motion for a new trial based on the results of DNA testing performed on swabs taken from one victim . One lab reported that the sample was too deteriorated to yield results. A second lab reported that DNA testing excluded the defendant. However, many things about the second test raised questions. For example, the test showed no female DNA, apparently an unusual result. The testing consumed the entire sample. Additionally the victim had died. Although the trial court expressed doubt that a new trial would result in a different verdict, the trial court granted the defendant's motion for a new trial. The state appealed and the Cuyahoga County Court of Appeals reversed. Under State v Petro (1947), 148 Ohio St, 505, the appellate court observed , a new trial motion should be overruled unless the defendant shows that the new evidence could not have been discovered with due diligence, is material, is not merely cumulative, and discloses a strong probability that the result of a new trial would be different. The trial court never said that the result would probably be different. Additionally, such a finding, if the court had made it, would be refuted by the record. The victim was never asked whether her attacker ejaculated and no other evidence showed that the sperm must have come from the rapist. Nothing in the record showed whether the victim had voluntary sex during the relevant time period. As We cannot presume that the rape victim is not sexually active at the time of the offense merely because she was fifty-one or fifty-two years old at the time she was victimized.@ Because the trial court failed to comply with State v Petro supra, the appellate court held that the trial court abused its discretion and reversed. Judge Cooney dissented. EVIDENCE ADMISSIBILITY: PORNOGRAPHY SHOWING ACTS SIMILAR TO THOSE COMMITTED ADMISSIBLE. State v Caes, No. 17917 (2nd Dist. Ct. Apps., Montgomery Co., 3-9-01). Kevin Caes kidnapped a prostitute, Laura Hudgens, from Nashville, Tennessee. Having disabled her with a stun gun, he took her to a house trailer in Clinton, Indiana. He kept her there for three weeks, bound, gagged, and naked. In addition, to forcing her to engage repeatedly in sexual conduct, Caes stabbed her in the eye with an ice pick. Fearing someone had seen Ms. Hudgens, Caes took her to his parents' home in Montgomery County. His parents were on vacation. Caes kept Ms. Hudgens chained to a bed in the basement. While Caes was away, Ms. Hudgens freed herself and triggered the security alarm. Caes returned while the police, who had found Ms. Hudgens, were still there. Caes tried to run over officers standing in the yard. After Caes crashed his car, he was caught. Caes was charged with kidnapping, twenty-two counts of rape, three counts of felonious assault on a peace officer, failure to comply with an officer's order, and unlawful possession of dangerous ordnance. A sexually violent predator specification was attached to the kidnapping and rape charges. A jury returned guilty verdicts on all charges. He was sentenced to consecutive terms, amounting to 22 years to life. On appeal Caes argued that pornographic magazines showing women bound in positions similar to that in which he kept Ms. Hudgens should not have been admitted. Police found the magazine in the defendant's home. The court of appeals held that the magazines rebutted the defendant's claim that God told him to do what he did. In addition to rebutting the defendant's claim of insanity, the court continued, the magazines showed the defendant's intent and plan. The court affirmed the convictions. DOUBLE JEOPARDY: ELEMENTS TEST State v Morris, No. 18321 (2nd Dist. Ct. Apps., Montgomery Co. 3-9-01) The state appealed from the trial court's dismissing an indictment charging Lester Morris with one count of sexual battery and one count of attempted sexual battery. The alleged victims were his twin daughters. Morris had originally been convicted of one count of rape, one count of attempted rape, and one count of corrupting another with drugs. The Montgomery County Court of Appeals reversed his convictions for rape and attempted rape. Morris served a sentence for corrupting another with drugs. The appellate court reversed the rape and attempted rape convictions because the court found the evidence insufficient to prove that Morris had administered an intoxicant to the victims by force, threat of force, or deception. After the reversal, the state indicted Morris on sexual battery and attempted sexual battery. The trial court granted the defendant's motion to dismiss the indictment saying, "[t]he facts of the present case indicate that the conduct the defendant is being charged with is the same as under which he was ultimately acquitted.... To sustain the present charges would subject the defendant to double jeopardy since this would be a relitigation of issues determined in the first prosecution." The state appealed and the Montgomery County Court of Appeals reversed. Under Grady v Corbin (1990) 495 U.S. 508, the appellate court observed, the trial court would have been correct. However, the court continued, the United States Supreme Court in United States v Dixon (1993), 509, U.S. 688 overruled Grady v Corbin, supra. The court in Dixon held that it was a mistake to adopt the "same conduct" test in Corbin. Under Blockburger v United States (1932), 284 U.S. 299, rape and attempted rape are different offenses from sexual battery and attempted sexual battery, because rape and sexual battery each has an element that the other lacks. The appellate court reversed and remanded for trial. ESCAPE: FROM POST-RELEASE CONTROL State v Walls, No. 77895 (8th Dist. Ct. Apps., Cuyahoga Co., 3-1-01). The state appealed from the trial court's dismissing an indictment charging Ronald Walls with escape for violating the terms of his post-release control. The opinion fails to report appellee's original offense or his alleged violation of post-release control. The trial court relied on the appellate court's case of State v Jones (Sept. 2, 1999), No. 74247, unreported, in which the court had held that the post release control statute was unconstitutional. However, the Ohio Supreme Court in State v Jones (2000), 89 Ohio St. 3d 519, reversed the appellate court's opinion. Therefore, the Cuyahoga County Court of Appeals reversed and remanded the instant case for trial on the escape charge. EXPUNGEMENT: STATE'S FAILING TO OBJECT NOT A WAIVER. State v Barnett , No. 78941 (8th Dist. Ct. Apps. Cuyahoga Co., 5-34-01). Without holding a hearing, the trial court granted the motion to seal records filed by Jeffrey Barnett. Barnett had been convicted of aggravated assault. The state appealed. The defendant argued that the state had waived any error by failing to object. Without addressing the issue of waiver explicitly, the Cuyahoga County Court of Appeals reversed. As aggravated assault is both an offense of violence and a felony, the court said, R.C. 2953.36 prohibits expungement. Therefore, the court held, the trial court had been without jurisdiction to grant the motion.
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