Ohio Criminal Appeals Lawyer Blog

Can the State prove you are a "drug dealer" because you are found in possession of three rocks of crack cocaine that weighed in at less than one gram combined? Not in Cuyahoga County where the Eighth District Court of Appeals just reversed a trafficking conviction in State v. Smith, 2011-Ohio-6466. The Court of Appeals pointed to the fact that the rocks were not individually wrapped for resale as one of the ways in which reasonable inferences of drug trafficking were absent. The conviction was reversed as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Contact me 24/7 by sending an email to ohiocriminalappealslawyer@gmail.com

Harry Bobo was convicted in 2002 of unlawful sexual conduct with a minor and was placed on community control (probation). In 2008 the trial judge found that Bobo violated terms of his community control because Bobo failed to report to his community control officer (probation officer). Even though the State presented no witnesses or evidence, the trial judge found that Bobo violated terms of his community control and sentenced Bobo to 12 years in prison! The Court of Appeals for Cuyahoga County reversed and remanded in 2010-Ohio-3405. On remand, the trial judge held a second hearing on the issue, found Bobo violated the terms of his community control and sentenced him to 12 years in prison. Bobo had to appeal again. The Court of Appeals reversed the judgment of the trial court and ordered Bobo discharged in 2011-Ohio-4503. The Court of Appeals pointed out that "the law of the case doctrine dictates that insufficient evidence was presented to prove that Bobo violated community control." The Court stated that the doctrine "provides that the decision of a reviewing court in a case remains the law of the case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing levels.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Contact me 24/7 by sending an email to ohiocriminalappealslawyer@gmail.com

A Montgomery County woman was convicted for Wrongful Entrustment of a motor vehicle to an unlicensed driver in violation of R.C. 4511.203. She left her keys on the table when she got home from work and her adult son took the car. He had taken the car on previous occasions. The Second District Court of Appeals for Montgomery County affirmed her conviction on appeal because by not preventing her son from taking her car she had given her implicit permission to him to drive it. Maybe she was supposed to hide her keys in the cookie jar. Read the decision here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Contact me 24/7 by sending an email to ohiocriminalappealslawyer@gmail.com

Just last summer the Ohio Supreme Court held that "a police officer's unaided visual estimation of a vehicle's speed is sufficient evidence to support a conviction for speeding in violation of R.C. 4511.21(D) without independent verification of the vehicle's speed if the officer is trained, is certified by [a certified organization], and is experienced in visually estimating vehicle speed." Barberton v. Jenney, 2010-Ohio-2420. I posted a blog entry here.

But one of the great things that H.B. 86 does is add section (C)(1) to R.C. 4511.091 which states, "No person shall be arrested, charged, or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar."

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

A former employee of an automobile dealership was convicted of burglary and disrupting public service because he was caught on surveillance cameras acting peculiar in the business while it was closed to the public. The disrupting public service conviction was based on the former employee's act of switching off the lights in the garage service area. The Eighth District Court of Appeals reversed the conviction for disrupting public service because there was insufficient evidence. The former employee "merely turned off the lights in an unoccupied area of a closed business" as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

Caitlin DeMastry apparently hit Charles Cain, Jr., with the car she was driving. But she is not currently serving any time for killing him. The Fifth District Court of Appeals of Fairfield County just reversed her conviction for involuntary manslaughter. Caitlin's blood alcohol level was not tested during the early morning hours when she ran Cain down and the jury decided the State failed to prove beyond a reasonable doubt that she was under the influence at the time of the collision. So the predicate offense for the involuntary manslaughter charge was that she was driving while under suspension. But driving under suspension was not the proximate cause of Cain's death, says the court of appeals. Drivers with a license suspension are capable of driving without running over people, and do it often. So the involuntary manslaughter conviction is gone as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense attorney. Otherwise, contact your county or state public defender to see if they can help.

The Second District Court of Appeals reversed a conviction for intimidation of a witness because the defendant threatened the witness before a "criminal action or proceeding" were commenced. Ohio Revised Code Section 2921.04(B) prohibits anyone from hindering a witness in the discharge of their duties as a witness in a criminal action or proceeding. The defendant threatened a witness before any criminal action or proceeding and so there was insufficient evidence to support a conviction for intimidating a witness as you can read here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a criminal defense lawyer from the Dayton, Ohio area. Otherwise, contact your county or state public defender to see if they can help.

Ohio Revised Code Section 2923.11(A) defines a deadly weapon as "any instrument, device, or thing capable of inflicting death, and designed or specifically adapted for use as a weapon, or possessed, carried, or used as a weapon."

Not every knife is a "deadly weapon." Many knives would be considered "capable of inflicting death." But if the knife is not specifically adapted for use as a weapon OR is not possessed, carried, or used as a weapon, then the knife is not a "deadly weapon" in Ohio.

Here are some cites for cases discussing knives and whether or not they are deadly weapons: 2006-Ohio-2783, 2006-Ohio-833, 2003-Ohio-6248, and 2003-Ohio-2195.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

Be careful what you argue on appeal. The Court of Appeals is not obligated to help you out. You fail to raise the right argument and it is your fault. Make sure you get a lawyer who knows which arguments to raise on appeal and who will raise all the arguments that should be raised. The issue of manifest weight vs. insufficient evidence is an example of this.

A decision just came out of the Second District Court of Appeals for Clark County (seated in Springfield, Ohio) in which appellate counsel raised an argument that the conviction for possession of 1000 grams of cocaine was against the manifest weight of the evidence. Well, the State failed to present evidence of what the cocaine weighed without the packaging it was in so the Defendant/Appellant won the appeal. But they won on a manifest weight argument so what did the Court of Appeals do? The Court remanded the case for a new trial. So what will the State do? Weigh the cocaine, convict him again and put him back in the slammer.

Now if appellate counsel argued that there was "insufficient evidence" and won the appeal that way (if it was possible in that case to win on that issue), the State would not be permitted to put the defendant back on trial. The worst that could happen is that the Court of Appeals could impose a conviction of a lesser included offense.

This is because a conviction that is against the manifest weight of the evidence allows for re-trial. A conviction based on insufficient evidence does not. Tibbs v. Florida, 457 U.S. 31.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

Is your chicken coop too close to the property line? You may want to check again. The city of Willoughby, Ohio, has a ordinance that prohibits homeowners from having structures within five feet of the property line. In City of Willoughby v. Lewis, the defendant had a "mobile" chicken coop adjacent to the fence that ran along the property line. It was not attached to the ground or the fence (it was right next to it, however) and so it was not a "structure" as defined in the city ordinance. So on appeal the defendant's conviction for violating WCO 1131.11(a) was reversed for lack of evidence.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private attorney. Otherwise, contact your county or state public defender to see if they can help.

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.

But see my blog entry on H.B. 86 here.

If you are accused of a crime or have been convicted already, contact me if you can afford to hire a private criminal defense lawyer. Otherwise, contact your county or state public defender to see if they can help.

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.