Ohio Criminal Appeals Lawyer Blog

A Trotwood, Ohio, neighbor was convicted of criminal mischief in violation of R.C. 2909.07(A)(1) because he wrote a note on an 8x10 piece of paper, placed it on top of his neighbor's trash container, and covered it with a stick so the note would not blow away. The neighbors got the note which was less than flattering and of course they contacted the cops. The neighbor who left the note was charged with criminal mischief which required that he "move, deface, damage, destroy, or otherwise improperly tamper with the property of another." He was found guilty by Judge James L. Manning at a bench trial. But the Second District Court of Appeals reversed and vacated the conviction because they agreed with me that leaving a piece of paper on top of a trash container does not qualify as criminal mischief as you can read here.

A fifth degree felony (carrying a penalty of up to 12 months in prison and a $2500 fine) was just reduced to a fourth degree misdemeanor (carrying a penalty of up to 30 days in jail and a $250 fine) because I successfully argued on appeal that the State failed to prove an essential element of the offense of breaking and entering. The State was required to prove that the structure the defendant broke into was "unoccupied." The Second District Court of Appeals agreed with me that the State failed to meet their burden and instead imposed a conviction for criminal trespassing in violation of Revised Code Section 2911.21 (a fourth degree misdemeanor). Since the defendant was sentenced to the maximum 12 months on the B&E, his sentence will essentially be reduced to the maximum 30 days for the criminal trespass. Judge Fain points out that this is an "unsatisfactory result" and he urges in a concurring opinion that the General Assembly fix this problem in the law that allowed me to help this defendant on appeal. Read the decision by clicking here. If you need help with an appeal, contact me by clicking here.

Not Ohio police officers. The Ohio Supreme Court ruled today in City of Barberton v. Mark Jenney, 2010-Ohio-2420, that if a police officer 1) is trained in estimating a vehicle's speed by eyeballing it, 2) is certified by some organization that trains police, and 3) has experience in estimating speeds, then no other evidence is needed to support a conviction for speeding. Never mind that this officer's estimate was twelve MPH off of what his radar said the car was doing. Read the decision here or review oral argument here.

The Eleventh District Court of Appeals of Ohio reversed a conviction for public intoxication because the defendant was intoxicated on private property. The trial court reasoned that the private property was "public" because it was accessible to the public. But the Court of Appeals said that such reasoning "would render virtually all private property public." Read the decision by clicking here.

R.C. 2919.27 prohibits the reckless violation of a protection order. It is usually a misdemeanor of the first degree. But if the defendant previously pleaded guilty or was convicted of violating a protection order, violating a protection order is a felony of the fifth degree. The parties in this case stipulated to five facts and submitted the case to the trial judge for a decision. But the parties did not stipulate to the fact that the defendant was previously convicted of violating a protection order. Since the trial judge could not take judicial notice of the prior conviction, the Second District Court of Appeals reversed the fifth degree felony conviction and remanded the case for re-sentencing as a first degree misdemeanor.

Facing a fifth degree felony means you are facing 6, 7, 8, 9, 10, 11, or 12 months in prison and a fine of up to $2,500. A first degree misdemeanor allows the trial court to sentence a defendant to up to 180 days in jail and impose a fine of up to $1,000.

Read the decision in 2010-Ohio-288 by clicking here.

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.

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.

Ohio's Eighth District Court of Appeals reversed a "compelling prostitution" conviction because the State failed to present sufficient evidence that the prostitute was "compelled" to engage in sexual activity for hire as required by Ohio Revised Code Section 2907.21(A)(1).  The evidence showed that the prostitute did not always give the defendant all the money she earned, nothing would happen to the prostitute when she failed to give the defendant all the money she earned , and - instead of compelling her to engage in sexual activity for hire - the defendant simply asked her if she would prostitute for him and she agreed.  Click here to read the full decision.

So says Ohio's Second District Court of Appeals in State v. Paquettee, 2009-Ohio-1961.  Paquette was convicted of pandering obscenity involving a minor but the State did not produce the images he created at trial.  On appeal, Paquette argued his conviction should be reversed because the photographs were not produced at trial.  But the Second District said the statute prohibits the creation or reproduction of the images, not the possession, and the conviction could be sustained on the testimony of the victim as well as a recorded phone call about the photographs.

In 2007 the Fifth District Court of Appeals stated that the prosecution need not produce the actual photographs in order to support a conviction for violating R.C. 2907.323(A)(1) - illegal use of a minor in nudity oriented material.  State v. Merritt, 2007-Ohio-480, paragraph 40.

Ohio's Second District Court of Appeals reversed and vacated convictions for having a weapon under disability and carrying a concealed weapon because the State failed to produce sufficient evidence to support the charges at trial.  The defendant had been sentenced to six and a half years.  Read the full decision by clicking here.

Ohio's Second District Court of Appeals reduced a burglary conviction from a second degree

felony under Ohio Revised Code Section 2911.12(A)(2) to a third degree felony under (A)(3) which essentially took three years off the defendant's sentence (the defendant had been sentenced to the maximum for the burglary).  The defendant would be released three years earlier after his win on appeal because the State failed to prove that anyone was "present or likely to be present" during the burglary as required by section (A)(2).  Read the full opinion by the Second District Court of Appeals, Clark County (county court located in Springfield, Ohio), here.