Ohio Criminal Appeals Lawyer Blog

You've gotta love the criminal justice system. One rule the courts follow is to pretend that the trial judge can magically selectively erase the jurors' memories. Do you remember the memory erasing device that was used in the movie Men in Black? The "neuralizer"? Subjects were asked to look at it and with a flash, the neuralizer could erase a recent memory and a "Man in Black" could substitute a different memory for the subject.

Well, Ohio trial judges do not have neuralizers. So what is a judge to do when one of the State's witnesses says something the jurors should not hear? Something that would prevent the defendant from having a fair trial? The trial judge tells the jurors to "disregard" what they just heard from the witness stand. And then the reviewing courts pretend that the jurors followed the judge's instructions and so they must have disregarded that which they were instructed to disregard. Then you get a decision from the court of appeals that says, "all of the defendant's assignments of error having been overruled, the judgment of the trial court is affirmed."

But in the Ottawa County case of State v. Davis, the Sixth District Court of Appeals decided the curative instruction was just not enough. Davis was on trial for "tampering with evidence" for allegedly swallowing drugs in attempt to avoid prosecution. An arresting officer told the jury that he knew Davis because he had dealt with him "in the past as far as narcotics complaints and everything else." This was improper evidence under Ohio Evidence Rule 404(B) as you can read here.

Trial judges should instruct the jury on a lesser-included offense upon the request of a defendant, "if the evidence is such that a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense." The Second District Court of Appeals reversed a conviction for aggravated burglary because the trial judge refused to instruct the jury on the lesser included offense of criminal trespass where the defendant testified and his version of events supported an acquittal on aggravated burglary and a conviction of trespass, and it was up to the jury to decide who to believe. Read the decision in State v. Lawson, 2010-Ohio-3114, by clicking here.

Winning on appeal is not easy. But one way to get your conviction reversed after a jury trial is to find a problem with the jury instructions. That is what happened in State v. Fine, 2010-Ohio-2637, out of Miami County. To put it simply, the State had to prove A + B + C to convict the defendant. But the judge messed up the jury instruction once and told the jury that they "must" find the defendant guilty if the State proved A OR B OR C. The Second District Court of Appeals wrote, "[b]y instructing the jury the way it did, the trial court relieved the State of its burden to prove the requisite three elements contained in Section 304.7, instead allowing a conviction if the jury found just one of the three elements proved. This is error that prejudiced Defendant, and is therefore reversible."

The jury instructions in your case (if you had a jury trial) are one of the things I will be looking at very closely if I am your lawyer on appeal. Read the decision in State v. Fine by clicking here or contact me by clicking here.

The Eighth District Court of Appeals reversed a conviction for aggravated assault because the trial judge incorrectly instructed the jury on how to handle the felonious assault charge and the aggravated assault charge. Felonious assault requires a person to either cause serious physical harm to another or to cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance. R.C. 2903.11.

Aggravated assault is an "inferior degree" of felonious assault because the elements are the same except the jury must find that the act was committed because the person "while under the influence of sudden passion or in a sudden fit of rage" committed the act and the sudden passion or sudden fit of rage was "brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force." R.C. 2903.12.

The jury instructions were wrong because the trial judge told the jury to only consider aggravated assault if they found the defendant "not guilty" of committing felonious assault. The problem is that a finding of "not guilty" on felonious assault is inconsistent with a finding of "guilty" of aggravated assault and, as the Ninth District Court of Appeals has stated, "an inconsistent response to the same count requires reversal." State v. Bosley (Oct. 7, 1992), 9th Dist. No. 15547. Read the decision in State v. Ruppart, 2010-Ohio-1574, by clicking here.

Aggravated assault in violation of R.C. 2903.12(A)(2) requires the causation of physical harm with a deadly weapon or dangerous ordnance. But in Wendy Hinzman's case, the trial judge failed to instruct the jury as to what constitutes a deadly weapon or dangerous ordnance. The Eighth District Court of Appeals speculated that a high-heeled shoe might meet the definition of "deadly weapon," but decided that the jury could not have known that since the trial judge did not provide them with the legal definition of "deadly weapon." The aggravated assault conviction was reversed and the case was remanded for a new trial on that charge as you can read by clicking here.