Thursday, May 28, 2009

Would you believe it was a pencil?

This week's Chutzpah Award.

We've all had the client whose proof he didn't commit the rape is that he gets so much sex from girlfriend or spouse or both that he wouldn't/couldn't have done it. We all know what the jury does with those cases.

And I've heard of one case (not mine) where the client's defense of choice was that it wasn't rape, it was incest. (It was my client, in a drug case, who argued that he never knew the 10 kilos of cocaine were in the bag. "The shit is in the corner," he told the cops, the fact that he didn't refer to it as cocaine proving his innocence, but I digress.)

In State v. Marrero, Lorain App. No. 08CA009467, 2009-Ohio-2430, Ohio's Ninth District Court of Appeals (Lorain County) has now weighed in on a, er, harder issue. Haller testified that Officer Marrero came to her home, in uniform, in the middle of the night, to speak with her about her neighbor. She left him briefly in the living room. When she returned, Marrero was sitting on the couch with his pants pulled down and holding his "semi-erect penis." He asked her for oral sex. Not public indecency, per Ohio Revised Code Section 2709.09(A)(3), he said.

He didn't argue, at least not on appeal, about whether his conduct was "likely to be viewed by and affront others." Instead, he said that he wasn't "[e]ngage[d] in conduct that to an ordinary observer would appear to be sexual conduct or masturbation.” Why not, you may ask? Because Haller didn't say he was "manipulating his penis." Besides, he asked her to give him a blow job, so his goal was clearly not sexual gratification by masturbation.

The Ninth District didn't buy it, either.

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