Computer Intrusion and the “Campaign to Destroy Every Facet” of A Life

After a bench trial, Kevin Brian Ledgard was convicted of five counts of unauthorized computer access in violation of 18 U.S. Code §1030, among other offenses.  U.S. v. Ledgard, 2012 WL 3996855 (U.S.District Court for the Central District of California 2012).  The case is so factually complex I cannot cover everything Ledgard was accused of doing in this post.  I am therefore only going to focus on the unauthorized access charges and the facts related to them.

Ledgard and the victim – identified only as “F.G” in the opinion -- met in “approximately 2004, when they worked together at PSI in Burbank”.  U.S. v. Ledgard, supra. He was Director of Finance and F.G. “held an administrative position and later held a position as client services consultant.” U.S. v. Ledgard, supra. They began dating in October 2005; their relationship lasted for approximately two years. U.S. v. Ledgard, supra. 

Ledgard was married, “but told F.G. . . . he and his wife were separated . . .and . . . were going to get divorced, all of which F.G. believed.”  U.S. v. Ledgard, supra.  F.G. lived with her parents but did not tell them about Ledgard because “he was married and she wanted to wait until his marriage had ended”.  U.S. v. Ledgard, supra.

F.G. allowed Ledgard to take nude photographs of her, including photographs taken

while F.G. and [Ledgard] were engaged in sexual activity. . . . A few days after they were taken, F.G. asked [him] to delete the photographs, . . . [saying] she would feel more comfortable if they were deleted. . . . [He] deleted the photographs from his hard drive in front of F.G. . . . [Ledgard] knew distribution of these photographs, especially to F.G.'s family and friends, would be particularly upsetting to F.G. . . .

U.S. v. Ledgard, supra.

In December of 2006, F.G. discovered Ledgard had a six-month old child he had not told her about and began to “second guess the relationship.” U.S. v. Ledgard, supra. He “did not want” the relationship “to end and gave F.G. excuses every month as to why he could not make a commitment to” her.  U.S. v. Ledgard, supra.  F.G. delayed breaking up with him, “in part because he had been threatening to distribute the sexually explicit photographs”, “which she learned he had not deleted.” U.S. v. Ledgard, supra.  On September 10, 2007, she ended her relationship with him. U.S. v. Ledgard, supra.  

That, according to the opinion, triggered the “campaign to destroy every facet of F.G.’s life.”  U.S. v. Ledgard, supra. Again, I can’t detail everything that happened, but I think you’ll get the idea from the events outlined below.

After F.G. broke up with him and he started working elsewhere, Ledgard tried to get a former co-worker to give him F.G.’s email password so he could access her email.  U.S. v. Ledgard, supra.  At, apparently, around the same time, Ledgard showed the former co-worker and others “a Powerpoint slideshow containing sexually explicit photographs of F.G. along with derogatory captions regarding the photographs”, which he said he was going to use to “`destroy her life’” and send to “everyone, including F.G.'s father”.  U.S. v. Ledgard, supra.

About a week before F.G. broke up with Ledgard, “she noticed that her Hotmail email inbox was either fully or partially deleted and eventually lost access to her account.” On the day F.G. broke up with him, Ledgard “created email account tee.eye@hotmail.com and used that account to send the following email to F.G. at her office:

`Whats up bitch? After a year and a 1/2, Im starting to get my revenge on a dirty lying slut who puts shame on her people and culture every day of her shitty, worthless life. It feels very good to have justice right now. . . . I like how it feels to fuck you up. Ha ha ha!!!! . . .’

U.S. v. Ledgard, supra.

The next day, Ledgard “accessed F.G.'s Bank of America account, . . . using [the bank’s] online banking service without F.G.'s knowledge or authorization.” U.S. v. Ledgard, supra. He made changes that would

not only prevent F.G. from accessing her account, but would prevent her from being alerted to these changes. For example, during that session, he changed F.G.'s log-in ID from `[F.G.]’ to `[F.2007G.],’ changed her password, changed her security questions, changed her account address (including zip code) and telephone number, and changed her email address.

U.S. v. Ledgard, supra.

On September 13, 2007, Ledgard created another (anonymous) Hotmail account and used it to email F.G.’s father photos of her nude or “engaging in sexual acts”, saying she was having “unprotected sex” with an apparently unidentified man.  U.S. v. Ledgard, supra.  When her father refused to look at the photos, he resent them and “repeatedly” urged her father to look at them. U.S. v. Ledgard, supra.

Much more went on, which led F.G.’s family to fear that he might harm her.  U.S. v. Ledgard, supra. They contacted the police, who contacted Ledgard and told him not to contact F.G. because it “`makes her afraid.’”  U.S. v. Ledgard, supra. Ledgard continued his activities, which included sending the by-now 34 Powerpoint pornographic slide show to various people who knew F.G. U.S. v. Ledgard, supra.

On October 3, 2007, police executed a search warrant on Ledgard’s car, in which they found:

• Computer printouts dated September 11, 2007, from F.G.'s online Bank of America account, reflecting checking account activity from May 7, 2007, through September 10, 2007.

• A computer printout dated September 11, 2007, from F.G.'s online Bank of America account reflecting an `update’ to F.G.'s account address and telephone numbers.

• Multiple copies of a two-page flyer . . . containing five pornographic photographs of F.G. [he] had taken during their relationship, along with vile and disparaging comments about F.G.

• Computer printouts dated August 24, 2007, from F.G.'s Hotmail account.

• Account information for [Ledgard’s] email account jb1745@hotmail.com.

• A receipt for the purchase of a Keyghost keystroke logger purchased on July 30, 2007.

• A laptop computer.

U.S. v. Ledgard, supra.

Based on everything outlined above and a lot more, Ledgard was, as noted above, charged with unauthorized use of a computer in violation of 18 U.S. Code § 1030.

In this opinion, the district court judge who has the case is analyzing the charges and the evidence and determining Ledgard’s guilt on each of the charges against him.  U.S. v. Ledgard, supra.  We, as noted above, are only concerned with the five computer intrusion charges.  U.S. v. Ledgard, supra.

The judge divided the computer intrusion, or 18 U.S. Code § 1030(a), charges into three categories:  the Bank of America charges (Counts 1-3); the Amazon charge (Count 4); and the Hotmail charge (Count 5).  U.S. v. Ledgard, supra.

As to the Bank of America charges, the judge found that based on the evidence

presented at trial, . . . the Government has proven beyond a reasonable doubt that (1) [Ledgard] intentionally accessed without authorization a computer belonging to Bank of America, and (2) by such access, obtained information contained in the records of Bank of America, as alleged in Counts One through Three.

The court further finds . . . that the Government has proven beyond a reasonable doubt that [Ledgard] committed the misdemeanor offenses alleged in Counts One through Three in furtherance of each of the following criminal and tortious acts: false personation, in violation of California Penal Code section 529(a)(3), and intentional infliction of emotional distress, under California tort law.

U.S. v. Ledgard, supra.

As I noted in an earlier post, a violation of 18 U.S. Code § 1030(a)(2) is a misdemeanor unless it was committed “in furtherance of a criminal or tortious act”.  So the judge here is finding that these offenses were committed under such circumstances and are, therefore, felonies.  U.S. v. Ledgard, supra.

                                   

As to the Amazon charge, the judge found that based on the evidence presented at trial,

the Government has proven beyond a reasonable doubt that (1) [Ledgard] intentionally accessed without authorization a computer belonging to Amazon, and (2) by such access, [he] obtained information from a computer that was used in or affected commerce or communication between one state and another state or between states of the United States and a foreign country, as alleged in Count Four.

The court further finds that the Government has proven beyond a reasonable doubt that [Ledgard] committed the misdemeanor offense in furtherance of each of the following criminal and tortious acts: false personation, in violation of California Penal Code section 529(a)(3), and intentional infliction of emotional distress, under California tort law.

U.S. v. Ledgard, supra. Here, the judge is also applying the analysis noted above, to increase the offenses from misdemeanors to felonies. 

Finally, on the Hotmail count, the judge found that, based on the evidence

presented at trial, the court finds that the Government has proven beyond a reasonable doubt that (1) [Ledgard] intentionally accessed without authorization a computer belonging to Microsoft/Hotmail, and (2) by such access, [he] obtained information from a computer that was used in or affected commerce or communication between one state and another state or between states of the United States and a foreign country, as alleged in Count Five.

In addition, the court finds that [Ledgard] accessed without authorization F.G.'s Hotmail account, and obtained the contents of her email account, including, among other things: F.G.'s father's email address; the August 18, 2007 email from F.G. to J.B. at his personal email account; and the September 17, 2007 email sent from J .B. to F.G. using his personal email account.

The court further finds that the Government has proven beyond a reasonable doubt that [Ledgard] committed the misdemeanor offense in furtherance of the following tortious act: intentional infliction of emotional distress, under California tort law.

U.S. v. Ledgard, supra.

Later in the opinion, the judge explains how the facts support his finding that Ledgard’s conduct resulted in the intentional infliction of emotional distress:

[T]he Government has proven beyond a reasonable doubt that [Ledgard] committed each of those misdemeanor offenses as part of a coordinated, orchestrated, relentless, and continuing campaign to destroy every facet of F.G.'s life, including, among other things: (1) to disrupt her financial affairs by taking away her ability to use her Bank of America accounts and Citibank credit card account; to ruin her relationship with her family by emailing graphic sexual photos of F.G. to her father, along with multiple email messages disparaging F.G.; (3) to interfere with her future career by sabotaging her chances for admission to attend the graduate program at Alliant University where [he] knew she was applying; and (4) to destroy her chance for a future romantic relationship with J.B. by sending him, and some of his friends, the Powerpoint digital slideshow.

The court also finds [Ledgard] did all of this in order to intentionally inflict emotional distress on F.G. [He] was so obsessed with this campaign that he committed part of the scheme even after being advised by GPD Detective Eric Webber that he was conducting an investigation into the emails and activity on F.G.'s online accounts, and after being told not to contact F.G. either directly or indirectly through third parties because such contact made her afraid.

Accordingly, based on the above, the court finds that the Government has proven beyond a reasonable doubt that each of [Ledgard’s] misdemeanor offenses was committed in furtherance of [his] campaign to cause the intentional infliction of emotional distress upon F.G.

U.S. v. Ledgard, supra.

I assume sentencing has been, or will be set.  Unfortunately, I can't find the opinion online, so you can read it for yourself.  

Prostitution, Criminal Tools and the Website

After Gerald Strothers was convicted “of two counts of promoting prostitution, one count of possession of criminal tools and one count of the lesser included offense of attempted promoting of prostitution” and sentenced to “one year of community control sanctions”, he appealed.  State v. Strothers, 2012 WL 4123398 (Ohio Court of Appeals 2012).

The case began when

East Cleveland Police Detective Antonio Malone testified . . . received information from a confidential informant that a house was being used to facilitate prostitution at 14019 Northfield Avenue in East Cleveland, Ohio. The informant told police of a website, `Backpage.com,’ which advertised those services. Officer Malone and East Cleveland Police Sergeant Randy Hicks began an investigation.

State v. Strothers, supra.

Hicks and Malone testified as to the results of the investigation at Strothers’ trial:

Hicks stated that through an investigation of postings on Backpage.com, he was able to discover a brothel being run in East Cleveland that was called the `Chocolate Factory’ or `Batcave.’ Hicks explained the web postings provided a phone number to which text messages could be sent in order to become a `member’ of the Chocolate Factory.

He was later able to confirm that the phone number was assigned to Gerald Strothers and that phone number was posted on his personal Facebook page. Hicks testified that he sent a text message to the number provided on the advertisements (the same number on Strothers' Facebook page) posing as a `John’ who was interested in the Chocolate Factory's services.

He stated that in return he received several messages that quoted prices, gave the address of the house and several photographs of naked females were transmitted. The address that was provided was the same as the one listed on Gerald Strothers' Facebook page.

Malone. . . . [said] he then called Strothers posing as the `John.’ The telephone calls were recorded, audio and video, and admitted into evidence. Strothers stated during the telephone call that the price for `full service’ was $69.99.

Malone testified that in his experience `full service’ meant `oral sex and regular sex, intercourse.’ Malone arranged to arrive at the house on July 21, 2011, where he would meet with Shatori Stallings.

After the phone call, Malone received a text message again advising him of the address. This text was sent from another telephone number Malone established as belonging to Strothers via Strothers' Facebook page. A search warrant was obtained and executed on July 21, 2011, and both Strothers and Stallings were arrested.

State v. Strothers, supra.

Stallings also testified. State v. Strothers, supra. Stallings said she met Strothers

a few months prior to the . . . arrest. She had been to [his] house on at least two occasions prior to the date of the arrest. She [said] the first time she went to the house, she and Strothers discussed his Backpage.com business to promote sex and he suggested that she work for him with a 60/40 split. Stallings testified that . . . she agreed to work for Strothers. . . .

[She said] that on July 21, 2011, [he] contacted her and asked her to be a fill in because he was not sure if other girls were available. When she was asked at trial as to what she would be filling in for, she stated, `[h]aving sex for money.’

State v. Strothers, supra.

Strothers’ first argument on appeal was that the trial judge erred when he denied Strothers’ motion for a judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure.  State v. Strothers, supra.  Under Rule 29(a), the trial judge must,

on motion of a defendant . . . after the evidence on either side is closed, . . . order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.

State v. Strothers, supra.  The appellate court noted that the question that arises when a defendant moves for acquittal is “`whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’”   State v. Strothers, supra (quoting State v. Jackson, 2006 Ohio 1938 (Ohio Court of Appeals 2006).

It then outlined the elements of the three crimes of which Strothers was convicted. State v. Strothers, supra.  The first one was promoting prostitution by violating Ohio Revised Code §§ 2907.22(A)(1) and (A)(4) and the second, related charge, was attempting to violate Ohio Revised Code § 2907.22(A)(2). State v. Strothers, supra.   Section 2907(A) states that

[n]o person shall knowingly: (1) Establish, maintain, operate, manage, supervise, control, or have an interest in a brothel; (2) Supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire; . . . (4) For the purpose of violating or facilitating a violation of this section, induce or procure another to engage in sexual activity for hire.

State v. Strothers, supra.  

The Court of Appeals explained that while the statute did not “define the word `brothel’”,” it had, in an earlier case, defined a brothel as `synonymous with the word “bordello,” which is defined as `a building in which prostitutes are available’” State v. Strothers, supra (quoting State v. Kiriazis,  2004–Ohio–502 (Ohio Court of Appeals 2004). It also noted that the Ohio attempt statute, Ohio Revised Code § 2923.02, states that “`[n]o person . . . shall engage in conduct that, if successful, would constitute or result in the offense’” the defendant allegedly sought to commit. State v. Strothers, supra.  

The Court of Appeals found that the testimony presented at trial, “if believed” by the jury, “does establish all the elements of the crimes for which Strothers was convicted.”  State v. Strothers, supra.  

First, we examine promoting prostitution. The testimony of the officers . . . establish that Strothers created a website to promote the use of his home for members of the `Chocolate Factory’ to meet women who were advertised under Backpage.com's escort section. These advertisements had Strothers' phone numbers and address associated with them.

When Malone called the number to arrange a time to come to the chocolate factory he spoke with Strothers, who quoted a price of $69 .99 and instructed him to bring about $100–150 with him.

When these facts are taken in conjunction with the testimony of Stallings . . ., it is clear that a trier of fact could find Strothers was, in fact, promoting prostitution. Strothers was managing a `building in which prostitutes were available.’ He procured Stallings for the purposes of engaging in sex for hire, and the record is clear that he attempted to supervise, manage, or control the activities of a prostitute in engaging in sexual activity for hire. . . .

[A] rational trier of fact, looking at the evidence in the light most favorable to the prosecution could find beyond a reasonable doubt that Strothers committed the crimes he was convicted of for promoting prostitution. 

State v. Strothers, supra.  

Strothers was also convicted of possessing criminal tools by violating Ohio Revised Code § 29.23.24(A), which states that “[n]o person shall possess or have under the person's control any substance, device, instrument, or article, with purpose to use it criminally.” State v. Strothers, supra.   The Court of Appeals found the evidence was also sufficient to support Strothers’ conviction for this crime. State v. Strothers, supra.  

Our analysis with respect to the crime of promoting prostitution, in conjunction with the materials removed from the house and bagged as evidence, establish that Strothers possessed devices or instruments with purpose to use them criminally. Police confiscated cell phones that rang when the numbers associated with both the `Chocolate Factory’ and Strothers were called.

They confiscated two books titled `Sex Secrets of Escorts’ and `A Blueprint for Escort Services.’ They also seized . . . what was estimated to be about 20 condoms. The conduct Strothers was engaged in leads a reasonable trier of fact to identify these items as those that would be used by Strothers for a criminal purpose beyond a reasonable doubt.

State v. Strothers, supra.  

Finally, Strothers claimed the trial judge erred “in allowing Malone to provide testimony that amounted to opinion testimony” on three occasions.  State v. Strothers, supra.  The Court of Appeals noted that Ohio Rules of Evidence Rule 701 allows “lay witnesses to present opinion testimony.”  State v. Strothers, supra.  As this site notes, lay witnesses (i.e., witnesses who are not expert witnesses) are generally not allowed to give opinion testimony.  But Ohio Rule of Evidence 701 says that if the witness

is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

State v. Strothers, supra. 

Strothers first argued that the trial judge erred when, as noted above, he let Malone testify as to “the meaning of `full service.’” State v. Strothers, supra.  The Court of Appeals found that the

opinion seems to be rationally based on Malone's perception given all the information he discovered during his investigation. Furthermore, it is helpful to determine a fact or issue in the case. It does not amount to error on the court's part to allow this testimony; it is in line with the allowances of lay person testimony under Ohio Rule of Evidence 701.

State v. Strothers, supra. 

Strothers also argued that the trial judge erred in allowing Malone to testify “to the fact that brothels often have a door fee.” State v. Strothers, supra.  The Court of Appeals found that the trial judge did not err in admitting this testimony.  State v. Strothers, supra. It explained that it was relevant to issues involved in the case

because the text messages received by the police instructed them to bring a case of bottled water or beer as a substitute for the door fee. Malone stated he learned of this practice while researching brothels.

State v. Strothers, supra. 

Finally, the Court of Appeals addressed Strothers’ argument that the trial judge erred in allowing Malone to testify that “criminals do not like to talk about prices on the phone.”  State v. Strothers, supra.  The court found this testimony was

relevant because during the second recorded telephone call, Strothers stated that he did not want to discuss prices over the phone, even though he did so during the first conversation. The Ohio Supreme Court stated, `Rule 701 contemplates that the opinion testimony of the lay witness will be helpful.’

Undoubtedly, the trial judge thought that that was the case. Admission of such testimony was not required, but it was not an abuse of discretion to hear it.

The testimony provided was that of a police detective who researched the practice of brothels utilizing door fees and who had extensive experience as to how criminals speak on the telephone. Malone stated he had investigated about 400 drug cases and 15 to 20 prostitution cases.

State v. Strothers, supra.  So the Court of Appeals rejected all three of Strothers’ arguments about Malone’s testimony, finding that the trial judge did not err in admitting it.  State v. Strothers, supra. It s therefore affirmed his conviction and sentence.  State v. Strothers, supra. 

Divorce, Domestic Violence and the Laptop

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After being convicted of domestic violence in violation of Ohio Revised Code § 2919.25(A), which makes it a crime to “knowingly cause or attempt to cause physical harm to a family or household member”, Christopher M. Normal appealed.  State v. Norman, 2012 WL 3984653 (Ohio Court of Appeals 2012). 

The prosecution arose from an incident involving Christopher and Deanna Norman.  State v. Norman, supra.  They were “married in 2002 and divorced in 2008.”  State v. Norman, supra. They “have no children.” State v. Norman, supra.

According to Deanna, Christopher “often drank and got violent during their marriage” and she had contacted the police “as a result of some of these incidents.”  State v. Norman, supra.  He had “a prior domestic violence conviction and a conviction for violating a protection order.”  State v. Norman, supra.  

While the divorce was pending, Deanna obtained a protection order against Christopher but in April of 2011, after the divorce was granted, they “moved back in together.” State v. Norman, supra. They rented “a house in exchange for refurbishing it” and “lived there with her two dogs.” State v. Norman, supra. Christopher worked as a glass repairman; Deanna did not work, but was “receiving social security payments for borderline bipolar and dyslexia issues.”  State v. Norman, supra.  

On July 27, 2011, “after Christopher finished work, they went to a coworker's house to drink beer and play foosball.” State v. Norman, supra.  They formed a team against Christopher’s “boss and the boss's son.”  State v. Norman, supra.  Christopher was  “upset they were losing,” so “they eventually quit playing” and “left around 11:00 P.M., having each consumed three twenty-four ounce cans of beer.”  State v. Norman, supra.

When they got home, they “continued drinking beer from a 30–pack in the refrigerator” and “began arguing about the remodeling work around the house.”  State v. Norman, supra.  Christopher called Deanna “a fat, fucking, lazy bitch” and told her that her “dogs were useless fucking commodities.” State v. Norman, supra.  At some point, Christopher “started throwing beer cans at Deanna's dogs, and she yelled at him to leave the dogs alone.” State v. Norman, supra.  He “told her to get out, so she called her nephew to come and get her.” State v. Norman, supra.  

The next day, Deanna “got up around 11:00 a.m. and called her daughter to take her back to the house to get the dog food, her clothes, and her truck.”  State v. Norman, supra.  She waited until afternoon, “but when she got there, she saw” Christopher’s car.  State v. Norman, supra.  

Deanna went to the back door and used her key to get into the house, even though Christopher had stacked some remodeled kitchen cabinets in front of the back door. State v. Norman, supra.  She “noticed the words `fuck you’ written on the door just above the lock” and also noted that “the remaining beer from the night before was gone.” State v. Norman, supra.  

As Deanna entered the house, Christopher “came towards her from the front room.” State v. Norman, supra.  She said “was not there to start anything, she just wanted to get her things.”  State v. Norman, supra. Christopher “accused her of breaking into the house and told her to leave.” State v. Norman, supra.  Deanna “ignored him and went about gathering her clothes and the dog food.” State v. Norman, supra.  

Christopher “again told her to get out of the house and pushed her `full force’ from behind, causing her to fall onto the bed.”  Deanna went “back to the front room” and saw that Christopher’s “laptop computer was on the coffee table and was plugged into the wall.” State v. Norman, supra.   She “accused him of communicating with other women online” but Christopher said “it was none of her business.”  State v. Norman, supra.  

According to Deanna, as she walked away from the area, she tripped over the computer wires and almost knocked the laptop off the table. [Christopher] caught the laptop and responded by kicking her stereo.

Deanna retaliated by grabbing the laptop and trying to throw it at the wall. [Christopher] grabbed her by the arms to stop her and they fell back onto the couch. [Christopher] told her he would `stomp [her] f–––ing face in.’ . . . [Deanna’s] glasses came off during the fracas; at that point [Christopher] got off of her.

State v. Norman, supra.  

Deanna called the police.  State v. Norman, supra.  At trial, she testified that as she made the call, Christopher “took the coffee table and rammed it into her knees, pinning her between the table and a loveseat.”  State v. Norman, supra. 

According to Deanna, he “was `between myself and any exit other than the windows and he wouldn't let me pass.”  State v. Norman, supra.  Eventually, he “grabbed some of his belongings and left the premises before police officers arrived.”  State v. Norman, supra.  

Two deputies from the Delaware County Sheriff's Office responded to the call, one of whom, Deputy Stephanie Shine, later testified at trial.  Shine recalled that Deanna was upset, afraid, and crying. . . . Based on the disarray in the home, the deputy thought there had been a physical altercation. . . .

The deputy found a remote control that had been smashed and an ashtray on the floor that appeared to have been thrown. . . . Deanna described her version of events to the deputy, including her allegation that [Christopher] had pushed a coffee table under her legs. . . .

Deputy Shine did not notice any physical injuries at first, but later that day she noticed a bruise on Deanna's arm. . . . Deanna told the deputy she did not know the cause of the arm bruise.

In the meantime, another deputy called [Christopher], but he did not come back home to talk to them. . . . Later that afternoon, deputies got a tip that [Christopher] had returned home, so they returned and arrested him. . . . [He] purportedly told the officers Deanna had kicked his glasses off of his face, but he did not mention pushing her or threatening her. . . .

State v. Norman, supra.  

Christopher was later charged with “two counts of domestic violence, one for causing or attempting to cause physical harm in violation of [Ohio Revised Code] § 2919.25(A), and one for threatening physical harm in violation of [Ohio Revised Code] § 2919.25(C).” As noted above, he was convicted of the § 2919.25(A) charge, which was a felony, but the jury acquitted him of the § 2919.25(C) charge, which was a misdemeanor.  After he was sentenced to “three years of community control with various additional conditions”, Christopher appealed, as also noted above.  State v. Norman, supra.  

On appeal, he argued that his domestic violence conviction “was against the manifest weight of the evidence”.  State v. Norman, supra.  As this site notes, when an appellant claims his conviction is against the manifest weight of the evidence, the court of appeals will “weigh the evidence and determine whether the findings of the trial court were so against the weight of the evidence as to require a reversal and a retrial.”  If you’d like to read more about how this works in practice, check out this prior post.

The Court of Appeals in this case began its analysis of Christopher’s argument by noting  that

[o]ur standard of review on a manifest weight challenge to a criminal conviction is stated as follows: `The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’  State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 71 (Ohio Court of Appeals 1983). . . . 

The granting of a new trial `should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.’ State v. Martin, supra.

State v. Norman, supra.  

The court began its ruling on Christopher’s argument by noting that he

essentially maintains that the evidence merely demonstrated that accidental physical contact occurred as he and Deanna struggled over the laptop and other items in the house. We note the record additionally indicates that [Christopher] took the stand at trial and described a history of volatility and jealousy in his relationship with Deanna.

He asserted that Deanna was `severely’ bipolar and had a history of angry outbursts. . . [Christopher] testified that had to go to work the day after the foosball party, and he was worried that Deanna would come back and start breaking things while he was gone. [He] testified that Deanna had broken computers and televisions before, broken his glasses twice, and smashed his car windows. . . .

Before Deanna came back on July 28, 2011, [Christopher] attempted to barricade the back doors to the house and decided to call off going to work. . . . In his recollection, when he grabbed for his laptop during the ensuing events, Deanna fell back on the couch, at which time she kicked at the side of his body. . . .

During her cross-examination, Deanna admitted that she smashed the television remote control on the coffee table during their argument. She also admitted she knew that [Christopher] prized his television and laptop computer. . . .

State v. Norman, supra.  

The court ultimately held that

while it appears to us that either [Christopher] or Deanna could have probably avoided the confrontation of July 28, 2011 in the first place by requesting in advance the assistance of law enforcement in removing Deanna's belongings, we find the jury could have properly decided that [Christopher’s] violent and verbally abusive response to her return to the house was not defensible, and we hold upon review that the jurors, in resolving any conflicts in the evidence, did not create a manifest miscarriage of justice requiring a new trial.

State v. Norman, supra. 

Facebook “Friends,” Judges and Disqualification

As Wikipedia notes, judicial disqualification “refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official”.   

This post is about a case in which a criminal defendant sought to disqualify the judge who had been assigned to his case.  Domville v. State, __ So.3d __, 2012 WL 3826764 (Florida Court of Appeals 2012).

The defendant is Pierre Domville, and I do not know what he is charged with.  But the case is pending in Broward County, Florida and Domville, as noted above, moved to disqualify the judge assigned to the case.  Domville v. State, supra.  As the opinion explains, the

motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook `friends.’ This relationship caused Domville to believe that the judge could not `be fair and impartial.’

Domville explained that he was a Facebook user and that his `friends’ consisted `only of [his] closest friends and associates, persons whom [he] could not perceive with anything but favor, loyalty and partiality.’ The affidavit attributed adverse rulings to the judge's Facebook relationship with the prosecutor. 

Domville v. State, supra. 

The trial judge “denied the motion as `legally insufficient’”, so Domville appealed.  Domville v. State, supra.  Under Florida Rules of Judicial Administration Rule 2.330(d), the grounds for disqualifying a Florida county or circuit court judge are

(1) that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge; or

(2) that the judge before whom the case is pending, or some person related to said judge by consanguinity or affinity within the third degree, is a party thereto or is interested in the result thereof, or that said judge is related to an attorney or counselor of record in the cause by consanguinity or affinity within the third degree, or that said judge is a material witness for or against one of the parties to the cause.

Florida Rules of Judicial Administration Rule 2.330(d).

Under Rule 2.330(f), the judge against whom a “motion to disqualify . . . is directed” must determine the “legal sufficiency of the motion”, but is not to decide the “truth of the facts alleged” in the motion.  If the judge finds the motion is legally sufficient, he/she must enter an order granting disqualification; if the judge finds the motion is legally insufficient, he/she is to enter an order denying the motion to disqualify him/her. Florida Rules of Judicial Administration Rule 2.330(f).

The Court of Appeals began its analysis of Domville’s effort to disqualify the judge in his case under the above standard by noting that in “determining the legal sufficiency of a motion to disqualify” a judge, it “reviews the motion's allegations under a de novo standard.”  Domville v. State, supra.  As Wikipedia notes, de novo review means that the Court of Appeals approaches the matter as if it

were considering the question for the first time. Legal decisions of a lower court on questions of law are reviewed using this standard. . . . It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law.

Domville v. State, supra. 

The Court of Appeals explained that a

motion is legally sufficient if `”the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.’” Brofman v. Fla. Hearing Care Ctr., Inc., 703 So.2d 1191 (Florida Court of Appeals 1997). 

A mere `subjective fear[ ] of bias will not be legally sufficient; rather, the fear must be objectively reasonable. Fischer v. Knuck, 497 So.2d 240 (Florida Supreme Court 1986).

Domville v. State, supra. 

The court noted that, in analyzing Domville’s motion, it found an opinion from the

Judicial Ethics Advisory Committee [“JEAC”] instructive. See Fla. JEAC Op.2009–20 (Nov. 17, 2009). There, the Committee concluded that the Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as `friends’ on a social networking site and allowing such lawyers to add the judge as their `friend.’

The Committee determined that a judge's listing of a lawyer as a `friend’ on the judge's social networking page -- `[t]o the extent that such identification is available for any other person to view’ -- would violate Florida Code of Judicial Conduct Canon 2B (`A judge shall not ... convey or permit others to convey the impression that they are in a special position to influence the judge.’)

Domville v. State, supra. 

In the opinion noted above, the JEAC found that  

three elements are necessary in order to fall within the prohibition of Canon 2B:

1. The judge must establish the social networking page.

2. The site must afford the judge the right to accept or reject contacts or `friends’ on the judge's page, or denominate the judge as a `friend’ on another member's page.

3. The identity of the `friends’ or contacts selected by the judge, and the judge's having denominated himself or herself as a `friend’ on another's page must then be communicated to others.

Fla. JEAC Op.2009–20 (Nov. 17, 2009). 

In the opinion, the JEAC also noted that the third element is “typically” fulfilled

because each of a judge's `friends’ may see on the judge's page who the judge's other `friends’ are. Similarly, all `friends’ of another user may see that the judge is also a `friend’ of that user. 

It is this selection and communication process . . . that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.

Fla. JEAC Op.2009–20 (Nov. 17, 2009). 

The JEAC found that “when a judge lists a lawyer who appears before him as a `friend’ on his social networking page this `reasonably conveys to others the impression that these lawyer `”friends”’ are in a special position to influence the judge.” Domville v. State, supra (quoting Fla. JEAC Op.2009–20).  

 It also found that the issue is not

whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a `friend on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

Fla. JEAC Op.2009–20.

The Court of Appeals explained that,

as the [JEAC] recognized, a judge's activity on a social networking site may undermine confidence in the judge's neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.

Domville v. State, supra. 

 It also noted that the Commentary to Florida Code of Judicial Conduct Canon 2A “necessarily limits a judge's personal freedom” because it requires that a judge “`avoid all impropriety and the appearance of impropriety.’” Domville v. State, supra.  Under Canon 2A, a judge “must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.”  Commentary to Florida Code of Judicial Conduct Canon 2A.

The Court of Appeals therefore found that

[b]ecause Domville has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, we quash the order denying disqualification of the trial judge and remand to the circuit court for further proceedings consistent with this opinion.

Domville v. State, supra. 

(For a short New York Times article on prohibiting judges from “friending” lawyers, in which one expert says the JEAC was being “hypersensitive”, possibly due to a “generational gap”, check out this link.)