Ohio Criminal Appeals Lawyer Blog

In Ohio Courts of Appeal there will be three judges deciding your appeal. What if two of the appellate judges get it wrong? You lose! The majority opinion is what decides your fate. Even if the dissenting judge makes a well reasoned opinion based on the facts and law. You still lose. And do you think the Ohio Supreme Court is going to fix it? Think again. The OSC is not into "error correction."

That appears to be what happened to Thomas Ricks who was on trial for aggravated murder and other crimes. Ricks, aka "Peanut," was a "shooting suspect" along with his co-defendant Gipson. Gispson did not testify at Ricks' jury trial, but the prosecutor had a cop testify that Gipson identified Ricks as "Peanut." Hearsay right? Oh no, the prosecutor argued, it is just to show why the cop did what he did. Yeah, right. And the trial judge allowed it over objection. The judge told the jury they did not hear that Gipson identified Ricks as "Peanut" for the truth of the matter asserted. The judge said, just because you heard that Gipson identified Ricks as Peanut does not "necessarily mean that that was Peanut ... but they are really brought in for the purpose to explain this officer or that department's investigation, why they were doing what they were doing."

The dissenting judge wrote a well-reasoned opinion in which he showed how the other two appellate judges got it wrong in three different ways. They used the wrong standard of review, they erred by affirming the actions of the trial judge, and the prosecutor committed prosecutorial misconduct by getting this damaging hearsay before the jury and then argued it as substantive evidence of guilt. Read the reasoning by the majority in paragraphs 59 to 69 and then the dissenting opinion from paragraph 103 to 135 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

Rape convictions were reversed in Wood County in part because hearsay was allowed in a jury trial over objections. The prosecution claimed while the testimony was coming in that the information was not being offered for the truth of the matter asserted (and therefore was not hearsay), but then the prosecutor later argued in closing argument that the hearsay should be considered for its truth. The Sixth District Court of Appeals for Wood County stated that "the well-worn phrase, 'not offered for the truth of the matter asserted' is not a talismanic incantation that opens the door to everything said outside the courtroom." The Court of Appeals also noted that if an out of court statement is received for a purpose other than the truth of the matter asserted, then the content "is not substantive evidence." Read the opinion 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

Ohio's Second District Court of Appeals reversed convictions for rape and gross sexual abuse of a child under thirteen because of hearsay and confrontation clause problems. Most interesting was the Appellate Court's interpretation of what is included in "statements for purpose of medical diagnosis or treatment."

The complainant, who did not testify at trial, received counseling from a school psychologist. The complainant first told the psychologist she had been raped, but later she told the psychologist that she had only dreamt she was raped, and finally she told the psychologist that she made up the allegations.

Whether the child was actually violated is irrelevant for legal purposes because the courts deal with "evidence" and not reality as you can read by clicking here.

The trial judge would not allow the psychologist to testify about what the victim told her because it was hearsay (an out of court statement offered for the truth of the matter asserted). The trial court determined that the statements were not made to the school psychologist "for purposes of medical diagnosis or treatment" because the psychologist was not trying to diagnose or treat the complainant. The psychologist was just "counseling" the complainant.

But in reversing the convictions and remanding for a new trial, the Second District Court of Appeals stated "[r]estricting the meaning of diagnosis or treatment in Evid.R. 803(4) in too narrow a way undercuts the function of nurses, psychologists, therapists, social workers and numerous other individuals who routinely treat victims of sexual abuse for physical, mental and emotional problems, often by counseling them." Read the full decision by clicking here.

Two Ohio convictions were reversed this week because prosecutors tried to prove their cases even when their "victims" did not show up to testify at trial. But even prosecutors have to follow the law. Hearsay is not admissible as stated in Ohio Evidence Rule 802. And the "Confrontation" Clauses of the United States and Ohio Constitutions require an accuser to come to court to make their accusations. This gives the accused the chance to cross examine them to test their claims.

Ohio's Eleventh District Court of Appeals reversed a conviction out of Portage County because the State had an officer testify about what the alleged criminal damaging victim told him. The defense lawyer objected and the trial judge characterized the defense lawyer's objection as "ludicrous." That's reassuring, isn't it? Read the case by clicking here.

Ohio's Twelfth District Court of Appeals reversed a conviction out of Butler County because the defense lawyer failed to object when a neighbor and officer gave crucial testimony about an alleged burglary. The failure to object constituted the ineffective assistance of trial counsel as you can read by clicking here.

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.