Ohio

Case Update

Nothing but appellate decisions to report this week, so we’ll take a little more extended look at them than we usually do.  (And perhaps we’ll have my therapist take a more extended look at my newfound tendency to refer to myself in the first person plural.)

A huge 4th Amendment decision from the 6th District saves the defendant from a life prison sentence in State v. Gould.  Gould had a penchant for child pornography, and unaccountably gave the hard drive containing it to his mother, telling her not to let anyone else see it.  She did; what’s worse, the “anyone else” were the police, to whom she gave the drive.  The trial court upheld the search, saying that the hard drive was abandoned property.  The mother’s testimony at the hearing, though, was that the son had initially given it to her, then taken it back, and then the mother had retrieved it from the son’s apartment and taken it to the police, after her other son told her that he believed it contained child porn.  (Some family drama, huh?)  The 6th concludes that this doesn’t constitute evidence of abandonment.  The State also argues that the seizure of the hard drive wasn’t “state action” — the mother had obtained it, and turned it over to the police.  That argument comes a cropper, though, on the distinction between a search and a seizure:  while the mother’s actions make the seizure legal, the cops still needed a warrant to search the hard drive’s contents.

In other criminal cases, in State v. Gibson the 8th District reverses a no contest plea because the defendant didn’t understand its consequences, due no doubt to the judge’s having him sign a jury waiver, and telling him that “I will make the decision based upon the facts presented whether you’re guilty or not.”  Doesn’t work that way; a no contest plea requires a guilt finding unless the indictment or complaint fails to state an offense.  It also reverses a juvenile court delinquency adjudication.  The defendant had been charged with rape by force; after the evidence, the court acquitted him of that, but amended the charge to rape by substantial incapacity and found him guilty.  Can’t do that, the court says in In re C.A.; a juvenile court can amend a complaint only to charge a lesser included offense. 

 A couple civil decisions worth mentioning.  In Servpro v. Kinney, the 9th District holds that the trial judge erred in not holding a hearing on defendant’s motion for sanctions for frivolous conduct; although a voluntary dismissal normally terminates the trial court’s jurisdiction, it doesn’t for that.  In Hayward v. Bellman, the 6th District rejects the appellant’s attempt to use an AppR 9(C) statement of proceedings instead of a transcript; although the rule says that the statement can only be used if a transcript is unavailable, the Supreme Court has held that an indigent appellant can use the rule, too.  Unfortunately for his case (though not unfortunately for him), the appellant wasn’t indigent.

Finally, a reminder in Hillman v. Edwards that you have to give a reason if you file an answer out of rule, and the judge has to find excusable neglect.  Hillman had sued Edwards for legal malpractice, and filed a default judgment motion when Edwards didn’t answer.  Edwards answered tardily, the court denied the default  judgment, and wound up granting Edwards summary judgment.  Hillman appealed that, and the 10th District reversed and remanded it for a determination of whether Edwards had good cause to file the late answer, and said the summary judgment could stand if the trial court decided he did.  That’s what happened, and the court affirms.  To show you how my mind works, or doesn’t, the opinion contains a cite to Scarefactory, Inc. v. D&B Imports, which I looked up, and sure enough, ”appellants operated a haunted attraction in Coney Island.”

Full post as published by The Briefcase on August 02, 2010 (boomark / email).