Daily Case Update Archive

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May 11, 2007

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

TOPICS:
- Procedure / Rules - sentencing
- Criminal Misc. - Drugs
- Sex Offenses - Evidence - Constitutional Law / Criminal
- Sentencing Guidelines
 

Ohio Supreme Court

 

No Opinions.
 

First District Court of Appeals

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State v. Ashipa (May 11, 2007) (2007-Ohio-2245)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-2245.pdf
-  The trial court did not abuse its discretion in denying the defendant’s Crim.R. 32.1 motion to withdraw his guilty plea without a full evidentiary hearing, where neither the defendant nor his counsel was denied the opportunity to fairly state the defendant’s position; there was nothing to suggest that the trial court did not give the defendant’s motion full and fair consideration before finding it meritless; the defendant did not demonstrate what evidence, if any, he would have presented if he had been afforded more of a hearing; and the defendant, by challenging his sentence, did not seek the relief that Crim.R. 32.1 affords. The defendant’s sentence was contrary to law, when the trial court failed to advise him that he could be subject to post-release control, as required by R.C. 2929.14 and 2967.28. Judgment AFFIRMED in Part, Sentence VACATED in Part, and Cause REMANDED.
 
State v. Lipscomb (May 11, 2007) (2007-Ohio-2246)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-2246.pdf
-  The evidence was sufficient to support the defendant’s convictions for tampering with evidence under R.C. 2921.12(A)(1), possession of cocaine under R.C. 2925.11, and trafficking in cocaine under R.C. 2925.03(A)(2):  (1) Police officers saw the defendant leaning into a vehicle while standing in the street; (2) when someone yelled out “boys,” meaning police, the defendant moved away from the vehicle, and the vehicle left the scene; (3) the defendant walked away from approaching police officers; (4) he threw a black pouch containing seven grams of crack cocaine behind his back; and (5) he stated, “Whatever you are going to pick up is not mine.” Judgment AFFIRMED.
 
State v. Kraft (May 11, 2007) (2007-Ohio-2247)
-  http://www.sconet.state.oh.us/rod/newpdf/1/2007/2007-ohio-2247.pdf
-  Kraft appeals his convictions for rape and pandering sexually oriented material involving a minor. Where the state met its burden of presenting some evidence of the corpus delicti, the trial court did not err by admitting the defendant’s confession that he had raped his three-year-old daughter on five occasions. The defendant’s convictions for rape were supported by sufficient evidence and were not contrary to the manifest weight of the evidence, where the defendant confessed to the rapes, he had actively solicited child pornography, and his young daughter had precocious knowledge of sexual activity indicating that she was a victim of sexual abuse. Subdivisions (A)(1), (A)(2), and (A)(4) of R.C. 2907.322 are not unconstitutionally overbroad: The subdivisions proscribe the pandering of only pornography depicting an actual minor and do not extend to virtual child pornography. The scienter element of R.C. 2907.322*knowledge of the character of the material or performance involved*requires that the offender know that the individual depicted in pornographic material is an actual minor. Subdivisions (A)(1), (A)(2), and (A)(4) of R.C. 2907.322 are not unconstitutionally vague, where their proscriptions clearly reach only those who know that they are pandering pornography depicting an actual minor. In a prosecution for pandering sexually oriented material involving a minor, the trier of fact may rely upon direct or circumstantial evidence to find that the person depicted engaging in sexual activity is an actual minor. [See CONCURRENCE: Although the inference permitted under R.C. 2907.322(B)(3) concerning whether an individual depicted in pornographic material is actually a minor is unconstitutional, that provision is severable, and R.C. 2907.322(A) otherwise makes clear that the offense has to involve an actual minor.] The defendant’s convictions under subdivisions (A)(2) and (A)(4) of R.C. 2907.322 were supported by sufficient evidence and were not contrary to the manifest weight of the evidence, where the defendant advertised on the Internet that he would present and disseminate images of his minor daughter engaging in sexual activity. Any error by the trial court in allowing into evidence statements in violation of the defendant’s Confrontation Clause rights was harmless beyond a reasonable doubt, where the state presented other substantial, direct, and admissible evidence concerning the age of the person depicted in pornographic material. The defendant’s convictions under R.C. 2907.322(A)(1) for reproducing sexually oriented material involving a minor were supported by sufficient evidence and were not contrary to the manifest weight of the evidence, where there was persuasive evidence that the pornographic images in question involved real minors, that the defendant knew that the images depicted real minors involved in sexual activity, and that the defendant had downloaded the images from the Internet and saved them on the hard drive of his personal computer. Judgment AFFIRMED.
 

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

 

No Opinions.
 

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

 

USA v. Cherry (May 11, 2007) (Appeal from W.D. Ky)
-  http://www.ca6.uscourts.gov/opinions.pdf/07a0170p-06.pdf
-  The Government appeals the below-Guidelines sentence that the district court imposed on defendant Andy Cherry as a result of Cherry’s guilty plea to four counts of distributing child pornography, nine counts of receiving child pornography, and one count of possessing child pornography. The applicable Guidelines range called for a sentence of 210 to 262 months’ imprisonment. The district court, after considering the factors in 18 U.S.C. § 3553(a), sentenced Cherry to 120 months’ imprisonment. Because the sentence is substantively reasonable, we affirm the judgment of district court.
 

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