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April 13, 2007

Ohio Supreme Court | Ohio First District | U.S. 6th Circuit - Ohio | U.S. 6th Circuit - Other States
 

TOPICS:
- Sex - Offenses - Kidnapping - Instructions- Lesser Included - R.C. 2941.25
- Drugs - Procedure / Rules
- Civil Miscellaneous
- Search & Seizure - reasonable suspicion
- Tax - IRS - federal employment taxes
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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State v. Thomas (April 13, 2007) (2007-Ohio-1723)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1723.pdf
-  The defendant’s convictions for rape and kidnapping were based on sufficient
evidence and were not against the manifest weight of the evidence: The state
presented ample evidence that the defendant, a bus driver for disabled persons,
had driven the victim past her regular bus stop and had taken advantage of her
mental disability to coerce her into committing fellatio; and the jury could
have reasonably rejected the defendant’s claim that the victim was capable of
consenting to sexual conduct and that she had in fact consented. The trial court
did not err in refusing to instruct the jury on unlawful restraint, a
lesser-included offense of kidnapping: If the jury concluded that the defendant
had restrained the liberty of the victim, it could have reasonably concluded
only that he had done so for the purpose of coercing sexual conduct; the
evidence therefore did not support an acquittal for kidnapping and a conviction
for unlawful restraint. The trial court did not err in imposing separate
sentences for rape and kidnapping: The offenses were not allied and of similar
import when, with their elements compared in the abstract, one could have been
committed without the other also being committed; and the state demonstrated
that the defendant had restrained the victim for a long period of time at a
substantial distance from her regular bus stop, thereby proving a separate
animus for each offense.
 
State v. Bettis (April 13, 2007) (2007-Ohio-1724)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1724.pdf
-  The evidence was insufficient to prove that the defendant possessed marijuana
where, during a controlled delivery of a UPS package containing marijuana, the
defendant never actually took possession of the marijuana, and he was not given
the opportunity to exercise dominion and control over the package because
dominion and control remained with the undercover agent at all times; but the
defendant should have been found guilty of attempting to possess the marijuana
because he had tried to accept the package. The evidence was insufficient to
prove that the defendant trafficked in marijuana where there was no evidence
that he knowingly (1) prepared the marijuana for shipment; (2) shipped,
transported or delivered the marijuana; (3) prepared the marijuana for
distribution; or (4) distributed the marijuana. The trial court did not abuse
its discretion in overruling defense counsel’s motion for a mistrial based upon
the alleged withholding of favorable evidence by the state: The state turned
over the evidence to the defense during a recess, and the evidence was used by
defense counsel in cross-examining the state’s witness; and the defendant could
not show prejudice because there was no reasonable probability that an earlier
disclosure of the evidence would have changed the outcome of the trial.
 
Smith v. Hamilton Cty. (April 13, 2007) (2007-Ohio-1725)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-1725.pdf
-  The trial court erred as a matter of law in affirming the termination of the
plaintiff’s Section 8 voucher for public housing: the termination was based on
an incorrect standard of law that required only a showing that the plaintiff, in
applying and recertifying her eligibility for public housing, had made
inaccurate statements concerning whether her children resided with her even
though she did not have legal custody of them; under the correct standard, a
showing of fraud was required, and under the applicable regulations, which made
no mention of legal custody, there was no fraud in listing the children as
household members, when they lived with the plaintiff, with the consent of their
caseworker, on weekends, on holidays, and during the summer.
  

U.S. Sixth Circuit Court of Appeals:  Ohio Cases

 

No Opinions.
 

U.S. Sixth Circuit Court of Appeals: Other States Cases

 

USA v. Cohen (April 13, 2007) (Appeal from W.D. Ky)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0135p-06.pdf
-  The United States appeals the district court’s
order granting Defendant-Appellee Demetrius Cohen’s (“Cohen”) motion to
suppress. Cohen is charged with one count of being a felon in possession of
ammunition and one count of being a felon in possession of a firearm, based on
ammunition and a firearm that were found by police officers in a search of his
car. The district court concluded that the officers did not have reasonable
suspicion to stop Cohen’s car and suppressed the evidence that was found during
the subsequent search, bringing the proceedings below to a halt while the
government filed this interlocutory appeal. Because the stop of Cohen’s car was
not supported by reasonable suspicion, we AFFIRM the determination of the
district court and REMAND the case for further proceedings consistent with this
opinion.
 
Littriello v. USA (April 13, 2007) (Appeal from W.D. Ky)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0136p-06.pdf
-  In this appeal from a grant of summary judgment to the government, we are
presented with a case of first impression regarding the validity of the Treasury
Department’s so-called “check-the-box” regulations, 26 C.F.R. §§ 301.7701-1 to
301.7701-3, promulgated in 1996 to simplify the classification of business
entities for tax purposes. The plaintiff, Frank Littriello, was the sole owner
of several Kentucky limited liability companies (LLCs), the operation of which
resulted in unpaid federal employment taxes totaling $1,077,000. Because
Littriello was the sole member of the LLCs and had not elected to have the
businesses treated as “associations” (i.e., corporations) under Treasury
Regulations §§ 301.7701-3(a) and (c), the LLCs were “disregarded” as separate
taxable entities and, instead, were treated for federal tax purposes as sole
proprietorships under Treasury Regulation § 301.7701-3(b)(1)(ii). When
Littriello, as sole proprietor, failed to pay the outstanding employment taxes,
the IRS filed notices of determination and, eventually, notified him of its
intent to levy on his property to enforce previously filed tax liens. Littriello
responded by initiating complaints for judicial review in district court,
contending that the regulations in question (1) exceed the authority of the
Treasury to issue regulatory interpretations of the Internal Revenue Code; (2)
conflict with the principles enunciated by the Supreme Court in Morrissey v.
Commissioner, 296 U.S. 344 (1935); and (3) disregard the separate existence of
an LLC under Kentucky state law. He also argued in his motion for summary
judgment that the regulations are not applicable to employment taxes. After the
cases were consolidated for disposition, the district court held that the
“check-the-box regulations” are “a reasonable response to the changes in the
state law industry of business formation,” upheld them under Chevron1 analysis,
and held that the plaintiff was individually liable for the employment taxes at
issue. We conclude that the district court’s analysis was correct and affirm.
 

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