Ohio Criminal Appeals Lawyer Blog

The Sixth Amendment to the Constitution of the United States and Section 10, Article I of the Constitution of Ohio give criminal defendants the right to counsel in most situations in the trial court. And it is not easy to waive your right to an attorney. Apparently, properly accepting a waiver of counsel is not easy for trial judges because a significant number of convictions are reversed on appeal because trial judges allow defendants to proceed without a lawyer even without an adequate waiver.

The case of State v. Brock, 2009-Ohio-6182, is the most recent example. The Licking County man showed up to his trial without a lawyer. The trial judge basically asked him if Brock wanted to proceed without a lawyer and Brock said, "yes, sir."

Of course that does not amount to an adequate waiver of counsel. Check out the Licking County Court of Appeals decision by clicking here if you want to see what the trial judge should have done.

So says the Twelfth District Court of Appeals in the case of State v. Spicer, 2009-Ohio-6173. Spicer was convicted of possession of drug paraphernalia and he appealed. The Court of Appeals reversed and discharged Spicer because the State failed to deliver sufficient evidence to support his conviction.

When Officer Johnson of the Hamilton Police Department stopped Spicer for a minor traffic offense, Johnson saw a digital scale in the car that was covered with a white powdery substance. If that substance had been crack or powder cocaine, the State would have little trouble getting their conviction for possession of drug paraphernalia. But in this case the State presented no evidence that the white powdery substance was in fact crack or powder cocaine. The Twelfth District wrote, "[m]ere possession of a digital scale, without more, is not a criminal offense."

Officer Johnson testified that the substance appeared to be crack or powder cocaine, but he conceded that chalk dust and talcum powder also could appear to be white and powdery. Did Officer Johnson or the prosecutors think the substance was chalk or talcum powder? Of course not, but this case is a good illustration of what the State has to do to prove a case "beyond a reasonable doubt." Mere speculation is not enough. The State has to prove every element of an offense beyond a reasonable doubt. The State failed in this case and you can read the decision by clicking here.

Sometimes prosecutors make improper arguments and the Court of Appeals warns them not to make them again. Maybe the argument did not result in reversible error this time, but in the right case under the right conditions it could. Criminal defense lawyers on appeal should keep an eye out for these.

For example, in a recent case involving the rape of a child under thirteen years of age (click here for the case), a prosecutor made the following argument:

"And I think you would all agree with me that one of the decisions that's the most important in your life is who you leave your kids with, who you let baby-sit your kids. And since he asked you about forming opinions on the most important things in the victim's life, I'm going to ask you this: 'Would you let this defendant baby-sit your four-year-old daughter? Would you?"

The Second District Court of Appeals found this argument to be improper. It was "irrelevant and inflammatory" and "only served to incite passion and open the door to the consideration of improper facts in rendering judgment." Keep your eyes and ears open for arguments like this.

According to the Ohio Supreme Court's decision in State v. Robinson, 2009-Ohio-5937, "the damaging of a single private telephone or cellular telephone disrupts public services in violation of R.C. 2909.04(A)(3) if the conduct substantially impairs the ability of law-enforcement officers, firefighters, rescue personnel, emergency-medical-services personnel, or emergency-facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm." Read the decision by clicking here and view the oral argument by clicking here.

The United States Supreme Court in Herring v. New York stated that a defendant has a right to make a closing argument. But in State v. McCausland, 2009-Ohio-5933, the Ohio Supreme Court ruled today that the trial court does not commit reversible error when no closing argument is made by a defendant who neither requests closing argument or objects when the trial court goes on to the next step in the proceeding instead of offering an opportunity for closing argument. If a defendant (or their criminal defense attorney) wants to make a closing argument, they better say something about it on the record or their right to make a closing argument will be waived as you can read by clicking here. Watch the oral argument before the Ohio Supreme Court by clicking here.