Friday, August 31, 2012

State loses appeal to House Bill 86 (8 31 2012)

House Bill 86 changed the threshold for theft offenses. For those sentenced before September 30, 2011, the old theft thresholds were used. But for those sentenced on or after September 30, 2011, the new thresholds are to be used. Under the old law, a theft offense in violation of Ohio Revised Code 2913.02 was a misdemeanor as long as the value of the property stolen was less than $500. Theft was a fifth-degree felony if the value of the property was $500 to less than $5,000. Under the new law, a theft offense in violation of R.C. 2913.02 is a misdemeanor if the value of the property is less than $1,000. It is a fifth-degree felony if the value of the property is $1,000 to less than $7,000. A Licking County defendant was convicted of theft of $947.50. The State believed the defendant should be convicted of an F5 under the old law. But the defendant was sentenced after September 30, 2011, so the new law applied and the trial judge reduced the conviction to an M1. The prosecutor appealed and lost. The M1 stands as you can read in State v. David, 2012-Ohio-3984.

 
Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.  Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.

Thursday, August 30, 2012

Insufficient Evidence of Constructive Possession in Franklin County (8 30 2012)

Today the Tenth District Court of Appeals for Franklin County reversed convictions for unlawful possession of a dangerous ordnance in violation of R.C. 2923.17 and having a weapon while under disability in violation of R.C. 2923.13. Contraband was found hidden in a house in common areas. A shotgun was found in the basement and two shotguns were found under a couch in the living room. One shotgun was sawed off at the stock and barrel.

The problem with the State’s case was that they were required to prove the offenses beyond a reasonable doubt as required by the United States and Ohio Constitutions. Other than that, they had a good case. The State could not meet their burden of proof because mere access to a home in which contraband is found does not amount to sufficient evidence of possession – actual or constructive. The defendant did not have exclusive access to the property in which the contraband was found in common areas and so a conviction could only rest on speculation – which is not sufficient to meet the burden of proof beyond a reasonable doubt

The State failed to provide any proof that the defendant was aware of the presence of the contraband. The Court of Appeals reversed the convictions because there was insufficient evidence to sustain them and Defendant’s Rule 29 Motion for Acquittal should have been granted as you can read in State v. Burney, 2012-Ohio-3974.

Contact me if you need a Dayton Criminal Defense Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form.  Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.

Saturday, August 18, 2012

Jury must be given a complete set of instructions (8 18 12)

A Cuyahoga County man was tried and convicted in relation to the death of his childrens’ mother which resulted from injuries she sustained in his home. According to him, she came at him with a knife in his home and a struggle followed where she ended up with a wound that later caused her death. During his trial, the man raised and the evidence supported a self-defense argument under the Castle Doctrine. But the judge did not give complete instructions on the Castle Doctrine, even though the trial court must "give a complete or correct jury instruction on the elements of the offense charged and the defenses thereto which are raised by the evidence." The instructions were "fatal to defendant’s case" and if the jury found that the victim was lawfully in the defendant’s house, "the only conclusion they could reach under the erroneous jury instructions was a guilty verdict." The Eighth District Court of Appeals determined the erroneous jury instructions resulted in plain error, the convictions were vacated, and the case was remanded for a new trial. State v. Lewis, 2012-Ohio-3684.

Contact me if you need a Dayton Criminal Lawyer for your appeal or other post-conviction matter by going to my Web site www.robertalanbrenner.com and filling in the "contact me" form. Visit www.ohiocriminaltriallawyer.com if you need an experienced Dayton Criminal Defense Lawyer to represent you in the trial court.

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