Ohio

Overwhelming evidence

If you skim over the 8th District’s decision in State v. Fears last week, you’re probably not going to find anything out of the ordinary.  The defendant had been convicted of gross sexual imposition, and he appealed, claiming that the court had erred in allowing in certain evidence, the prosecutor had committed misconduct in closing argument, and the judge had improperly sentenced him to the maximum of five years. 

None of that went anywhere.  The case stemmed from claims that the defendant had sexually abused his daughter, and the defendant had testified on direct about how he’d worked several jobs to support his kids, in an effort to show that he was a decent father.  The state cross-examined him about the number of children he had (by other women), what their birthdays were, and so forth, in an apparent attempt to show that he wasn’t.  The appellate court found the state’s questions were proper to rebut a “pertinent trait of character offered by the accused,” under Evid.R. 404.  And, of course, there was the old sanctuary of harmless error; as the court noted,

Here, there was overwhelming evidence of appellant’s guilt. The victim testified to several specific instances that supported appellant’s one conviction for gross sexual imposition. Once when the victim was 12 years old, appellant came into her bedroom, asked her if she had ever had sex, and proceeded to touch her buttocks and breasts outside her clothes. Later, he touched her breasts and buttocks, outside her clothes, while they watched a movie. Lastly, in the “small room,” he touched her breast and buttocks under her clothes with his penis exposed. Based upon this evidence, it is clear that the jury would have convicted appellant on one count of gross sexual imposition even if it had not heard appellant’s cross-examination testimony.

And, of course, the sentence was within the statutory range, so that’s with that, especially given the judge’s finding about the defendant’s “lack of remorse.”

All well and good, except if you skpped over the first few paragraphs of the opinion, and didn’t check the docket, you wouldn’t have realized that the defendant had been tried on 31 counts of rape, 31 counts of kidnapping, and 12 counts of gross sexual imposition, all with sexually violent predator specifications.

Needless to say, I wasn’t at the trial, but if a jury comes back on a 74-count indictment and says “not guilty” 73 times, while there may be a number of adjectives which describe the state’s evidence, “overwhelming” isn’t one of them.  It doesn’t seem implausible to suggest that maybe the jury didn’t buy any of the state’s case, but decided it had to convict the defendant of something, so it picked the least serious charge.  It doesn’t seem implausible to suggest that the trial court decided to penalize the defendant for the charges the jury found him not guilty on — I’m not sure that “remorse” would be the logical reaction for someone who’d just been acquitted of 73 of 74 counts against him.  It doesn’t seem implausible that a court of appeals might take all this into account before deciding on the significance of any trial error.

Or it may be that Richard Fears just caught one immense break.  I had to run over to court between writing this post, and I happened to run into the lawyer who’d tried the case, who’s a good friend of mine.  I told him that one of his cases was going to make my blog, and, as might be expected, he thanked me profusely and told me that he’d immediately hire some new associates to take on all the new business that such a mention would generate.  He also told me that in addition to getting Mr. Fears off on all but one count, he’d gotten another case against the defendant — for, as you might have surmised, gross sexual imposition and kidnapping — dismissed for pre-indictment delay.  And, for his troubles, was rewarded with the defendant filing a complaint against him with the bar association.

So perhaps justice was done, as it so often is, by happenstance rather than intent.

Full post as published by The Briefcase on June 11, 2008 (boomark / email).