Ohio Criminal Appeals Lawyer Blog

Today the Second District Court of Appeals took a common sense approach to hearsay in two cases.

In one case (which you can read by clicking here) the defendant got into an accident with another driver. An officer testified that a person - who did not testify - corroborated the other driver's version of events. The prosecutor argued on appeal that there was no hearsay violation because the officer did not testify as to what this witness actually said - just that they corroborated the version of events of the other driver. What??? The Second District did not buy that one and wrote, "there is no substantive difference between allowing a police officer to state which of two opposing views an out-of-court witness corroborated and allowing him to recount the actual substance of an out-of-court witness's statement."

In a second case about a traffic accident (you can read by clicking here) an officer testified that based on a statement of a witness who did not testify, he was able to determine that the defendant was at fault for the accident. Here too the prosecutor argued that there was no problem because this testimony only went to show why the officer's investigation led him to ticket the defendant. But the Second District Court of Appeals determined this was hearsay too.

This interpretation of hearsay makes sense and it is always nice when the law comports with common sense.

The defendant in the decision on appeal you can read by clicking here was convicted of aggravated burglary and felonious assault because he trespassed into his ex-girlfriend's home and threw her out a second floor window. He was also convicted of a Repeat Violent Offender Specification because he had previously been convicted of involuntary manslaughter and aggravated robbery back in 1979. The trial judge sentenced him in the recent case to maximum consecutive terms including 10 years on the RVO Specification. But the trial judge found him guilty of the RVO Specification under 2929.14(D)(2)(b) which required that the offender have three or more convictions of first or second degree offenses of violence within twenty years. Because the State failed to prove the RVO Specification under 2929.14(D)(2)(b), the Second District Court of Appeals reversed and vacated the 10 year term for the RVO Specification.

The Sixth District Court of Appeals reversed a second degree felony burglary conviction because the State failed to prove that "any person other than an accomplice of the offender is present or likely to be present" as required by Ohio Revised Code Section 2911.12(A)(2). If no person is present or likely to be present, burglary under (A)(3) is a felony of the third degree which carries a potential prison term which is a full three years shorter than its second degree felony alternative.

In this case, as you can read by clicking here, the State indicted the defendant for the F2 version under section (A)(2) but then it failed to present sufficient evidence to the jury that anyone was present or likely to be present at the time of the burglary (that did not stop the jury from convicting, however). The Sixth District Court of Appeals determined that the victim, who went back to work after lunch at noon and did not return until six in the evening was not "likely to be present" because the State never presented evidence of when the burglary took place. If the burglary had taken place between 3:30 PM and 5:30 PM, the conviction may have been upheld since the homeowner testified that those two hours are the window in which he usually gets home from work.

This case cited a case I got reversed on appeal for a similar reason as you can read here.

Today the Ohio Supreme Court, in State v. Evans, altered the "Deem Test" used to determine whether an offense is a lesser included offense of another. The Court stated the new test as follows:

"[A] court shall consider whether one offense carries a greater penalty than the other, whether some element of the greater offense is not required to prove commission of the lesser offense, and whether the greater offense as statutorily defined cannot be combined without the lesser offense as statutorily defined also being committed."

The Court also determined that:

robbery as defined in
R.C. 2911.02(A)(2) is a lesser included offense of
aggravated robbery as defined in
R.C. 2911.01(A)(1).

Today in State v. Harris, the Ohio Supreme Court held that

robbery
as defined in R.C. 2911.02(A)(2) and

aggravated robbery
as defined in R.C. 2911.01(A)(1)
are allied offenses of similar import and a defendant cannot be convicted of both when they are committed with the same animus against the same victim as you can read here.