 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
SEXUAL PREDATOR: HEARING MUST BE HELD PRIOR TO DEFENDANT'S RELEASE. State v. Rhodes, No. 97APA06-793 (10th Dist. Ct. Apps., Franklin Co., 3-24-98). In 1990, Christopher Rhodes, as part of a plea bargain, entered a guilty plea to attempted rape. In December, 1996, the Madison Correctional Institute notified the trial court that the defendant had been screened pursuant to R. C. 2950.09(C)(1) to determine if he fit the criteria of a sexual predator. On January 13, 1997, prison authorities released Rhodes from prison. On January 31, 1997, the prison warden recommended to the trial court that Rhodes be adjudicated a sexual predator. The court scheduled a hearing for April 11, 1997. Counsel for Rhodes moved to dismiss on the ground that Rhodes had already been released. The trial court granted the motion and the state appealed. R.C. 2950.01(G) provides for a person to be found a sexual predator if, among other things, the following applies: (3) Prior to the effective date of this section, the offender ... was sentenced for, a sexually oriented offense, ... and, prior to the offender's release from imprisonment, the court determines pursuant to division (C) of section 2950.09 of The Revised Code that the offender is a sexual predator. The state argued that the "prior to" language was directory only. The Franklin County Court of Appeals held that the language means what it says and that a court must adjudicate a person a sexual predator before the person is released from prison or not at all. The court affirmed the trial court's order. SEXUAL PREDATOR: A CIVIL PROCEEDING. State v Newton, No. 97APA10-1353 (10th Dist. Ct. Apps., Franklin Co., 6-11-98). The state appealed from the trial court's declaring Ohio's sexual predator statutes unconstitutional. Before ruling that the statute is constitutional, the Franklin County appellate court addressed the issue of whether the state had an appeal as of right or whether the state was required to seek leave to appeal. If a sexual predator proceeding is a civil proceeding, the state may appeal as of right under R.C. 2505.02. If, however, the proceeding be criminal, the state's appellate rights are only those granted in R.C. 2945.67(A). (The state had filed both a motion for leave to appeal and an appeal as of right). Because the burden of proof is clear and convincing, the court held, a sexual predator hearing is a civil matter. Holding the statute constitutional, the appellate court reversed and remanded the case for a determination on whether Newton is a sexual predator. THEFT IN OFFICE: EMPLOYEE'S FAILING TO REPORT NOT IMPLIED CONSENT. State v. Washington, No. 16293 (2d Dist. Ct. Apps., Montgomery Co. , 2-13-98). Helen Washington worked for the Department of Human Services, Child Support / Paternity Division. That office is in the same building as the welfare department. Welfare recipients entitled to food stamps receive cards, similar to ATM cards, called pay-ease cards. Recipients must activate the cards by using a computer located in the welfare office. The computer downloads an amount onto the card. The recipient then uses the pay-ease card and a PIN number to buy food at selected grocery stores, until the amount is spent. A recipient must reactivate the card each month. Helen Washington and her husband owned several apartment buildings. Many of the residents were eligible for food stamps. Mr. and Mrs. Washington bought pay-ease cards from recipients for cash. On several occasions, Mrs. Washington used the computer in the welfare office to activate cards. At least once, a welfare department employee had helped Mrs. Washington remove a "block" from a pay-ease card. (The recipient, probably after using whatever he had bought with the cash Mr. Washington gave him, forgot that he had sold the card and reported it stolen). That incident, however, made welfare employees realize that Mrs. Washington's using the pay-ease computer was something more than what Mrs. Washington claimed, to wit; she was doing a favor by activating the card for a friend because she, Mrs. Washington, worked in the same building. The state charged Helen Washington with six counts of unauthorized use of property, one count of theft in office, and two counts of attempted unauthorized use of property. The charges of unauthorized use were based not on the use of the food stamp benefits, but on the use of the government's computers to activate the cards. The jury acquitted Mrs. Washington of all charges involving unauthorized use of property but convicted her of theft in office. On appeal, Mrs. Washington argued that the state impliedly consented to her using the computers because at least two welfare employees knew she was using the computer, and even assisted her for several months. Those employees testified they knew Mrs. Washington's mother-in-law at one time had received benefits, and assumed Mrs. Washington was using the computer to activate her mother-in-law's card. The court rejected appellant's argument with little discussion, and affirmed the conviction. EVIDENCE: ADMISSIBILITY: SOCIAL WORKER PRIVILEGE. State v. Mooneyham, No. CA97-10-028 (12th Dist. Ct. Apps., Preble Co., 5-4-98). Albert Mooneyham was charged with theft and receiving stolen property. Having lost a motion to exclude the testimony of Chris Petry, Mooneyham's case manager at the Preble County Counseling Center, Mooneyham entered guilty pleas. On appeal he argued that the trial court should have ruled that incriminating statements Mooneyham made during group therapy sessions were inadmissible under R.C. 2317.02(G)(1), which creates a privilege for confidential communication to social workers or counselors licensed under R.C. Chapter 4757. Although Chris Petry was neither a licensed social worker nor a licensed counselor, he conducted group therapy sessions with about fifteen participants. Therefore, the Preble County Court of Appeals held, the statements were unprivileged because they were neither confidential communications nor were the statements made to a person covered by the privilege. The court affirmed the conviction. POSTCONVICTION PETITION: RES JUDICATA; RAISE IT OR WAIVE IT. State v. Lelux, No. 97APA10-1308 (10th Dist. Ct. Apps., Franklin Co., 6-11-98). Douglas Lelux was charged in December, 1995 with aggravated trafficking in 1994. For reasons unspecified in the opinion, he was not sentenced until July 12, 1996. He claimed he should be sentenced under S.B. 2. The trial court rejected that argument and sentenced Lelux under the old law. He appealed his conviction, claiming the court failed to comply with Crim. R. 11 when the defendant entered a guilty plea. The appellate court affirmed. Lelux then filed a petition for postconviction relief, asserting he should have been sentenced under S.B. 2. The trial court dismissed the petition and Lelux appealed. For the first time on appeal, the state argued that the issue was barred by the doctrine of res judicata, as the defendant could have raised it on appeal. The court held that res judicata is an affirmative defense that must be raised as soon as possible. As the state had failed to raise the defense in its response to the postconviction petition, the state could not raise the issue on appeal. However, the court affirmed the trial court's order as the petition was unmeritorious. |
