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Our primary focus at Miller & Zois is to further the interest of our clients by maximizing the value of their injury or wrongful death claims. But it is also an absolute joy when we can be a part of changing Maryland law that helps all injury victims get a fair shake in their claim. We did this last week when the Maryland Court of Special Appeals gave a victory for our client and justice in Peeler v. FutureCare Northpoint, a wrongful death nursing home case.
At stake in Peeler v. FutureCare Northpoint was the breath of an agreement to arbitrate any claims that arise between a resident and a nursing home. Our client’s mother in Peeler entered a nursing home after she had femoral-femoral bypass graft at Johns Hopkins Bayview Medical Center. She was asked upon arrival to sign an arbitration agreement. Clearly, this was not a moment of great clarity, right? This is not uncommon. Most decisions you make when entering a nursing home are made in crisis mode resulting from a precipitous decline in health. So in the midst of this emotional powder keg, the incoming resident or their family must sign a million documents. There is no time to plan or weigh options. I’m a lawyer. There is no way I’m reading all of those documents in that situation. I’m certainly not feeling free to negotiate with the nursing home. I’m in the most unequal bargaining position imaginable. I just want — or I wanted my loved one to get — the needed care to get through the days ahead.
In 2016, these documents come with an agreement to arbitrate. Arbitration is a method of resolving disputes between parties without having a jury trial. In other words, the parties present their case behind closed doors to a neutral arbitrator (usually a retired judge or another attorney) who renders a decision and award for damages. Nursing homes and other healthcare facilities have preferred arbitration to jury trials, mainly because the awards for money are much lower.
In the bigger picture of justice, are jurors a better choice in these cases? Well, our Founding Fathers saw fit to place the right into our Constitution in the 7th Amendment. For me, the big difference between an arbitrator and a jury is that jurors bring the values of the community into the decision-making process. With an arbitrator, you have one person — usually a white male — who gets to make the call. It is not fair.
I wish I could say that the Peeler case rights that wrong and nullifies these unfair agreements in the first place. The court did not do that. We are probably going to need the Maryland Legislature to take us there. With the money these nursing homes have to put into political campaigns, that will be a tough road to hoe.
In Futurecare Northpoint, LLC v. Peeler, our client’s mother entered FuturePoint and was asked to sign an arbitration agreement. Of course, she signed it. For the next eight days, we allege that the nurses and doctors at Futurecare negligently failed to assess and treat Ms. Butz’s groin wounds eventually causing her to contract sepsis. Finally, when the woman was found somnolent and lethargic, she was taken back to Hopkins. Her doctors performed numerous operations in an attempt to control her infection. Unfortunately, these efforts were unsuccessful, and she died.
Our law firm filed a nursing home wrongful death lawsuit in the Circuit Court for Baltimore County on behalf of the victim’s daughter. FutureCare asked the Court to dismiss the wrongful death action and enforce the arbitration agreement signed by our client’s mother. Judge Mickey Norman of the Circuit for Baltimore County refused to enforce the arbitration agreement against our client. Why? Because she never agreed to arbitration. The nursing home appealed.
Our argument before the Court of Special Appeals seems pretty simple: she cannot be bound by an arbitration agreement she never signed. The nature of a wrongful death claim makes it more complicated. In Maryland, a wrongful death action is “derivative” of the injured family member’s claim. The action stems from the same underlying conduct, which must have resulted in the now deceased family member having a viable claim when she was injured. Because they stem from the same underlying conduct, in Futurecare, the Appellant nursing home argued that our client’s mother had the ability to bind her wrongful death beneficiary when she signed an arbitration agreement giving up her right to a jury trial.
According to FutureCare, signing an arbitration agreement is akin to signing another type of contract: a “release.” In making this argument, the nursing home relied upon the “century-old precedent” of State use of Melitch v. United R. & E. Co.,121 Md. 457 (1913). (This case is so old I can’t even find it on Google to link to it for you.) According to the nursing home, just as an injured person’s signs a “release” binding future wrongful death claims, an injured person’s signature on an arbitration agreement can contractually require the arbitration of a wrongful death claim.
In support of its argument, the nursing home also relied upon the language of Maryland’s Wrongful Death Statute CJP § 3-901 – § 3-904, which defines a “wrongful act” as an “act, neglect, or default including a felonious act which would have entitled the party injured to maintain an action and recovered damages if death had not ensued.” Based upon this language, the nursing home argued that the wrongful death beneficiary stood in the shoes of the injured family member. Therefore, all of the defenses available to the injured family member (including contributory negligence, assumption of the risk, parental immunity, release, and no privity of contract) were also binding on the wrongful death beneficiary. The nursing home argued that the same logic should also apply with respect to arbitration.
The Maryland Court of Special Appeals said that while it is not wholly incorrect to state that a wrongful death claim is derivative of the decedent’s claim in some sense, a wrongful death claim “derives” from the decedent’s underlying injury in the sense that it is “based upon the death of another person.” It is not “brought in a derivative or representative capacity to recover for a loss or injury suffered by that person.” The Statute creates a “new and independent” cause of action for wrongful death beneficiaries for their own damages. In bringing a wrongful death claim, the wrongful death beneficiary does not stand in the same shoes as the injured family member.
In sum, Melitch stands for the proposition that, under some circumstances, the pre-death release of a personal injury claim effectively prevents statutory beneficiaries from establishing an element of a wrongful death claim arising from the same injury… An injured party’s contributory negligence, assumption of the risk, or release may negate the ability ‘to maintain an action and recover damages’, [but] an injured party’s agreement to arbitrate, by contrast, does not negate the ability ‘to maintain an action and recover damages.’” It simply determines the forum in which a future wrongful death claim is to be litigated. Given that the right to litigate the wrongful death claim never belonged to the injured family member, they could not contractually obligate their wrongful death beneficiary to litigate that claim in a certain forum.
Ultimately, the Court of Special Appeals holding in Futurecare will have far-reaching implications. In Maryland, nursing homes and other healthcare facilities go to great lengths every day to have their patients sign arbitration agreements. On many occasions, these agreements are included as part of the admissions paperwork to the facility. Because the paperwork is difficult to understand and usually presented with many other complicated documents, patients often sign these documents without asking any questions. After all, most patients are just concerned about getting into the facility to get treatment. They are not concerned about some hypothetical future medical malpractice claim.
The Court of Special Appeals holding in Futurecare means that even if a patient signs this paperwork, the patient’s family members will still have the right to have their wrongful death case heard and decided by a jury.
Not only is this holding important in Maryland, it is also important throughout the country. Currently, there is a 50/50 jurisdictional split on this issue as to whether a wrongful death beneficiary is bound by an arbitration agreement signed by their family member. Many states still have not addressed this issue. Other states hold that a wrongful death beneficiary is bound to arbitration. The courts in the undetermined states can rely upon Peeler as persuasive authority in determining whether wrongful death beneficiaries are bound by arbitration agreements in those jurisdictions.
We are just very proud of being a part of making new law that will help get wrongful death cases before juries which are where they below. We are also proud of our own Justin Zuber who fought — and will keep fighting — like crazy for our client in both writing the brief and arguing this case before the Maryland Court of Special Appeals.

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Starting from today, 11 January 2009, Regulation no. 864/2007 on the law applicable to non-contractual obligations (Rome II) is applicable in the Member States (see its Art. 32), excepting Denmark.
In the comments to one of our previous posts, some debate was raised as to the proper construction of Art. 31 (“Application in time”) of the Regulation, according to which the new regime applies to “events giving rise to damage which occur after its entry into force”. A very large majority of scholars (almost all the published articles) takes the view that, for the purposes of Art. 31, the date of entry into force coincides with the date of application of the Regulation, so that it would be applicable to events giving rise to damage occurring on or after 11 January 2009.
Other elements, taken from the legislative process (see the comments to the abovementioned post), would suggest the opposite view that, following the ordinary rules set by Art. 254(1) of the EC Treaty, the Regulation entered into force on 20 August 2007, thus applying to events occurred on or after this previous date. The latter interpretation is shared by the SCADplus (summary of EU legislation) webpage on Rome II, which holds no official value, and is referred to by Prof. Hartley in his article on the Rome II Reg. (“Choice of Law for Non-Contractual Liability: Selected Problems Under the Rome II Regulation“, in ICLQ (2008), p. 899 ff., at footnote 2 on p. 899, quoting Prof. Morse in Dicey and Morris).
2. according to the review clause in Art. 30(2), not later than 31 December 2008 the Commission was expected to present a study “on the situation in the field of the law applicable to non-contractual obligations arising out of violations of privacy and rights relating to personality, taking into account rules relating to freedom of the press and freedom of expression in the media, and conflict-of-law issues related to Directive 95/46/EC […]”. Neither this study has been released, as yet, as far as I know.
Readers are encouraged to report on first cases of application of the new Regulation before national courts.
The issue of temporal scope of application of the Rome II Regulation is indeed interesting. There seems to be some uncertainty as to the relevant dates. In the attempt to contribute to the discussion here is the translation of the respective part of my article on the Rome II Regulation published in Croatian (Uredba Rim II: ujedna?ena pravila o pravu mjerodavnom za izvanugovorne obveze u Europskoj uniji, Zbornik Pravnog fakulteta Sveu?ilišta u Rijeci (Collected Essays of the University of Rijeka Faculty of Law), Vol. 28, No. 2, 2007, pp. 1269-1324).
Whatever solution is adopted, there is no doubt that the wording of Arts. 31 and 32 leaves much to be desired, and will generate satellite litigation. My own view is that the Regulation should be taken to apply to the determination on or after 11 January 2009 of the law applicable to non-contractual obligations where the event giving rise to damage occurred on or after 20 August 2007. This is not retrospective effect, but a modified prospective effect. That said, many will continue to argue for the pragmatic “11 January 2009 for all purposes” approach, and (however difficult to reconcile with the text of the Regulation and the travaux) this cannot be ruled out as a possible solution when Member State courts and the ECJ give their verdict.
“The Commission will make a proposal to the European Parliament and the Council concerning the procedures and conditions according to which Member States would be entitled to negotiate and conclude on their own behalf agreements with third countries in individual and exceptional cases, concerning sectoral matters, containing provisions on the law applicable to non-contractual obligations”.
This proposal has been adopted by the Commission just before Christmas. See COM (2008) 893.
What is the exact date that the regulation entered into force?
As stated in the original article by Giorgio Buono and again in the comment by Andrew Dickinson, I would say that “following the ordinary rules set by Art. 254(1) of the EC Treaty, the Regulation entered into force on 20 August 2007”.
Nevertheless Hartley (ICLQ  on p. 899 at footnote 2) specifies the 19th of August and I ran across that date again today in Kadner Graziano’s article in RabelsZ 73 (2009, 1, 3 – in german).
I wonder why. Is it just a wrong calculation, twice? Or is there a reason for the confusion?
If we assume that the ordinary rules laid down in Art. 254 TEC apply, I would say that 20 August 2007 is the date of entry into force of Rome II.
1. […] Where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be considered as falling within the period in question.
Reg. No 864/2007 (Rome II) was published in the OJ on 31 July 2007. So, the twenty days are to be calculated from 1 August 2007 (included), and the twentieth day is 20 August 2007.
Could anyone point me towards an article on how the rome II regulation affects common lawyers?
…and the OUP monograph on the Rome II Regulation isn’t too bad either.


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Ruiz, a/k/a Alberto Alvarez, Defendants-Appellants.
Roland E. Dahlin, II, Federal Public Defender, Marjorie A. Meyers, Asst. Federal Public Defender, Houston, Tex., for Moreno.
Luis A. Martinez, Houston, Tex. (court appointed counsel), for Ruiz.
William W. Burge, Houston, Tex., for Orguiza.
Paula C. Offenhauser, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Tom Meehan, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.
This appeal arises from a joint jury trial in which the three defendants were convicted on a variety of charges relating to the possession and importation of 5000 grams of cocaine. On appeal all defendants contend that the trial court erred in rejecting their challenge to the prosecutor's exercise of his peremptory strikes in what the defendants contend was a discriminatory fashion. In addition, each defendant raises individual challenges to his or her own convictions. Specifically, Moreno contends that the evidence was insufficient to sustain her conviction for importing cocaine; Orguiza contends that the evidence was insufficient to sustain his conviction for conspiracy to possess cocaine; and Ruiz contends that the district court erred in failing to make a finding on the record that the probative value of using his prior convictions for impeachment purposes outweighed the prejudicial effect of that use.
In the fall of 1987, Virgilio Beltran, an informant working with the United States Customs department, was employed as a licensed ship navigator aboard the Royal Star. In November of that year Beltran met Moreno and her husband, Palmyra, at a restaurant in Buenaventura, Columbia. Palmyra asked Beltran to smuggle five kilograms of cocaine into the United States aboard the Royal Star. Palmyra told Beltran that Moreno would receive the cocaine in the United States and would give Beltran $4,500 per kilogram at the time of delivery. Beltran agreed to smuggle the cocaine at which time Moreno supplied Beltran with a written telephone number and the name "Justo." Beltran was to contact "Justo" in the United States to make arrangements to deliver the cocaine. Beltran then tore a 200 peso bill in half, gave one half to Moreno, and instructed her that once in the United States she would receive the cocaine from a person holding the other half of the 200 peso bill.
Palmyra delivered the cocaine to Beltran who hid it aboard the Royal Star. The ship arrived in Houston, Texas on November 14, 1987. In Houston Beltran turned the cocaine, the half of the 200 peso bill, and the telephone number over to Special Agent Brooks of the United States Customs. A call was placed to the telephone number given Beltran, but a female answered and indicated that "Justo" had moved the previous week. Beltran left the cocaine with Agent Brooks and returned to Columbia about November 24th or 25th. Beltran contacted Palmyra in Columbia and informed him that he, Beltran, had been unable to contact "Justo." Palmyra supplied Beltran with a second Houston telephone number and the name "Tana" as well as a Newark, New York telephone number.
Beltran returned to Houston on December 3, 1987 and relayed the new delivery information and telephone numbers to Agent Brooks. Beltran made a series of taped telephone calls to "Tana" at the Houston telephone number and agreed to meet the person to whom the cocaine was to be delivered between 4:00 and 4:30 p.m. at a Houston Restaurant. In order to make a controlled delivery, Beltran was given the cocaine that he had previously left with Agent Brooks.
While Beltran was arranging to deliver the cocaine Customs agents set up surveillance on the apartment corresponding to the telephone number. At about noon Moreno and Orguiza came out of the apartment, looked around, and returned to the apartment. At approximately 12:50 p.m. Ruiz entered the apartment. About 20 minutes later co-defendant Botello1 and a person named Melendez entered the apartment. Moreno and Ruiz left the apartment for about fifteen minutes between 2:30 p.m. and 2:45 p.m. At about 3:00 p.m. Moreno and Ruiz left in a black Chrysler.
Beltran and Harris County undercover officer Stamper met Ruiz and Moreno at the pre-arranged site. Moreno indicated that she did not have all the money she owed Beltran and the parties discussed picking up the rest of the money that evening. Ruiz left briefly and returned with a bag of money. At that time Moreno and Officer Stamper got into the undercover vehicle. Stamper gave the cocaine to Moreno who smelled the package without opening it and said "good." Moreno gave Stamper $500 in cash and returned to her vehicle carrying the cocaine. Ruiz gave Beltran $6000 in cash and told him he could pick up the remainder of the money owed to him that evening. Ruiz and Moreno were arrested at the transaction site. The torn half of the 200 peso bill was recovered from their vehicle.
At approximately 6:15 p.m. Orguiza came out of the apartment which was under surveillance. The surveillance officers detained Orguiza who gave the officers the key to the apartment. The officers searched the apartment pursuant to a search warrant. In the apartment the officers found Moreno's passport, an airline ticket in Moreno's name for a flight from Columbia to Houston through New York, a piece of paper bearing the name "Royal Star" and the telephone number of the ship's broker, a piece of paper bearing several telephone numbers and the name "Justo," and a piece of paper bearing the number of the digital pager that Ruiz was wearing at the time of his arrest. In addition the officers discovered a Houston City water receipt made out to defendant Orguiza. The address on the receipt corresponded to the address of the original telephone number given to Beltran in Columbia in November.
Moreno was indicted for conspiracy to possess cocaine with intent to distribute it, for importing cocaine into the United States and for possession of cocaine with intent to distribute it. Ruiz and Orguiza were charged with conspiracy to possess cocaine with the intent to distribute it. The defendants were convicted following a jury trial and this appeal followed.
Each of the defendants is black and hispanic. The venire consisted of forty-one individuals. Six of the veniremen were black and eight had Hispanic surnames. The government had six peremptory strikes, all of which it used to excuse black or hispanic veniremen. The jury consisted of ten whites, two blacks, with one white alternate and one hispanic alternate. Additionally, several of the jurors spoke Spanish. The defendants contend that the prosecutor used his peremptory strikes to excuse jurors solely on account of their race and in violation of the equal protection clause of the Fourteenth Amendment.
In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the Supreme Court held that: "The equal protection clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the state's case against a black defendant." Id. at 89, 106 S.Ct. at 1718. Consequently, a prosecutor is authorized to peremptorily challenge minority jurors only if the state can demonstrate a racially neutral reason for the challenge. There are three elements to a prima facie case under Batson.
First, defendant "must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." Second, defendant can rely on the fact that peremptory challenges may disguise racial discrimination. Third, "the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.
United States v. Forbes, 816 F.2d 1006 (5th Cir.1987) (citations omitted).
Once a defendant has made a prima facie showing that the prosecutor's strikes were racially motivated, the burden shifts to the government to "come forward with a neutral explanation for challenging" the jurors of the defendant's race. Batson, 476 U.S. at 97, 106 S.Ct. at 1723.
In this case the defendants made their prima facie case under Batson. At the request of defense counsel the court then required that the prosecutor offer neutral explanations for his challenges. The prosecutor stated that he struck juryman number 13, a black man, because the prosecutor detected a hostile attitude toward police officers during defense voir dire. The prosecutor struck juryman number 16, a hispanic man, because of his response to questions regarding the problems that the city had recently had with its undercover officers. Juror number 21, a hispanic male, juror number 26, a black female, and juror number 28, a black female, were stricken because the prosecutor believed that they would not impartially view the evidence due to the fact that they were young, single, unemployed and inexperienced. In addition, juror number 28 had previously served on a jury in a case involving cocaine and a guilty verdict had not been reached. The prosecutor struck alternate juror number 34, a hispanic male, based on the prosecutor's "gut reaction" that a commercial artist would have sympathy for persons involved with drugs. The defendants challenged the government's explanations on the grounds that they were "pretext." The district court responded with a finding that "the government's explanations are accurate."
Where, as here, the district court requires the prosecution to explain its use of its peremptory challenges and finds no racial discrimination, the appellate court's review is a deferential one. United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir.1987). "Since the trial judge's findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference." Id. at 1010. As we noted in United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir.1988). "Valid reasons for exclusion may include 'intuitive assumptions' upon confronting a veniremen ... eye contact, demeanor, age, marital status, and length of residence in the community." Here the prosecutor provided valid neutral explanations for each of its strikes. The district court evaluated the credibility of the explanations and found that they were not pretextual. Giving "great deference" to these findings, we conclude that the court did not err in rejecting the defendant's challenge to these strikes.
Moreno contends that the evidence was insufficient to sustain her conviction for importing cocaine into the United States. Moreno's first argument is that the cocaine was actually brought into the United States by an informant and that this act was not illegal because it was done on behalf of the United States. Therefore, according to Moreno, even if she aided and abetted the importation she committed no crime. We rejected this argument in Haynes v. United States, 319 F.2d 620 (5th Cir.1963) in which we held that a defendant who arranged to have a controlled substance brought into the United States by a government agent could be convicted for importing that substance. This argument is, therefore, without merit.
Alternatively, Moreno argues that even if the importation was illegal, that the evidence was insufficient to prove that she aided and abetted that importation. Moreno contends that she may be convicted for aiding and abetting only if she provided critical or substantial assistance to the government agent and that her actions did not rise to this level. Specifically, she notes that she neither provided the cocaine to the informant nor helped to bring it ashore in the United States. Consequently, she argues, the jury could not have found that she was an active participant in the importation or that she willfully caused the informant to act in her stead. We do not agree.
The evidence established that Moreno and other individuals met with the informant in Columbia and arranged for the informant to bring the cocaine into the United States. The parties agreed that the informant would deliver the cocaine to Moreno in the United States and that Moreno would pay the informant for his services. Moreno, in fact, made a partial payment and arranged to make full payment at a later time. At the time of Moreno's arrest the police found in her apartment a slip of paper with the name of the informant's ship and a telephone number for the ship's broker. It is true that Moreno did not herself deliver the cocaine to the informant or off load it in the United States. Nonetheless, the jury could have found, given these facts, that Moreno willfully caused the informant to act in her behalf. We, therefore, affirm Moreno's conviction for importing cocaine.
Like Moreno, Orguiza argues that the evidence was insufficient to sustain his conviction. Orguiza's contention, however, fares better than did Moreno's. Orguiza was convicted of conspiracy to possess cocaine with the intent to distribute it. The government's case against Orguiza consists of the following facts:1. Beltran was originally given a telephone number to contact "Justo" in the United States.
2. Orguiza's first name is Justiniano.
3. The government taped an incriminating conversation with an individual who identified himself as "Justo" but who was not identified as Orguiza.
4. Orguiza was seen in the company of the other defendants on the day of the arrest.
5. Orguiza had the keys to Moreno's apartment.
6. In Moreno's apartment the police found a city of Houston water receipt made out to Orguiza listing an address that corresponded to the telephone number for "Justo" given to Beltran.
Facts four and five are insufficient to prove that Orguiza conspired to possess cocaine. As we stated in United States v. Gomez, 776 F.2d 542, 549 (5th Cir.1985), "defendant may not be convicted merely on a showing that he associated with individuals participating in a conspiracy, or by evidence that merely places him in a "climate of activity that reeks of something foul...." Facts number one, two and three could have provided support for the government's case if the government had presented evidence that Orguiza's nickname was "Justo" or that the person to whom they spoke on the telephone was Orguiza. The government, however, presented no evidence on either issue. The remaining fact, number six, indicates that at some time Orguiza probably lived at the telephone number given to Beltran in Columbia. Viewing the totality of the evidence in the light most favorable to the prosecution, we conclude, however, that no reasonable trier of fact could have found, beyond a reasonable doubt, that Orguiza conspired to possess cocaine. We, therefore, reverse Orguiza's conviction.
Ruiz contends that the trial court's failure to make an on the record finding that the probative value of using his prior convictions for impeachment purposes outweighed its prejudicial effects constituted reversible error. Alternatively, he contends that the probative value of the evidence was outweighed by its prejudicial effect. In United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc) cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), we held that a court must engage in a two step balancing test prior to admitting extrinsic evidence of prior bad acts. Id. at 911. Under this test: "[F]irst it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice...." Id. at 911. In United States v. Robinson, 700 F.2d 205 (5th Cir.1983) we held that "... the intendment and purpose of the prejudice element in [the use of evidence of extrinsic prior bad acts] ... are [sufficient] ... to warrant ... an on-the-record articulation by the trial court of Beechum's probative value/prejudice inquiry when requested by a party." Id. at 213. We further held that "[i]n the absence of on-the-record findings in response to such a request, we will be obliged to remand unless the factors upon which the probative value/prejudice evaluation were made are readily apparent from the record and there is no substantial uncertainty about the correctness of the ruling." Id. at 213. See also United States v. Zabaneh, 837 F.2d 1249 (5th Cir.1988).
In this case Ruiz elected to take the stand in his own defense. Anticipating that the government would attempt to impeach Ruiz by use of his prior convictions, his attorney stated, "... I would like, on the record, balancing the prior convictions in that they are identical to the same offense charged and I would argue that they would be unduly prejudicial...." A brief conversation ensued between the court, the prosecutor, and Ruiz's attorney, regarding the nature and dates of the prior offenses. The court then stated, "That motion is denied." Ruiz took the stand and, on cross-examination, testified that he was uncertain that he would recognize cocaine if he saw it. The government then used the evidence of Ruiz's prior convictions to impeach him. The court gave the jury a limiting instruction to the effect that this evidence could be used for impeachment purposes only.
From the record in this case, it is apparent that the court's ruling allowing evidence of prior convictions was correct, as his prior convictions show his knowledge of the substance in which he was dealing. See, e.g., United States v. Rodarte, 596 F.2d 141 (5th Cir.1979). The factors upon which the probative value/prejudice evaluation were made, however, are not clear from the record. We, therefore, remand this case to allow the district court to make an on-the-record evaluation of these factors. We note, in doing so, that there are occasions such as this one in which the probative value of the evidence is not readily apparent until the defendant testifies. In such circumstances the trial court may make its evaluation based on the likely uses of such evidence and condition its use based on the defendant's testimony.
and the judgment as to Ruiz is VACATED and REMANDED.

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The significance of the issue under study lies in research of the subject matter, character and components of special competences, as well as defining feasible ways of their formation in the framework of a higher vocational pedagogical institution. The article is aimed at providing the rationale for necessary formation of special competences in education for vocational teachers with implementation of Vocational and Federal State Education Standards. The main method of studying the given issue consists in pedagogical modeling of educational procedures for vocational teachers which allows it to outline the formation process of a special competence in learning specialist disciplines after determining its structure and contents. It was deemed necessary and proved to form special competence in education of future vocational teachers. The process of special training was structured with relevant amendments and supplements to its contents. On the top of it, this process of was accompanied by specially designed learning and teaching materials. The contents of the article could be of interest for graduate students and postgraduates as well as teachers who are involved in working on educational projects for vocational teachers.
Evdokimov, V. V. (2005). Vocational competence of future vocational master. Moscow: Moscow State Industrial University.
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Kitaeva, L. A., Murzin, V. M., & Osipov, P. N. (2012). Special competences of Master's Degree Students of project and engineering specialties as required by petrochemical enterprises. The Bulletin of Kazan Technological University, 2, 207-210.
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Gershunsky, B. S. (1980). Forecasting education contents in technical colleges: Study guide. Moscow: Vysshaya Shkola.
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Fedulova, M. A. (2008). Forming special competence among future vocational teachers (Doctoral Thesis). Russian State Vocational Pedagogical University, Ekaterinburg, Russia.
Fedulova, K. A., & Tarasyuk, O. V. (2008). Special competence of future vocational teachers of the specialization “Technologies and technological management in welding production”. The Education and science journal, 3(15), 32-41.
Fedulova, K. A., Tarasyuk, O. V., & Fedulova, M. A. (2011). Defining informational competence of vocational teachers for pedagogical project planning. The World of Science, Culture and Education, 3, 116-119.
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Fominykh, M. V., Uskova, B. A., Mantulenko, V. V., Kuzmina, O. N., & Shuravina, E. N. (2016). A Model for the Education of a Student of a Vocational Pedagogical Educational Institution through the Gaming Simulation. IEJME-Mathematics Education, 11(8), 2814-2840.
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In all cases where a defendant charged with the commission of a felony is committed to jail, either before or after trial, and the safety of the defendant or the defendant's safekeeping requires a guard, it is the duty of the sheriff to employ a sufficient guard to protect the defendant from violence and to prevent the defendant's escape or rescue. T.C.A. § 41-4-118.
While the United States Constitution “does not mandate comfortable prisons,” neither does it permit inhumane ones. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994) quoting Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981). Under the Eighth Amendment’s prohibition of "cruel and unusual punishments,” prison officials must "take reasonable measures to guarantee the safety of the inmates." Id., quoting Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984). They “have a duty ... to protect prisoners from violence at the hands of other prisoners.” Id. at 833, quoting Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (1st Cir.), cert. denied, 488 U.S. 823, 109 S.Ct. 68, 102 L.Ed.2d 45 (1988). “It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety.” Farmer at 834. See Clark v. Corrections Corp. of America, 98 Fed.Appx. 413 (6th Cir 2004) (In the prison context, the Eighth Amendment imposes a duty on prison officials to take reasonable measures to guarantee the safety of inmates. “[D]eliberate indifference of a constitutional magnitude may occur when prison guards fail to protect one inmate from an attack by another.”) (citations omitted); Dellis v. Corrections Corp. of America, 257 F.3d 508 (6th Cir. 2001) (Prison officials have a duty to protect prisoners from violence suffered at the hands of other prisoners.) (citations omitted).
In Buckner v. Hollins, 983 F.2d 119, 122-123 (8th Cir.1993), the Eighth Circuit Court of Appeals held that a prison official was not entitled to qualified immunity when he allowed fellow corrections officers to attack a prisoner and he possessed the only set of keys to the prisoner's holding cell. The court concluded the official could be found liable because he deliberately ignored a prisoner's serious injury and failed to protect the prisoner from a foreseeable attack or otherwise guarantee the prisoner's safety. The court concluded the officer had a duty to intervene. And in McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990), the Sixth Circuit Court of Appeals held that a prison official has "a duty to try and stop another officer who summarily punishes a person in the first officer's presence." Accordingly, a correctional officer who observes an unlawful beating may be held liable without actively participating in the unlawful beating. See also Walker v. Norris, 917 F.2d 1449 (6th Cir. 1990) (prison guard’s failure to prevent inmate's stabbing by another inmate violated inmate's Eighth Amendment rights where the guards had the opportunity to prevent the stabbing but failed to do so and instead looked on while the inmate was attacked); Roland v. Johnson, 856 F.2d 764, 769-70 (6th Cir. 1988); McGhee v. Foltz, 852 F.2d 876, 880-81 (6th Cir. 1988).


Photo taken by Renee C. Quinn, May 2018.
WesternGeco owns four patents relating to a system that it developed for surveying the ocean floor. In 2007, ION began selling a competing system. It manufactured the components in the United States and then shipped them to companies abroad. The companies then combined the components to create a surveying system indistinguishable from WesternGeco’s and used the system to compete with WesternGeco.
WesternGeco sued ION for patent infringement under 35 U.S.C. §§271(f)(1) and (f)(2). The jury found ION liable and awarded WesternGeco damages of $12.5 million in royalties and $93.4 million in lost profits. ION filed a post-trial motion to set aside the verdict, arguing that WesternGeco could not recover damages for lost profits because §271(f) does not apply extraterritorially. The district court denied the motion. On appeal, the Federal Circuit reversed the award of lost-profits damages, relying on its previous holding that §271(a), the general infringement provision, does not allow patent owners to recover for lost foreign sales. WesternGeco petitioned for review in the Supreme Court, which vacated the Federal Circuit’s judgment, and remanded for further consideration in light of its decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. (2016). On remand, the Federal Circuit reinstated the portion of its decision that §271(f) has no extraterritorial reach. The Supreme Court granted certiorari again.
Courts generally presume that federal statutes “apply only within the territorial jurisdiction of the United States.” Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949). The Supreme Court has established a two-step framework for deciding whether extraterritoriality should nonetheless apply. The first step asks whether the presumption against extraterritoriality has been rebutted. It can only be rebutted if the statutory text provides a clear indication of an extraterritorial application. If the presumption has not been rebutted, the second step asks whether the case involves a domestic application of the statute. Courts determine this by identifying the statute’s “focus” and asking whether the conduct relevant to that focus occurred in a United States territory.
Although it is usually preferable to begin with step one, courts have the discretion to begin at step two in appropriate cases. One reason to exercise this discretion is because addressing step one requires resolving difficult questions that do not change the outcome of the case but could have far-reaching effects in future cases. WesternGeco argued that the presumption against extraterritoriality should never apply to statutes, such as §284, that merely provide a general damages remedy for conduct that Congress has declared unlawful. Because resolving that question could implicate many other statutes besides the Patent Act, the Court exercised its discretion to forgo the first step of its extraterritoriality framework.
Under step two, the focus of a statute is the object of its solicitude, which can include the conduct it seeks to regulate, as well as the parties and interests it seeks to protect or vindicate. “If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application” of the statute, “even if other conduct occurred abroad.” RJR Nabisco, Inc. v. European Community, 579 U.S. (2016) (slip op., at 9). But if the conduct occurred in another country, “then the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.” Id. Further, if the statutory provision at issue works in tandem with other provisions of the statute, it must be assessed together with those other provisions.
The Court previously explained that the “overriding purpose” of §284 is to “affor[d] patent owners complete compensation” for infringements. General Motors Corp. v. Devex Corp., 461 U.S. 648, 655 (1983). Therefore, the focus of §284 is infringement. The Court then turned to §271(f)(2), which was the basis for WesternGeco’s infringement claim and the lost-profits damages that it received. The conduct that §271(f)(2) regulates is the domestic act of “supply[ing] in or from the United States.” Section 271(f)(2) invokes domestic interests because it “reach[es] components that are manufactured in the United States but assembled overseas.” Life Technologies Corp. v. Promega Corp., 580 U.S. (2017) (slip op., at 11). The infringing conduct that is relevant occurred in the United States because it was ION’s domestic act of supplying the components that infringed WesternGeco’s patents. Therefore, the lost-profits damages that were awarded to WesternGeco were a domestic application of §284.
The Court rejected ION’s arguments to the contrary. First, ION contended that the statutory focus is “self-evidently on the award of damages.” However, the damages themselves are simply how the statute achieves its goal of remedying infringements. Second, ION argued that this case involves an extraterritorial application of §284 because “lost-profits damages occurred extraterritorially, and foreign conduct subsequent to [ION’s] infringement was necessary to give rise to the injury.” But those overseas events were incidental to ION’s infringement. Finally, ION extrapolated a general rule from RJR Nabisco that damages awards for foreign injuries are always an extraterritorial application of a damages provision. However, “[t]hat portion of RJR Nabisco interpreted a substantive element of a cause of action, not a remedial damages provision.” It did not make any statements about damages.
Consequently, the Court held that WesternGeco’s damages award for lost profits was a permissible domestic application of §284. The judgment of the Federal Circuit was reversed, and the case was remanded for further proceedings consistent with the Court’s opinion.
Justices Gorsuch and Breyer dissented, arguing that because an infringement must occur within the United States, “that means a plaintiff can recover damages for the making, using, or selling of its invention within the United States, but not for the making, using or selling of its invention elsewhere.” The dissent contended that permitting damages of this sort would effectively allow United States patent owners to use American courts to extend their monopolies to foreign markets. In turn, this would invite other countries to use their own patent laws and courts to assert control over the United States economy.
Patent owners may recover lost foreign profits under §271(f)(2) when the infringing party exports parts from the United States for assembly in foreign countries, so long as the relevant infringing conduct occurred in the United States.
Joseph Robinson has over 20 years of experience in all aspects of intellectual property law. He focuses his practice in the pharmaceutical, life sciences, biotechnology, and medical device fields. His practice encompasses litigation, including Hatch-Waxman litigation; licensing; counseling; due diligence; and patent and trademark prosecution. He has served as litigation counsel in a variety of patent and trademark disputes in many different jurisdictions, and has also served as appellate counsel before the Court of Appeals for the Federal Circuit. Joe also focuses on complex inter partes matters before the U.S Patent and Trademark Office, inventorship disputes, reexaminations and reissues. His experience includes numerous interferences, a particular advantage in new U.S. Patent and Trademark Office post-grant proceedings. He also counsels on patent–related U.S. Food and Drug Administration issues, including citizen petitions, Orange Book listing, and trademark issues. For more information and to contact Joe please visit his profile page at the Troutman Sanders website.
Robert Schaffer is an intellectual property partner at Troutman Sanders. Bob applies more than 30 years of experience to IP counseling and litigation. His work includes patent procurement, strategic planning and transactional advice, due diligence investigations, district court patent cases, and Federal Circuit appeals. He regularly handles complex and high-profile domestic and international patent portfolios, intellectual property agreements and licensing, IP evaluations for collaborations, mergers, and acquisitions. In disputed court cases Bob’s work includes representing and counseling client in ANDA litigations, complex patent infringement cases and appeals, and multidistrict and international cases. In disputed Patent Office matters his work includes representing and counseling clients in interferences, reexaminations, reissues, post-grant proceedings, and in European Oppositions. For more information and to contact Bob please visit his profile page at the Troutman Sanders website.
There are currently 2 Comments comments.
(small) patent owners can’t recover anything for domestic infringement but are allowed to recover lost profits for infringement abroad ???
what kind of idiots are those folks ?


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R.C. 2913.01(K) -- "Theft offense" defined.
R.C. 2913.03 -- Unauthorized use of a vehicle.
R.C. 2913.04 -- Unauthorized use of property; computer property.
R.C. 2913.41 -- Defrauding a livery of hostelry.
R.C. 2913.46 -- Trafficking in or illegal use of food stamps.
R.C. 2913.47 -- Insurance fraud.
R.C. 2913.51 -- Receiving stolen property.
R.C. 2913.61 -- Value of stolen property.
R.C. 2913.71 -- Degree of offense when certain property involved.
R.C. 2921.41 -- Theft in office.
R.C. 2945.75(B) -- Proof of prior conviction.
State v. Smith, 117 Ohio St. 3d 447, 2008-Ohio-1260 – Syllabus: "(1) In determining whether an offense is a lesser included offense of another when a statute sets forth mutually exclusive ways of committing the greater offense, a court is required to apply the second part of the test established in State v. Deem (1988), 40 Ohio St. 3d 205, 533 N.E. 2d 294, paragraph three of the syllabus, to each alternative method of creating the greater offense. (2) Theft, as defined in R.C. 2913.02, is a lesser included offense of robbery, as defined in R.C. 2911.02." From the body of the opinion it appears this does not apply to robbery premised on attempted theft which is a mutually exclusive way of committing the greater offense. The degree of the theft conviction is not limited to M-1 theft as the court views value as a special finding to determine the degree of the offense and not a part of the definition of the crime.
State v. Smith, 121 Ohio St. 3d 409, 2009-Ohio-787 – Same case as 117 Ohio St. 3d 447 on reconsideration. The elements of theft are as set forth in R.C. 2913.02(A). Additional matters affecting punishment are deemed "special findings" and are not elements. In an indictment for theft due process requires such matters be alleged, but the fact the defendant has been indicted for robbery is sufficient to place him on notice that if found guilty of the lesser included offense of theft his penalty might be increased by "special findings" such as value.
Gessner v. Greg‘s Pawn Shop, 181 Ohio App. 3d 217, 2009-Ohio-713 – The true owner of stolen property that has been pawned is entitled to its return by the pawn shop without paying any charge. Judgment on the pleadings properly granted.
Barnes v. United States (1973), 412 U.S. 837 -- A jury instruction regarding a permissive inference of guilty knowledge from unexplained possession of recently stolen property satisfies due process if it does not serve to excuse the prosecution from its burden of proof beyond a reasonable doubt. Also see State v. Arthur (1975), 42 Ohio St. 2d 67; State v. Giles (August 7, 1980), Franklin Co. App. No. 80AP-297, unreported (1980 Opinions 2296); State v. McAllister (1977), 53 Ohio App. 2d 176.
State v. Snowden (1982), 7 Ohio App. 3d 358 -- Headnote 2: "Mistake of fact can, in an appropriate circumstance, negate either the 'knowingly' or 'purposely' elements of specific intent crimes such as theft.
Nichols v. United States (1994), 511 U.S. 738 -- A prior uncounselled misdemeanor conviction, constitutional under Scott v. Illinois (1979), 440 U.S. 367 because no sentence of imprisonment was imposed, may be used to enhance the sentence for a later offense, even though that sentence entails imprisonment. Baldasar v. Illinois (1980), 446 U.S. 222, overruled. Opinion leaves standing the rule that an uncounselled prior conviction may not be used to increase the degree of an offense, where proof of the conviction is an element of the crime rather than a sentencing consideration. See Burgett v. Texas (1967), 389 U.S. 109.
State v. Henderson (1979), 58 Ohio St. 2d 171 -- Syllabus: "Where an accused has entered a plea of guilty to a theft offense but has not been sentenced by the court on that charge, such offender has not been previously convicted of a theft offense within the meaning of R.C. 2913.01(B). (2) To constitute a prior conviction for a theft offense, there must be a judgment of conviction, as defined in Crim. R. 32(B), for the prior offense." Also see State v. Johnson (1995), 101 Ohio App. 3d 129.
State v. Bolan (1971), 27 Ohio St. 2d 15 -- Syllabus: Where, pursuant to R.C. 2935.041, an employee of a merchant has detained a person whom he has probable cause to believe has unlawfully taken items offered for sale by the mercantile establishment, an admission or confession made during such detention is not rendered inadmissible by the failure of such employee to fully explain to such detained person those constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436."
Columbus v. Barger (June 16, 1977), Franklin Co. App. No. 77AP-137, unreported (1977 Opinions 2248) -- R.C. 2935.041 allows a merchant to detain a shoplifter to recover stolen items, though without search or undue restraint, or until an arrest can be made by a police officer, however, even if the merchant exceeds his authority, conviction is not precluded.
East Cleveland v. Odetellah (1993), 91 Ohio App. 3d 787 -- A merchant may not detain a person suspected of theft for seven hours, handcuffed to a chair. Under R.C. 2935.041 the detention was not reasonable. Construed as a citizen's arrest, the delay was unnecessary. Unlawful restraint conviction upheld.
State v. Phillips (1993), 84 Ohio App. 3d 836, 841 -- While customer may have permission of store owner to carry merchandise about while deciding whether to make a purchase, this consent does not extend to movement of merchandise within the store in order to facilitate theft.
State v. Brown (1995), 108 Ohio App. 3d 489 -- Disbarred attorney could be convicted of theft for having continued to practice law. R.C. 4705.07, proscribing falsely representing oneself to be an attorney, is not a specific statute precluding prosecution under the general theft statute.
State v. Mehozonek (1983), 8 Ohio App. 3d 271 -- Defendant cannot be convicted of theft resulting from a sting operation by employer to test honesty of employees, since by setting up the sting employer has consented to removal of the property.
State v. Diephaus (1989), 55 Ohio App. 3d 90 -- Receiving conviction reversed where person who stole carton of cigarettes was used by the police to conduct a sting operation after being caught. Defendant who purchased recovered carton of cigarettes, did not receive stolen property, though he may have mistakenly believed he was doing so.
State v. Preztak, 181 Ohio App. 3d 106, 2009-Ohio-621 – (1) When a theft offense is premised on a continuing course of conduct, such as embezzlement, time does not begin to run for purposes of the statute of limitations until the final theft occurs. R.C. 2913.61(C)(1) required offenses within the employment relationship be aggregated. They could not be prosecuted as separate counts. (2) Case remanded for more accurate determination of restitution as amount in judgment entry was different from amount stated in court. Defendant further contended some restitution had already been paid into the probation department.
State v. Cooper, 168 Ohio App. 3d 378, 2006-Ohio-4004 -- A shoplifter who enters a store lawfully is a thief, not a burglar. But the situation changes if he enters a separately secured part of the premises.
State v. Colquitt, Montgomery App. No. 02-CR-2295, 2003-Ohio-4318 -- Conviction for unauthorized use of property does not bar prosecution for robbery based on the same facts.
State v. Rivera, Cuyahoga App. No. 84379, 2004-Ohio-6648 -- Restitution in the amount of the value of a car is improper when the indictment charged F-4 RSP of an engine. Since the upper limit of F-4 RSP is $5,000, the order was improper.
State v. Reese, 165 Ohio App. 3d 21, 2005-Ohio-7075 -- Owner of stolen ring testified that her mother had told he the ring was purchased by her father for $3,500. There is no Crawford violation because the statement was nontestimonial, but the statement was not admissible under the family history exception set forth in Evidence Rule 804(B)(4). Conviction reduced to a misdemeanor.
State v. Chaney (1984), 11 Ohio St. 3d 208 -- Applying R.C. 2913.61(D), stolen car parts are not "personal effects" and thus value is to be determined on the basis of fair market value and not cost of replacement with comparable new items.
State v. Russell (June 24, 1980), Franklin Co. App. No. 79AP-923, unreported (1980 Opinions 1776, 1779) -- Marked price of goods offered for retail sale is prima facie evidence of fair market value. Also see State v. Cunningham (1990), 67 Ohio App. 3d 366.
State v. Clark (November 19, 1981), Franklin Co. App. No. 81AP-555, unreported (1981 Opinions 3731) -- The value of a purse stolen from its owner is replacement cost.
State ex rel. Jones v. Garfield Heights Municipal Court (1997), 77 Ohio St. 3d 447 -- Defendant brought a prohibition action challenging the jurisdiction of the municipal court where he was charged with petty theft because a police report indicated that in addition to the theft of $249 worth of beef he was charged with, he had also stolen $89 worth of pork, bringing the total over the $300 line between misdemeanor and felony theft. Complaint was properly dismissed. Prosecutor acted within his discretion.
State v. Doll (1970), 24 Ohio St. 2d 130 -- Multiple embezzlements within the same employment relationship are a single offense. See R.C. 2913.61(C).
State v. Rice (1995), 103 Ohio App. 3d 388, 402 -- Multiple schemes to extract money from disability and pension fund (not amounting to theft in office because the defendant was an outside contractor) were in the nature of embezzlement and merged into a single theft offense.
State v. Krutz (1986), 28 Ohio St. 3d 36 -- "Theft in office offenses, as defined in R.C. 2921.41, are not 'theft offenses' which must be tried as a single offense under R.C. 2913.61(C)."
State v. Wilson (1996), 113 Ohio App. 3d 737, 744-745 -- Seven counts of RSP did not merge where checks taken from a single owner were separately retained and disposed of.
State v. Coffman (1984), 16 Ohio App. 3d 200 -- Theft counts merge when based on theft from two purses left in the same automobile.
State v. Fisher (1977), 52 Ohio App. 2d 53 -- Headnote 2: "The act of stealing a motor vehicle containing personal property constitutes one offense and a defendant may not be additionally convicted of stealing the personalty."
State v. Woody (1986), 29 Ohio App. 3d 364 -- Amendment of theory of culpability in a theft indictment from "without" the owner's consent to "beyond" the owner's consent changed the identity of the crime. Defendant ordered discharged.
State v. Perkins (1994), 93 Ohio App. 3d 672 -- The combination to a safe constitutes property for purposes of establishing a theft offense.
State v. Coburn (1992), 84 Ohio App. 3d 170 -- Indictment charging RSP of a motor vehicle does not have to allege the value of the vehicle. Allegation that a motor vehicle is the property involved is sufficient to establish the degree of the offense.
State v. Burton (1983), 11 Ohio App. 3d 261 -- Headnote: "Where the defendant was arrested prior to the amendment of the theft statute, but pleaded guilty and was sentenced subsequent to the effective date of the amended theft statute, R.C. 1.58 requires that defendant receive the benefit of the lesser sentence (based on valuation) provided in the amended statute." Also see State v. Coffman (1984), 16 Ohio App. 3d 200.
State v. Warren (1998), 125 Ohio App. 3d 298 -- Defendant was found guilty of grand theft, based on prior theft conviction, as a lesser included offense to robbery. Stipulation forestalled claim of lack of notice that lesser would be grand theft and not petty theft.
State v. Pawloski, 188 Ohio App. 3d 267, 2010-Ohio-3504 – Car owner picked his repaired vehicle up after hours without paying, leading to charges of B&E, theft based on lack of consent, and theft by deception. The theft by lack of consent charge required proof of a valid mechanic’s or garage man’s lien. Because the repairs were performed without a written estimate, or a written waiver of the right to an estimate, as required by Ohio Adm. Code 109:4-3-13, the lien was not perfected. Thus the evidence does not support conviction. But the theft by deception count does as the evidence allowed the inference the defendant never intended to pay for repairs.
State v. Ames, 182 Ohio App. 3d 736, 2009-Ohio-3509 – Owner of a pickup truck was charged with theft after his nephew removed it from the premises of a repair shop without paying the bill. Charge was theft of services premised on the shop‘s common law lien. The shop had not provided a written estimate as to the cost of repairs as required by the Ohio Consumer Sales Practice Act. Reversed. An unfair or deceptive practice under the OCSPA negates a mechanic‘s lien. Defendant claimed he had asked for a diagnostic test and had not authorized repairs.
State v. Whiteaker, 188 Ohio App. 3d 489, 2010-Ohio-3502 – In a family melodrama involving coins from washers and driers, dementia, milk cans, a trip to South Dakota, and maybe an admission, conviction was not supported by sufficient evidence.
State v. Dorsey, Lucas App. Nos. L-01-1257, 1258, 1259 and 1260, 2002-Ohio-5196, ¶40-45 -- For theft to be elevated to a felony, auto titles must be blank. Auto titles which were completely filled in, but not signed by the transferee were not blank. Companion receiving stolen property conviction reversed as well.
State v. Black on Black Crime, Inc. (2000), 136 Ohio App. 3d 436 -- City mistakenly wired in excess of $600,000 to the account of a nonprofit corporation, which was dissipated before mistake was discovered and return demanded. Theft conviction of the corporation itself affirmed.
State v. Williams (1984), 16 Ohio App. 3d 168 -- (1) The actual stolen property does not have to be introduced at trial. Compare State v. Farmer (1951), 156 Ohio St. 214. (2) Property does not have to be removed from the premises.
State v. Arnold (1983), 9 Ohio Misc. 2d 14 -- Headnote: "Renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose."
State v. Griffin (November 4, 1980), Franklin Co. App. No. 80AP-311, unreported (1980 Opinions 3424) -- Indictment charged receiving stolen property as a felony based on value. Verdict form referred to offense as charged in the indictment, but the jury was never instructed as to the enhanced charge. Verdict was only sufficient to find the defendant guilty of a misdemeanor. Compare State v. Woods (1982), 8 Ohio App. 3d 56 where the court read the elements set forth in the indictment as a part of instructions. Also see State v. Park (1962), 174 Ohio St. 81; State v. Ridgeway (1972), 35 Ohio App. 2d 381.
State v. Lavandera (1986), 34 Ohio App. 3d 83 -- Headnote: "When a customer at a gasoline service station mistakenly pumps his own gasoline from a full-service pump instead of a self-service pump, and pays at the lower self-service price, a conviction for theft cannot stand if based on a complaint for theft of 'property' in the amount of the price difference, where the price difference represents only the value of services not rendered."
State v. Jacobozzi (1983), 6 Ohio St. 3d 86 -- Theft proven where established contractor received money for a substantial amount of work that had not been completed.
State v. Vitale (1994), 96 Ohio App. 3d 695 -- Theft conviction reversed as against the weight of the evidence where body shop owner filed theft charges based on unpaid and disputed bill for repairs of a car which he had voluntarily returned to its owner.
State v. Luna (1994), 96 Ohio App. 3d 207 -- A theft by deception count of an indictment is insufficient when it fails to allege essential facts showing the element of deception, or to allege that the deception occurred. The indictment must also allege that the offense occurred within the jurisdiction of the court.
State v. Fyffe (1990), 67 Ohio App. 3d 608 -- Shoddy and overpriced home repairs did not amount to theft by deception.
State v. Baumgarden (1988), 49 Ohio App. 3d 24 -- Theft by deception not proven where checks written by auto dealership sales manager to himself were properly entered in the company's books, which were always available to anyone who might have wanted to examine them.
State v. Bakies (1991), 71 Ohio App. 3d 810 -- Theft by deception not proven where it was not established that the defendant did not intend to repay a loan. Defendant was also charged with using bronze statutes offered as collateral as criminal tools.
State v. Barker (1998), 128 Ohio App. 233, 244-245 -- Theft by deception convictions affirmed where one customer ended up with something other than a 20-pound "cockapoo," notwithstanding breeder's civil judgment for the balance of the purchase price, and papers for another dog were suspect.
State v. McGee (1996), 112 Ohio App. 3d 208 -- Rule 29 motion should have been granted where facts might have supported theft by deception, but not theft as charged in terms of a taking without the owner's consent.
State v. Brown (1994), 99 Ohio App. 3d 604 -- In a Medicaid fraud prosecution deception was established by showing doctor billed separately for supplies which were covered by reimbursement for normal office visits, even though supplies may have been used.
State v. Jackson (1993), 90 Ohio App. 3d 702 -- Aider and abettor could not be prosecuted for grand theft based on the principal's five prior theft convictions. While an aider and abettor may be punished as if he or she committed every act committed by the principal, the principal's criminal record may not be attributed to the aider and abettor.
State v. Alexander (1975), 50 Ohio App. 2d 55 -- It is proper to submit the question of a prior conviction to the jury when it enhances the degree of the offense.
State v. Brandon (1989), 45 Ohio St. 3d 85 -- Syllabus: "Where questions arise concerning a prior conviction, a reviewing court must presume all underlying proceedings were conducted in accordance with the rules of law and a defendant must introduce evidence to the contrary in order to establish a prima-facie showing of constitutional infirmity." Compare State v. Elling (1983), 11 Ohio Misc. 2d 13.
State v. Porter (1976), 49 Ohio App. 2d 227 -- Prior conviction may be used for enhancement of subsequent offense even though when plea was entered the defendant was not advised of this consequence.
In re Russell (1984), 12 Ohio St. 3d 304 -- In delinquency proceedings, a prior adjudication of delinquency predicated on a theft offense constitutes a previous conviction of a theft offense under R.C. 2913.02 for purposes of determining disposition by the juvenile court. Also see In re Hayes (1986), 29 Ohio App. 3d 162 -- Evidence of prior theft adjudication admissible notwithstanding R.C. 2151.358(H).
State v. Glenn (1990), 56 Ohio Misc. 2d 1 -- Retention of furniture obtained under a rent to own contract without continued payment is not theft.
State v. Hope (1983), 9 Ohio App. 3d 65 -- Headnote: "A defendant 'knowingly obtain(s) control over' a motor vehicle for purposes of committing a theft offense...when the defendant has rendered the vehicle immediately capable of movement."
State v. Bennett, 185 Ohio App. 3d 54, 2009-Ohio-6092 – Defendant was convicted of RSP as a felony for possession of a license plate annual validation sticker. Construing R.C. 2913.71 and 4503.22, a sticker is not the equivalent of a plate. Remanded for resentencing for misdemeanor RSP.
State v. Apshari, 187 Ohio App. 3d 151, 2010-Ohio-325 – One count of RSP pertained to a wallet and a stereo. Second count involved a credit card. All were obtained in a single transaction or occurrence. Offenses merged. Rance era case. Began as an intervention in lieu of conviction case and merger was argued at the time the guilty pleas were entered. Ruling was deferred until the defendant was sentenced as a violator.
In re B.C., 191 Ohio App. 3d 739, 2010-Ohio-6377 – Japanese exchange student lost his billfold. Other students found it under the bleachers, and despite a P.A. announcement regarding the missing wallet tried to cash Japanese currency at a bank. Evidence supported delinquency finding based on receiving stolen property. Opinion discusses common law on found property and larceny, and the code provision focusing on exertion of control to deprive the owner of property. Circumstances known to the finders indicated the property could be returned.
State v. Black, 181 Ohio App. 3d 821, 2009-Ohio-1629 – Defendant was said to match the description of the person suspected of stealing a car that was later the subject of a receiving stolen property charge. Evidence was properly received pursuant to Evid. R. 404(B) to show knowledge. It was improper for the prosecutor to argue to the jury that it was up to them to determine whether the defendant could have been charged with theft as well as RSP and for the court to exclude testimony someone else may have stolen the car, though neither warrants reversal.
State v. Awad, 164 Ohio App. 3d 528, 2005-Ohio-5861 -- Cigarettes used in a sting operation were in fact not obtained through the commission of a theft offense. But three times the undercover officer represented that they were stolen. R.C. 2913.51(B) holds defendant responsible in such circumstances. Price list from before and after the date of the incident are sufficient to establish value.
State v. Buzzard, 163 Ohio App. 3d 591, 2005-Ohio-5270, ¶32 -- Laptop was not proven stolen based on officer's hearsay statement he had talked to the owner in Colorado and confirmed it had been reported stolen in a call to local police.
State v. McKinney, Defiance App. No. 4-04-12, 2004-Ohio-5518 -- RSP conviction was not supported by the evidence where the only evidence the vehicle stolen was a police report erroneously admitted under the business records exception.
State v. Steward, Washington App. No. 02CA43, 2003-Ohio-4082 -- Receiving stolen property is a continuing offense. Defendant was properly prosecuted as an adult for possession of stolen property which came into his possession while he was a juvenile.
In re Bromfield, Hamilton App. No. C-030446, 2004-Ohio-450 -- While mere presence in a stolen vehicle is not enough to prove receiving stolen property, "(a) passenger's use of a stolen vehicle for transportation, combined with his running and hiding when police approach, amounts to sufficient circumstantial evidence that the passenger aided and abetted the driver."
State v. Hankerson (1982), 70 Ohio St. 2d 87 -- Syllabus: "Possession of stolen property for purposes of the receiving stolen property statute, R.C. 2913.51, may be constructive as well as actual. Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within his immediate physical possession. (State v. Wolery, 46 Ohio St. 2d 316, explained and followed.)"
State v. Jackson (1984), 20 Ohio App. 3d 240 -- To receive stolen property means more than mere temporary physical possession. Conviction reversed where defendant handled stolen gun an associate had taken in a burglary.
State v. Boyce (1986), 33 Ohio App. 3d 295 -- Conviction reversed where defendant took off in a car rented for a friend to go to the prom in. The defendant had not concealed his use of the car and there was no proof that he had taken it with the intention of disposing of it or of withholding it permanently or for such period as to appropriate a substantial portion of its value.
State v. Schnitzler (1990), 56 Ohio Misc. 2d 14 -- Headnote: "Where a person shares an apartment with another and stolen property is left at that apartment for several hours, she cannot be convicted of receiving stolen property at the apartment where...she repeatedly demanded that the stolen property be removed from the apartment, and did not take any steps to exercise any control over the property."
State v. Wilson (1985), 21 Ohio App. 3d 171 -- Though property was taken from three individuals in two separate burglaries, three counts of receiving stolen property merge when the evidence was that the defendant disposed of the property in a single transaction. Also see State v. Sanders (1978), 59 Ohio App. 2d 187; Smith v. State (1898), 59 Ohio St. 350.
State v. Hendking (1993), 91 Ohio App. 3d 137 -- For purposes of elevating receiving stolen property to a felony because a credit card was involved, the state need not prove that the account was open.
State v. Wright (1993), 91 Ohio App. 3d 71 -- Defendant was charged with receiving a bag of securities valued at over $100,000, but the jury found against the state on the issue of value. Defendant was properly convicted of a misdemeanor violation of the statute.
State v. Homer (1992), 78 Ohio App. 3d 477 -- Defendant who stole a snowmobile while a juvenile, and retained possession past his eighteenth birthday, could be prosecuted for RSP as an adult.
State v. Webb (1991), 72 Ohio App. 3d 749, 753-754 -- In a receiving stolen property prosecution seeking an enhanced penalty because the property was a firearm, operability must be proven. See State v. Gaines (1989), 46 Ohio St. 3d 65; State v. Murphy (1990), 49 Ohio St. 3d 206. Same result would follow in a theft prosecution when an enhanced penalty is sought.
State v. Whited, Champaign App. No. 02CA38, 2003-Ohio-5747 -- Grand theft and unauthorized use of a motor vehicle are not allied offenses of similar import.
State v. Breaston (1982), 8 Ohio App. 3d 144 -- Definition of "deprive" construed to reach not giving proper consideration in return for use of property, thus supporting conviction for receiving stolen property instead of joyriding.
State v. Rose (1992), 63 Ohio St. 3d 585 -- A defendant may be convicted of unauthorized use of a vehicle where he continues to use a borrowed automobile beyond the scope of the initial consent.
State v. Perry (1998), 83 Ohio St. 3d 41 -- "...(P)rosecution of state charges of unauthorized use (of computer property pursuant to R.C. 2913.04) that are based solely upon the unauthorized uploading, downloading, and posting of software on a computer bulletin board is preempted by the federal copyright laws."
State v. Peek (1996), 110 Ohio App. 3d 165 -- Unauthorized use of a motor vehicle is not a lesser included offense to receiving stolen property, when the property involved is a motor vehicle.
State v. Canellos (1993), 91 Ohio App. 3d 701 -- Unauthorized use of property is not a lesser included offense of theft as it requires proof of use or operation, which is beyond the mere possession or control, which is an element of theft. Case involves Oxford city ordinances.
State v. Edmondson, 92 Ohio St. 3d 393, 2001-Ohio-210 -- When a welfare recipient is charged with theft by deception, for purposes of determining the degree of the offense the amount stolen is the total value of the benefits and not the excess over the amount the recipient would legitimately have been entitled to. Also see State v. Woods (2001), 145 Ohio App. 3d 751 (conviction affirmed though deception caused no actual loss).
State v. McGhee, Franklin App. No. 07AP-216, 2007-Ohio-6537 -- Medicaid fraud is not among those offenses where, pursuant to R.C. 2913.61, a continuing course of conduct may be prosecuted as a single offense.
State v. King, 151 Ohio App. 3d 346, 2003-Ohio-208 -- Defendant claimed he asked a Department of Job and Family Services worker if he had to report benefit checks for his daughter as his income and was incorrectly told he did not. Ineffective assistance of counsel not to request instruction on mistake.
State v. Wallace, 160 Ohio App. 3d 528, 2005-Ohio-1746 -- (1) Though parent could be prosecuted under federal law for misuse of Social Security benefits, prosecution under an Ohio theft statute was not preempted. (2)The government qualifies as the owner of funds within the meaning of the theft statute. (3) Statute of limitations did not begin to run until the end of the continuing course of conduct, here depriving the defendant's son of his Social Security benefits.
State v. Washington (1998), 126 Ohio App. 3d 264 -- Theft in office prosecution was premised on unauthorized use of a computer system which posted food stamp benefits on cards bearing a microchip which were issued to beneficiaries. (1) It was not necessary to prove a lack of consent on the part of the cardholders as owners, as the ownership interest violated was established with respect to the central computer, whether or not the imbedded chips meant the cards by themselves qualified as a computer, system or network. (2) Assistance by welfare department personnel not construed as consent. Also, interoffice memos defendant was obligated to read are used to rebut the claim she mistakenly believed she was authorized to access the system using cards issued to others. (3) Unauthorized use of property statute may be constitutionally infirm.
State v. Lester (1996), 111 Ohio App. 3d 736 -- Information that welfare recipient was employed, reflected by state tax returns and investigation by the state auditor, could not be imputed to county welfare department until it received report from the auditor.
State v. Luna (1994), 94 Ohio App. 3d 653 -- Welfare fraud prosecution was based of defendant's failure to disclose an interest in real estate. Appeals court affirms tampering with records conviction, but overturns for theft by deception and securing writings by deception.
State v. Bolar (1987), 39 Ohio App. 3d 194 -- Headnote 1: "Section 2011, Title 7, U.S. Code does not preempt concurrent enforcement of supplementary state statutes outlawing the misuse of federal food stamps." Also see State v. Gill (1992), 63 Ohio St. 3d 53.
State v. Lozano, 90 Ohio St. 3d 560, 2001-Ohio-224 -- Syllabus: "A public employee is a 'public official' for purposes of the theft in office statute, R.C. 2921.41." Water and sewer department employee sold meters to scrap dealer.
State v. Rousseau, 159 Ohio App. 3d 34, 2004-Ohio-5949 -- For purposes of the unlawful interest in a public contract statute, a member of the county board of elections is "connected" with the county. Argument was that the board of elections was connected with the state. Court follows Ethics Commission opinions and discounts opinions of the Attorney General.
State v. Bowsher (1996), 116 Ohio App. 3d 170 -- Police officer was charged with theft in office based on taking funds from a benefit organization. No contest plea preserved the issue whether there was the necessary nexus between his public office as a police officer and the theft. Court concludes that there was not a sufficient link.
State v. Collier (1998), 131 Ohio App. 3d 530 -- Defendant was charged with theft in office based on hours worked while employed as a "special constable" by a landowners association which overlapped hours worked for other entities. While law enforcement officers, including constables, are public officials, special constables are not included in the statutory definition.
State v. Metheney (1993), 87 Ohio App. 3d 562 -- Theft in office not proven where city official did not take prescribed steps to collect on unpaid electric bills of her husband and her place of employment.
State v. Sanchez (1992), 79 Ohio App. 3d 133 -- Theft in office charges were premised on Municipal Court clerks revealing license plate registration information contrary to instructions. Indictment properly dismissed as clerks are construed to have an obligation to do so under the Public Records Law.
State v. Washington (1998), 126 Ohio App. 3d 264, 275-277 -- Defendant was convicted of theft in office, but acquitted on predicate offense. No reversal because verdicts are inconsistent.
State v. Blagajevic (1985), 21 Ohio App. 3d 297 -- A participant in a government funded job training program is not an "employee" subject to prosecution for theft in office.
State v. Head (1986), 32 Ohio App. 3d 70 -- Theft in office established where defendant failed to return unused funds advanced to cover travel expenses.
State v. McGhee (1987), 37 Ohio App. 3d 54 -- Theft and theft in office may merge if committed with a single animus.
State v. McCool (1988), 46 Ohio App. 3d 1 -- Bribery and theft in office merge for purposes of sentencing.
Skilling v. United States (2010), 130 S.Ct. 2896 – 18 U.S.C. ¶1386 is found unconstitutionally vague as applied in the prosecution of an Enron defendant under the honest services doctrine. The provision should be confined to prosecution for bribery and kickback schemes. Also see Black v. United States (2010), 130 S.Ct. 2963.
State v. Cierchi, 182 Ohio App. 3d 753, 2009-Ohio-2249, ¶50-54 – Securing writings by deception in violation of R.C. 2913.43 requires introduction of the actual writing. Charge was based on issuance of mortgage.
State v. Primous, 164 Ohio App. 3d 26, 2005-Ohio-5586 -- Criminal simulation as proscribed by R.C. 2913.32 relates to objects, not documents. It does not encompass passing bad checks.
State v. Farah, Cuyahoga App. No. 82443, 2003-Ohio-5936 -- Use of a worthless check as security for chips at a charity gambling function construed as deception.
State v. Scott (1983), 8 Ohio App. 3d 1 -- Due process violation found in presumption of elements of theft of cable services from unreported possession of equipment capable of doing so.
Columbus v. Stennett (1980), 70 Ohio App. 2d 123 -- In a prosecution for defrauding a livery, R.C. 2913.41(B)(5) provides it is prima facie evidence of a purpose to defraud if the hired property (here an auto) is not returned as required by the contract of hire. However, when those terms are set forth on the reverse side of the hire contract, and that portion of the document is not introduced in evidence, the defendant is entitled to acquittal.
State v. Leach, 195 Ohio App. 3d 433, 2011-Ohio-4745 – After a new computer system revealed pilfering, a gun store employee was convicted of theft by deception of firearms, tampering with records, and theft from a federally licensed firearm dealer. The theft by deception and tampering counts constitute allied offenses of similar import, or at least that issue was not disputed on appeal. But they were committed separately. The theft was committed when the property was removed from the store. The tampering occurred when sales records were manipulated.
State v. Wilson (2001), 145 Ohio App. 3d 374 -- Plea was entered to receiving. Factual proffer indicated defendant was the actual thief. Conviction stands. While recognizing the general principal that a thief may not be also convicted of receiving, the remedy is through merger. Court did not err in accepting plea and finding the defendant guilty of receiving.
State v. Barnette, Mahoning App. No. 02 CA 65, 2004-Ohio-7211 -- Aggravated robbery and RSP involving the same property merge.
State v. Johnson (1983), 6 Ohio St. 3d 420 -- Paragraph one of the syllabus: "Aggravated robbery, as defined by R.C. 2911.01, is an 'allied offense of similar import' to theft, as defined by R.C. 2913.02. (R.C. 2941.25[A], applied.) Also see State v. Gates (1981), 2 Ohio App. 3d 485 (attempted theft by threat a lesser included offense to robbery); State v. Parsons (1983), 6 Ohio St. 3d 442, 446; State v. Nelson (1977), 51 Ohio App. 2d 31 (petty theft and robbery).
State v. Gest (1995), 108 Ohio App. 3d 248, 261-263 -- Aggravated robbery, theft, and receiving stolen property charges arising from the same carjacking merged.
State v. Harris (1979), 58 Ohio St. 2d 257 -- Syllabus: "Where a conviction of grand theft in violation of R.C. 2913.01 does not require proof of any element not required to be proved for a conviction of robbery in violation of R.C. 2911.02, both are the same offense for purposes of double jeopardy." Compare State v. Reyna (1985), 24 Ohio App. 3d 79, 82 (car stolen from garage after robbery had been completed).
Maumee v. Geiger (1976), 45 Ohio St. 2d 238 -- Theft and receiving stolen property charges involving the same property merge for purposes of sentencing. Also see State v. Botta (1971), 27 Ohio St. 2d 196.
State v. Baer (1981), 67 Ohio St. 2d 220 -- Related charges of theft and tampering with a coin machine merge.
State v. Mitchell (1983), 6 Ohio St. 3d 416 -- Syllabus: "The elements of aggravated burglary, R.C. 2911.11 (A), and theft, R.C. 2913.02(A), do not correspond to such a degree as to constitute allied offenses of similar import under R.C. 2941.25(A)." Also see State v. Brown (1981), 3 Ohio App. 3d 131.
State v. Dunihue (1984), 20 Ohio App. 3d 210 -- Breaking and entering and theft do not merge.
State v. Hunter (1983), 12 Ohio App. 3d 75 -- Theft and forgery do not merge.
State v. Talley (1985), 18 Ohio St. 3d 152 -- Syllabus: "Pursuant to R.C. 2941.25, the offenses of breaking and entering, grand theft, and possessing criminal tools are not allied offenses of similar import inasmuch as these offenses have elements which do not correspond to such a degree that the commission of one will result in the commission of the other. Accordingly, inquiry into whether the crimes were committed with a separate animus as to each is unnecessary. (State v. Mitchell , 6 Ohio St. 3d 415, followed.)"
State v. Chadwick (February 1, 1994), Franklin Co. App. Nos. 93APA08-1207, 93APA09-1243, unreported (1994 Opinions 276) -- Theft in office and theft of an amount in excess of $100,000 are not allied offenses of similar import.
State v. Liston (1991), 70 Ohio App. 3d 663 -- Defendant was convicted of theft in Cuyahoga County based on use of a stolen credit card to obtain various items. Charges in Lake county were attempted theft, based on an attempt to exchange some of property for cash, and RSP based on possession of the other items. Held that the theft and attempted theft charges were committed separately and did not merge, but the RSP charge merged with the theft conviction in the first county. Also see State v. Stone (1990), 69 Ohio App. 3d 383, 389-390.
State v. Wolfe (1983), 10 Ohio App. 3d 324 -- Related charges of forgery and theft by deception merge. Compare State v. Hunter (1983), 12 Ohio App. 3d 75, 78.

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