Ohio

What’s Up in the 8th

Mostly criminal cases this week…

There have been any number of decisions on advising a defendant of post-release control at sentencing, and State v. Sneed is another, with a bit of a twist.  The trial judge had orally advised the defendant of PRC, but forgot to include it in the journal entry.  Despite a plethora of cases holding that this renders the sentencing void, requiring a re-sentencing, the 8th holds that it can merely reverse and remand the case for correction of the journal entry.  That might be one to keep an eye on.

In State v. Taylor, the trial court had held that a prior child endangering conviction couldn’t be used to elevate a second one to a felony, stating that the plea to the first one was invalid because the defendant hadn’t been advised of the fact that the misdemeanor plea could be used to enhance a second charge.  The 8th District reverses, ruling that nothing in the criminal rules requires that a defendant be advised of the potential enhancement consequences of a plea.

The expert witness in a child sex rape trial, a nurse practitioner, says that her diagnosis is that “there was a good likelihood that [the child] had been sexually abused.”  In State v. West, the court reverses the defendant’s convictions, holding that this was impermissible testimony on the child’s veracity.  The court acknowledged that “a medical expert may make a diagnosis of. sexual abuse, despite a lack of physical  findings, if the expert relies upon other facts in addition to the child’s statements in reaching such diagnosis,” but said there was nothing besides the child’s statements here.  Another factor might have been that the 8th had previously reversed two other cases where this same expert testified, for the same reason.

Simeone v. Schwebel Baking Co. is the only civil case, and the court hands down a rarity:  a reversal of a grant of summary judgment in an open-and-obvious case.  The plaintiff was pushing a shopping cart out of a store, and tripped after the front wheels were caught in a commercial mat that was “curled up.”  The court found “attendant circumstances” because “the possibility of customers pushing shopping carts over a commercial mat increased the risk of the mat curling, rumpling, buckling, or sliding.”  Judge McMonagle probably has the better argument in dissent, arguing that the issue wasn’t the open and obvious doctrine, but the fact that there wasn’t any evidence that the shopkeeper had notice that there was anything wrong with the rug.

Full post as published by The Briefcase on October 14, 2008 (boomark / email).