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2016-07-06 06:35:57.955341+00

DECISION. {¶ 1} Defendant-appellant Jessie Palmer appeals his conviction for speeding. Because the state failed to produce evidence of the laser device and its reliability, his conviction is reversed. I. Speeding Down the Highway {¶ 2} On July 21, 2005, Palmer was driving on Interstate 71 when he was pulled over by Ohio State Highway Patrol Officer Paul Lezotte for speeding. Officer Lezotte had used a laser device to determine that Palmer was traveling 79 miles per hour ("m.p.h.") in a 55 m.p.h. zone. Officer Lezotte cited Palmer for speeding in violation of R.C. 4511.21(D)(1). {¶ 3} At trial, Palmer argued that Officer Lezotte could not have used the laser device to determine his speed because he had a laser scrambler in his car. Despite this defense, the trial court convicted Palmer of speeding and ordered him to pay fifty dollars plus court costs. {¶ 4} Officer Lezotte testified that he self-checked the laser device the morning of the offense, and that the laser device was recalibrated and rechecked for calibration once a year. At no point did the state identify the laser device. And the court never took judicial notice of its reliability. {¶ 5} Palmer now appeals and argues that (1) his conviction was against the weight of the evidence; (2) the court erred in accepting Officer Lezotte's testimony about the speed reading he obtained from the laser device, where there was no foundation laid for the device's accuracy and dependability; and (3) there was insufficient evidence to convict him of speeding. II. No Laser Device, No Reliability {¶ 6} Palmer's second and third assignments of error argue that the state failed to produce sufficient evidence to support his speeding conviction because the state failed to lay a proper foundation for the laser device's reliability. The state argues that we should not consider the second assignment of error because Palmer did not object to an improper foundation. The state is incorrect. {¶ 7} When defendants enter a "not guilty" plea, they preserve their right to object to the sufficiency of the evidence.1 And a conviction based on insufficient evidence almost always amounts to plain error.2 "`Whether a sufficiency of the evidence argument is reviewed under a prejudicial error standard or under a plain error standard is academic,' because regardless of the standard used, `a conviction based on legally insufficient evidence constitutes a denial of due process.'"3 {¶ 8} Accordingly, if the evidence is insufficient (regardless of whether we review it under a prejudicial-error standard or a plain-error standard), the conviction must be reversed. {¶ 9} When reviewing the sufficiency of the evidence, we must examine the evidence in the light most favorable to the state and determine whether that evidence could have convinced any rational trier of fact that the essential elements of the crime had been proved beyond a reasonable doubt.4 {¶ 10} For a person to be convicted of speeding based on laser-device evidence, evidence must be introduced that the laser device is scientifically reliable.5 {¶ 11} We have stated that the scientific reliability of a laser device is the type of fact that a trial court may judicially notice.6 A judicially noticed fact must not be subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.7 {¶ 12} Thus, the state can establish the reliability of a speed-measuring device through "(1) a reported municipal court decision, (2) a reported or unreported case from the appellate court, or (3) the previous consideration of expert testimony about a specific device where the trial court notes it on the record."8 {¶ 13} Evidence must also be introduced to demonstrate that (1) the laser device is in good condition for accurate readings and (2) the officer is qualified to administer the laser device.9 {¶ 14} In the present case, the state presented Officer Lezotte's testimony that the laser was in good working order and that he had been certified to use speed-measuring devices. Palmer does not challenge these aspects of the state's case. Instead, he argues that the state failed to properly lay the foundation for the laser device's reliability in the trial court. His assignment of error is well taken. {¶ 15} Where the state fails to offer testimony about the construction and method of operation of a laser device not the subject of judicial notice, the testimony of the officer alone is insufficient to sustain a conviction for speeding.10 {¶ 16} Here, the state failed to introduce even the identity of the laser device. The trial court could not then conclude that the reliability of this unknown machine had been recognized by courts within our district. Thus, the unknown and unspecified laser device could not have been used as evidence of Palmer's speed. {¶ 17} The state's only witness, Officer Lezotte, relied upon his laser device to determine that Palmer was speeding. Because we have ruled that the laser device's reading as to Palmer's speed should not have been admitted, and because the record is devoid of any other evidence that Palmer was speeding, his speeding conviction must be reversed based upon insufficient evidence. {¶ 18} Accordingly, the trial court's judgment is reversed and Palmer is discharged from further prosecution. Judgment reversed and appellant discharged. Hendon and Winkler, JJ., concur. Winkler, retired, from the First Appellate District, sitting by assignment. 1 See State v. Jones, 91 Ohio St.3d 335, 346, 2001-Ohio-57,744 N.E.2d 1163, and State v. Carter, 64 Ohio St.3d 218, 223,1992-Ohio-127, 594 N.E.2d 595. 2 See State v. Shadoan, 4th Dist. No. 03CA764,2004-Ohio-1756, at ¶ 16; State v. Hermann, 6th Dist. No. E-01-039, 2002-Ohio-7307, at ¶ 24; State v. Brown (July 14, 2000), 2nd Dist. No. 17891; State v. Miller,153 Ohio App.3d 665, 2003-Ohio-4221, 795 N.E.2d 690, at ¶ 57. 3 See Miller, 153 Ohio App.3d 665, 2003-Ohio-4221,795 N.E.2d 690, at ¶ 57, citing State v. Thompkins,78 Ohio St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541, Tibbs v. Florida (1982), 457 U.S. 31, 45, 102 S.Ct. 2211, and Jackson v.Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781. 4 See State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. 5 See East Cleveland v. Ferell (1958), 168 Ohio St. 298,301, 154 N.E.2d 630. 6 See Cincinnati v. Levine, 158 Ohio App.3d 657,2004-Ohio-5992, 821 N.E.2d 613, at ¶ 7, citing Columbus v.Dawson (Mar. 14, 2000), 10th Dist. No. 99AP-589. 7 Evid.R. 201(B). 8 Levine, 158 Ohio App.3d 657, 2004-Ohio-5992,821 N.E.2d 613, at ¶ 10. 9 See State v. Wilcox (1974), 40 Ohio App.2d 380, 384,319 N.E.2d 615. 10 See New Middletown v. Yeager, 7th Dist. No. 03-MA-104,2004-Ohio-1549), citing State v. Colby (1984),14 Ohio App.3d 291, 470 N.E.2d 924.

2016-07-06 06:35:57.987971+00

OPINION {¶ 1} Appellant, Ohio Construction Industry Licensing Board f/k/a Ohio Construction Industry Examining Board1 ("the board"), appeals from the judgment of the Franklin County Court of Common Pleas reversing the board's orders revoking the electrical and HVAC2 contracting licenses of appellee, Stephen J. Roberts. For the reasons that follow, we affirm. {¶ 2} The relevant facts are undisputed. Appellee has been engaged in the business of electrical and HVAC contracting in Ohio for roughly 13 years, and has operated his own business for over 10 years. Through the years, he has held numerous licenses issued by municipalities permitting him to engage in such contracting within those specified jurisdictions. {¶ 3} In the year 2000, the 123rd Ohio General Assembly passed Am.Sub.H.B. 434 ("the act"), which substantially amended the Construction Industry Certification Law contained in the Ohio Revised Code. The act, whose various sections became effective during the year 2001, created a system under which HVAC contractors, refrigeration contractors, electrical contractors, plumbing contractors, and hydronics contractors who engage in commercial construction may obtain a single state-issued license to do business in all parts of Ohio. {¶ 4} Formerly, the board was empowered to issue "qualification certificates." Possession of a qualification certificate entitled the individual contractor to conduct business anywhere in the state, but municipalities or counties could require the contractor to meet additional regulations. The act eliminated most existing authority for municipal corporations and counties to impose additional examinations or skill-related requirements on those contractors who wish to do business within the jurisdiction of the municipal corporation or county. Instead, the qualification certificates were converted to "licenses." {¶ 5} Under the former law, in order to receive a qualification certificate, an individual was required to be at least 18 years of age, be a citizen of the United States, be of good moral character, pass an examination, pay a specified fee, and have at least two years of continuous experience immediately prior to application for examination in the area of contracting for which the applicant was applying for the certificate. See former R.C. 4740.06. The 2001 amendment eliminated certain qualification requirements, including that the applicant be of good moral character, but added certain others, including that the applicant not have been convicted of a felony. The newly amended requirements for obtaining a license through examination, pursuant to R.C. 4740.06, now precisely mirrored those enumerated items which, if an individual was found out of compliance with the same, would subject the individual to disciplinary action pursuant to the newly amended R.C. 4740.10. (See text of amended R.C. 4740.10, infra, at ¶ 6.) That is, in enacting Am.Sub.H.B. No. 434, the legislature changed R.C. 4740.06 (respecting qualifications to obtain a license) and R.C. 4740.10 (respecting criteria used to trigger disciplinary action against a licensee) so as to harmonize them. This resulted in a predictable, consistent statutory scheme for statewide licensure of contractors by examination. {¶ 6} Pursuant to the act, specific criteria are to be used in deciding whether to issue, renew, suspend, or revoke a license. Specifically, Section 1 of the act amended R.C.4740.10,3 which at all times relevant hereto provided, in relevant part: (A) The heating, ventilating, air conditioning, and refrigeration section of the Ohio construction industry examining board for heating, ventilating, and air conditioning contractors and for refrigeration contractors; the electrical section of the board for electrical contractors; the plumbing section of the board for plumbing contractors; and both the plumbing section and the heating, ventilating, air conditioning, and refrigeration section for hydronics contractors may suspend or revoke a license and may direct the administrative section of the board to refuse to issue or renew a license if the section of the board finds that the applicant or licensee has done any of the following: (1) Been convicted of a misdemeanor involving moral turpitude or a felony; (2) Violated any provision of this chapter or the rules adopted pursuant thereto; (3) Obtained a license or any order, ruling, or authorization of the board by fraud, misrepresentation, or deception; (4) Engaged in fraud, misrepresentation, or deception in the conduct of business. (B) The appropriate section of the board shall determine the length of time that a license is to be suspended and whether or when an individual whose license has been revoked may apply for reinstatement. The appropriate section of the board may accept or refuse an application for reinstatement and may require an examination for reinstatement. {¶ 7} The act included a "grandfather clause" pursuant to which contractors in the five specialty trades would be able to obtain the new statewide license without sitting for a written examination. The grandfather clause provided, in relevant part, as follows: (A) The heating, ventilating, air conditioning, and refrigeration section of the Ohio Construction Industry Examining Board for heating, ventilating, and air conditioning contractors and refrigeration contractors; the plumbing section of the Board for plumbing contractors; the electrical section for electrical contractors; and both the heating, ventilating, air conditioning, and refrigeration section and the plumbing section for hydronics contractors shall issue a license for those types of contractors, as appropriate, to any individual who meets the criteria described in division (B) or (C) of this section. (B) The individual does all of the following: (1) Applies to the appropriate section of the Board within seven months after the effective date of this section; (2) Pays the appropriate fee determined by each respective section of the Board; (3) Has been actively engaged as a heating, ventilating, and air conditioning contractor, refrigeration contractor, plumbing contractor, electrical contractor, or hydronics contractor, as applicable, in this state for at least three years immediately prior to the effective date of this section; (4) Furnishes business records or other evidence to verify the experience required under division (C)(1)(c) of this section to the satisfaction of the appropriate section of the Board; (5) Provides evidence of all of the following: (a) Current contractor's liability insurance, including without limitation, complete operations coverage, in the amount of three hundred thousand dollars; (b) Compliance with Chapters 4121. and 4123. of the Revised Code; (c) Compliance with any other applicable legal requirements to do business in this state, as determined by the Board. (C) The individual applies to the appropriate section of the Board within one year after the effective date of this section, pays the appropriate fee determined by each respective section of the Board, and demonstrates that the individual satisfies qualification requirements as the Board determines, to the Board's satisfaction. Am.Sub.H.B. No. 434, Section 4.4 {¶ 8} Pursuant to the act's grandfather clause, appellee timely filled out and submitted an application for electrical and HVAC contractor licenses. Appellee answered affirmatively a question in Section C of the application regarding whether he had ever been convicted of any felony. He attached a letter explaining that he was convicted of a drug-related felony in 1986, he served time in prison as a result, and was released from parole in 1991. He added that, since his release, he has been involved in a 12-step recovery program and has been drug-free for 10 years. {¶ 9} Following receipt of appellee's application, the board issued him licenses for electrical and HVAC contracting, as it was required to do pursuant to paragraph (A) of the grandfather clause. Nearly two years later, however, by letter dated March 21, 2003, the board informed appellee that it had come to the board's attention that he had a felony conviction. The board requested further information, which appellant provided. On April 7, 2003, the board informed appellee, by two certified letters, that the board's electrical and HVAC sections proposed revocation of appellee's licenses due to his felony conviction. Appellee filed a brief in opposition to the board's proposed action, and the matter was set for a hearing. The board held a hearing on June 6, 2003. {¶ 10} On June 9, 2003, the hearing officer issued his Report and Recommendation. Therein, he found that in 1984, appellee pled guilty to two counts of breaking and entering and three counts of theft.5 The hearing officer further found that these convictions were fully disclosed on appellee's grandfather application, but appellant issued appellee's license, according to appellant's representative, due to an oversight. The hearing officer noted that appellee's character witnesses described him as an exemplary person. {¶ 11} The hearing officer found well-taken appellee's argument that R.C. 4740.10(A) contains permissive — not mandatory — language, such that the board is not required to revoke a license on account of the holder's felony conviction. However, the hearing officer found that this was insufficient to prohibit the board from proceeding with such a revocation pursuant to R.C.4740.10, in a case in which the licensee in fact has a felony conviction, no matter how long ago the conviction occurred. Accordingly, the hearing officer recommended that the board uphold the request of its electrical and HVAC sections and revoke appellee's contractor licenses. {¶ 12} Appellee filed objections to the report of the hearing officer. However, by separate orders dated August 13, 2003, the board informed appellee that its electrical and HVAC sections thereby revoked his contractor licenses. Pursuant to R.C. Chapter 119, appellee filed two separate notices of appeal to the Franklin County Court of Common Pleas. The two cases were consolidated and on January 15, 2004, the trial court journalized a single decision and entry reversing the decision of the board and ordering the board to reinstate appellee's electrical and HVAC licenses. {¶ 13} It is from this decision and entry that the board brings this appeal, and asserts the following three assignments of error for our review: ASSIGNMENT OF ERROR NO. 1 The lower court erred as a matter of law when it determined that Section 4 of Sub. Am. H.B. 434 prohibited appellant from revoking appellee's licenses. ASSIGNMENT OF ERROR NO. 2 The lower court erred as a matter of law when it determined that appellant was without statutory authority to revoke appellee's licenses. ASSIGNMENT OF ERROR NO. 3 The lower court erred in determining that appellant's orders revoking appellee's licenses were not supported by reliable, probative, and substantial evidence and were not in accordance with law. {¶ 14} R.C. 119.12 governs this appeal6 and provides, in part: The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. {¶ 15} Under R.C. 119.12, when the trial court reviews an order of an administrative agency, the trial court must consider the entire record to determine whether the agency's order is supported by reliable, probative and substantial evidence and is in accordance with law. Univ. of Cincinnati v. Conrad (1980),63 Ohio St.2d 108, 110-111, 407 N.E.2d 1265. See, also, Andrewsv. Bd. of Liquor Control (1955), 164 Ohio St. 275, 280,131 N.E.2d 390. {¶ 16} The trial court's "review of the administrative record is neither a trial de novo nor an appeal on questions of law only, but a hybrid review in which the court `must appraise all the evidence as to the credibility of the witnesses, the probative character of the evidence and the weight thereof.'"Lies v. Veterinary Med. Bd. (1981), 2 Ohio App.3d 204, 207,441 N.E.2d 584, quoting Andrews, supra, at 280. In its review, the trial court must give due deference to the administrative agency's resolution of evidentiary conflicts, but the findings of the agency are not conclusive. Univ. of Cincinnati, supra, at 111. {¶ 17} An appellate court's review of an administrative decision is more limited than that of a trial court. Pons v.Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621,614 N.E.2d 748, rehearing denied, 67 Ohio St.3d 1439, 617 N.E.2d 688. InPons, the Supreme Court of Ohio noted: "* * * While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion[.] * * * Absent an abuse of discretion on the part of the trial court, a court of appeals may not substitute its judgment for [that of an administrative agency] or a trial court. Instead, the appellate court must affirm the trial court's judgment." Id. An abuse of discretion implies the decision is both without a reasonable basis and is clearly wrong. Angelkovski v. BuckeyePotato Chips Co. (1983), 11 Ohio App.3d 159, 161-162,463 N.E.2d 1280. On questions of law, however, the court of common pleas does not exercise its discretion and the court of appeals' review is plenary. Univ. Hosp., Univ. of Cincinnati College of Medicinev. State Emp. Relations Bd. (1992), 63 Ohio St.3d 339,587 N.E.2d 835. {¶ 18} We will consider and discuss all three of the board's assignments of error together because, the facts being essentially undisputed, our resolution of all of the assignments of error rests upon our review of the propriety of the trial court's legal analysis, and of its ultimate finding that the board's decision was not in accordance with law. {¶ 19} We begin by reviewing the substance of the trial court's analysis. The court took note of the fact that, pursuant to the plain language of the grandfather clause, appellee was properly issued his licenses, notwithstanding the fact that he had been previously convicted of a felony. Specifically, the court pointed out that appellee met all criteria enumerated in the grandfather clause, and pursuant to the language thereof, it was mandatory that the board issue appellee's licenses. The court went on to reason that, because appellee's circumstances had not changed since issuance of his licenses, and given that R.C.4740.10 does not mandate revocation for prior felonies, "the Board is without statutory authority to revoke [appellee's] license[s] that it was `mandated' to grant." (Jan. 15, 2004 Decision and Entry, at 6.) The court of common pleas added that, in its opinion, "[t]here seems to be inconsistency between the sections of the O.R.C." (Ibid.) {¶ 20} In its brief, the board frames the legal issue presented in this appeal as, "whether a felony was a bar to licensure under Section 4 of [Am.Sub.]H.B. [No.] 434." We do not share the board's perception of the fundamental legal issue before us. The plain language of the grandfather clause, clearly and unambiguously, contains no prohibition on licensure thereunder for convicted felons. Thus, the court of common pleas was correct in determining that appellee was properly issued his statewide contractor licenses under the grandfather clause. {¶ 21} The pivotal question in this case was first identified by the hearing officer in his Report and Recommendation. The hearing officer observed that R.C. 4740.10 permits the board to revoke the license of a contractor, "if the [appropriate specialty] section of the board finds that the * * * licensee has * * * been convicted of * * * a felony." R.C. 4740.10(A)(1). The hearing officer concluded that, owing to this unqualified power vested in the board to revoke a license upon a finding that a licensee has committed any felony, no legal impediments prevented the board from revoking appellee's licenses if it chose to do so. We disagree. {¶ 22} Within the same enactment in which it amended R.C.4740.06 to include any prior felony conviction as an absolute bar to licensure by examination, the legislature effectuated the grandfather clause, which contains absolutely no language barring convicted felons from licensure thereby. It is therefore clear that the General Assembly intended that prior felonies will not, under any circumstances, provide the basis for any action by the board that would prevent individuals who qualified for licensure under the provisions of the grandfather clause from continuing to engage in the type of contracting for which they were licensed following enactment of Am.Sub.H.B. 434. To construe R.C. 4740.10 to confer unfettered power upon the board to revoke the license of one who obtained his license pursuant to the grandfather clause, and to do so based solely on a pre-licensure felony conviction, directly negates this clear legislative intent. {¶ 23} The board's position invites us to ignore the grandfather clause in its entirety, rather than attempt to reconcile the provisions of R.C. 4740.10 and the grandfather clause, which, at first blush, appear to be somewhat inharmonious. Indeed, to allow the board to revoke appellee's license based upon pre-licensure convictions renders the grandfather clause wholly ineffective. In enacting any statute, it is presumed that the entire statute is intended to be effective. R.C. 1.47(B). We perceive nothing in the record or in the applicable version of the Construction Industry Certification Law that overcomes this presumption. {¶ 24} Accordingly, we construe R.C. 4740.10 to not allow disciplinary action against a licensee who obtained his or her license pursuant to Section 4 of Am.Sub.H.B. 434, by reason of a felony conviction, when the felony conviction was obtained prior to the date of licensure. This construction harmonizes and gives full effect to both provisions, as we are required to do when possible. See Empire Gas Corp. v. Westerville Bd. of Edn. (1995), 102 Ohio App.3d 613, 657 N.E.2d 790; Shover v. CordisCorp. (1991), 61 Ohio St.3d 213, 218, 574 N.E.2d 457; Maxfieldv. Brooks (1924), 110 Ohio St. 566, 144 N.E. 725; Benjamin v.Columbus (1957), 104 Ohio App. 293, 4 O.O.2d 439,148 N.E.2d 695, affirmed (1957), 167 Ohio St. 103, 4 O.O.2d 113,146 N.E.2d 854; State v. Glass (1971), 27 Ohio App.2d 214, 56 O.O.2d 391,273 N.E.2d 893; State v. Hollenbacher (1920), 101 Ohio St. 478,129 N.E. 702. See, also, Couts v. Rose (1950),152 Ohio St. 458, 40 O.O. 482, 90 N.E.2d 139 ("[Courts] in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict"). {¶ 25} We hold that, as a matter of law, the board did not have the power to revoke appellee's contractor licenses based on his prior felony convictions. Thus, the board's orders were contrary to law and, as the trial court determined, must be reversed. For all of the foregoing reasons, we overrule all three of the board's assignments of error, and affirm the judgment of the Franklin County Court of Common Pleas. Judgment affirmed. Petree and Klatt, JJ., concur. 1 The name of the board was changed by Sub.S.B. No. 179, effective September 16, 2004. 2 HVAC stands for "heating, ventilating and air conditioning." 3 Sections (A) and (C) were subsequently amended by Sub.S.B. No. 179, effective on September 16, 2004. The pre-Sub.S.B. No. 179 version applies hereto and is reprinted herein. 4 This section of the act became effective on March 22, 2001. 5 The hearing officer did not make a specific finding with respect to the 1986 conviction that appellee disclosed on his license application. 6 In his brief, appellee argues that, in addition to conducting a review pursuant to R.C. Chapter 119, the court of common pleas may also review the board's order for arbitrariness pursuant to R.C. 2506.04. But by the plain language of R.C.2506.01, the former applies only to review of final orders of divisions of the state's political subdivisions. Therefore, R.C.2506.04 is inapplicable herein.

2016-07-06 06:35:58.021605+00

JOURNAL ENTRY AND OPINION Plaintiff-appellant Richard Tucker ("appellant") appeals from the judgment of the trial court which granted a motion to dismiss in favor of Defendant-appellees William Mason, the Cuyahoga County Prosecutor (hereafter "prosecutor") and the Ohio Adult Parole Authority (hereafter "OAPA"). For the reasons set forth below, we reverse the decision of the trial court and remand. On June 14, 2001, appellant filed his complaint against appellees OAPA and the Cuyahoga County Prosecutor, alleging breach of contract and seeking declaratory judgment. The action stemmed from a plea agreement entered into by the appellant with the State of Ohio through the prosecutor, wherein the appellant pled guilty to attempted aggravated arson, attempted Robbery and felonious assault and was sentenced to between five and fifteen years. The appellant complained that the OAPA and the prosecutor failed to honor the agreement, when they categorized him for purposes of parole eligibility based on his original indictment, rather than categorizing him based on the offenses of which he was convicted.1 The appellant requested the court to declare his entitlement to the terms and conditions of the plea agreement and to issue an injunction ordering compliance with the agreement via a new hearing and new categorization based on his actual conviction. The prosecutor and OAPA both moved to dismiss the complaint for failure to state a claim pursuant to Civ.R. 12(B)(6). In its motion, the prosecutor argued that the appellant has no constitutional or inherent right to parole and therefore he has no right to challenge the OAPA's guidelines or procedures. The OAPA argued in its motion to dismiss that the OAPA may consider conduct supporting an indictment when reviewing an inmate's eligibility for parole.2 They argued that pursuant to statute, the OAPA exclusively administers the parole process, that the guidelines established in 1998 are discretionary, that they are allowed to use elements of offense of which an inmate was indicted but not convicted, that an inmate has no right to be considered for parole at any particular time between his or her minimum and maximum sentence, and lastly that an inmate is not entitled to declaratory judgment under R.C. 2721.03. In the alternative, the OAPA filed a motion to change venue, which was denied by the trial court as moot. The trial court granted the prosecutor's and OAPA's motions to dismiss in a journal entry dated July 30, 2001: Defendant Mason's and Defendant Ohio Adult's Motions for Dismissal are both granted. Case is dismissed with prejudice at plaintiff's costs. FINAL. Plaintiff's Motion to Strike (7/17/01) and Defendant Ohio Adult's second motion for dismissal are both denied as moot. All clams are [dismissed with prejudice]. FINAL. Appellant now appeals this ruling, asserting seven assignments of error for our review. I. In his first assignment of error, the appellant essentially argues that the court erred in failing to include the "no just reason for delay" language in its journal entry and this failure prevents a final appealable order under R.C. 2505.02. We disagree. Pursuant to Civ.R. 54(B), an entry of judgment involving fewer than all of the claims or parties is not final unless the court expressly concludes there is "no just reason for delay." See Noble v. Colwell (1989), 44 Ohio St.3d 92, 540 N.E.2d 1381; Chef Italiano Corp. v. KentState Univ. (1989), 44 Ohio St.3d 86, 541 N.E.2d 64. This does not apply, however to entries of judgment addressing all of the claims or parties in the suit. In the case sub judice, the trial court dismissed all of the claims of the appellant in its journal entry, stating "Defendant Mason's and Defendant Ohio Adult's motions for dismissal are both granted. Case is dismissed with prejudice at Plaintiff's costs. FINAL." Therefore, it was not necessary for the court to include the "no just reason for delay" language its entry. This assignment of error is without merit. II. In his second assignment of error, the appellant essentially argues that the trial court erred in failing to consider jurisdictional issues with regard to the OAPA's motion to change venue. However, as the above journal entry indicates, the trial court dismissed both motions to dismiss, therefore properly rendering the motion to change venue moot. This assignment of error is without merit. III. In his third assignment of error, the appellant claims that the trial court erred in dismissing his breach of contract claim against the prosecutor and the OAPA. The appellant contends that the State of Ohio, through the prosecutor and the OAPA, breached the agreement by denying him the benefit of the bargain that was given in exchange for his guilty plea. The benefit to which the appellant contends he is entitled to is eligible to be considered for parole. When reviewing a Civ.R. 12(B)(6) dismissal, this Court independently reviews the complaint to determine whether dismissal was properly granted. Girts v. Raaf (May 4, 1995), Cuyahoga App. No. 67774, unreported, citing State ex rel. Drake v. Athens Cty. Bd. of Elections (1988), 39 Ohio St.3d 40, 528 N.E.2d 1253. Therefore, a reviewing court need not defer to a trial court's ruling. The standard of review for a motion to dismiss for failure to state a claim pursuant to Civ.R. 12(B)(6), is as follows: Pursuant to Civ.R. 12(B)(6), in order to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt that [plaintiff] could prove no set of facts warranting relief, after all factual allegations of the complaint are presumed true and all reasonable inferences are made in his favor. State ex rel. Findlay Publishing Co. v. Schroeder (1996), 76 Ohio St.3d 580, 581, 669 N.E.2d 835, 837. State ex rel. Kaylor v. Bruening (1997), 80 Ohio St.3d 142, 144,684 N.E.2d 1228. This Court recently addressed whether a complaint against the OAPA for breach of contract with regard to a plea agreement states a claim upon which relief can be granted in State v. Vendrick (Feb. 23, 2002), Cuyahoga App. No. 80030, unreported. In Vendrick, we held that as an agency of the state, the OAPA was bound by the state's plea agreement with the appellant. Accord State v. Butts (1996), 112 Ohio App.3d 683 (A plea agreement is contractual in nature and subject to contract standards); State v. Callahan (Oct. 6, 2000), Montgomery App. No. 18237, unreported (County prosecutors and the OAPA are agents of the state and therefore must honor agreements made by the state.) In Vendrick, after noting that other Ohio districts have held that a plea agreement is a contract by the state that the OAPA must honor, we stated: * * * While the OAPA may have absolute discretion to decide whether to parole a particular offender, and may be able to consider the circumstances surrounding the offense and whether appellant could have been convicted of a more serious crime but for his plea, it must begin its decision-making process by applying the guidelines for the crime of which the appellant was actually convicted, not the crime for which he was indicted. Vendrick at 5-6. We further stated that "we cannot conclude that appellant can prove no set of facts entitling him to relief." Vendrick,supra. We continue to be persuaded by this reasoning and in the matter subjudice we cannot say that the appellant can prove no set of facts entitling him to relief. As such, this assignment of error is well-taken. In his remaining four assignments of error, the appellant highlights various alleged constitutional infirmities of the guidelines employed by the OAPA in determining parole eligibility. However, these matters were not raised before the trial court. The appellant cannot raise new issues on appeal that were not raised in the trial court. See Van Camp v. Riley (1984), 16 Ohio App.3d 457, 463, 544-545, 476 N.E.2d 1078, 1084; citingRepublic Steel Corp. v. Cuyahoga Cty. Bd. of Revision (1963),175 Ohio St. 179, 192 N.E.2d 47. See, also, App.R. 12(A); State v. 1981Dodge Ram Van (1988), 36 Ohio St.3d 168, 522 N.E.2d 524; Hungler v.Cincinnati (1986), 25 Ohio St.3d 338, 496 N.E.2d 912; C. MillerChevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298,313 N.E.2d 400. Therefore, we need not address the appellant's remaining four assignments of error. Judgment reversed and remanded for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee their costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. MCMONAGLE, A.J., AND ANNE L. KILBANE, J., CONCUR 1 Appellant was indicted for aggravated arson, aggravated robbery and felonious assault. Employing the procedures used by the OAPA, this would place the appellant in category 9 for purposes of parole eligibility, requiring the appellant to serve between 132-168 months prior to a hearing for parole consideration. However, if the OAPA had placed the appellant in a category based on his conviction, he would have been placed in category 7, which would require the appellant to serve between 84-108 months prior to consideration for parole. 2 The OAPA noted that grand juries indict based on probable cause and that this is sufficient information upon which to rely.

2016-07-06 06:35:58.049386+00

Appellant, George Schempf, and appellee, Sherry Schempf, were married on October 27, 1990. No children were born as issue of said marriage. On November 6, 1996, appellee filed a complaint for divorce. A hearing before a magistrate was held on December 11, 1997. By decision filed January 16, 1998, the magistrate granted the divorce and allocated the parties' property. Appellant filed objections to the magistrate's decision on January 30, 1998 and appellee filed cross-objections on February 3, 1998. A hearing was held on March 25, 1998. The trial court overruled the objections and approved and adopted the magistrate's decision. By judgment entry filed April 9, 1998, the trial court issued its final judgment entry of divorce. Appellant filed a notice of appeal and this matter is now before this for consideration. Assignments of error are as follows: I THE TRIAL COURT'S FAILURE TO INCLUDE APPELLEE'S BANK ACCOUNTS IN THE DISTRIBUTION OF MARITAL ASSETS WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II THE TRIAL COURT'S FAILURE TO INCLUDE THE FEDERAL QUARTERLY ESTIMATED TAX PAYMENTS IN THE DISTRIBUTION OF MARITAL ASSETS WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III THE TRIAL COURT'S DOUBLE COUNTING OF THE ALLIS-CHALMERS TRACTOR BY INCLUDING ITS VALUE IN THE KIKO AUCTION SALES PROCEEDS AND ITS FAIR MARKET VALUE AS SEPARATE AWARDS TO APPELLANT WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IV THE TRIAL COURT'S CLASSIFICATION OF THE FLATBED TRAILER AS MARITAL PROPERTY AND ITS DISTRIBUTION TO APPELLANT AS MARITAL PROPERTY WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. V THE TRIAL COURT'S VALUATION OF THE MAYER LOAN WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VI THE TRIAL COURT'S TREATMENT OF THE 1984 ODAY SAILBOAT AND TRAILER WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VII THE TRIAL COURT'S VALUATIONS OF THE 1988 BUICK AND THE 1983 GMC TRUCK WERE AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. VIII THE TRIAL COURT'S DIVISION OF THE CAPITAL GAINS TAX OBLIGATION WAS AN ABUSE OF DISCRETION AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. IX THE TRIAL COURT'S TREATMENT OF THE OIL WELLS WAS AN ABUSE OF DISCRETION, CONTRARY TO LAW AND AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. STANDARD OF REVIEW Because all nine assignments of error challenge the trial court's division of the parties' property, we will first discuss the standard of review applicable to all nine assignments. R.C. 3105.171 governs equitable division of marital and separate property. Subsection (B) authorizes the trial court to determine "what constitutes marital property and what constitutes separate property." Subsection (C) mandates "the division of marital property shall be equal." If such a division would be inequitable, the court shall divide the marital property in an equitable manner. In making a division of marital property, the trial court shall consider all relevant factors, including those set forth in subsection (F): (F) In making a division of marital property and in determining whether to make the amount of any distributive award under this section, the court shall consider all of the following factors: (1) The duration of the marriage; (2) The assets and liabilities of the spouses; (3) The desirability of awarding the family home, or the right to reside in the family home for reasonable periods of time, to the spouse with custody of the children of the marriage; (4) The liquidity of the property to be distributed; (5) The economic desirability of retaining intact an asset or an interest in an asset; (6) The tax consequences of the property division upon the respective awards to be made to each spouse; (7) The cost of sale, if it is necessary that an asset be sold to effectuate an equitable distribution of property; (8) Any division or disbursement of property made in a separation agreement that was voluntarily entered into by the spouses; (9) Any relevant factor that the court expressly finds to be relevant and equitable. Subsection (G) requires the trial court to "make written findings of fact that support the determination that the marital property has been equitably divided and shall specify the dates it used in determining the meaning of 'during the marriage.' " In reviewing an order on property division, this court will not disturb the trial court's decision absent a showing of an abuse of discretion. Martin v. Martin (1985), 18 Ohio St.3d 292. In order to find an abuse of discretion, we must determine the trial court's decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. In addition, a judgment supported by some competent, credible evidence will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. V. Foley Construction Co. (1978),54 Ohio St.2d 279. Keeping the foregoing in mind, we will address the nine assignments of error. I Appellant argues the trial court erred in failing to include appellee's bank accounts in the distribution of marital assets. We agree. Appellee testified to having three bank accounts totaling $1,484.00. T. at 93. These accounts are not mentioned in the division of property. The result of this omission is that appellee retains the accounts without an equitable offset to appellant. In making an unequal distribution, the trial court is required to enter written findings of fact supporting its decision. See, Szerlip v. Szerlip (August 20, 1998), Knox App. No. 97CA31, unreported. Such was not done sub judice. Upon review, we find the trial court erred in failing to include appellee's bank accounts in the distribution of martial assets. Assignment of Error I is granted. II Appellant argues the trial court erred in failing to include the federal quarterly estimated tax payments in the distribution of marital assets. We agree. The parties had an account with the Internal Revenue Service in the amount of $5,773.60. When appellee filed her 1996 tax return, she applied $4,058.00 to her tax obligation (see, Plaintiff's Exhibit 29), leaving a balance of $1,715.60. This account was not mentioned in the division of property. As a result of this omission, appellee received $1,171.20 more than appellant did. Again, no written findings of fact were filed supporting the unequal distribution. Upon review, we find the trial court erred in failing to include the tax account in the distribution of marital assets. Assignment of Error II is granted. III Appellant argues the trial court erred in double counting the Allis-Chalmers tractor. We agree. Appellant testified the tractor was sold at auction and the money was placed in escrow. T. at 58-59. Appellee does not dispute appellant was awarded the value of the tractor plus the escrow account which contained the proceeds of the sale. See, Appellee's Brief at 11. As a result of this double counting, appellant was twice assessed credit for the value of the tractor ($1,350.00) creating an inequity. Upon review, we find the trial court erred in doubling counting the tractor. Assignment of Error III is granted. IV Appellant claims the trial court erred in classifying the flatbed trailer as marital property and in distributing said property to appellant. We agree. Appellant claims he purchased the trailer on November 11, 1988. Appellant argues because the trailer was purchased prior to the marriage, it should be deemed separate property and awarded to him without credit to appellee. A review of the record establishes no testimony or documention was given to the magistrate regarding the trailer's purchase date. Appellant argues he did not offer any such evidence because appellee had admitted in her November 6, 1996 financial statement that appellant owned the trailer prior to marriage. Appellee claimed the trailer was marital property via an amended financial statement prepared one day prior to hearing. See, Plaintiff's Exhibit 32. During the objection hearing, appellant brought these facts to the trial court's attention, and produced a sales receipt for the trailer dated November 8, 1988 (see, Defendant's Exhibit AA at page 22). March 11, 1998 T. at 12. Upon review, we find the trial court erred in finding the trailer to be marital property. The trailer was acquired prior to the marriage and as such is appellant's separate property. Assignment of Error IV is granted. V Appellant claims the trial court erred in valuing the Mayer Loan. We disagree. It is undisputed the parties borrowed money from Floyd and Eva Mayer. What is in dispute is the amount. Appellant testified the amount was $15,000 and appellee testified the amount was $10,000. T. at 91, 131. Appellant testified the money was borrowed from four different life insurance policies owned by the Mayers as evidenced by Defendant's Exhibit M. T. at 132. In Conclusion of Law No. 7, the trial court held as follows: Regarding the amount of the loan from the Mayer's the evidence is in dispute. Defendant testified that the amount borrowed was $15,000.00. Defendant's Exhibit M merely shows that the Mayers' borrowed $5,737.90 against their life insurance policy. Meanwhile the Magistrate finds that plaintiff was more credible than the Defendant and therefore finds the $10,000.00 amount contained in Plaintiff's Exhibit 32 is the more reliable figure. Appellant argues this interpretation of Defendant's Exhibit M was erroneous because the magistrate only considered one page of the four page exhibit. The trial court heard this argument at the objection hearing and subsequently overruled it. March 11, 1998 T. at 8. Clearly the trial court found appellee's valuation of the loan to be more credible. Credibility is an issue that lies with the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182. Upon review, we find the trial court did not err in valuing the Mayer loan. Assignment of Error V is denied. VI Appellant claims the trial court erred in its treatment of the 1984 Oday sailboat and its trailer. We agree in part. Appellant argues the boat and trailer were his separate property and should have been awarded to him without any credit to appellee. Appellant testified to making a $3,000 down payment on the boat prior to marriage. However, the boat was not titled to appellant until December 1, 1993, after the marriage had commenced (see, Defendant's Exhibit L). T. at 128-129. Appellant testified the trailer was titled to him on April 18, 1989, prior to the marriage (see, Defendant's Exhibit K). T. at 127-128. Upon review, we find the trial court did not err in finding the boat to be marital property as it was acquired during the marriage. However, the trial court did err in finding the trailer to be marital property. The trailer was acquired prior to the marriage and as such is appellant's separate property. Appellant also argues the trial court assessed incorrect valuations on the boat and trailer. Given the fact we deemed the trailer to be separate property, we will address this challenge as it pertains to the boat only. The trial court awarded appellant the boat assessing a value of $15,000. Appellant argues said value is too high. Appellant testified the boat was purchased for $16,000 and currently the boat and trailer had a combined worth of less than $9,000. T. at 129-130. In a personal financial statement dated May 6, 1996, six months prior to the divorce complaint being filed, appellant listed the boat as having a fair market value of $15,000. See, Plaintiff's Exhibit 14. There was no other evidence before the trial court regarding the boat's valuei.e., professional appraisal. Upon review, we find the trial court did not err in assessing the boat's value at $15,000. Assignment of Error VI is granted in part and denied in part. VII Appellant claims the trial court erred in valuing his two motor vehicles. We agree. The trial court awarded appellant his 1983 GMC truck and his 1988 Park Avenue assessing their value at $6,000 each. In Finding of Fact No. 30, the trial court found appellant had sold these vehicles for $1,500 (GMC truck) and $1,900 (Park Avenue) in contravention of a restraining order. In his May 6, 1996 personal financial statement, appellant valued each vehicle at $6,000. There was no other evidence before the trial court regarding the vehicles' value i.e., professional appraisal. In Conclusion of Law No. 6, the trial court held "[d]efendant's opinion of the value of his two former vehicles as indicated on May 6, 1996 is more credible than the amount he realized from their sale since the transactions were in contravention of the restraining order." It appears the trial court adopted appellant's $6,000 figures because appellant sold the vehicles. If the trial court's intent was to "punish" appellant for violating the restraining order, then it should have addressed this issue separately. Upon review, we find the trial court erred in valuing the vehicles at $6,000 each in light of the fact they were sold for $1,500 and $1,900. Assignment of Error VII is granted. VIII Appellant claims the trial court erred in dividing the capital gains tax obligation. We disagree. Defendant's Exhibit P evidences the parties' capital gains tax obligation of $16,200 from the sale of the farm. This obligation was equally divided between the parties. Appellant argues he should have been assessed full responsibility for this obligation because the Internal Revenue Service will come after him if appellee fails to report her half of the obligation on her tax return correctly. We note appellant is basing his argument on facts that may never occur. If such a situation should arise, appellant can institute a contempt proceeding against appellee. Upon review, we find the trial court did not err in dividing the capital gains tax obligation between the parties. Assignment of Error VIII is denied. IX Appellant claims the trial court erred in distributing the parties' oil wells. We disagree. Appellant testified oil and gas wells were acquired during the marriage. T. at 29. Said wells were appraised at $19,000. See, Plaintiff's Exhibit 11. Appellant argues he should have been awarded the wells with no credit to appellee because the wells constitute his primary source of income. We note appellant owns EBS Associates, an insurance agency, and has been engaged in the insurance business for approximately twelve years. T. at 9. While the wells may significantly contribute to appellant's income, they are not appellant's sole source of income. As the wells were acquired during the marriage, the trial court did not err in finding them to be marital property. Assignment of Error IX is denied. The judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is hereby affirmed in part and reversed in part. By Farmer, J., Wise, P.J. and Hoffman, J. concur. -------------------- -------------------- -------------------- JUDGES For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio, Family Court Division is affirmed in part, reversed in part and remanded to said court for further proceedings consistent with this opinion. Costs to appellant. -------------------- -------------------- -------------------- JUDGES Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Sheila G. Farmer, J., JUDGES.

2016-07-06 06:35:58.081231+00

OPINION {¶ 1} Appellants Carol and James Costlow appeal a judgment of the Court of Common Pleas, of Licking County, Ohio, affirming a decision of the Etna Township Board of Zoning Appeals finding them in violation of Section 910 of the Etna Township Zoning Resolution, for storing and warehouse materials outside: {¶ 2} "I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FINDING THAT A PREPONDERANCE OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE DECISION OF THE BZA IN FINDING THAT APPELLANTS' USE OF THE STORAGE CONTAINERS DID NOT CONSTITUTE AN ACCESSORY USE PERMITTED UNDER THE ETNA TOWNSHIP ZONING RESOLUTION. {¶ 3} "II. THE TRIAL COURT ERRED AS A MATTER OF LAW, BY FINDING THAT ESTOPPEL AND LACHES DID NOT PREVENT THE BZA FROM FINDING THE ALLEGED ZONING VIOLATIONS. {¶ 4} "III. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FINDING THAT A PREPONDERANCE OF RELIABLE, PROBATIVE AND SUBSTANTIAL EVIDENCE EXISTS TO SUPPORT THE DECISION OF THE BZA IN FINDING THAT APPELLANTS' HAVE NOT AND OR WILL NOT SUFFER AN UNNECESSARY HARDSHIP BY STRICT APPLICATION OF THE ETNA TOWNSHIP ZONING RESOLUTION. {¶ 5} "IV. THE TRIAL COURT ERRED, AS A MATTER OF LAW, WHEN IT DETERMINED THAT THE BZA DID NOT ACT UNREASONABLY IN EXERCISING ITS DISCRETION IN DENYING APPELLANTS' APPEAL BASED ON AESTHETIC ISSUES SURROUNDING THE USE OF OUTSIDE STORAGE AND USE OF INTERMODAL/TRAILER STORAGE CONTAINERS ON THE PROPERTY. {¶ 6} "V. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN AFFIRMING THE BZA'S ORDER THAT RESULTED FROM CONSTITUTIONAL DUE PROCESS DEPRIVATIONS AS APPLIED TO APPELLANTS." {¶ 7} The instant case involves a six-acre tract of land owned by appellants in Pataskala, Ohio. James Costlow purchased the property for operation of a retail carpet business. At the time he purchased the property, it contained no warehouses, storage containers, or other materials related to handling goods. After purchasing the property, he immediately began using and storing items on the premises for use in his business. Shortly after buying the property, James Costlow married appellant Carol Costlow, and devised one-half of his interest in the property to her. In addition to their primary business, which is a retail carpet business, appellants engage in the buying and selling of other material goods, such as forklifts, picnic tables, carpet shelving, and wood pellets for stoves, which they purchase from other businesses which are liquidating. {¶ 8} In November of 2000, appellants received a warning letter from the Etna Township Zoning Inspector. The violation notice related to disabled vehicles and to the improper warehousing of materials outside on the property. Specifically, appellants were storing materials such as iron, wire, metal shelves, workbenches, reenforcement rods, forklifts, and forklift components, outside. In addition, while appellants have six warehouse buildings on the premises, and a residential building on the premises, they use multiple outside storage containers, designed for intermodal railroad transportation, to hold carpet, padding, and wood. Use of these outside storage containers is not uncommon in the carpet industry, as a carpet retailer has to keep defective carpet away from the retail inventory. {¶ 9} As to the disabled vehicles violation, at the time of the zoning inspector's first visit to the property, a car was stored above ground, that appellants allege it was lifted off the ground to allow concrete to be poured under it. An RV was located on the property, which appellants at one time intended to use as a mobile showroom for their carpet, but gave to a homeless man to live in following notice of violation. A boat, designed as a motor boat, was located on the property, although it did not have motor. Appellant James Costlow claimed that he intended to use the boat as a rowboat. {¶ 10} After first receiving notice of violation in November of 2000, appellant Carol Costlow spoke several times on the telephone to the zoning inspector, asking him to clarify the violations. The zoning inspector sent an identical warning letter to appellants in December of 2000. On May 17, 2001, the zoning inspector again visited the property, accompanied by a township trustee. Appellant James Costlow was present on the property at that time and spoke with the inspector and the trustee. Appellant pointed out efforts he had made to comply with the zoning resolution, including constructing a wall along one portion of the premises, and moving the metal and wood materials stored outdoors to one location on the property. In addition, appellants had removed all of the disabled vehicles except for the boat. The zoning inspector determined that the continued storage of materials outside, and the use of the outdoor storage containers, still constituted violations of the Etna Township Zoning Resolution, and issued a notice of violation on May 29, 2001. {¶ 11} Under Section 910 of the Etna Township Zoning Resolution, governing districts zoned "GB" (general business), permitted uses include wholesale business or warehousing, if conducted entirely in an enclosed building; building materials and sales if conducted entirely in an enclosed building; and accessory buildings and uses. {¶ 12} The case proceeded to hearing before the Etna Township Board of Zoning Appeals. Appellants argued that the use of the outside storage containers and storage of materials outdoors on the property constituted an accessory use to the retail carpet business. They also claimed that the vehicles located on the property were not at any time disabled, and had been removed at the time of the hearing. Following the hearing, the Board of Zoning Appeals dismissed the charge of violation of the disabled vehicles resolution, finding that all vehicles except the boat had been removed from the property, and ordered appellants to remove the boat within 30 days, or place it inside. The Board of Zoning Appeals found a violation of Section 910 of the Zoning Ordinance, finding that the outdoor storage of materials and use of the intermodal storage units for carpet and padding was not an accessory use of the property. {¶ 13} Appellants appealed the case to the Licking County Court of Common Pleas pursuant to R.C. 2506.04. The court affirmed the decision of the Board of Zoning Appeals. I {¶ 14} In their first assignment of error, appellants argue that the court erred in affirming the decision of the Board of Zoning Appeals that the use of outdoor storage on the property is not an accessory use as defined in the zoning resolution. {¶ 15} Pursuant to R.C. 2506.04, the common pleas court, on appeal from an administrative agency, may find that the order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable and probative evidence on the whole record. The common pleas court weighs the evidence in the record, and may consider new or additional evidence only under certain circumstances. Smith v. Granville Twp. Board of Trustees,81 Ohio St.3d 608, 612, 1998-Ohio-340. We must affirm the decision of the common pleas court unless we find, as a matter of law, that the decision is not supported by a preponderance of reliable, probative, and substantial evidence. Id. at 613. {¶ 16} The Etna Township Zoning Resolution specifically prohibits the outdoor warehousing of materials for use in a business. At page 14 of their briefs, appellants contend that it is undisputed that intermodal storage containers do not constitute structures or buildings as defined in the resolution. However, appellants argue that the use of such containers is an accessory use to their carpet business. The zoning resolution defines accessory use as a use on the same lot with, and of a nature customarily incidental and subordinate to the principle use or structure. {¶ 17} Robert Pendleton, a carpet salesman, testified that use of intermodal storage containers was not uncommon in the carpet business. He testified that because used carpet must be kept separate from new carpet, it is not uncommon to see such containers used to store used carpet and padding. However, he did not testify that such containers were customarily used in the business. Robert Birchfield, a wholesale carpet dealer, testified that he uses storage containers similar to those used by appellants to store carpet. However, he did not testify that carpet dealers customarily use such containers. While there is some evidence in the record that these types of storage containers are used in the carpet industry, we cannot find that the finding of the court that use of the containers did not rise to the level of what is customary in the industry is unsupported by a preponderance of reliable, probative and substantial evidence. {¶ 18} The first assignment of error is overruled. II {¶ 19} Appellants argue that enforcement of the zoning resolution is barred by estoppel, res judicata, and laches. {¶ 20} As to the claim of res judicata, appellants argue that because their application for re-zoning of the property was approved in 1997, and because objections to the application similar to those raised by the instant action were raised by residents at the hearing for re-zoning, the issue of violation of the zoning resolution is foreclosed by the zoning commission's approval of the re-zoning application. {¶ 21} The doctrine of res judicata does not apply to legislative acts, which are always subject to amendment by the legislative body that enacted them, and therefore not final in the same sense that a judgment of a judicial body is final. Grava v. Parkman Twp., 73 Ohio St.3d 379,1995-Ohio-331, syllabus. The trial court did not err in concluding that the decision of the zoning commission approving the application for re-zoning, and thus changing the zoning from "LB" to "GB", was a legislative act, as it modified the zoning ordinance. Therefore, the doctrine of res judicata does not bar the instant proceeding by the zoning inspector. {¶ 22} Appellants also argue that the township is estopped from issuing a violation, as they have been storing materials outside and using outside storage containers since their purchase of the property. They also argue that because the township approved the re-zoning application, the township is estopped from complaining about violations which existed at that time. {¶ 23} This court has previously found the doctrine of estoppel inapplicable to prohibit the enforcement of a zoning regulation. Dilerv. Monroe Twp. Zoning Commission (August 13, 1982), Knox Appellate No. 82-CA-08, unreported. The doctrine of estoppel does not preclude the zoning inspector and Board of Zoning Appeals from enforcing the zoning resolution against appellant. {¶ 24} As to the doctrine of laches, appellants have failed to separately argue this issue in their brief, although claimed as error in the statement of the assignment of error. For the same reason that estoppel and res judicata do not apply to the instant action, the action is not barred by laches. {¶ 25} The second assignment of error is overruled. III {¶ 26} Appellants argue that the court erred in failing to reverse the decision of BZA, as appellants will suffer unnecessary hardship by strict application of the zoning resolution. {¶ 27} Appellants cite Trent v. German Twp. Bd. of Zoning Appeals (2001), 144 Ohio App.3d 7, in support of their argument. However, as noted by the trial court, the issue of unnecessary hardship arose in that case because the issue was whether the claimant was entitled to a variance, not whether a use is a violation of the township zoning resolution. Appellants have not requested a use variance in the instant case. Further, as noted by the court, the testimony indicated that appellants had six warehouse facilities on the property. The containers did not constitute the sole or even greater portion of the storage space on the property, and appellants thus did not demonstrate substantial hardship by removal of containers and outdoor storage. {¶ 28} The third assignment of error is overruled. IV {¶ 29} Appellants argue that the court erred in affirming the decision of BZA, as the decision was based solely on aesthetic issues surrounding the use of intermodal storage containers and outside storage on the property. {¶ 30} While there is some reference to the aesthetics of the property in the record, the decision of BZA was not based on pure aesthetics. As discussed earlier in this opinion, the outdoor warehousing of materials is specifically prohibited by the zoning ordinance, and appellants failed to demonstrate that the use of the storage units constituted an accessory use as defined in the zoning resolution. {¶ 31} The fourth assignment of error is overruled. V {¶ 32} Appellants argue that the court erred as a matter of law in affirming the order of BZA, as the resolution was unconstitutionally applied to appellants. {¶ 33} Appellants first claim that they were denied due process, as the prosecutor argued the case on behalf of the zoning inspector, presenting a conflict of interest. Appellants argue that because the office of the Licking County Prosecutor represents and advises the township board of trustees and the Board of Zoning Appeals, representation of the zoning inspector before BZA represented a conflict of interest. Appellants further note that the prosecutor previously represented Carol Costlow when she was a trustee for Etna Township. {¶ 34} The court did not err in finding no conflict of interest in the representation of the zoning inspector by the prosecuting attorney. Despite the fact that appellant Carol Costlow was a township trustee, any representation by the prosecuting attorney on her behalf was completely unrelated to the action at bar. Further, in the appeal brought to BZA by appellants, the assistant prosecuting attorney did not render any advice or represent the Board of Zoning Appeals. Rather, at that time, her representation was solely of the zoning inspector. As noted by the court, the office of the Licking County Prosecutor is the legal advisor for the township and its interests as espoused in the township zoning resolution. Appellant has demonstrated no specific prejudice from the prosecutor's representation of the zoning inspector. {¶ 35} Appellant argues that the zoning resolution is void for vagueness, as it does not clearly set forth sufficient criteria to guide the Board of Zoning Appeals in the exercise of its discretion. As noted by the court, the testimony before the BZA demonstrated some confusion with regard to definitions of "structure" and "use," which stemmed from confusion over whether outside storage containers should be defined as a structure, and/or a use. However, as discussed by the court, the zoning resolution sets forth specific definitions of "structure" and "accessory use," and is not void for vagueness. The ultimate decision by the BZA approving the violation issued by the zoning inspector is supported by the pertinent provisions of the zoning resolution. {¶ 36} Appellants also argue the final order is vague, in that it fails to adequately describe the premises at issue. Appellants argue that the order sets forth a finding that the appellants are conducting their warehouse operation entirely outside of an enclosed building, when in fact, the evidence before BZA indicated that they use six warehouses on the premises for their business. There was some testimony by Jim Clark, a carpet layer for appellant, that the property was full of outside storage. Tr. 176. There also was evidence to suggest that much of the merchandise appellants purchased from liquidating businesses, which may or may not be related to their carpet business, would be stored outside. Appellants' accountant testified that every time he came to the property, something different was on the premises for re-sale. However, it is clear from the order that regardless of whether the statement concerning the amount of outside storage was factually correct, the Board of Zoning Appeals found the use of the storage containers and other outside storage to be a non-conforming use of the property. The order is not unconstitutionally vague. {¶ 37} Finally, appellants argue that their due process rights were violated by the warrantless search of their property by the zoning inspector, and thus the issuance of the violation is unconstitutional. Appellants argue that because the inspector entered their property and took photographs without their consent, the inspector engaged in a warrantless search of their property in violation of their due process rights. {¶ 38} The testimony before BZA indicated that on one occasion, the inspector entered the property without appellants' consent, and took photographs. However, the testimony also indicated that subsequently, the zoning inspector entered appellants' property twice with their consent. On one of these occasions, the inspector was accompanied by a township trustee, and both met with appellant James Costlow. The testimony indicated the photographs were taken on this occasion with the consent of appellants. Because appellants subsequently permitted the inspector to enter the property for the purpose of viewing the area in relation to the violation notice, and permitted the inspector to take photographs, and the inspector issued a violation notice based on this later visit, any error in the initial warrantless search was cured. {¶ 39} The fifth assignment of error is overruled. {¶ 40} The judgment of the Licking County Court of Common Pleas is affirmed. By Gwin, P.J., Edwards, J., and Boggins, J., concur Topic: zoning — accessory use

2016-07-06 06:35:56.588853+00

Doan

This timely appeal follows a jury verdict finding appellant, Valerie Jones, guilty of trafficking in drugs, a violation of R.C. 2925.03(A)(1). Appellant was sentenced as appears of record. The facts surrounding the offense are irrelevant for purposes of this appeal. Appellant's single assignment of error alleges: "The trial court erred to the prejudice of Defendant-Appellant by completely denying her request, during voir dire, to examine prospective jurors regarding racial bias." The record reflects that appellant is a black female. Defense counsel was addressing a black prospective juror on voir dire when the following verbal exchange took place: "Q. Okay. There is going to be, as I'm sure you're already prepared, there is going to be some obvious question for you. You're not going to bend over backwards to find in favor of my client, because you and her [sic] happen to be a member of the same race? "A. No. "The Court: Objection. I do not permit this in this court. "Mr. Yaros: Do you mean to tell me — "The Court: Any alluding to the race will be stricken from the record. "Mr. Yaros: Is the Court saying that I'm not allowed to ask any questions of any prospective member about race? And I would ask for a clarification. "The Court: Don't discuss the matter of race in this court. "Mr. Yaros: Any prospective juror? "The Court: That's right. "Mr. Yaros: All right. Note my *Page 332 exception. And I heartily object and accept [sic]." The issue squarely presented is whether or not the trial court abused its discretion in completely foreclosing voir dire examination of prospective jurors in the area of racial bias or prejudice and if so, whether the abuse of discretion rises to reversible error. Crim. R. 24(A) provides for the examination of prospective jurors: "Examination of jurors. Any person called as a juror for the trial of any cause shall be examined under oath or upon affirmation as to his qualifications. The court may permit the attorney for the defendant, or the defendant if appearing pro se, and the attorney for the state to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the state and defense to supplement the examination by further inquiry." Crim. R. 24(B)(9) provides: "Challenge for cause. A person called as a juror may be challenged for the following causes: "* * * "(9) That he is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that he will render an impartial verdict according to the law and the evidence submitted to the jury at the trial." The rule further states that the validity of each challenge shall be determined by the court. It is obvious to this court that racial, ethnic, or religious biases are realities in our society and are proper subjects of voir dire inquiry within the context of Crim. R. 24(B)(9). This must be so in order to ensure the right to trial by an impartial jury as embodied in the Ohio and United States Constitutions. If such was not the interpretation, the rule regarding challenges for cause based on a biased state of mind would be superfluous, as grounds for such challenges could never be developed unless such state of mind was volunteered by a prospective juror, a rather unlikely happenstance not contemplated by the rule. The trial court may limit questioning in this area, or undertake the examination itself, so long as the broad or general meaning of the inquiry is understood by prospective jurors in order to intelligently respond, but the court may not totally preclude or foreclose any and all questioning on the subject. The appellee argues that our decision in State v. Sebastian (May 12, 1982), Hamilton App. No. C-810358, unreported, sustains the trial court's ruling in the matter sub judice. Such argument is misplaced, as our ruling in Sebastian, supra, allows the trial court to control the scope and extent of voir dire examination providing general inquiry be permitted into biases in favor of, or against either party that would interfere with the impartial consideration between them. Inherent in our holding in Sebastian,supra, is the determination that a clear abuse of discretion occurs where a total preclusion or foreclosure of good faith voir dire examination as to biases is imposed, and such abuse of discretion is reversible error. Appellant's assignment of error is well-taken. The decision of the trial court is reversed and the cause is remanded for further proceedings consistent with law and with this opinion. Judgment reversed and cause remanded. PALMER, P.J., and KLUSMEIER, J., concur. *Page 333

2016-07-06 06:35:56.898467+00

Wolff

OPINION {¶ 1} Carlos Duane Ellison appeals from a judgment of the Montgomery County Court of Common Pleas, which convicted him of possession of cocaine in violation of R.C. 2925.11(A). Ellison had pled no contest to the charge after the trial court overruled his motion to suppress evidence. {¶ 2} The events that gave rise to this appeal are as follows. {¶ 3} On February 6, 2001, at approximately 7:45 p.m., police officers observed a vehicle in which Ellison was a passenger stop in front of a known drug house. Ellison ran into the house for a few moments and then returned to the vehicle. When the vehicle pulled away, the officers stopped it for a cracked windshield violation. As the vehicle pulled to the curb, the officers observed Ellison "slumping down into the seat." The driver did not have a valid license, and Ellison could not produce formal identification, although he did furnish certain identifying information. Ellison was asked to step out of the vehicle, and Officer House conducted a pat down search, whereupon he felt an object that he knew to be marijuana between Ellison's buttocks. The officers were apparently involved in some type of a scuffle with Ellison in their efforts to remove the marijuana from his pants. They then placed him in the back of the cruiser. Because the officers were not satisfied with the identifying information provided by Ellison, they transported him to the county jail. When they arrived at the jail, House saw that the tongue of Ellison's right boot was pushed down into his shoe, which was not how it had been positioned when he was placed in the cruiser. When the officers searched the rear floorboard of the cruiser where Ellison had been seated, they found a flattened clear plastic baggie containing crack cocaine. {¶ 4} Ellison was charged with possession of cocaine and entered a plea of not guilty. He filed a motion to suppress the evidence against him. After a hearing *Page 272 on the motion, the trial court overruled the motion to suppress, and Ellison changed his plea to no contest. The trial court found Ellison guilty. He was sentenced to community control sanctions for a period not to exceed five years, and his driver's license was suspended for six months. {¶ 5} Ellison raises one assignment of error on appeal: {¶ 6} "THE TRIAL COURT ERRED BY OVERRULING MR. ELLISON'S MOTION TO SUPPRESS EVIDENCE DISCOVERED AS A RESULT OF BEING ILLEGALLY SEIZED AND SEARCHED." {¶ 7} Ellison claims that he was illegally arrested for a minor misdemeanor possession of marijuana and that the evidence against him, i.e., the crack cocaine, was a product of this illegal arrest. Specifically, Ellison claims that he could only have been arrested pursuant to R.C. 2935.26 if he had failed to provide sufficient identifying information and that he did not fail to provide such information. {¶ 8} R.C. 2935.26(A)(2) provides, in pertinent part, that a law enforcement officer shall not arrest a person who commits a minor misdemeanor, but shall issue a citation, unless the offender cannot or will not offer satisfactory evidence of his identity. When a minor misdemeanant is not carrying formal identification, merely saying who he is, along with an address, Social Security number, and date of birth, is not sufficient evidence of his identity. State v. Hudson (Jan. 17, 1997), Montgomery App. No. 15757, citing State v. Satterwhite (Jan. 25, 1995), Montgomery App. No. 14699. Some additional corroboration is required. Id. Police are not required to go to extraordinary lengths to verify identification information, but they cannot avail themselves of the identification exception to the citation, only rule set forth at R.C. 2935.26(A)(2) by refusing to attempt to verify identification information if the means for doing so are readily available. State v.Terry (Feb. 28, 1997), Montgomery App. No. 15796; Satterwhite, supra. Courts must apply a standard of objective reasonableness in determining what type of proof is satisfactory. State v. DiGiorgio (1996),117 Ohio App.3d 67, 70. {¶ 9} The information available to Officer House about Ellison's identification at the time of his arrest was as follows. Ellison initially indicated that he had identification on his person and then indicated that he did not. From these conflicting answers, House concluded that "this individual did not want me to know who he, in fact, is." When he was unable to produce formal identification, Ellison gave House his name, address, date of birth, and Social Security number. House was able to verify that a person named Carlos Ellison had that date of birth and Social Security number; however, because Ellison did not live in Montgomery County, the officer was apparently unable to verify the address. Ellison was also able to provide some information about his prior encounters with *Page 273 the police, which were verified by computer data from the cruiser, but he did not have total recall about them. {¶ 10} At the hearing on the motion to suppress, House testified that he had been given false information numerous times, including dates of births and Social Security numbers, only to find out later that the person was lying. House also testified that, because Ellison had been uncooperative, House had felt that he "might not comply with the Court order or order-in date to come and pay the fine or * * * appear in Court for the citation," and that this was part of the reason that he arrested Ellison rather than issue a citation. {¶ 11} We have held that, where a person stopped for a minor misdemeanor furnishes the police officer with his name, address, and Social Security number, and that information is verified by computer, the person has offered satisfactory evidence of his identity. DiGiorgio,117 Ohio App.3d at 70; Terry, supra. "While an imposter might, with relative ease, be able to furnish the name and address of the person whose identity he assumes, it is less likely that he will be able to furnish that person's Social Security Number. * * * [W]e believe that possibility to be so remote as to render objectively unreasonable [the officer's] rejection of the information" provided. DiGiorgio,117 Ohio App.3d at 70. {¶ 12} Based on the facts presented in this case, we conclude that House's suspicions about Ellison's identity were not objectively reasonable. As in DiGiorgio, the officer verified Ellison's name and Social Security number by computer. Although House was unable to verify Ellison's address, he did have two other pieces of information that had not been available in DiGiorgio: a date of birth and information about prior contacts with the police. Ellison provided the proper date of birth and at least some accurate information about prior encounters with the police. The sum of this information was "satisfactory evidence of his identity" under R.C. 2935.26(A)(2) as interpreted by this court. Moreover, while we recognize that concern for whether a minor misdemeanant will appear in court following the issuance of a citation is part of the rationale behind the identity exception to the citation only rule of R.C. 2935.26(A), see Satterwhite, supra, this concern, in itself, cannot justify an arrest where the minor misdemeandant has provided verifiable evidence of his identity. {¶ 13} The assignment of error is sustained. {¶ 14} The judgment of the trial court will be reversed. FAIN, J. and YOUNG, J., concur. *Page 274

2016-07-06 06:35:57.654571+00

Koehler

On January 11, 1994, the Last Will and Testament of Frank D. Martin ("testator"), who died December 1, 1993, was admitted to probate in the Clinton County Probate Court. On February 3, 1994, plaintiff-appellant, Nancy V. Martin, filed a complaint seeking the trial court's direction and judgment as to a proper construction of Items III and V of the will. *Page 271 Testator is survived by appellant, who was his spouse. Testator had only one child, Richard Martin. Richard Martin was adopted by testator, but was neither the natural nor adoptive son of appellant. Testator survived his son Richard Martin, who died in 1989. Richard Martin is survived by his only two children, defendants-appellees, Richard V. Martin and Maralyn Summers, n.k.a. Maralyn Arms. Item III of the will provides, "I give, devise and bequeath the rest, residue and remainder of all my property equally to my said wife, Nancy V. Martin, and to my son, Richard Martin, share and share alike." Item V of the will, which provides for the sale of decedent's farm and payment of legal debts, expenses, and taxes, states that "[t]he balance of said sale proceeds shall be distributable equally to my said son and wife, share and share alike." In interpreting this language, the trial court did not resort to extrinsic evidence. The trial court found that the testator intended to have R.C. 2107.52, Ohio's antilapse statute, apply in the event that his son predeceased him. The trial court further found that R.C. 2107.52 operated in this case to cause a stirpital distribution of Richard Martin's share to appellees. On appeal, appellant argues that the trial court's decision is against the manifest weight of the evidence because the language of the will and the extrinsic evidence admitted at trial demonstrate a testamentary intent for a per capita distribution. We disagree. R.C. 2107.52(B) provides that: "Unless a contrary intention is manifested in the will, if a devise of real property or a bequest of personal property is made to a relative of a testator and the relative was dead at the time the will was made or dies after that time, leaving issue surviving the testator, those issue shall take by representation the devised or bequeathed property as the devisee or legatee would have done if he had survived the testator." "In any action seeking construction of a will the court's sole purpose is to ascertain and carry out the intention of the testator. Such intention must be ascertained from the words contained in the will." Wills v. Union Savings Trust (1982),69 Ohio St.2d 382, 385, 23 O.O.3d 350, 352, 433 N.E.2d 152, 155. If the language of the will is unambiguous, extrinsic evidence is not admissible to vary, modify or alter a plainly expressed intent. Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 1 OBR 178,438 N.E.2d 117; Steinbrenner v. Dreher (1942), 140 Ohio St. 305, 23 O.O. 502, 43 N.E.2d 283. A testator is presumed to have known of the existence and effect of the antilapse statute. Everhard v.Brown (1945), 75 Ohio App. 451, 31 O.O. 268, 62 N.E.2d 901. *Page 272 Appellant contends that the use of the phrase "equally, share and share alike" must be interpreted as requiring a per capita distribution. Use of these words, appellant claims, demonstrates an intent on behalf of the testator to defeat operation of the antilapse statute. The term "equally, share and share alike," when used in the context of a gift to a class, has been interpreted to require aper capita and not a per stirpes distribution. See Mooney v.Purpus (1904), 70 Ohio St. 57, 70 N.E. 894; First Natl. Bank ofSouthwestern Ohio v. Walther (Feb. 6, 1984), Butler App. No. CA83-08-091, unreported, 1984 WL 4322. However, the term does not automatically require a per capita distribution. See Gill v.Alcorn (1924), 19 Ohio App. 122. Reading the will in this case in its entirety, it is clear that the testator intended to make gifts to named individuals, not to a class. Further, the use of "equally, share and share alike" in the will has "no broader meaning than would be ascribed to the term `equally.'"Godfrey v. Epple (1919), 100 Ohio St. 447, 455, 126 N.E. 886,888. Thus, the term indicates only that appellant and Richard Martin were to each receive half of the proceeds remaining from the sale of the farm. The will manifests no intent on behalf of the testator to defeat the operation of R.C. 2107.52. Item II of the will provides "I give, and bequeath to my wife, Nancy V. Martin,if she survives me, all the tangible personal property I may own or have an interest in at the time of my death." The underscored language suggests that testator was well aware of the antilapse statute and that he was quite capable of employing language that would prevent its application when he so intended. The testator's intent can be found within the four corners of the will. Therefore, it is unnecessary to resort to the extrinsic evidence put forth by appellant. We conclude that the trial court properly applied the antilapse statute and found that appellees were entitled to a per stirpes distribution of the bequest to Richard Martin as if he had survived. Accordingly, appellant's sole assignment of error is overruled, and the judgment of the trial court is affirmed. Judgment affirmed. JONES, P.J., and WALSH, J., concur. FRED E. JONES, P.J., retired, of the Twelfth Appellate District, sitting by assignment. *Page 273

2016-07-06 06:35:57.721405+00

Petree

This is an administrative appeal from a judgment of the Franklin County Court of Common Pleas that reversed a decision of appellant, Ohio Civil Rights Commission, which found that appellee, city of Columbus, unlawfully discriminated against Timothy W. Liebhart on the basis of handicap in connection with his attempt to secure a position in the Columbus fire fighter training academy. The commission sets forth three assignments of error as follows: 1. "The common pleas court, as a reviewing court, abused its discretion by reweighting the evidence and substituting its judgment for that of the Ohio Civil Rights Commission." 2. "The common pleas court's decision should be reversed as a matter of law, because the court abused its discretion by applying the incorrect case law to the facts as found by the commission and adopted by the court." 3. "The commission established by reliable, probative and substantial evidence that the city violated R.C. 4112.02(A) by failing to permit Timothy Liebhart to attend its training academy." Timothy Liebhart filed a complaint with the commission asserting that the city of Columbus discriminated against him on the basis of his speech handicap. *Page 471 After investigation and attempts at conciliation, the commission issued a complaint against the city and an adjudication hearing was held before a commission hearing examiner. The hearing examiner issued a report, including findings of fact and conclusions law, which found that Liebhart was handicapped, but which further found that the city was justified in not selecting him as a fire fighter because his speech handicap rendered him unable to pass the required oral interview. The commission heard the matter on objections and rejected the hearing examiner's conclusion that the city's discrimination against Liebhart was justified. The commission therefore issued a cease and desist order and also ordered the city to place the complainant in the next available fire fighter training academy class. Pursuant to R.C. 4112.06, the city appealed this determination to the common pleas court, which reversed the commission's decision because the court felt that Liebhart's speech handicap rendered him unable to safely and substantially perform his duties without significant hazard to himself or others. The commission then appealed to this court under R.C. 4112.061. The commission's assignments of error essentially argue that the trial court erred in reversing the decision of the commission when there was substantial, reliable and probative evidence to support that decision. In Asplundh Tree Expert Co.v. Ohio Civil Rights Comm. (1991), 68 Ohio App.3d 550, 555-556,589 N.E.2d 102, 106, this court succinctly set forth the standards of review governing administrative appeals in civil rights cases. Judge Bowman wrote in the majority opinion that: "In reviewing a decision of the commission pursuant to R.C.4112.06, the common pleas court is required to give due deference to the commission's resolution of factual issues. * * * Due deference, however, does not require the common pleas court to inevitably accept every factual determination made by the commission. * * * Rather, in reviewing the evidence on the record as a whole, the common pleas court may set aside the administrative order if `* * * there exist legally significant reasons for discrediting certain evidence relied upon by the administrative body * * *.' * * * The role of this court in reviewing the judgment of the common pleas court, under R.C.4112.06, is to determine whether the common pleas court abused its discretion. * * * This court will affirm such judgment if there is a reasonable basis for the common pleas court decision." (Citations omitted.) To prove a prima facie case of handicap discrimination the commission must show (1) that the complainant was handicapped, (2) that the employer's action was taken at least in part because the complainant was handicapped, and (3) that even though the complainant was handicapped, the complainant could safely and substantially perform the essential functions of the job in question. Ohio Adm. Code 4112-5-02(K); Hazlett v. MartinChevrolet, Inc. (1986), 25 Ohio St.3d 279, *Page 472 281, 25 OBR 331, 333, 496 N.E.2d 478, 480;Asplundh, supra, 68 Ohio App.3d at 555, 589 N.E.2d at 105;Kent State Univ. v. Ohio Civ. Rights Comm. (1989), 64 Ohio App.3d 427,435, 581 N.E.2d 1135, 1140. The initial burden to establish the elements of a prima facie case falls upon the commission. Columbus v. Ohio Civil Rights Comm. (1985), 23 Ohio App.3d 178,180, 23 OBR 421, 423, 492 N.E.2d 482, 484. The burden then shifts to the employer to establish nondiscriminatory or legitimate reasons for its actions. Id. at 181, 23 OBR at 424, 492 N.E.2d at 485. For example, the employer has the burden to prove the occupational hazard defense contained in Ohio Adm. Code 4112-5-08(D)(3). See Ohio Adm. Code4112-5-08(D)(1). The evidence presented before the hearing examiner established the following facts. Timothy Liebhart served for ten years as a part-time auxiliary fire fighter with the Clinton Township Fire Department. During that time he fought about twenty to thirty fires and served without incident. In fact, his former supervisor and former co-workers characterized him as an "excellent" fire fighter. Indeed, he eventually became qualified to work on the emergency medical team and performed typical paramedic duties. When he left the department in 1988 he was second in command. In that capacity, he was the fire fighter in charge of the fire scene itself, overseeing and commanding all of the other fire fighters as they fought the fire. Liebhart was an able fire fighter with the department despite the fact that he has suffered nearly all of his life from a speech impediment. Specifically, Liebhart has a markedly severe stuttering disorder which prevents him from communicating effectively. In fact, his stuttering is so severe that it often takes him twice as long to communicate as it would take an ordinary person. Liebhart, who is thirty years old, has wanted to be a full-time fire fighter since high school and has taken extensive training to accomplish this goal in his life. He has successfully completed the state-mandated training courses for fire fighters and has been qualified in other areas as well. Liebhart applied with the city of Columbus in 1987 and began the long and arduous application process to become a city fire fighter. He passed the written civil service examination, the physical agility test, the physical examination, and the background investigation. Consequently, he was placed on the eligible list for admission into the city's fire fighter training academy. The last step in the city's process for selecting fire fighters are the so-called "oral boards." This consists of an oral interview before several experienced fire fighters who can observe the candidate, ask questions, and hear any additional information. Thus, the "oral board" is much like any other job interview except that it is conducted before several fire fighters at one time. The evaluation forms that the interviewers are required to fill out highlight the typical areas of inquiry. *Page 473 These areas include general history, marital history, personal history, residential history, financial history, employment history, military history, education history, criminal/traffic history, miscellaneous communications and appearance. After each category there is a space for the interviewer to note the candidate's responses or interviewer's impressions. Further, after each category there is a space where the interviewer is to rate the candidate as either "acceptable," "unacceptable" or that the interviewer has "reservations." The last part of the form has a space for the interviewer's overall rating of the candidate. Again, the interviewer is to indicate that the candidate is acceptable or unacceptable, or that the interviewer has reservations. The candidate must receive an overall acceptable rating to qualify for selection as a fire fighter. If the candidate fails the interview, however, the candidate can obtain a further interview with the city safety director, who is the person with actual hiring authority. However, the safety director follows the decision of the interview board almost all of the time. Liebhart had his oral interview on October 1, 1988. His stuttering became immediately apparent to his interviewers and was quite severe. It was so severe that the interview, which normally takes about fifteen minutes to complete, took a full forty-five minutes. Liebhart was unable to answer questions smoothly and stuttered on almost every other word. Liebhart was rated acceptable in every single area on the interview forms by every interviewer, except in the "communications" category, in which he received unacceptable marks from them. Further, they each gave him an overall unacceptable rating because of his stuttering. Thereafter, Liebhart had a further interview with the assistant safety director who was acting as interviewer in the place of the safety director. At the interview, Liebhart again stuttered badly. The assistant safety director likewise found him unacceptable because of his stuttering. At the commission hearing to contest the city's actions, Liebhart presented several witnesses who testified on his behalf. Jay Arnholt, a fire fighter who worked with Liebhart in Clinton Township, testified that he fought fires with Liebhart and worked on the emergency squad with him as well. He said Liebhart's stuttering never posed a problem. He said he trusted Liebhart and put his own life in his hands. Likewise, Dr. John Mason, a psychologist and former Clinton Township fire fighter, testified that Liebhart was "extremely competent." He said that around the engine house Liebhart had some problem with stuttering but when he had to fight a fire or go on an emergency squad run he communicated adequately. He said that he never encountered any problem with Liebhart's stuttering in either the simulated training fires in "fire school" or in any actual fire situations. Indeed, on one occasion at fire school the controlled fire "flashed over," or *Page 474 exploded, creating an emergency. Liebhart was the first one to see the flash in the smoke-filled room and yelled "get out" to the other fire fighters. Lieutenant J.R. Louks, Liebhart's supervisor in Clinton Township, picked Liebhart to serve under him as "lead" fire fighter when Louks was not present. Liebhart thus orchestrated the work of the other fire fighters at the scene of the fire, giving orders and talking over the radio. Louks recalled that when he was in a smoke-filled building with him, Liebhart communicated effectively. Further, he pointed out that, aside from being an excellent driver and pump operator, Liebhart had to communicate over the radio and walkie-talkie and also did so effectively. He said Liebhart's stuttering never posed a problem. In fact, he said that Liebhart taught new recruits how to use the pump and did not have any difficulties in doing so. Cathy Chester, a speech pathologist, evaluated Liebhart's stuttering disorder. She testified that he had a "markedly severe stuttering problem," which consisted of blockages and repetitions. She said that one could assume that his disorder significantly affected his everyday living. She found that stress did not affect his stuttering. She explained there was no concrete medical definition for stuttering and the cause of the disorder is unknown. She explained that the difficulty or struggle to speak that stutterers suffer from is very individualized. She further said that some people are able to "forget" that they stutter when they focus on something, like work, but then revert to stuttering in stressful social settings. Liebhart testified in his own behalf. By request of the city, the letter "p" was noted in the transcript to indicate pauses where he could not immediately answer the questions posed by counsel. He stuttered on most of his answers. He testified that he had stuttered since age eight and was diagnosed as having a stuttering disorder. It takes him twice as long to carry on a conversation and this affects his life in many ways. For instance, he said he did not go on to college because of his difficulty in speaking. He even shies away from trying to order food at restaurants. Despite his difficulties speaking in many situations, he has never had any problem at work. He said that no one ever complained about a communication problem. He said that he had been in emergency situations before where he had to yell out and he did so without stuttering. He said that even on the radio it is easier for him to communicate. He said he does not know why that is true but in his effort to get the job done he tends to think less about his stuttering and the words come out more quickly. The harder he tries to speak clearly, the worse his problem gets. *Page 475 The city presented several witnesses in an effort to establish that Liebhart's stuttering rendered him unqualified. Bruce Wolf, an eighteen-year veteran of the City of Columbus Fire Department, sat on the five-member oral interview board that interviewed Liebhart. He said it was a "tough interview" because Liebhart could not properly articulate his words. He said the interview took twice as long as usual. He marked Liebhart as unacceptable because he believed that in stressful, emergency situations, Liebhart's stuttering could delay his response and thereby possibly cause injury to himself or other fire fighters. He emphasized that at a fire scene, where visibility is poor, verbal communication is essential to stay out of danger. He admitted that neither he nor anyone else on the board was a speech therapist qualified to understand speech disorders. Dr. S. David Kriska, personnel psychologist with the city civil service commission, said that he is responsible for structuring the selection and promotion tests and procedures for the city police and fire departments. In that capacity, he studies the work done in various positions and creates job analyses. He then creates tests that try to predict a candidate's competence in the various tasks necessary to perform the job under analysis. The city has also commissioned several outside studies to do this type of analysis as well. He said the studies concluded that verbal expression is the second most important cognitive ability that a fire fighter must have. He explained that at the fire scene it is "critical" that the fire fighter be able to effectively communicate. He said the oral interview was established years ago to see how the candidate expressed himself or herself. He felt that this was a peculiar case and said it would not be cost-effective to expect to find a lot of stuttering problems in the general population. H.J. Dutko, assistant chief of the fire department, echoed Dr. Kriska's assessment of the need for proper communication by a fire fighter. He emphasized that a fire in and of itself is not an emergency to a fire fighter, but part of his daily job. But he said emergencies do occur on the job when a second can make the difference between life and death. He said all fire fighters must meet the communication requirements because at any given time they may be called to a major fire. He added that there are some other areas apart from actual fire fighting where communication is important as well. For instance, fire fighters perform building inspections and speak before groups to foster public relations. He admitted that Clinton Township fire fighters often work side by side with Columbus fire fighters and that the training for both departments is very much the same. Wendall Metz, the assistant safety director who interviewed Liebhart, said that because of the stuttering, Liebhart's interview took forty-five minutes instead of the usual fifteen minutes. He said he recommended that Liebhart not be hired *Page 476 because of his stuttering. He said he did not want to expose the city to liability if something did happen because of Liebhart's stuttering. Since the city has conceded that Liebhart was denied employment on the basis of his handicap, the only issues to be addressed here under the Hazlett test are whether Liebhart was handicapped and whether he was qualified to substantially perform the position without significant hazard to himself or others. The definition of "handicap" is contained in R.C.4112.01(A)(13), which reads: "`Handicap' means a medically diagnosable, abnormal condition which is expected to continue for a considerable length of time, whether correctable or uncorrectable by good medical practice, which can reasonably be expected to limit the person's functional ability, including, but not limited to, seeing, hearing, thinking, ambulating, climbing, descending, lifting, grasping, sitting, rising, any related function, or any limitation due to weakness and significantly decreased endurance, so that he can not perform his everyday routine living and working without significantly increased hardship and vulnerability to what are considered the everyday obstacles and hazards encountered by the nonhandicapped." In the present case, the trial court was correct in concluding that Liebhart's stuttering disorder constituted a handicap. Liebhart testified that he was diagnosed as having this disorder, which he had had since he was eight years of age. He testified that his stuttering made it twice as difficult to carry on a conversation and this significantly affected his life. Further, speech pathologist Cathy Chester testified that one could assume that such a severe speech impediment would significantly affect his life. One could expect that his speech disorder would create significant hardship and vulnerability in a variety of everyday settings. The city did not offer any affirmative evidence to the contrary. Hence, Liebhart was handicapped under R.C. 4112.01(A)(13). The last issue under the Hazlett test is whether Liebhart was qualified to safely and substantially perform the essential functions of the job in question. There is no doubt that clear, concise, and timely communication in the context of fighting a fire is an essential function of the job in question. The city presented abundant evidence to establish the importance of effective communication in fighting fires. Verbal expression is the second most important cognitive ability that a fire fighter must have. While there was also testimony that a typical fire fighter performs other duties like inspections and public relations activities, there was no evidence that these activities were essentials of the job. Moreover, there was no evidence that they had to be performed without any stuttering. The central dispute between the parties concerns whether Liebhart will be able to communicate quickly and effectively in a fire or emergency situation. The hearing examiner, who presided over the testimony, expressly found that Liebhart's *Page 477 stuttering was less of a problem when he was performing his duties as a fire fighter with Clinton Township than it was when he engaged in everyday conversation. The hearing examiner expressly found that his "stuttering did not interfere with the performance of his job duties." Nevertheless, the hearing examiner found Liebhart unqualified because he failed his oral interview. The hearing examiner simply treated the oral interview as an unassailable neutral test which the city had chosen to screen out candidates who could not communicate effectively. The hearing examiner felt that Liebhart could not contest his failure at the oral interview by evidence of his successful past job performance. In effect, the hearing examiner found the test to be conclusive. The commission wholeheartedly disagreed, stating that the oral interview was an improper selection device because it was an "insurmountable barrier to a speech impaired individual's employment opportunities to becoming a firefighter." The commission concluded that the city could have used alternative, less onerous criteria to gauge Liebhart's abilities, like considering his past work history. The trial court rejected the commission's reasoning. The court felt that while the commission had expertise in determining who was handicapped, the assistant safety director and the five experienced fire fighters who interviewed Liebhart observed him face to face and could better determine if his communication problem constituted a significant hazard in the fire fighting context. We agree with the trial court that safety is a paramount concern here and that a handicapped person need not be hired if his employment would create a significant risk of harm. SeeDiPompo v. West Point Military Academy (S.D.N.Y. 1991),770 F. Supp. 887, judgment affirmed, DiPompo v. West Point MilitaryAcademy (C.A.2, 1992), 960 F.2d 326 (dyslexic applicant for fire fighter position not qualified where he could not read language on explosive hazardous materials that were prevalent in the area). However, we must reject the trial court's attempt to discredit the commission's decision. Assuredly, whether analyzed as an element of being a qualified handicapped person who can "safely" perform the job or as an element of the occupational hazard defense, assessing the risks posed in a fire situation would naturally fall within the expertise of fire fighters. But the issue in this case is not whether stuttering would cause a danger in fighting a fire. It would. The issue is whether Liebhart's stuttering would cause such a problem. Liebhart presented substantial evidence that he does not stutter when fighting fires. Speech pathologist Cathy Chester provided expert evidence that this phenomenon occurs. His former co-workers also testified that he does not stutter in fire fighting situations. The hearing examiner, who was the only person to actually hear these witnesses and observe their credibility, could have found that these people were not being truthful but *Page 478 the hearing examiner said nothing of the sort. On the contrary, his findings of fact support the conclusion that Liebhart does not stutter in fire situations. The city did not present any expert evidence to contradict the expert testimony presented by the commission in the record. The only evidence it presented was the fact that Liebhart could not speak in a job interview — a totally different situation from that presented in a blazing building. The fire fighters and assistant safety director simply assumed that Liebhart's stuttering is caused by nervousness and would get worse in a stressful fire situation. In fact, Cathy Chester tested Liebhart and found that his speech did not get worse with stress. Not one of the individual fire fighters or the assistant safety director knew anything about speech disorders. Not one of them was qualified to gauge how bad or good this man's speech would be in a fire. They made their assessments of his abilities on the basis of assumptions about his handicap which had no basis in fact. This type of decisionmaking is exactly what the handicap discrimination law was designed to eliminate. The testimony showed that Liebhart performed differently at work than when being questioned either in an interview or at a hearing. Though the city's oral interview was designed to gauge normal verbal expression, the city presented no evidence to validate this test as a measure of Liebhart's own abilities. See Ohio Adm. Code 4112-5-03; cf. Colorado Civ. Rights Comm. v. N.Washington Fire Protection Dist. (Colo. 1989), 772 P.2d 70 (employer has burden to establish whether medical qualifying factors for entry level fire fighters were reasonably related to ability to do the job). The trial court abused its discretion by according more weight to the testimony of the interviewing fire fighters and the assistant safety director and discrediting the evidence relied upon by the commission. There was no reasonable basis for doing so in this case. The commission's decision was supported by substantial, reliable, and probative evidence. For the foregoing reasons, the commission's assignments of error are sustained. The judgment of the common pleas court is reversed and the cause remanded for further proceedings consistent with this opinion and in accordance with the law. Judgment reversedand cause remanded. JOHN C. YOUNG and BOWMAN, JJ., concur. *Page 479

2016-07-06 06:35:57.791407+00

Phillips

Plaintiff bank held mortgages on a property owned by Lester Creed and his wife, Letitia Creed, and on another property owned by Gerald F. Carver and his wife, Jean E. Carver. On May 5, 1949, the officers of plaintiff bank signed the following release of its mortgage on the property of Gerald F. and Jean E. Carver: "The conditions of this mortgage have been complied with and the same is here satisfied and discharged." Subsequently, that release was filed with the recorder of mortgages of Mahoning county for record. On May 7, 1949, that release was mistakenly recorded by such recorder on the margin of the mortgage plaintiff bank held on the property of Lester and Letitia Creed situated at Shilling Mills, where they conducted a restaurant. On June 13, 1950, defendant, Kline, obtained a judgment against Lester and Letitia Creed in the Court of Common Pleas. A search of the records of the clerk of that court and of the recorder of Mahoning county, *Page 407 made by him subsequent to June 13, 1950, revealed such mortgage had been released, and that the Creed property was free of judgment and mortgage liens. Claiming he was induced and influenced to withhold issuance of an order of sale of Creed's property to permit them to sell it and thus save them court costs, defendant claims he refrained from issuing such order of sale timely. Subsequently, Lester and Letitia Creed had domestic difficulties, as the result of which their business declined, and Letitia Creed refused to join Lester Creed in a deed to either of two bona fide purchasers of their property for an amount in excess of what it could have been sold for at the time of trial in the Court of Common Pleas. In September 1950, by the action we review, filed in the Court of Common Pleas, plaintiff bank claimed a lien on Creed's property, and contended that the release and satisfaction quotedsupra, and delivered to the recorder of Mahoning county, was intended as a release of its mortgage on the property of Gerald F. and Jean E. Carver, and prayed the Court of Common Pleas to strike from the recorder's record of its mortgage on the Creed property the mistakenly recorded cancellation and satisfaction, and that its mortgage lien be declared a lien on their property prior to defendant's judgment lien. The trial judge held, and entered his judgment accordingly, that since the recorder mistakenly released the plaintiff's mortgage on Creed's property the lien of plaintiff bank was entitled to be restored, and he restored its mortgage to priority over defendant's lien, and held: "An order to correct the mistake of the recorder by removing the Creed mortgage cancellation and entering such cancellation as of the Carver mortgage *Page 408 has, on motion, been made and is hereby renewed." Defendant Kline appealed from the finding and judgment of the trial court to this court on questions of law, and by brief inquires: "Does the restoration to record of a mortgage which has been recorded as discharged operate to endow it with priority over a lien obtained by an innocent third party during the time the discharge of said mortgage was of record?" By sole assignment of error defendant contends that: "The conclusion reached, and the judgment rendered by the trial court, is contrary to the law of Ohio in that it restored the lien of a mortgage which had been unqualifiedly released and cancelled of record, and in so doing awarded to said mortgage priority over the lien which had been acquired during the time said mortgage was released of record"; and consequently contends such judgment is prejudicially erroneous to defendant Kline. It is conceded that such a mistake of the recorder can be corrected, but not "at the expense of and to the prejudice of innocent intervening third parties." Appellant argues that if, as provided by Section 8542, General Code, mortgages are effective from the instant of delivery to the recorder for record, likewise release of a mortgage is effective from the instant of delivery thereof to such recorder. In the case of Commercial Building Loan Co. v. Foley,25 Ohio App. 402, 158 N.E. 236, in which the facts were similar to those in the case we review, the court said: "While the courts are not in accord on this question, the great weight of authority supports the right of plaintiff to enforce the lien of its mortgage. * * * "It is said in Heyder v. Excelsior Building Loan Assn.,supra: *Page 409 "`Between a mortgagee, whose mortgage has been discharged of record, solely through the unauthorized act of another party, and a purchaser who buys the title in the belief, induced by such cancellation, that the mortgage is satisfied and discharged, the equities are balanced, and the rights, in the order of time, must prevail. The lien of the mortgage must remain, despite the apparent discharge.'" In the opinion written in the case of Commercial Building Loan Co. v. Foley, supra, the court cited the case of Harris v.Cook, 28 N. J. Eq., 345, and said: "* * * that parties purchasing land may effectually protect themselves by requiring some proof that preceding mortgages have in fact been satisfied. But nothing, said the court, short of constant watch will protect a mortgagee against the making of a false entry of satisfaction." In paragraph one of the syllabus of the case of CommercialBuilding Loan Co. v. Foley, supra, the court announced as the law of that case that: "Where a first mortgage on real property is released on the record by the mistake of the recorder and thereafter the property is mortgaged to a second mortgagee and sold to purchasers, all of whom relied upon the record and did not know of the mistake, the first mortgage may be foreclosed against the second mortgagee and the purchasers, since none of the parties are at fault and all are equally protected by statutes, and in this situation the oldest claim must prevail." There seems to be no doubt that where, as in the case we review, the recorder mistakenly cancelled plaintiff's mortgage held on the property of Lester Creed and Letitia Creed instead of that held on the property of Gerald F. Carver and Jean F. Carver a *Page 410 court of equity may, as the trial court did, grant relief to plaintiff and set the erroneously made cancellation aside, notwithstanding that since the cancellation of the mistakenly cancelled mortgage judgment liens may have attached to the lands, especially when by granting such relief defendant was not damaged. If the recorder had not made the mistake to which reference has been made, defendant's lien would have been junior to the mortgage lien of plaintiff bank, and by correcting such mistake defendant's lien position remains the same. The evidence does not support defendant's contention that he "was induced by reason of the state of the record to pursue a course which if now taken from him will result in denying to him a lien, and that the property in question will not support the liens of the respective parties." Our conclusion, which is supported by 59 Corpus Juris Secundum, 364 to 367, is that the judgment of the Court of Common Pleas must be and hereby is affirmed. Judgment affirmed. GRIFFITH, J., concurs. NICHOLS, P. J., concurs in judgment. *Page 411

2016-07-06 06:35:57.855466+00

Strausbaugh

This is an appeal by plaintiff from a judgment of the common pleas court holding that a claim against the estate of which plaintiff was executrix was to be allowed, inasmuch as the claim was contingent and not barred by R.C. 2117.06. This cause was originally assigned to the accelerated calendar. Because this appeal concerns an issue which possibly may be of precedential value, we sua sponte order that this case be removed from the accelerated calendar and reassigned to the regular calendar. The primary issue in this case is whether the letter of credit signed by plaintiff's decedent, Byron L. Carter, is a contingent claim against the estate and therefore is not barred by the three-month presentment requirement of R.C. 2117.06. The record indicates that Byron Carter became a limited partner in Ranger Drilling Service No. 4, Ltd. ("Ranger") by tendering $10,000 cash and executing with Bank One of Columbus, N.A. ("Bank One") an irrevocable and transferable letter of credit in the amount of $90,000; that the letter of credit could be drawn upon no later than March 1, 1984; that Carter also executed an assumption agreement under which neither the partnership nor any holder of any letter of credit would be entitled to recover unless (1) the partnership or such holder surrendered the letter of credit to the undersigned (Carter), or (2) the partnership or such holder indemnified the undersigned for a draft made on the letter of credit; that on December 31, 1981, the letter of credit was assigned by Ranger to First City Bank of Dallas ("First City"); and that, thereafter, Ranger instructed Bank One to transfer its rights in the letter of credit to First City. The record further indicates that Byron Carter died on December 31, 1982; that plaintiff was appointed executrix of Carter's estate by the Court of Common Pleas of Franklin County, Probate Division, on January 11, 1983; that on February 29, 1984, Bank One received from First City a draft drawing on the letter of credit; that plaintiff was denied a motion for temporary restraining order and on March 5, 1984 Bank One paid First City $90,000 pursuant to the draft and letter of credit; that Bank One presented to plaintiff an affidavit of claim in the amount of $90,222.50; and that plaintiff did not sign the affidavit and Bank One pursued its claim in the court of common pleas. The trial court adopted the report of the referee, which determined that defendants' claim was contingent and therefore was not barred by the three-month *Page 84 presentment requirement of R.C. 2117.06. Plaintiff asserts the following single assignment of error: "The trial court erred in failing to hold that the defendants' claim against Byron Carter was barred by their failure to present such claim within three months of the appointment of the executor of his estate." R.C. 2117.06 provides, in pertinent part, that: "(A) All creditors having claims against an estate, including claims arising out of contract, out of tort, on cognovit notes, or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated, shall present their claims in one of the following manners: "(1) To the executor or administrator in a writing; "(2) To the executor or administrator in a writing, and to the probate court by filing a copy of the writing with it. "(B) All claims shall be presented within three months after the date of the appointment of the executor or administrator * * *." However, claims that are contingent need not be presented within the three-month time period in accordance with R.C.2117.06(E). Plaintiff contends that the focus must be on the debt which Carter owed; that the letter of credit was contingent but that the debt — that is, the loan made — was a fixed and unconditional obligation. She urges that Carter's underlying obligation was in no way dependent on any future event and therefore presentment of this obligation had to occur within three months of plaintiff's appointment as executrix. Defendants argue that First City and Ranger would not have drawn on the letter of credit unless certain events occurred. Therefore, the obligation was not fixed and need not have been made within the three-month period. Also, plaintiff acknowledged on a 1983 estate tax return the letter of credit as a contingent liability. The Supreme Court, in Pierce v. Johnson (1939), 136 Ohio St. 95, 16 O.O. 34, 23 N.E.2d 993, 125 A.L.R. 867, defined a contingent claim as one upon which liability is dependent on some uncertain future event which may or may not occur. It is the element of dependency upon an uncertainty which renders a claim contingent. Accord Lewis v. Knight (App. 1955), 75 Ohio Law Abs. 589, 144 N.E.2d 551. We find that the claim herein was a contingent claim. Although it is true that the underlying debt was a fixed sum, the satisfaction of the debt could be accomplished in several ways. For example, a return on Carter's investment in the amount of the letter of credit would presumably satisfy the underlying obligation. We cannot agree with plaintiff that, for purposes of R.C.2117.06, the focus must only be on the underlying debt. Rather, under the facts of this case the focus must be on the letter of credit. Here, First City would not draw on the letter of credit unless necessary. If Ranger was successful and the debt was satisfied, the letter of credit would not need to have been drawn upon. The uncertainty regarding when, and under what circumstances, the letter of credit might be drawn upon renders the letter a contingent claim. Therefore, it need not have been made within three months of plaintiff's appointment as executrix. Plaintiff's single assignment of error is overruled, and the judgment of the court of common pleas is affirmed. Judgment affirmed. REILLY and CARNEY, JJ., concur. CARNEY, J., retired, of the *Page 85 Cuyahoga County Court of Common Pleas, was assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:35:57.890244+00

Cacioppo

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 665 This appeal questions whether summary judgment was properly granted in this employer/employee dispute. Appellant, Robert Manofsky, maintains that triable questions of fact exist on all the essential elements of his claims of age discrimination, sex discrimination, and wrongful discharge. He further protests that summary judgment was granted before discovery could be adequately conducted. We disagree and affirm the trial court's judgment in favor of appellee, Goodyear Tire Rubber Company ("Goodyear"). Although the parties disagree on almost every aspect of this case, a few uncontested facts may be discerned. Except for a two-year period when he operated his own Goodyear franchise, Manofsky was employed by Goodyear from 1965 to 1987. In late 1986, after the failed takeover attempt by Sir James Goldsmith, Goodyear adopted an early retirement incentive program ("ERIP") which allowed older employees to retire early and collect increased benefits. For reasons the parties hotly dispute, Manofsky passed on this offer which terminated on December 19, 1986. Within weeks, Goodyear determined that more personnel reductions would be required. Manofsky was subsequently laid off in January 1987. He was never considered for reinstatement. *Page 666 On July 16, 1987, Manofsky filed a complaint against Goodyear alleging age discrimination, sex discrimination, and wrongful discharge. For two years the parties battled over the proper forum, consolidation, amendments to the complaint, and discovery. Goodyear then moved for summary judgment on all counts. After an oral hearing and the filing of a number of briefs, the trial court granted Goodyear's Civ.R. 56 motion in full. Manofsky now appeals this decision. Assignment of Error I "The trial court erred in granting summary judgment on behalf of Goodyear since there were genuine issues of material fact." The standard of review in this appeal is well established. Pursuant to Civ.R. 56(C), summary judgment is proper if the trial court determines that: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274; see, also, Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1,2, 546 N.E.2d 975, 976. Once summary proceedings have been properly initiated, the responding party must set forth specific facts demonstrating triable issues on all essential matters for which he bears the initial burden of proof. Mere reliance upon the pleadings is insufficient. Civ.R. 56(E); see, also, Celotex Corp. v. Catrett (1986), 477 U.S. 317, 322-323, 106 S.Ct. 2548, 2552-2553,91 L.Ed.2d 265, 273-274. The dispute must be "material" in that the facts involved have the potential to affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242,248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211. The issue to be tried must also be "genuine," allowing reasonable minds to return a verdict for the nonmoving party. Id.477 U.S. at 248-252, 106 S.Ct. at 2510-2512, 91 L.Ed. at 211-214. Manofsky's complaint against Goodyear alleges three independent causes of action. This opinion will be subdivided accordingly. I. Age discrimination Manofsky's age discrimination claim is founded upon R.C.4112.02(N). Adopting the analytical framework established inMcDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802,93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677, the *Page 667 Ohio Supreme Court held in Barker v. Scovill, Inc. (1983) 6 Ohio St.3d 146, 6 OBR 202, 451 N.E.2d 807, paragraph one of the syllabus: "In order to establish a prima facie case of age discrimination, violative of R.C. 4101.17, in an employment discharge action, plaintiff-employee must demonstrate (1) that he was a member of the statutorily-protected class, (2) that he was discharged, (3) that he was qualified for the position, and (4) that he was replaced by, or that his discharge permitted the retention of, a person not belonging to the protected class. Defendant-employer may then overcome the presumption inherent in the prima facie case by propounding a legitimate, nondiscriminatory reason for plaintiff's discharge. Finally, plaintiff must be allowed to show that the rationale set forth by defendant was only a pretext for unlawful discrimination." This approach is similarly applicable to actions based upon R.C. 4112.02. Wang v. Goodyear Tire Rubber Co. (1990), 68 Ohio App.3d 13, 587 N.E.2d 387; In re Brantley (1987), 34 Ohio App.3d 320, 518 N.E.2d 602. The employer's burden regarding the legitimate nondiscriminating rationale is one of production only. Once an explanation "legally sufficient to justify judgment" for the employer is presented, the plaintiff then bears the burden of persuasion upon the ultimate question of wrongful discrimination. Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 254-256, 101 S.Ct. 1089, 1094-1095,67 L.Ed.2d 207, 215-217. Manofsky's assignment of error in this regard may be resolved by moving directly to the "nondiscriminatory rationale" element of his age discrimination claim. Goodyear's interrogatory answers state that payroll cost reductions were necessary to cope with the multibillion-dollar debt incurred in the wake of the Sir James Goldsmith takeover attempt in October and November 1986. The document states further that two layoffs were required in Manofsky's department and he was selected based solely upon poor performance reports. These answers were signed by Alice Chaloner who is the manager of Human Resource Division at Goodyear. Although Manofsky complains that Chaloner is not competent to testify on these matters — apparently believing that his interrogatories deserved the attention of more prominent personnel — Civ.R. 33(A) merely demands that she be a "proper employee" for this task. Manofsky's reference to Civ.R. 56(E)'s "admissibility and competency requirements" is severely misleading as that provision only concerns affidavits. Such documents are but one form of evidence a trial court may consider in a summary judgment proceeding. Civ.R. 56(C). The interrogatory answers involved represent the sworn statement *Page 668 of Goodyear on matters which the corporate entity has personal knowledge and are therefore appropriate. Accordingly, this evidence establishes a nondiscriminatory rationale for laying off Manofsky which would be legally sufficient to justify a judgment for Goodyear. Burdine, supra. The burden of persuasion consequently rests squarely upon the employee to establish his claim of wrongful discrimination. SeeRidenour v. Lawson Co. (C.A. 6, 1986), 791 F.2d 52, 56. After a thorough review of the many documents submitted by the parties, this court finds that Manofsky falls short in this respect. The former employee has presented no evidence suggesting that the economic justification based upon the Goldsmith takeover attempt was a mere "pretext for discrimination." Loeb v. Textron, Inc. (C.A. 1, 1979),600 F.2d 1003, 1012; Wilkins v. Eaton Corp. (C.A. 6, 1986), 790 F.2d 515,521. Manofsky's repeated claims that he was a valued employee who was often commended and paid well serve only to demonstrate that he was treated fairly by Goodyear up until layoffs were necessitated. Barker, supra, 6 Ohio St.3d at 149, 6 OBR at 204-205, 451 N.E.2d at 810-811. Manofsky asserts in his brief that he was denied an opportunity to conduct discovery upon the question of whether the attempted takeover truly necessitated layoffs at Goodyear. Civ.R. 56(F) permits a party to seek a continuance of summary judgment proceedings in order to conduct further discovery. Obviously, the evidence cannot be examined in a light most favorable to the nonmoving party if full access to necessary materials and witnesses is denied. Tucker v. Webb Corp. (1983),4 Ohio St.3d 121, 123, 4 OBR 367, 369, 447 N.E.2d 100, 102. The trial court nevertheless enjoys considerable discretion in the regulation of discovery proceedings. State, ex rel. Daggett, v.Gessaman (1973), 34 Ohio St.2d 55, 63 O.O.2d 88, 295 N.E.2d 659, paragraph one of the syllabus; see, also, 36 Ohio Jurisprudence 3d (1982) 47, Discovery and Depositions, Section 32. Manofsky has not set forth a compelling basis demonstrating that this discretion was abused. See, generally, Cedar BayConstr., Inc. v. Fremont (1990), 50 Ohio St.3d 19,552 N.E.2d 202; Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1251. As drafted, the two pertinent demands were extremely broad and not particularly pertinent. Contrary to his assumptions, Manofsky does not have the unfettered right to "test" the accuracy of Goodyear's sworn statements through discovery. More to the point, the trial court was not under any obligation to permit Manofsky to conduct a fishing expedition for incriminating documents. *Page 669 This court has previously held in a similar case that the employee's burden in demonstrating a discriminatory pretext is somewhat heavier when a work force reduction is required by economic necessity. Wang, supra, 68 Ohio App.3d at 16,587 N.E.2d at 389, citing LaGrant v. Gulf Western Mfg. Co., Inc. (C.A. 6, 1984), 748 F.2d 1087, 1090-1091. As a general rule, the judiciary will not second guess business judgments by an employer making personnel decisions. Brownlow v. Edgecomb Metals Co. (C.A. 6, 1989), 867 F.2d 960, 964; Wilkins, supra, at 521. Since Manofsky has not established a genuine dispute over Goodyear's nondiscriminatory rationale, summary judgment in this regard was appropriate. II. Sex discrimination Manofsky also complains that he was the victim of unlawful gender discrimination while employed at Goodyear. His claim is problematic on a number of grounds. While a cause of action is created for those aggrieved by age discrimination in R.C. 4112.02(N), a claim of sex discrimination must be based upon the general provision of R.C. 4112.99. Effective September 28, 1987, that section transformed the criminal penalties of R.C. Chapter 4112 into a civil remedy.Helmick v. Cincinnati Word Processing, Inc. (1989), 45 Ohio St.3d 131,134, 543 N.E.2d 1212, 1215; Hoops v. United Tel. Co. ofOhio (1990), 50 Ohio St.3d 97, 101-102, 553 N.E.2d 252, 256-257. The alleged discriminatory conduct which Manofsky sets forth is said to have occurred in late 1985 and early 1986. His original complaint was filed on July 16, 1987. Because R.C.4112.99 was not in effect at that time and statutes are presumed to be prospective in operation, R.C. 1.48, a question exists as to whether Manofsky can assert a civil claim of sex discrimination at all. Nevertheless, we need not resolve this issue at this time as these allegations were properly rejected by summary judgment on the merits. Manofsky maintains in this deposition that he was unjustly refused various job opportunities which Goodyear gave instead to women. The use of such conclusory assertions, however, is not sufficient, without more, to establish a prima facie case of discrimination. Locke v. Commercial Union Ins. Co. (C.A. 6, 1982), 676 F.2d 205, 206; Simpson v. Midland-Ross Corp. (C.A. 6, 1987), 823 F.2d 937, 941, fn. 5. Even if it were, Manofsky has not presented any credible evidence refuting Goodyear's claim that the women were qualified for the positions they received. Summary judgment on the claim of sex discrimination was therefore appropriate as reasonable minds could not conclude that Manofsky was denied job opportunities simply because he was a man. *Page 670 III. Wrongful discharge Manofsky was, at all relevant times, an at-will employee of Goodyear. Generally, such contracts may be terminated by either side for any reason. Phung v. Waste Management, Inc. (1986),23 Ohio St.3d 100, 102, 23 OBR 260, 261, 491 N.E.2d 1114, 1116. Manofsky insists, however, that various oral and written assurances by Goodyear satisfied the "promissory estoppel" and "implied contract" exceptions to this rule permitting him to recover damages. We do not agree. The two briefs prepared on behalf of Manofsky by counsel fail to differentiate between these two theories which are actually quite distinct. See, e.g., Spangler v. Go-Jo Industries, Inc. (Mar. 22, 1989), Summit App. No. 13853, unreported, 1989 WL 25692. This court will nevertheless attempt to separate the relevant passages which are scattered over the fifty-eight pages of arguments. A. Promissory Estoppel In Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 19 OBR 261, 483 N.E.2d 150, paragraph three of the syllabus, the court held that: "The doctrine of promissory estoppel is applicable and binding to oral at-will employment agreements. The test in such cases is whether the employer should have reasonably expected its representation to be relied upon by its employee and, if so, whether the expected action or forbearance actually resulted and was detrimental to the employee." As an initial matter, the promises alleged must be "clear and unambiguous" in their terms. Cohen Co. v. Messina (1985),24 Ohio App.3d 22, 26, 24 OBR 44, 48, 492 N.E.2d 867, 871. Manofsky does not suggest that anyone guaranteed him a job at Goodyear for a specific length of time. He complains, instead, that certain remarks by fellow employees and publications of the company induced him to forgo the early retirement plan to his detriment. The oral assurances he refers to, however, consist of vague remarks by individuals who were not his immediate supervisors and not responsible for making his employment evaluations. Moreover, the written statements to which he points claim only that Goodyear employees will not be subject to unlawful discrimination and will be transferred, rather than laid off, if possible. Such comments do not create a genuine dispute over whether clear and unambiguous promises were made upon which one could reasonably rely. See Spangler, supra, at 7. Summary judgment was therefore appropriate in this regard. *Page 671 B. Implied contract Mers, supra, also recognized that the culmination of various events may transform an employment at-will agreement into an implied contract for a definite term. Mers, supra, at paragraph two of the syllabus, states: "The facts and circumstances surrounding an oral employment-at-will agreement, including the character of the employment, custom, the course of dealing between the parties, company policy, or any other fact which may illuminate the question, can be considered by the trier of fact in order to determine the agreement's explicit and implicit terms concerning discharge." The court has warned, however, that a strong presumption exists against such inflexible arrangements. Henkle v.Educational Research Council (1976), 45 Ohio St.2d 249, 255-257, 74 O.O.2d 415, 418-420, 344 N.E.2d 118, 121-123; Mers, supra,19 Ohio St. 3d at 102, 19 OBR at 263, 483 N.E.2d at 153, fn. 1. Furthermore, employee manuals and handbooks are usually insufficient, by themselves, to create a contractual obligation upon an employer. White v. Wright Tool Co. (Sept. 23, 1987), Summit App. No. 12991, unreported, 1987 WL 17920. In the instant appeal, Manofsky bases his implied contract analysis upon the same evidence as his promissory estoppel claim. As was the case for the latter, such vague remarks do not allow reasonable minds to conclude that the parties had agreed to anything more than an employment-at-will contract. We also find significant the inconsistent positions set forth on appeal by Manofsky. By asserting claims for both unlawful discrimination and wrongful discharge, he is forced to argue that his employers were invidiously plotting to remove him for improper causes while simultaneously promising to employ him perpetually. While not mutually exclusive in theory, these two claims do create a tension which is difficult to reconcile. In this case, summary judgment was appropriate as Manofsky failed to demonstrate a genuine dispute over whether the parties created an implied employment contract terminable for good cause only. Assignment of Error II "The trial court erred by dismissing the third cause of action to the extent that such dismissal was based upon Goodyear's position that the claim was time barred and/or that Manofsky failed to exhaust his administrative remedies." The judgment entry which forms the basis of this appeal does not identify the specific rationale for the trial court's decision. Therefore, we have no reason to believe that summary judgment was granted on the sex discrimination *Page 672 claim because it was time barred or administrative prerequisites were ignored. Since we have already held that this cause of action was properly dismissed on the merits, the trial court may be affirmed on this ground alone. This assignment of error is therefore overruled. Assignment of Error III "The trial court erred in refusing to grant Manofsky's motion to compel discovery." This assignment of error was fully discussed previously in regard to the granting of summary judgment in favor of Goodyear. The trial court did not abuse its discretion in denying Manofsky's motion to compel discovery. This assignment of error is therefore overruled. Conclusion For the reasons stated, the trial court is affirmed in all respects. Judgment affirmed. REECE, P.J., and BAIRD, J., concur.

2016-07-06 06:35:57.925571+00

Guernsey

This is an appeal on questions of law and fact from a judgment of the Probate Court of Hancock county, overruling exceptions of Mary Alice Shafer to the inventory of the estate of Alvin Ross Shafer, deceased, filed by Aubrey R. Moul, administrator with the will annexed, and adjudging that Trudie L. Shafer is entitled to the exempt property set off to her in schedule A-1 and to the year's allowance set off to her in schedule F in the inventory and appraisement. In her exceptions to the inventory, Mary Alice Shafer, who is the sole legatee and devisee under the last will and testament of Alvin Ross Shafer, pleads the terms of a separation agreement made and entered into by and between the decedent Alvin Ross Shafer and Trudie L. Shafer, his wife and surviving spouse, under date of June 16, 1943, as barring Trudie L. Shafer from any rights in the property set off to her as exempt in schedule A-1 and to the year's allowance set off to her in schedule F, as the surviving spouse of Alvin Ross Shafer. To these exceptions, Trudie L. Shafer filed a reply in which she pleads that she is the only true and lawful surviving spouse of Alvin Ross Shafer, deceased, and that the separation agreement dated September 13, 1941, which the exceptor cites as a bar, is and was null and void and ineffective as against her for the following reasons: "That said separation agreement itself recites and shows that no actual consideration was paid to Trudie *Page 107 L. Shafer other than one-half of the money and property already legally due her independently of the agreement. There was absolutely no consideration to support the release provisions of the agreement, quoted in full by the exceptor. That said agreement was a fraud upon Trudie L. Shafer, as she received absolutely nothing for the alleged release provisions and was obtained by Alvin Ross Shafer taking his wife to his own counsel and without having any legal counsel of her own to explain the highly technical nature of the instrument itself. "That after signing the instrument, Trudie L. Shafer and Alvin Ross Shafer became reconciled and lived together and specifically agreed between themselves that the separation agreement be abrogated and have no legal effect whatsoever." The prayer in this reply is that the court dismiss the exceptions filed to the allowance set forth in the inventory; for an order setting aside the alleged separation agreement; and for such other and further relief as may be proper. To this reply, the exceptor, Mary Alice Shafer, filed a pleading which she designated "answer and reply of Mary Alice Shafer" and which amounts to a general denial of the allegations thereof. Neither the exceptions filed by Mary Alice Shafer nor the pleading designated "answer and reply of Mary Alice Shafer" contains any averments which show the contract of separation to have been fair, reasonable and just to Trudie L. Shafer under the then existing circumstances. Under the provisions of Section 6, Article IV of the Constitution of Ohio the only appellate jurisdiction conferred on the Court of Appeals is in the trial of chancery cases, that is, a retrial of the facts in such cases. As the jurisdiction of the Court of Appeals is prescribed *Page 108 by the Constitution it cannot be enlarged or diminished by statute. The question therefore arises as to whether this case is a chancery case, within the purview of such constitutional provision, and retriable upon the facts. By the provisions of Section 8, Article IV of the Constitution of Ohio, jurisdiction in probate and testamentary matters and in the settlement of accounts of executors and administrators is conferred upon the Probate Court. By virtue of the constitutional provisions conferring such jurisdiction, the Probate Court has plenary power fully to dispose of any of those matters properly before the court, and such power comprehends the power to adopt and apply such remedies, legal or equitable, as may be suitable for such purpose. Insofar as these matters are concerned, Section 10501-53, General Code, prescribing that the Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is otherwise limited or denied by statute, adds nothing to the jurisdiction of the court. However, the procedure of the court in the exercise of its jurisdiction may be prescribed by statute, and is so prescribed in matters of exceptions to accounts and inventories. The jurisdiction conferred on the Probate Court by the Constitution comprehends jurisdiction of all matters which were the subject of adjudication in the instant case, and although the attack on the validity of the separation agreement, made by Trudie L. Shafer in her reply to the exceptions of Mary Alice Shafer to the inventory, invoked a remedy which ordinarily may be invoked only in chancery cases, such remedy was incidental to the exercise by the Probate Court of the jurisdiction *Page 109 conferred on it by the Constitution, and did not change the character of the case from a probate and testamentary matter, and an accounting by an executor or administrator, into a chancery case. See In re Estate of Gurnea, 111 Ohio St. 715,146 N.E. 308; Squire, Supt. of Banks, v. Bates, 132 Ohio St. 161,5 N.E.2d 690. The court, therefore, sua sponte determines that the case is not a chancery case; that, therefore, it does not have jurisdiction of the appeal as an appeal upon questions of law and fact; and that the appeal stands as an appeal upon questions of law only and will be so considered, a bill of exceptions, assignments of error and briefs of the parties having been heretofore filed herein perfecting the appeal as an appeal upon questions of law. As disclosed by the bill of exceptions, the following facts are in evidence in this case: Trudie L. Shafer was married to Alvin Ross Shafer, the decedent, on September 10, 1940, following his divorce on such date from Mary Alice Shafer. After her marriage she expended $2,976.46 in improvements to the real estate occupied by herself and husband, the title to which was in the name of Alvin Ross Shafer. Under date of October 26, 1940, Alvin Ross Shafer executed and delivered to her a deed conveying to her an undivided one-half interest in such premises. The premises mentioned are the premises referred to in the separation agreement. Under date of September 13, 1941, Trudie L. Shafer and Alvin Ross Shafer entered into a separation agreement in writing, which is in the words and figures following: "These articles of separation, made and concluded *Page 110 at Findlay, Ohio, this 15th day of September, 1941, by and between A.R. Shafer and Trudie L. Shafer, husband and wife, witnesseth: "That whereas, the parties have agreed upon an immediate separation, and "Whereas, the said A.R. Shafer has this day paid to the said Trudie L. Shafer the sum of nineteen hundred and seventy-five dollars ($1,975), the receipt of which is hereby acknowledged, said sum being the value of the interest of the said Trudie L. Shafer in the real estate formerly occupied by the parties hereto, and on this day sold to T.B. Clymer and Winifred Clymer, and for the value of the interest which the said Trudie L. Shafer had in one (1) farm tractor, and "Whereas, the said Trudie L. Shafer has assigned, conveyed and transferred to said A.R. Shafer the following personal property: "1. All of the household furniture which the said A.R. Shafer had in the residence lately occupied by said parties before the said A.R. Shafer and Trudie L. Shafer were married. "2. All of the farm machinery, implements and farm equipment now owned by the said A.R. Shafer and located on the real estate formerly occupied by said parties. "3. All growing corn and ear corn on the premises formerly occupied by the parties, being approximately three (3) acres. "4. 1 1938 Ford sedan automobile. "And whereas, in consideration of the premises, the said A.R. Shafer does hereby assign, convey and transfer to said Trudie L. Shafer any and all interest which he may have in all of the household furniture, goods and effects in the residence lately occupied by said parties, except that part which he reserved to himself hereinabove, and "Whereas, the said parties have agreed, and hereby *Page 111 do agree, to sell all of the hay, oats, wheat, livestock and chickens which are on the premises formerly occupied by the parties hereto and divide the proceeds received from the sale thereof equally between them. "Now therefore, in consideration of the premises, each party hereto does hereby release and discharge the other from all obligations of support, and from all other claims, rights and duties arising or growing out of said marital relation; and said parties mutually agree that each party hereto may freely sell or otherwise dispose of his or her own property, by gift, deed, or last will and testament, and each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, descent, distribution, allowance for twelve (12) months' support, right to remain in the mansion house, and all rights or claims as widow, widower, heir, distributee, survivor, or next of kin, and all other rights or claims whatsoever, in or to the estate of the other, whether real or personal, and whether now owned or hereafter to be acquired, which may, in any manner, arise or accrue by virtue of said marriage. "And each party hereto, for the considerations aforesaid, does hereby release and relinquish to the other, and to the heirs, executors, administrators, devisees, legatees and assigns of the other, all claims or rights of dower, inheritance and a distributive share, or as widow, widower, heir, survivor, distributee or next of kin, in and to all of the estate of the other, whether now owned or hereafter acquired, and all claim or right to an allowance for twelve (12) months' support, or to reside in the mansion house, and all other rights or claims whatsoever, which may, in any manner, arise or accrue by virtue of said marriage. "And each party further agrees that the other party shall have full liberty to dispose of all his or her property, real and personal, whether now owned or *Page 112 hereafter acquired, during life, or by last will and testament, and that, upon the death of such party, all of his or her property, real and personal, which shall not have been disposed of, during life or by last will and testament, shall descend to, vest in and be distributed to, such person or persons as would be entitled to the same by the statutes of descent and distribution of the state of Ohio then in effect, had the surviving party died during the life of the other party. "And each party hereby waives any right which he or she may have, to administer the estate of the other party, upon the death of such other party. "Each party hereto further agrees, upon request of the other, to execute and acknowledge any and all deeds or other instruments of release or conveyance to enable such other to sell, convey, mortgage, or otherwise dispose of or encumber his or her own real property, free from any apparent right of dower therein. "In witness whereof the parties have hereunto set their hands the day and year first above written. "Signed and acknowledged A.R. Shafer in presence of: "Marcus C. Downing "Edythe W. Morgan Trudie L. Shafer." The terms of the separation agreement were fully executed by the parties thereto, and at the time of the execution thereof the parties separated and lived apart. On a number of occasions subsequent thereto, and prior to February 28, 1942, Trudie L. Shafer came to and was seen at the residence which Alvin Ross Shafer maintained at Rawson, Hancock county, and Alvin Ross Shafer, at such residence, stated to Mrs. Carnahan, his sister, that he was "so glad that him and Trudie could live together," and it was stated that *Page 113 Trudie told Mrs. Carnahan she had been there several weeks. Trudie L. Shafer did not testify as to whether she and Alvin Ross Shafer had lived together at any time subsequent to the execution of the separation agreement, and there is no evidence tending to prove that she and Alvin Ross Shafer specifically agreed that the separation agreement should be abrogated, as alleged in Trudie L. Shafer's reply to the exceptions. There is no evidence showing what property, if any, either of the parties had at the time of the execution of the separation agreement, which is not covered by the agreement, or as to the state of health of either of the parties or their respective ages at the time of the execution thereof, or as to other then existing circumstances of the parties, except as hereinbefore mentioned. Mary Alice Shafer, the exceptor, appellant herein, is the divorced wife of Alvin Ross Shafer and was, at the time of his death, living in his home and keeping house for him. As shown by the transcript of docket and journal entries of the Probate Court, Alvin Ross Shafer died on May 22, 1943. The errors which the appellant assigns may be summed up as follows: 1. Error in overruling the motion of exceptor for a new trial. 2. Error in that the finding and judgment are against the manifest weight of the evidence. 3. Error in that the finding and judgment are contrary to law. 4. Error in the admission of evidence, offered by Trudie L. Shafer under her reply to the exceptions, to which the appellant objected. 5. Other errors apparent upon the face of the record. *Page 114 The claimed errors will be considered in the order mentioned. 1. An inspection of the record discloses that no motion for new trial was filed. No motion having been filed, error cannot be predicated upon the overruling of a motion for new trial, although the judgment entry recites that a motion for a new trial was overruled. 2. No motion for new trial having been filed, the weight of the evidence may not be reviewed by this court. 2 Ohio Jurisprudence, 264, Section 228. 3. Under this assignment of error appellant makes two general contentions. First. That, although the validity of the separation agreement was put in issue by the reply of Trudie L. Shafer to the exceptions, within six months from the appointment of the administrator of the estate of decedent, such attack was unauthorized in law and did not, within the purview of Section 10512-3, General Code, constitute an attack on the validity of such agreement, within six months after the death of the decedent, the Probate Court was without power to set the agreement aside, and the agreement is, under the provisions of such section, deemed valid. Second. That there is no evidence that the provisions of the separation agreement were unfair, or that the parties thereto had by their conduct rescinded or abrogated the same. The appellee contends that the filing of a motion for new trial in the trial court is a condition precedent to the signing and allowance of a bill of exceptions; that, as no motion for new trial was filed in this case, the bill of exceptions should be stricken from the files; and that the errors demonstrable thereby, including this assignment of error, may not be reviewed by this court. In support of this contention she relies on the case of EdwardWren Co. v. Retail Clerks Union Local No. 190, 28 Ohio Law Abs., 95, a decision of the Court of *Page 115 Appeals of the Second District which announces the rule that the filing of a motion for a new trial is a condition precedent to the allowance of a bill of exceptions. We have carefully checked the reported cases in Ohio, including the cases of State, ex rel. Porter, a Taxpayer, v. Clark et al.,Bd. of Commrs., 112 Ohio St. 133, 146 N.E. 815, and Chapman v.Manix, 17 Ohio Law Abs., 16, cited in the opinion in the Wrencase in support of this rule, and find no cases supporting the announced rule, except the cases of Schwenkel v. Schwenkel, 23 Ohio Law Abs., 321, and State, ex rel. Warner, v. Smith, 23 Ohio Law Abs., 313, which were decided by the same Court of Appeals. It has been uniformly held that the filing of a motion for new trial upon the ground that the finding of a court or jury is against the manifest weight of the evidence and the overruling of such motion by the trial court are conditions precedent to a review of the weight of the evidence. It has also been held that the filing of a motion for new trial upon the grounds of misconduct of the prevailing party, accident or surprise which ordinary prudence could not have guarded against or newly discovered evidence, and the overruling of such motion by the trial court are conditions precedent to a review of assignments of error based on such grounds. Weaver v. Columbus,Shawnee Hocking Valley Ry. Co., 55 Ohio St. 491, 45 N.E. 717; 2 Ohio Jurisprudence, 263, Section 227. But we find no reported cases, other than the cases decided by the Court of Appeals of the Second District, above-mentioned, holding that the filing and overruling of motions for new trial are conditions precedent to the review of any other ground of error. An error of law for want of proof arises where there is no evidence to establish one or more facts the existence *Page 116 of which is essential to recovery. Turner v. Turner, 17 Ohio St. 449,452. Where the trial court is not called upon to weigh the evidence but to apply the law when the ultimate facts are not in dispute, the case assumes a legal phase and a motion for new trial need not be filed in order to review claimed error in the application of the law to the facts. Jacob Laub Baking Co. v. Middleton,118 Ohio St. 106, 120, 160 N.E. 629; Inglish v. IndustrialCommission, 125 Ohio St. 494, 182 N.E. 31, 83 A.L.R., 210. In the cases of Travelers' Indemnity Co. of Hartford, Conn. v.M. Werk Co., 33 Ohio App. 358, 169 N.E. 584, and Fairley v.Wilmington College, 19 Ohio Law Abs., 380, it was held that although the Court of Appeals cannot pass on the weight of the evidence in the absence of a motion for new trial, such motion is not necessary to a determination of the question whether there was any evidence to support plaintiff's claim. From these holdings we conclude that the rule announced in theWren case, supra, is erroneous; that the filing of a motion for a new trial and the overruling of same are not conditions precedent to the allowance of a bill of exceptions; that, consequently, the bill of exceptions should not be stricken; and that this court may review this assignment of error and the errors complained of on this appeal notwithstanding the fact that no motion for a new trial was filed. Section 10512-3, General Code, prescribes that any antenuptial or separation agreement to which the decedent was a party shall be deemed valid unless action to set it aside is begun within six months after the appointment of the executor or administrator of the estate of such decedent, or unless within such period of time the validity of such agreement is otherwise attacked. As hereinbefore mentioned, the Probate Court has *Page 117 constitutional jurisdiction of probate and testamentary matters, and the accounts of executors and administrators. Such constitutional jurisdiction necessarily comprehends jurisdiction of inventories and exceptions thereto, as inventories are essential to the accounting of executors and administrators. Incident to this constitutional jurisdiction in the premises, the Probate Court has plenary power to dispose of any matters properly before it, including the power to adopt and apply remedies which are legal or equitable in their nature. The reply of Trudie L. Shafer to the exceptions constituted a direct attack on the validity of the separation agreement which the court, in the exercise of its constitutional jurisdiction, had power to determine. This attack was made within six months from the date of the appointment of the administrator so it was made within the time prescribed by Section 10512-3, General Code, and was made in such a manner that it was necessary for the court, in order to dispose of a matter properly before it, to determine whether the agreement was valid. The case of Juhasz v. Juhasz, 134 Ohio St. 257,16 N.E.2d 328, 117 A.L.R., 993, is not in point as in that case no attack on the validity of the agreement (antenuptial) was made in the Probate Court in a form in which the validity thereof could be adjudicated by the court. For the reasons mentioned, the first contention of appellant, under this assignment of error, is without merit. As above mentioned, the second contention of appellant under this assignment of error is that there is no evidence that the provisions of the separation agreement were unfair, or that the parties thereto had by their conduct rescinded or abrogated the same. As will be noted from the statement of facts, the separation *Page 118 agreement provided for an immediate separation of the parties and a division of property between them, and was fully executed. Agreements of this character which have been executed are not subject to rescission, revocation or abrogation by reconciliation of the parties and the resumption of marital relations alone, but only by clear agreement between the parties that they should be so revoked. Lucas v. Lucas, 26 Ohio Law Abs., 664; Leedy v.Malcolm, 8 Ohio Law Abs., 640. In the instant case, although there is evidence tending to prove reconciliation and resumption of marital relations, there is no evidence tending to prove any agreement between the parties that the separation agreement should be rescinded, revoked or abrogated. The evidence therefore is insufficient in law to sustain the finding of the trial court that the agreement was abrogated. Whether the separation agreement was fair presents another question. The validity of separation agreements is determined in acccordance with the general rules applicable to transactions and agreements between parties occupying confidential relations with each other. Section 7999, General Code; Hoagland v. Hoagland,113 Ohio St. 228, 148 N.E. 585; Garver, Exr., v. Miller, 16 Ohio St. 527. In the last-cited case it was held that a parol post-nuptial agreement between husband and wife, made in view of a voluntary separation, and fully executed on the part of the husband, whereby, for a consideration which, in the light of all the circumstances of the parties at the time the contract is made, is fair, reasonable and just, the wife relinquishes all claim to a distributive share of the husband's personal estate, in case she survive him, will be upheld and enforced in equity; but that it is an essential element of the foregoing *Page 119 proposition that the terms of the contract shall be fair, reasonable and just to the wife, in view of all the circumstances of the parties at the time when it was made; and that such contract can be made available, in pleading, as a full defense to an action by the wife for a distributive share of her deceased husband's estate, only when accompanied by such averments as show it to have been fair, reasonable and just to her. Otherwise expressed, if the contract be relied on in pleading, either as a cause of action or as a matter in defense, the pleading must contain averments which show the contract to have been fair, reasonable and just to the wife under the circumstances existing at the time of making. If such becomes a question of fact, the proof must lead the mind of the chancellor satisfactorily to the same conclusion. It is not sufficient, either as a matter of pleading or of proof, to set up the naked contract and its execution by the husband. In addition to this, facts must be averred or proved, or both, as the exigencies of the case may require, showing that the terms of the contract in favor of the wife were fair, reasonable and equitable under the circumstances of the parties at the time it was made. See, also, 2 Pomeroy's Equity Jurisprudence (4 Ed.), 2038, Section 956. Applying the foregoing rule to the instant case, it was not essential that the exceptor, in her exceptions, plead facts showing the contract to have been fair, reasonable and just to the wife, Trudie L. Shafer, under the then existing circumstances, as the contract, not having been attacked as prescribed by Section 10512-3, General Code, was deemed valid, but when the contract was attacked by Trudie L. Shafer, the widow of the decedent, in her reply to such exceptions, it became incumbent upon the exceptor to plead and prove the facts mentioned. The exceptor failed to plead such facts and, as shown *Page 120 by the statement of facts, there are no facts in evidence from which a determination could be made that the contract was fair, reasonable and just to the wife, Trudie L. Shafer, under the circumstances existing at the time of its execution. In this situation it was the duty of the trial court, by reason of the failure of pleading and proof on the part of the exceptor of these essential facts, to hold that the contract was invalid, and the finding of the court in that respect is not erroneous. 4. The appellant, in her briefs herein, fails to specify any errors in the admission of evidence so that this assignment will not be considered by the court. 5. The appellant also fails to specify in her briefs any errors under this assignment so the court is not required to and will not consider this assignment. For the reasons mentioned, we find no error in any of the particulars assigned and argued in appellant's brief, and the judgment of the Probate Court is affirmed at costs of appellant, and the cause remanded for execution. Judgment affirmed. JACKSON and MIDDLETON, JJ., concur. *Page 121

2016-07-06 06:35:58.558741+00

Reilly

This is an appeal from a judgment of the Court of Common Pleas, Franklin County, Ohio. The record indicates that on November 1, 1973, William Peyton, filed an application for unemployment benefits. The Ohio Bureau of Employment Services, on November 16, 1973, allowed the claim, finding he was not excluded by R. C. 4141.29(D) (2)(a), but quit for just cause. Sun T.V. Appliances sought a reconsideration and obtained a reversal of the initial allowance. Peyton timely appealed to the board of review. There was a hearing before a referee, and the decision, upon reconsideration, was affirmed. Ultimately, the board of review affirmed the referee's decision. The board's decision was appealed to the Court of Common Pleas and affirmed; whereupon, this appeal was perfected, and the following advanced as the assignment of error: "The Trial Court erred in affirming the decision of the Board of Review, State of Ohio, Bureau of Employment Services, which decision was contrary to law, unreasonable, and against the manifest weight of the evidence." Mr. Peyton was employed by Rockwell International Corporation as a factory employee for approximately twenty-one years. He lost his job because of a general layoff, due to the cancellation of government contracts. At the time of his termination, he was earning approximately two hundred dollars per week. Then, he found employment with Sun T. V. as a salesman, and was paid by a commission for individual sales. The plain fact was that he was unable to earn enough for necessary family expenses. He was not only facing financial hardship, but probable bankruptcy. His entire work experience, aside from some secondary real estate background, was basically different from sales and promotional merchandising. Hence, Mr. Peyton, in net effect, left his employment to find work for which he was reasonably adapted. He applied for unemployment benefits while seeking a job. Specifically, R. C. 4141.29 (D)(2)(a) reads, in pertinent part: "(D) Notwithstanding division (A) of this section, no individual may * * * be paid benefits under the following conditions: * * * *Page 12 "(2) For the duration of his unemployment if the administrator finds that: "(a) He quit his work without just cause or has been discharged for just cause in connection with his work. * * *" The claimant asserts that he quit his work with just cause. This is the issue in the case. There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. Moreover, there is minimal case law directly determining this issue. Therefore, we are considering this case upon its individual merits. It is noteworthy that Mr. Peyton's consistent employment record scarcely reflects any malingering or abuse of the system. When he lost his job, after twenty-one years of steady employment, he immediately sought and found other work. The true result was a postponement of the time of eligibility for unemployment benefits, for, undoubtedly, he could have had benefits from his North American Rockwell employment. It is noteworthy that he did not simply apply for unemployment compensation. Instead, he went out and found a job. The ultimate difficulty was that he was not suited for that kind of work and could not make a living doing it. The intent of the law is not to penalize a person for not finding work. Therefore, we find, as a matter of law, appellant had just cause for leaving his job. Accordingly, the assignment of error is well taken and sustained. The judgment of the trial court is reversed and remanded for further proceedings consistent with this decision. Judgment reversed. TROOP, P. J., and WHITESIDE, J., concur. *Page 13

2016-07-06 06:35:58.927555+00

Shannon

This comes before us on appeal on questions of law from the Court of Common Pleas of Hamilton County wherein a summary judgment for the defendant upon its cross-petition had been entered. The defendant has filed a cross-appeal. Originally, plaintiff had filed its petition in the Cincinnati Municipal Court seeking to recover from defendant upon an account stated for insurance premiums. An answer *Page 162 and cross-petition was filed by defendant and, because the amount prayed for in the cross-petition exceeded the monetary jurisdiction of the court, the cause was certified to the Court of Common Pleas. Defendant stipulated its liability on the account, but alleged that plaintiff was liable on a certain promissory note. The gist of such contention was that plaintiff's predecessor had negotiated a loan and signed a note therefor, that defendant's predecessor was a co-signer of that note and upon default by plaintiff's predecessor had paid the same. It appears that shortly before September 23, 1960, the date upon which the note was signed, one Robert J. Leonard told Harry Fuller II, then president of Northern Kentucky Asphalt Co., that the insurance agency in which he, Leonard, was a general partner, needed $5,000. Fuller then accompanied Leonard to the bank which made the loan. It is undisputed that the proceeds of the loan transaction found their way into the commercial account of the insurance agency. A pretrial hearing was held and resulted, among other things, in certain orders. Notable among such are that "if the note was the partenership obligation, stipulations will be filed and a judgment entered upon an agreed statement of facts"; that, "both attorneys will make a search * * * to find the original note * * * and examine the bank records * * * to establish who the primary obligor on the note actually was"; and that, "if the investigation cannot establish the correct identity * * * a trial date will be established and the fact issue determined." The note was never found, and it is conceded that the court below considered the same to have been lost or destroyed. Certain affidavits were filed, being those of Fuller, Leonard and one Allgeyer, the loan manager for the bank at the time of the transaction. Substantially, these affidavits are that the loan was "for partnership business" with Leonard adding, "the Agency unequivocably ratified the transaction and accepted the burden thereof as a partnership obligation." However, the deposition of one Rolf, *Page 163 an officer of the bank, was filed and such discloses that the draft issued by the bank as the result of the loan transaction was payable solely to Robert J. Leonard and that the bank's ledger card, which includes the name of the borrower, carries only the name of Robert J. Leonard. The court below found as a matter of law that the partnership of which Leonard was a member was liable on the note. Defendant's cross-appeal is based upon a claim that the court below erred in considering the documentary evidence submitted in connection with the Rolf deposition. It is clear to us that a genuine issue of fact exists as to the manner in which the note was executed. The trial court was required, perforce, to evaluate evidence before reaching its legal conclusion. Section 2311.041, Revised Code, provides, in part (paragraph B thereof): "* * * A summary judgment shall not be rendered unless it appears from the pleadings, depositions * * * affidavits * * * and written stipulations of fact, if any, previously filed in the action, and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made; the party against whom the motion for summary judgment is made is entitled to have such pleadings, depositions * * * affidavits * * * and written stipulations of fact construed most strongly in his favor. * * *" Since it is apparent that rendition of summary judgment in the instant case was improper under the statute, such is reversed and the cause remanded to the Court of Common Pleas for further proceedings according to law. Such determination on our part renders moot the issue raised by defendant's cross-appeal, that is, even without the exhibits, the consideration of which is complained of, there is a genuine issue of fact apparent to us. Therefore, the cross-appeal is dismissed without further consideration of the merits thereof, which disposition is not to be interpreted to prejudice the raising of such issues upon trial. Judgment accordingly. LONG, P. J., and HILDEBRANT, J., concur. *Page 164

2016-07-06 06:35:58.150187+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Defendant-Appellant Dave Walter, Inc. has appealed from the decision of the Akron Municipal Court that adopted the magistrate's decision which found in favor of Plaintiff-Appellee Karrie Kalail. This Court reverses. I {¶ 2} On June 22, 2004, Plaintiff-Appellee Karrie Kalail filed a complaint in the Akron Municipal Court against Defendant-Appellant Dave Walter, Inc. alleging a deceptive sales practice in violation of the Consumer Sales Practices Act. The matter went before a magistrate and Appellant failed to appear. On March 21, 2005, the magistrate issued its decision finding in favor of Appellee. On April 4, 2005, Appellant filed objections to the magistrate's decision arguing that it never received notice of the magistrate's hearing and therefore the decision should be vacated; Appellee timely responded to Appellant's objections. The trial court adopted the magistrate's decision and found that the evidence showed that mail and telephone notice were executed on Appellant regarding the new hearing date. {¶ 3} Appellant has timely appealed the trial court's ruling, asserting one assignment of error. II Assignment of Error Number One "THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADOPTING THE MAGISTRATE'S RULING IN FAVOR OF APPELLEE DESPITE [APPELLANT'S] OBJECTIONS THAT DAVE WALTER RECEIVED NO ACTUAL NOTICE OF THE HEARING ON APPELLEE'S COMPLAINT." {¶ 4} In its sole assignment of error, Appellant has argued that the trial court erred in adopting the magistrate's decision when Appellant did not receive notice of the hearing before the magistrate. Specifically, Appellant has argued that the evidence does not support the trial court's conclusion that no evidence was presented that Appellant did not receive notice. We agree. {¶ 5} A decision to modify, affirm, or reverse a magistrate's decision lies within the discretion of the trial court and should not be reversed on appeal absent an abuse of discretion.Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. An abuse of discretion suggests more than a mere error in judgment, but indicates that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Id. {¶ 6} Pursuant to Loc.R. 6: "The Akron Legal News is the official daily journal of the Municipal Courts of Summit County as authorized O.R.C. 2701.09. Publication in the Akron Legal News shall be deemed official and complete notification to all local counsel of any assignment of any case for any purpose, and it shall be the duty of counsel to ascertain such notice from The Akron Legal News. Non-local counsel and parties representing themselves shall be notified by mail. Notwithstanding provisions of any rule to the contrary, any mail notification provided shall be sufficient." In the instant matter, Appellant's counsel maintains its offices in Brecksville, Ohio, which is in Cuyahoga County. Accordingly, we find that Appellant's counsel was not local counsel and the trial court was required to notify said counsel by mail of the new hearing date. With that requirement in mind we turn to the evidence of record. {¶ 7} A review of the record reveals the following relevant documents: 1) the court docket; 2) a notice dated October 7, 2004; 3) a memo dated October 7, 2004; 4) a notice dated January 7, 2005; 5) a fax cover sheet; 6) a memo dated April 28, 2005; and 7) an affidavit from Appellant's counsel. We begin with the docket; the docket does not contain a notation of the hearing date of January 7, 2005. It does not cite the hearing as scheduled or having occurred on that date. We find this troubling because if one follows the argument that a lawyer is responsible for maintaining his case load and knowing when his hearings are set, then the lawyers in this case could not rely on the court docket for that information. We also note that this case's docket was not available online for review. {¶ 8} The second document of interest to this Court is the notice dated October 7, 2004. It lists the new hearing date as January 7, 2005, but does not list Appellant's counsel as receiving notice of the new date. The "NOTICES TO" section only lists the Appellant as a company, not Appellant's counsel as being sent notice of the hearing date. The trial court knew Appellant was represented by counsel, but from the notice form, the trial court did not send notice to said counsel. {¶ 9} The third document is a memo from the trial court's support staff that states that Appellant's counsel was called about the new date and a message was left. But the memo does not state who received the message or if it was left with an automated service that confirmed the staffer had called Appellant's counsel. {¶ 10} The fourth document was sent in response to Appellant's counsel's January 7, 2005 request for evidence that notice was sent regarding the new hearing date. The information counsel received was a notice sheet that differed from the prior notice sheet in the following ways: 1) the date the document was created is listed as January 7, 2005, which was the current date; 2) Appellant's counsel is listed in the upper left section along with her address; and 3) the "NOTICES TO" section lists Appellant's counsel as being sent notice of the new hearing date. It is clear that the notice form sent to Appellant's counsel on January 7, 2005 was not a copy of the original notice. {¶ 11} The fifth document this Court finds relevant is the fax cover sheet that accompanied the previous document. Typed onto the cover sheet was the following sentence: "Attorney Rhoades, a copy would not of gone to the client, only to your office." Such a statement is contrary to the other documents in the file; the original notice form was clearly not sent to counsel because it lists the client in the "NOTICES TO" section. {¶ 12} The sixth document is a memo from a trial court staff member to the file that states that notice was not issued in the Akron Legal News, but "notices were sent and that the defendant has been involved in multiple cases." We find this document relevant because by its own admission the trial court did not adhere to Loc.R. 6. The memo does not explain where notices were sent or who was sent notices. Moreover, we question why it was noted that the Appellant had multiple cases when the only relevant issue was whether Appellant's counsel received notice of the hearing in this case; whether or not he received notice on other cases is irrelevant. {¶ 13} The final document relevant to whether or not Appellant and/or its counsel received notice is Appellant's counsel's affidavit which avers that neither counsel nor Appellant received notice of the hearing. The affidavit was attached to Appellant's objections to the magistrate's decision. Appellant's counsel rebutted the evidence from the file and made a sworn statement that her office did not receive notice of the January 7, 2005 hearing; she also averred that her client did not receive notice. {¶ 14} After a thorough review of the record, we find that the trial court abused its discretion in adopting the magistrate's decision and overruling Appellant's objections. Our decision is based on the inconsistent documents in the trial court's record, the trial court's failure to comply with Loc.R. 6., and the trial court's failure to acknowledge the rebuttal evidence presented by Appellant's counsel. The journal entry adopting the magistrate's decision stated: "There is nothing in the file to indicate that the defendant did not receive the notice." While we make no judgment regarding whether or not Appellant did actually receive notice, we find that the file contained several documents indicating Appellant did not receive proper notice and the trial court must consider and address all the evidence in the file. Based on the foregoing, we find that the trial court did abuse its discretion in overruling Appellant's objections to the magistrate's decision. {¶ 15} Appellant's sole assignment of error has merit. III {¶ 16} Appellant's sole assignment of error is sustained. The judgment of the trial court is reversed and the cause is remanded for proceedings consistent with this opinion. Judgment reversed, and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee. Exceptions. Slaby, P.J., Moore, J., concur.

2016-07-06 06:35:58.195549+00

DECISION. *Page 2 {¶ 1} Defendant-appellant Matthew Carovillano in two assignments of error challenges (1) the trial court's decision overruling his suppression motion, and (2) the sufficiency and weight of the evidence used to sustain the conviction against him for aggravated murder of a child under the age of 13. We affirm. I. Kay lee Schnurr's Short Life, and Carovillano'sCover-Up {¶ 2} Carovillano dated Marigrace Schnurr, and Schnurr had an 18-month-old daughter named Kaylee. Schnurr and Kaylee would often visit Carovillano's house, and he would visit theirs. As Schnurr and Carovillano continued their relationship, she eventually trusted him enough to occasionally leave Kaylee in his sole care. {¶ 3} On July 20, 2005, Schnurr and Kaylee went to Carovillano's home. Schnurr had originally planned to pick Carovillano up and return to Schnurr's mother's house, but when she arrived Carovillano had not showered. Carovillano suggested that the three go downstairs to watch television, and at some point Schnurr fell asleep. Carovillano took Kaylee upstairs to his bedroom to lay Kaylee down for a nap. Carovillano then went back downstairs to attempt to awaken Schnurr for sex. She was too tired and declined. {¶ 4} Carovillano then returned upstairs to shower. According to his initial narration, "I walked into my room to get [a] towel and noticed Kaylee wasn't on the bed. I turned the light on, and that's when I found her lying on the floor. [After] I *Page 3 turned the light on, [I] was freaked out, [because] her eyes were not open all the way, and she was not breathing right. I [then] ran down the stairs to get Mari." {¶ 5} Marigrace testified that she was sleeping when Carovillano came downstairs and told her that Kaylee had fallen from the bed and was not moving. She also testified that Carovillano "was crying hysterically, [and] kept saying `I'm so sorry, I'm so sorry.'" Marigrace ran upstairs and found Kaylee on the floor. Carovillano later called 911. {¶ 6} The responding officer, Officer John Ferguson, walked in and saw Carovillano kneeling against an archway and crying. Ferguson testified that when he arrived at the scene Carovillano was crying uncontrollably and was very emotional. {¶ 7} The paramedics later arrived and took Kaylee to the Franciscan Mt. Airy Hospital and then to Cincinnati Children's Hospital for specialized treatment. Ferguson testified that when he responded he noticed marks and bruising on the outside of Kaylee's neck, and that this observation led him to believe that the injuries sustained by Kaylee were inconsistent with a fall from a bed. {¶ 8} The hospital also quickly determined, because of the degree of trauma, that falling from the bed was unlikely to have been the cause of Kaylee's injuries. Doctor Jeffery Spatz testified that he immediately noticed blunt trauma: "I saw multiple bruises, a very large bruise on the back of [Kaylee's] head that was bleeding, bruises on her jaw," her chest, and over the rest of her body. The doctor also stated that "the mechanism that was recorded, her falling off the bed, was not the appropriate mechanism of the injury. The injuries were too substantial to match up to what she had. Usually from falling off the bed, you won't see that much swelling in the posterior aspect of the head. The bruises underneath the neck don't occur *Page 4 naturally. They only occur in abuse. The overall picture was not appropriate for someone that had just fallen off a bed. I determined shortly after arrival this was an abuse case, and made sure that the police were called in order to get the investigation started." {¶ 9} Later that day, Carovillano agreed to go to the police station for an interview, and after an hour and a half, Carovillano maintained that Kaylee's injuries were caused by her falling off the bed. Carovillano also agreed to submit to a computer-voice-stress-analyzer (CVSA) test. {¶ 10} On July 22, 2005, Ferguson went to Carovillano's home and drove him to the Springfield Township police department to take the CVSA test. Detective Patrick Kemper was to perform the CVSA test, and before the test was given, Kemper interviewed Carovillano. At the time, Kaylee was still struggling for her life, Carovillano's involvement in her injuries was questionable, and no arrest had been made. Carovillano was interviewed for over two hours before he finally confessed. The two hours leading to the confession were conversational and informal, and Carovillano was never threatened. In confessing, Carovillano gave the following account: {¶ 11} "Detective Kemper: What happened on that — I mean, did she * * * {¶ 12} "Carovillano: She just cried. And wouldn't stop. But I tried picking her up and holding her and rocking her and talking to her. I didn't even realize what I did. I just backhanded her over the head. And I just kept hitting her. And I left the room and just stopped and dropped to my knees. And I went back in, and she didn't do anything. She just laid there. I tried picking her up, she didn't move. I freaked *Page 5 out." Carovillano also admitted that he had penetrated Kaylee with his finger, about one week before the police were called. {¶ 13} Kaylee would never regain consciousness; she died July 24, 2005. {¶ 14} A grand jury indicted Carovillano for rape1 (Count I), aggravated murder after committing or attempting to commit rape2 (Count II), aggravated murder of a child under 133 (Count III), murder4 (Count IV), and endangering children5 (Count V) for the events alleged to have occurred on July 20. A three-judge panel found Carovillano guilty of Counts III, IV, and V, but he was acquitted of Counts I and II because the state was unable to show beyond a reasonable doubt that Carovillano had raped Kaylee on July 20, 2005. Carovillano was sentenced to life in the department of corrections without the possibility of parole. {¶ 15} In December 2005, Carovillano, in a separate case, was indicted for rape6 in connection with his confession to having penetrating Kaylee with his finger about a week before July 20. He pleaded no contest, was found guilty by the court, and was sentenced to a consecutive life term in the department of corrections. II. The Suppression Motion {¶ 16} Carovillano assigns error to the trial court's decision denying his suppression motion. On appeal he argues that his confession should have been suppressed because (1) his Miranda waiver was involuntary, and (2) the confession was coerced. Neither argument has merit. *Page 6 {¶ 17} Under the Fifth Amendment of the United States Constitution, "[n]o person * * * shall be compelled in any criminal case to be a witness against himself." Courts have interpreted the Fifth Amendment to require that suspects in police custody be warned of certain rights before questioning.7 But the Miranda warnings are required only when there is a custodial interrogation. In determining whether a custodial investigation had occurred in this case, the trial court had to consider "how a reasonable man in [Carovillano's] position would have understood his situation."8 The focus of the inquiry should have centered on whether a formal arrest or restraint of freedom had occurred: "The ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."9 {¶ 18} When a suspect voluntarily appears for an interview, and when no arrest has been made, then no custodial interrogation has occurred that would require a recitation of Miranda rights.10 In denying Carovillano's suppression motion, the trial court analogized the facts of this case to those in State v. Mason.11 {¶ 19} In Mason, a detective stopped by the defendant's house and asked whether the defendant would go to the police station for a second time for another interview, and the defendant agreed. The defendant was transported in a police vehicle to the police station, where he was interviewed by police for approximately four hours. The defendant cooperated during the interview, and at its conclusion the defendant was arrested.12 Until the arrest, the defendant was never told that he *Page 7 could not leave, and he was never handcuffed, the door was not locked, and he was left alone in the room several times. The Mason court held that the defendant had not been in custody and therefore that the police did not violate his Miranda rights when they failed to read theMiranda warnings before his confession and arrest.13 {¶ 20} In this case, Carovillano agreed to the interview the day before. He was transported to the police station in a police vehicle, but was not under arrest. Until he was arrested after the confession, he was never handcuffed, he was never told that he could not terminate the interview, and he was allowed to leave the interview room to take smoking breaks. While the interview-room door was locked for at least a portion of the interview, we are not persuaded that this converted an otherwise voluntary interview into a custodial interrogation. As we have noted, Carovillano was allowed to leave the room more than once to take a break and smoke. And throughout the interview, Carovillano questioned the interviewing officer about the likelihood of a future arrest, bolstering the conclusion that he had not been placed in custody. We are convinced that when Carovillano made his incriminating statements, no custodial investigation had occurred, and therefore that hisMiranda rights had not yet attached. {¶ 21} Even if we assume that the Carovillano interview was a custodial interrogation, he was apprised of his Miranda rights several times throughout the interview, and he read, signed, and initialed a form waiving his Miranda rights. A Miranda waiver must be voluntarily, knowingly, and intelligently made — that is, the totality of the circumstances must reveal an uncoerced choice made with a requisite *Page 8 level of comprehension.14 A signed waiver is presumptively valid — that is, it reflects that the waiver was voluntarily, knowingly, and intelligently made.15 Carovillano acknowledged during the interview that he was 19 years old, was a high-school graduate, could read and write, and had experience with the criminal justice system. Our review of the record fails to reveal any justification for excluding Carovillano's statements under Miranda v. Arizona — Carovillano'sMiranda rights were not violated because they had not attached when he made the incriminating statements, and even if it is assumed that a custodial interrogation had occurred, Carovillano's waiver of hisMiranda rights was voluntarily, knowingly, and intelligently made. {¶ 22} But even where Miranda rights have not attached, the confession must nonetheless be given voluntarily under the totality of the circumstances. A confession is involuntary if the "defendant's will was overborne by the circumstances surrounding [the confession]."16 {¶ 23} The Ohio Supreme Court has recited the boundaries of coercive conduct that may render a confession involuntary: "A confession is involuntary and violative of the United States and the Ohio Constitutions if it is the product of `coercive police activity.'17 `In deciding whether a defendant's confession is involuntarily induced, the court should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the *Page 9 length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.'"18 {¶ 24} The record reveals that Carovillano was alert, responsive, and composed during the interview. The two-hour interview was neither inordinately long nor confrontational — in fact, the transcript reflects a conversational tone. These factors weighed heavily against suppressing Carovillano's statements. But Carovillano also argues that police offers of leniency and false promises — that he could go home that day if he confessed — were coercive, and that his will was overborne by these circumstances. {¶ 25} As the trial court correctly noted, admonitions to tell the truth are uncoercive in nature — they are neither threats nor promises and are permitted.19 And the use of deceitful tactics is not dispositive of the inquiry whether a statement was involuntarily induced or coerced; rather it is merely a factor bearing on voluntariness.20 Likewise, suggestions of leniency, promises that a defendant's cooperation will be considered in the disposition of charges,21 and statements that a confession will be helpful22 do not invalidate an otherwise legal confession. {¶ 26} Our review of the record convinces us that, under the totality of the circumstances, Detective Kemper's admonitions to tell the truth and suggestions of leniency did not constitute coercive police conduct. Though Kemper arguably insinuated, before the confession, that Carovillano would not be arrested that day, *Page 10 that suggestion was justified under the facts. It is important to note that in this case, when Carovillano was interviewed, Kaylee was still alive, the police had no suspects or leads, and Carovillano was not under arrest. And if Carovillano had not confessed he would have been free to leave at the time. {¶ 27} Considering the interview in its entirety, we hold that the record reflects a confession free from the level of coercion necessary to convert what was a voluntary confession into an involuntary confession. Carovillano's will was not overborne by this conversational interview; rather, he showed some indicia of what appears to be a conscience and took responsibility for his actions. Carovillano's first assignment of error arguing that the trial court should have suppressed his confession is overruled. III. The Evidence {¶ 28} Carovillano's second and final assignment of error alleges that the evidence used to convict him was insufficient and that the conviction was against the manifest weight of the evidence. Essentially, Carovillano argues that the prosecution failed to prove that he had purposefully caused the death of Kaylee. Not so. {¶ 29} Evidence, whether it be circumstantial or direct, is sufficient to support a conviction if a reasonable trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt.23 "The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence."24 In the instant case, once the confession was properly admitted, a reasonable trier of fact *Page 11 could have found beyond a reasonable doubt that Carovillano had purposefully caused the death of Kaylee. The conviction was sustained by sufficient evidence. {¶ 30} We now consider whether the judgment was against the manifest weight of the evidence. In reviewing a manifest-weight-of-the-evidence claim, the court must review the entire record and "weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine 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."25 The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against conviction.26 After reviewing the entire record, including the facts, the confession, and the inferences arising therefrom, we are convinced that the trier of fact neither lost its way nor created a manifest miscarriage of justice in finding that Carovillano had purposefully caused the death of Kaylee by repeatedly beating her. Carovillano's second assignment of error is overruled. {¶ 31} Having found no merit in either of Carovillano's assignments of error, we affirm the judgment of the trial court. Judgment affirmed. HILDEBRANDT and DINKELACKER, JJ., concur. 1 R.C. 2907.02(A)(1)(b). 2 R.C. 2903.01(B). 3 R.C. 2903.01(C). 4 R.C. 2903.02(B). 5 R.C. 2919.229(B)(1). 6 R.C. 2907.02(A)(1)(b). 7 Miranda v. Arizona (1966), 384 U.S. 436, 479, 86 S.Ct. 1602. 8 State v. Mason (1988), 82 Ohio St.3d 144, 154,694 N.E.2d 932. 9 Id., citing California v. Beheler (1983), 463 U.S. 1121, 1125,103 S.Ct. 3517 (internal citations and quotations omitted). 10 Id. 11 Id. 12 Id. at 153. 13 Id. at 154. 14 Moran v. Burbine (1986), 475 U.S. 412, 421, 106 S.Ct. 1135 (internal citations and quotations omitted). 15 See State v. Bays (1999), 87 Ohio St.3d 15, 19, 716 N.E.2d 1126, citing United States v. Sammons (C.A.6, 1990), 918 F.2d 592, 597; see, also, State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277,872 N.E.2d 279, ¶ 10. 16 See Dickerson v. United States (2000), 530 U.S. 428, 434,120 S.Ct. 2326; State v. Chase (1978), 55 Ohio St.2d 237,378 N.E.2d 1064. 17 State v. Loza, 71 Ohio St.3d 61, 1994-Ohio-409, 641 N.E.2d 1082, quoting Colorado v. Connelly (1986), 479 U.S. 157, 167,107 S.Ct. 515. 18 Id., quoting State v. Edwards (1976), 49 Ohio St.2d 31,358 N.E.2d 1051, paragraph two of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3147. 19 See State v. Loza (1994), 71 Ohio St.3d 61, 67, 641 N.E.2d 1082;State v. Masur, 1st Dist. No. C-030692, 2004-Ohio-3131, ¶ 8. 20 See State v. Neely, 161 Ohio App.3d 99, 2005-Ohio-2342,829 N.E.2d 718, ¶ 32. 21 See State v. Julious (2001), 1st Dist. Nos. C-010048, C-010049, and C-010050, citing State v. Wilson (1996),117 Ohio App.3d 290, 294, 690 N.E.2d 574; Loza, supra. 22 See Edwards, supra, 49 Ohio St.2d at 40-41. 23 See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. 24 State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (internal citations omitted). 25 See State v. Martin, supra, 20 Ohio App.3d at 175. 26 See State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247,781 N.E.2d 980, quoting State v. Martin, supra. *Page 1

2016-07-06 06:35:58.342165+00

OPINION {¶ 1} Defendant-appellant Shawn Hahn appeals his conviction and sentence from the Perry County Court of Common Pleas on one count of possession of drugs. Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE {¶ 2} On January 21, 2005, the Perry County Grand Jury indicted appellant on one count of possession of drugs in violation of R.C.2925.11(A) and (C)(3)(d), a felony of the third degree. At his arraignment on February 9, 2005, appellant entered a plea of not guilty to the charge. {¶ 3} Thereafter, on March 15, 2005, appellant filed a Motion to Suppress. Appellant, in his motion, argued that his wife, Tiffany Hahn, lacked capacity to consent to a search of the couple's home and that, therefore, the evidence seized as a result of such search should be suppressed. {¶ 4} A suppression hearing was held on June 16, 2005. The following testimony was adduced at the hearing. {¶ 5} On September 4, 2004, Deputy Scott Ervin of the Perry County Sheriffs Office was dispatched to appellant's home in response to a domestic dispute. When he arrived at appellant's home, he observed Deputy John Russell speaking with appellant's wife, Tiffany. According to Deputy Ervin, Tiffany was upset, but appeared to be talking coherently, had no trouble with her balance and did not appear to be intoxicated. Deputy Ervin, however, did not talk to Tiffany face-to-face. {¶ 6} Deputy Ervin testified that he was in appellant's house checking for other suspects since it was his understanding that more than one person was involved in the domestic dispute. After finding no other people in appellant's house, the deputy exited the house and told Sheriff William Barker and Deputy John Russell that they needed to enter the residence since he thought he saw marijuana in the same. {¶ 7} On cross-examination, Deputy Ervin testified that when the radio call came in about the alleged domestic dispute, "there was mention of a naked lady running down the middle of the highway and someone was trying to run over her." Transcript at 9. He further testified that there was mention of possibly one other male being involved in the incident. As is stated above, Deputy Ervin did not find any other suspects in the house. {¶ 8} Perry County Sheriff William Barker was the next witness to testify at the hearing. Sheriff Barker testified that he responded to the scene because "[i]t sounded quite urgent." Transcript at 12. When he arrived on the scene, he observed Deputy Russell and a woman who was "lightly clothed", outside the residence. Transcript at 14. The woman called him by name. Sheriff Barker testified that when he asked the woman her name, "she engaged in conversation with me then; identifying she knew who I was, my daughter and my grandson." Transcript at 14. Sheriff Barker talked with Tiffany for a couple of moments and then, when appellant exited the house, he approached appellant. He later went back and spoke with Tiffany to secure permission to enter the house after Deputy Ervin reported seeing marijuana plants growing in the same. After appellant was arrested, Tiffany signed a consent to search form after Deputy Russell read the same to her. {¶ 9} Sheriff Barker testified that since they had information that Tiffany might have been at a party with appellant and might be intoxicated, he made sure that she understood what she was signing. According to the sheriff, Tiffany appeared to be upset, but appeared to understand that she was giving permission to search her house. When asked what led him to this conclusion, Sheriff Barker testified as follows: {¶ 10} "A: Her conversation and acknowledging that she knew me and I did not identify myself to her. She knew my family, my daughter, and my grandson. We engaged in that conversation for a while. I did not detect any slurred speech that would lead me to believe she was under the influence of any alcohol that might alter her ability to make a rational decision and I felt that she very clearly understood the consequences of that. She had expressed a great concern and fear that if she signed that of retaliation by Mr. Hahn. And we explained to her that he was under arrest and that she had a process. She could apply for a protection order through the court to protect her if she feared of further violence. {¶ 11} "Q: Was there any indication that she had been drinking? {¶ 12} "A: We had information that they had been at a party. They had been at a wedding. There was probably some alcohol consumed there. I was under the impression it had taken place a few hours prior to this. {¶ 13} "Q: But did you see or smell or have any indication that she personally had been consuming alcohol? {¶ 14} "A: I would say she had a slight odor of alcohol about her, yes sir. {¶ 15} "Q: How about her complexion and her eyes, how did they appear? {¶ 16} "A: Well, she had some facial injury there, if I recall right. She had been in some type of a struggle so to differentiate between the two whether she was flushed because of alcohol or because of injury I'm not certain. But I did noticed [sic] some redness about her face. I believe she had some injury to her hands or maybe here on her arms as if she had fallen or been involved in some type of a struggle. {¶ 17} "Q: Did her eyes appear to be blood shot or glassy? {¶ 18} "A: I would say there was probably some slight sign of that sir. {¶ 19} "Q: Did she have any trouble standing and talking with you? {¶ 20} "A: No. she walked all around Deputy Russell and I right there and stood there. We stood outside that residence there for quite a number of minutes explaining to her this particular procedure here, of signing the consent to search. We stood outside there for quite some time. {¶ 21} "Q: She did not exhibit any signs that she did not understand your explanation? {¶ 22} "A: Not to me sir, no." Transcript at 18-19. The sheriff, when asked, testified that he did not believe that Tiffany was under the influence of alcohol to a degree to "impede her decision." Transcript at 19. {¶ 23} Perry County Deputy Lee Findlay also testified at the suppression hearing. When Deputy Findlay arrived on the scene, Tiffany recognized him and called him by his first name. The deputy testified that he had not seen Tiffany, who was related to one of his former relatives, for approximately ten years. Deputy Findlay testified that he could smell alcohol on Tiffany's breath, but that there was no evidence that she was intoxicated to the point where she did not understand what was going on. According to the deputy, Tiffany's speech was not slurred and she did not have any problem with her balance. The deputy further testified that Tiffany's eyes were red and that she was crying when he arrived on the scene. {¶ 24} At the suppression hearing, Deputy Sheriff John Russell of the Perry County Sheriff's Office also testified. Deputy Russell testified that when he arrived at appellant's house, a naked female was in the yard. The deputy identified the female as Tiffany Hahn. According to the deputy, Tiffany was running towards him with appellant behind her. Deputy Russell testified that he then radioed his office and told it that he had two suspects approaching him in the driveway and also told Tiffany to go into the house and put on some clothes. {¶ 25} Deputy Russell further testified that he read the consent to search form verbatim to Tiffany. According to Deputy Russell, Tiffany indicated that she understood what was going on, but that she was scared for her life. When asked if Tiffany showed signs of intoxication, Deputy Russell testified that Tiffany smelled of alcohol but appeared to be coherent and was able to explain the events of the evening to him. Deputy Russell also testified that Tiffany had no problem with balance and "understood everything because she followed everything I asked her to do. So I think she was completely capable of understanding everything I said. Transcript at 46. {¶ 26} On cross-examination, Deputy Russell testified that Tiffany was aware of the marijuana in the house and voiced concerns that she would be in trouble because of the same. {¶ 27} After the State rested, appellant called Jeffrey Hannan, Tiffany's father, to the stand. Hannan testified that Tiffany called him on September 4, 2004, and asked him to come get her at the hospital where she had been transported. According to Hannan, Tiffany was "pretty intoxicated" when he picked her up between 10:00 and 11:00 P.M. Transcript at 53. Hannan further testified that Tiffany's eyes were red, her speech was slurred, she was not acting normally and she was not mentally coherent. According to Hannan, when he took Tiffany to the sheriffs office the next morning to rewrite her statement, she was hung over. {¶ 28} At the suppression hearing, Tiffany testified that she had been with appellant at a wedding reception on the afternoon of September 4, 2004, and that she drank one drink after another. According to Tiffany, the two left the wedding reception because she was drunk and was having trouble keeping her balance and behaving. Tiffany further testified that she was intoxicated, having trouble keeping her balance and slurring her words when she spoke with Deputy Russell and was still intoxicated when her father picked her up later that evening at the hospital. {¶ 29} During her testimony, Tiffany testified that she recalled writing a statement of what happened on the night in question. She further testified that she did not sign the consent to search form voluntarily, but did so after being threatened that she could go to jail if she did not sign the same. {¶ 30} On cross-examination, Tiffany testified that she did not know that Sheriff Barker had a grandson and did not remember talking to Deputy Findlay. {¶ 31} Appellant also testified at the suppression hearing. Appellant, who was a groomsman at the wedding, testified that he left the wedding reception with Tiffany after she threatened four times to beat up the bridesmaid with whom he was paired. According to appellant, Tiffany drank twelve drinks, her speech was slurred and she was really loud and her balance was impaired. {¶ 32} As memorialized in an Entry filed on July 11, 2005, the trial court denied appellant's Motion to Suppress without giving its reasons for doing so. Thereafter, on July 13, 2005, appellant pleaded no contest to possession of drugs in violation of R.C. 2925.11(A) and (C)(3)(d). Pursuant to a Judgment Entry filed on August 31, 2005, appellant was sentenced to one year in prison and fined $1,000.00. In addition, his driver's license was suspended for a period of six (6) months. {¶ 33} Appellant now raises the following assignment of error on appeal: {¶ 34} "THE TRIAL COURT ERRED BY OVERRULING DEFENDANT'S MOTION TO SUPPRESS TANGIBLE EVIDENCE AND STATEMENTS." I {¶ 35} Appellant, in his sole assignment of error, argues that the trial court erred in denying appellant's Motion to Suppress. Appellant specifically contends that Tiffany's consent to search the premises was not valid due to her intoxication. {¶ 36} Preliminarily, we note that the following standard governs our review of a trial court's decision regarding a motion to suppress: "[W]e are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard." State v. Retherford (1994),93 Ohio App.3d 586, 592, 639 N.E.2d 498; State v. Curry (1994), 95 Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; State v. Guysinger (1993),86 Ohio App.3d 592. In a motion to suppress, the trial court assumes the role of trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v.Guysinger (1993), 86 Ohio App.3d 592, 594, 621 N.E.2d 726. (Citations omitted). In Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 81,461 N.E.2d 1273, the Ohio Supreme Court explained: "[a] reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not." See, also State v.DeHass (1967), 10 Ohio St.2d 230, syllabus 1. {¶ 37} Crim. R. 12(F) requires a court ruling on a pre-trial motion to state its essential findings on the record if, as in the case sub judice, factual issues are involved. {¶ 38} In order to invoke this provision, trial counsel must request the trial court to state its essential findings of fact on the record.State v. Benner (1988), 40 Ohio St.3d 301, 317, 533 N.E.2d 701, abrogated in part on other grounds by Horton v. California (1990),496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112.; State v. Richey (1992),64 Ohio St.3d 353, 366, 595 N.E.2d 915, 927, abrogated in part on other grounds by State v. McGuire (1997), 80 Ohio St.3d 390, 402,1997-Ohio-335, 686 N.E.2d 1112, 1122; State v. Brown (1992),64 Ohio St.3d 476, 481, 597 N.E.2d 97, 101. ([The defendant's] failure to invoke the rule waived any error). State v. Williams (1977), 51 Ohio St.2d 112,364 N.E.2d 1364. State v. Eley (1996), 77 Ohio St.3d 174, 179,672 N.E.2d 640, superseded by constitutional amendment in part State v.Smith (1997), 80 Ohio St.3d 89, 103 at n. 4, 684 N.E.2d 668, 684. {¶ 39} While it is error for the trial court to fail in providingrequested findings of fact, it is not prejudicial where the record provides an appellate court with a sufficient basis to review the assignments of error. State v. Benner, supra, at 317-318,533 N.E.2d 701; State v. Loza (1994), 71 Ohio St.3d 61, 73, 641 N.E.2d 1082, 1098. ["Upon an independent review of the record, we find the evidence supports the denial of appellant's motion to suppress."]. State v.Alexander (1997) 120 Ohio App.3d 164, 169, 697 N.E.2d 255, appeal dismissed, 80 Ohio St.3d 1408, 684 N.E.2d 702; State v. Jarvis (May 12, 2000), 6th Dist. No. L-99-1184; State v. Gibson (July 7, 1999), 9th Dist. No. 97CA006967. {¶ 40} The record shows that appellant did not ask the court for findings of fact relating to the motion to suppress. Although the record is devoid of the trial court's findings of facts, the record is sufficient to allow a full review of appellant's claim on appeal regarding his motion to suppress. The transcript from the motion to suppress hearing provides this court with a sufficient basis to determine whether the trial court's decision was supported by competent, credible evidence. State v. Sapp, 2nd Dist. No. 99CA84, 2002-Ohio-6863 at ¶ 59. See also, State v. Brown (1992), 64 Ohio St.3d 476, 482,1992-Ohio-96, 597 N.E.2d 97, 101. ["Accordingly, we hold that when a defendant makes no request to the trial court to state findings of fact in support of an order overruling a motion to dismiss on speedy trial grounds, and the trial court does not state its findings of fact, an appellate court errs in reversing a conviction on the ground that the defendant was denied a speedy trial if there is sufficient evidence demonstrating that the trial court's decision was legally justified and supported by the record".]; State v. Loza, supra. {¶ 41} In the case at bar, the State attempted to justify the officer's entry into the home on the basis that appellant's wife, Tiffany, consented to the intrusion. {¶ 42} "[W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent." Schneckloth v. Bustamonte (1973), 412 U.S. 218,248-49 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854,875. {¶ 43} Appellant, on the other hand, does not argue that Tiffany refused to give consent for the officer to enter the home. Rather, he contends that she was too intoxicated to have knowingly, intelligently and voluntarily consented to the entry. {¶ 44} Evidence of intoxication, without more, does not compel the conclusion that an individual's decision to waive his or her constitutional rights was made involuntarily and must be suppressed.State v. Stewart (1991), 75 Ohio App.3d 141, 147, 598 N.E.2d 1275;State v. Christopher (April 27, 1989), Montgomery App. No. 10870. The standard is whether, by reason of intoxication or other factor, the individual's "will was overborne" or whether his consent was the "product of a rational intellect and a free will." Townsend v. Sain (1963), 372 U.S. 293, 307, 83 S.Ct. 745, 754; Colorado v. Connelly (1986), 479 U.S. 157, 164,107 S.Ct. 515, 164. ["While a defendant's mental condition may be a `significant' factor in the `voluntariness' calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional `voluntariness.'"]. {¶ 45} As an appellate court, we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries (February 10, 1982), Stark App. No. CA-5758. {¶ 46} As noted in the Statement of Facts, supra, the record contains competent, credible evidence in the form of the testimony of the officers who responded to the scene that Tiffany's consent was freely and voluntarily given. Although she had been drinking the officers testified that her consent was the "product of a rational intellect and a free will." Although the appellant testified and presented testimony that Tiffany was intoxicated and had been threatened with arrest if she did not consent to the search of her home, the trier of fact was free to accept or reject any and all of the evidence offered by the appellant and assess the witness's credibility. Indeed, the trier of fact need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State v. Antill (1964), 176 Ohio St. 61, 67,197 N.E.2d 548.; State v. Burke, Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096. {¶ 47} Based upon the above evidence, we conclude the state met its burden in establishing that Tiffany knowingly, voluntarily and intelligently waived her rights. Tiffany's will was not overborne by the level of alcohol in her system at the time of the officer's obtained her consent to search the residence. The record also indicates she was not physically deprived or mistreated. Accordingly, Tiffany's consent was the "product of a rational intellect and a free will". {¶ 48} Subsequent to the trial court's decision in the case at bar overruling appellant's motion to suppress, the United State Supreme Court held that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable to him on the basis of consent given to the police by another resident." Georgia v. Randolph (2006),126 S.Ct. 1515, 1526, 164 L.Ed.2d 208. {¶ 49} In the case at bar, the record establishes that Sheriff Barker and Officer Ervin made contact with the appellant on the front porch of the residence. Sheriff Barker asked if they could enter the residence and look for other suspects. (T. at 5). Officer Ervin testified that the appellant affirmatively gestured to go ahead and look. (T. at 79). Sheriff Barker testified that the appellant verbally told him they could go ahead and look as he gestured that it was alright. (T. at 22-23; 28; 93). Deputy John Russell testified that appellant verbally consented to the officers entering the house. (T. at 40-41).The appellant testified that he denied them access and told Officer Ervin to get the hell out. (T. at 75; 76). Both Sheriff Barker and Officer Ervin denied that he ever said this and asserted that permission to enter was granted. (Tr. at 79; 93). {¶ 50} Accordingly, the record contains competent, credible evidence in the form of the testimony of the officers who responded to the scene that appellant consented to the search of the home. {¶ 51} In Georgia v. Randolph, supra, the Court made the following observation relevant to the case at bar: "But this case has no bearing on the capacity of the police to protect domestic victims. The dissent's argument rests on the failure to distinguish two different issues: when the police may enter without committing a trespass, and when the police may enter to search for evidence. No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would commit a tort by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur, however much a spouse or other cotenant objected. (And since the police would then be lawfully in the premises, there is no question that they could seize any evidence in plain view or take further action supported by any consequent probable cause, see Texas v. Brown, 460 U. S. 730, 737-739 (1983) (plurality opinion).) Thus, the question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes. See 4 LaFave § 8.3(d), at 161 ("[E]ven when . . . two persons quite clearly have equal rights in the place, as where two individuals are sharing an apartment on an equal basis, there may nonetheless sometimes exist a basis for giving greater recognition to the interests of one over the other. . . . [W]here the defendant has victimized the third-party . . . the emergency nature of the situation is such that the third-party consent should validate a warrantless search despite defendant's objections" (internal quotation marks omitted; third omission in original)). The undoubted right of the police to enter in order to protect a victim, however, has nothing to do with the question in this case, whether a search with the consent of one cotenant is good against another, standing at the door and expressly refusing consent". {¶ 52} In the case at bar, the officers testified that they were dispatched to appellant's home in response to a domestic dispute. The record contains evidence that Tiffany had some facial injury, as well as injury to her hands and arms. (T. at 43). When Deputy Ervin arrived, appellant was inside the house. (T. at 5). The officer entered the home to make a sweep for other individuals. (Id. at 5; 11). The officers believed that more than one suspect was involved in the dispute with Tiffany. (Id. at 16; 21; 24-25). The officers entered the residence to insure that it was safe for Tiffany to return. (T. at 30). The marijuana was in plain view inside the house. (Id. at 9-10). {¶ 53} In the case at bar, where the defendant has victimized the third-party the emergency nature of the situation is such that the third-party consent should validate a warrantless search despite appellant's objections. Georgia v. Randolph, supra. {¶ 54} The record in the case at bar provides this court with a sufficient basis to determine that the trial court's decision overruling appellant's motion to suppress was supported by competent, credible evidence. {¶ 55} Appellant's sole assignment of error is overruled. {¶ 56} Accordingly, the judgment of the Perry County Court of Common Pleas is affirmed. By: Gwin, P.J., Hoffman, J., and Edwards, J., concur. JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Perry County Court of Common Pleas is affirmed. Costs assessed to appellant.

2016-07-06 06:35:58.397607+00

OPINION {¶ 1} This matter is before the Court on the Notice of Appeal of Brian Jackson, filed August 8, 2008. On April 27, 2008, Jackson, an emergency power line employee at Duke Energy, was arrested for operating a vehicle while under the influence, in violation of *Page 2 R.C. 4511.191(A)(1)(a). At the time of his arrest, Jackson refused to submit to a chemical test of his blood, breath or urine, and his personal and commercial drivers' licenses were immediately subject to administrative suspension ("ALS"). On May 2, 2008, Jackson was arraigned in Kettering Municipal court, case number 08 TRC 05401. {¶ 2} This matter's convoluted procedural history began on August 1, 2008, when Jackson filed a "Supplemental Brief of ALS Appeal," captioned"Brian Jackson v. Ohio Bureau of Motor Vehicles" case number 08 CVV 0279, appealing "the Administrative License suspension placed upon his license and his commercial driving license." Jackson's Supplemental Brief asserted, "4511.197(C) requires that operators be informed of theconsequences of refusing to be tested or of submitting to the test. In the instant case, this did not occur. Thus, pursuant to 4511.197(D) this court must terminate the administrative suspension due to the arresting officer's failure to advise the operator of the consequences of refusing a chemical test as subscribed by R.C. 4511.197(C)." {¶ 3} On August 8, 2008, the municipal court issued an Entry that provided: "* * * The Court notes the Petitioner filed his Petition for Limited Driving Privileges on May 29, 2008 in Case 08CVV192. The Court is unclear why the Petitioner filed his Supplemental Brief under a separate case number rather than the initial filing relating to the ALS. {¶ 4} "The Court notes the Defendant was charged on April 27, 2008 with a violation of Section 4511.19, R.C, and was subsequently arraigned on April 28, 2008 [sic]. The Petitioner's original ALS filing in 08CVV192 was filed May 29, 2008, and the aforementioned Supplemental Brief was filed August 1, 2008. {¶ 5} "* * * The court notes the Petitioner's initial request under the ALS suspension *Page 3 for driving privileges was substantially filed within the 30 day period [See R.C. 4511.19]. However, the Supplemental Brief was not filed until more than 60 days after the deadline for filing an appeal of the ALS. The Court finds the Petitioner's attempt to contest the ALS by a filing more than 60 days after the filing deadline does not comply with the statutory language governing the same. The Petitioner's appeal of his ALS suspension is overruled due to filing his appeal out of time." {¶ 6} On August 15, 2008, Jackson filed a "Motion to Reconsider Petitioner's Appeal of ALS Suspension." On October 14, 2008, the municipal court overruled Jackson's motion to reconsider, and Jackson filed a Notice of Appeal on November 12, 2008. {¶ 7} Jackson also filed a Motion to Stay Execution of Judgment on November 12, 2008, which the municipal court overruled the following day. On November 18, 2008, Jackson filed a "Motion to Stay Execution of Judgment (Expedited Review Requested)" herein. We issued an Order in response on November 25, 2008, directing the Registrar of Motor Vehicles ("Registrar") to respond to Jackson's Motion and to address Jackson's prior traffic record. We further noted that Jackson "appealed from the court's judgment overruling his August 15, 2008 motion to reconsider. Because a motion for reconsideration is a nullity, a ruling made on such a motion does not form the basis for an appeal." We ordered Jackson "to show cause why his appeal should not be dismissed for lack of a final appealable order." {¶ 8} On December 10, 2008, Jackson filed a "Motion to Establish Appealable Order," alternatively requesting "leave to file under the Criminal Case number that tracked concurrently with the instant case." On December 11, 2008, the Registrar filed a response to Jackson's motion to stay. On December 26, 2008, the Registrar filed a Motion to Dismiss Jackson's *Page 4 Appeal, arguing that the municipal's court's August 8, 2008 entry was a final appealable order, and that Jackson lost the opportunity to appeal this entry when he failed to file a notice of appeal within 30 days. {¶ 9} On January 6, 2009, we issued a "Decision and Entry" addressed to the above filings. We overruled Jackson's motion to stay the execution of the October 14, 2008 judgment of the municipal court. We reiterated our earlier determination that "a motion for reconsideration is a nullity, [and] a ruling made on such a motion does form the basis for an appeal." We further noted, however, that pursuant to Civ. R. 58(B), the "record * * * does not demonstrate that the clerk served Jackson with notice of the August 8, 2008 entry overruling Jackson's appeal of his ALS suspension as untimely. Therefore, Jackson's time to appeal from said order has not yet begun to run." We overruled the Registrar's motion to dismiss, ordering Jackson to amend his notice of appeal to include the trial court's August 8, 2008, entry overruling the appeal of his ALS suspension as untimely. {¶ 10} On January 8, 2009, Jackson filed an "Amended Notice of Appeal," indicating that he appeals from the August 8, 2008 entry. {¶ 11} Jackson asserts one assignment of error as follows: {¶ 12} "THE TRIAL COURT ERRED IN FINDING THAT APPELLANT DID NOT FILE HIS ADMINISTRATIVE LICENSE SUSPENSION APPEAL WITHIN THE TIME REQUIREMENTS OF O.R.C. § 4511.197." {¶ 13} According to Jackson, at his initial appearance on May 2, 2008, under case number 08 TRC 05401, he "appealed the ALS imposed upon him. * * * This was the only case number opened under the Defendant's name at his initial appearance and the case number *Page 5 wherein the Ohio Bureau of Motor Vehicles suspension form 2255 was placed. A pre-trial conference was set for May 29, 2008, under case number 08 TRC 05401. {¶ 14} "* * * On May 29, 2008, upon paying an eighty-five dollar filing fee, Defendant filed for limited privileges which was assigned a civil case number 08 CVV 00192. On May 30, 2008, Defendant was granted limited driving privileges; however, his occupational driving privileges were not extended to the CDL portion of his license due to the operation of O.R.C. § 4506.161. {¶ 15} * * {¶ 16} "* * * On July 9, under case number 08 TRC 05401, an ALS hearing was scheduled for July 22, 2008. On July 22, 2008, the ALS hearing was converted into a Status hearing with the trial court and prosecutor whereupon the issues of notice and compliance, the crux of Appellant's ALS appeal, were discussed. On August 1, 2008, Appellant filed a Supplemental Brief to assist the trial court in making a decision regarding the ALS Suspension. Curiously, Appellant was required to file and pay for costs, under a new civil case number 08 CVV 00279, to have this Supplemental Brief filed. * * * {¶ 17} "Thereafter, on October 21, 2008, the Defendant voluntarily entered a change of plea on the charge of physical control under the influence in violation of O.R.C. § 4511.194. As part of the sentence, the Defendant was sentenced to 180 day jail term with 177 suspended for and three days served at a Weekend Intervention Program. The ALS was not terminated and remained/remains in effect, with no modification to the previously ordered limited driving privileges. {¶ 18} * * *Page 6 {¶ 19} "* * * Unfortunately, it appears as though the trial court chose to accept the Supplemental Brief as an original appeal of the ALS and struck the appeal for being filed out of time. This is incorrect as Appellant had clearly appealed the ALS on his initial filing on May 2, 2008. * * * The Supplemental Brief was to merely assist the trial court in rendering a decision surrounding the ALS form and the proper notice requirements." {¶ 20} Attached to Jackson's brief is a pleading in case number 08 TRC 05401, captioned State of Ohio v. Brian Jackson, and styled, "Notice of Appearance, Plea of Not Guilty, Time Waiver, Request for Pre-trial Discovery and Initial Appeal of ALS Suspension." The document bears a time stamp of May 2, 2008. It provides in relevant part, "* * * Defendant herein preserves any appellate rights concerning the ALS suspension." {¶ 21} According to Jackson, the trial court's decision deprived him of due process and an opportunity to be heard, in reliance in part onState v. Norman, Knox App. No. 2005CA00022, 2005-Ohio-5791. {¶ 22} The Registrar responds, "Where the appellant never sought a continuance of his ALS appeal, and never specified the basis of his ALS challenge until more than ninety days after his initial appearance, the trial court did not abuse its discretion in dismissing the ALS appeal as untimely." {¶ 23} A trial court's procedural rulings will not be reversed absent an abuse of discretion. Harmon v. Baldwin, 107 Ohio St.3d 232, 837 N.E.2d 1196, 2005-Ohio-6264, ¶ 16. "`Abuse of discretion' connotes an unreasonable, arbitrary, or unconscionable attitude.'" Id. (citation omitted). {¶ 24} R.C. 4511.197(A) provides, "If a person is arrested for operating a vehicle, * * * *Page 7 in violation of division (A) * * * of section 4511.19 of the Revised Code * * * and if the person's driver's license or commercial driver's license * * * is suspended under section 4511.191 of the Revised Code, the person may appeal the suspension at the person's initial appearance on the charge resulting from the arrest or within the period ending thirty days after the person's initial appearance on that charge, * * * If the person appeals the suspension, either the person or the registrar of motor vehicles may request a continuance of the appeal, and the court may grant the continuance. * * * ." {¶ 25} "The Ohio Supreme Court has stated that these `appeal provisions provide an aggrieved licensee with an adequate means of obtaining prompt post-suspension review of an administrative license suspension.' State v. Hochhausler (1996), 76 Ohio St.3d 455, 461. Consistent with the Supreme Court of Ohio, in State v. Frame (May 24, 1999), 5th Dist. No. CA-881, the court rejected the contention that an ALS suspension should be filed as a separate civil action because `such a proposition only serves to frustrate the purpose of the statute by creating an unnecessary hurdle for the aggrieved licensee.' Id. at 8-9. "R.C. 4511.197 does not expressly provide the procedure a trial court must follow in reviewing an appeal of an ALS.State v. Norman, 5th Dist. No. 2005CA00022,2005-Ohio-5791, ¶ 17. However, `the statute clearly provides for an appeal as a means to seek relief from an administrative license suspension' and `inherent in an ALS appeal is an opportunity for an individual to be heard.'" State v. Mallin, Ottawa App. No. OT-06-040,2007-Ohio-4476, ¶ 22-23. {¶ 26} While the trial court determined that Jackson's Supplemental Brief "does not comply with the statutory language" of R.C. 4511.197(A), the statute does not specifically set forth the procedure required to perfect an appeal. As an aside, we note that the parties agreed at *Page 8 oral argument that Kettering Municipal Court required Jackson to pay a separate $85.00 filing fee, and that the court clerk designated the filing as a separate civil action. It is uncontested that on May 2, 2008, the date of his arraignment, Jackson filed an "* * * Initial Appeal of ALS Suspension," in case number 08 TRC 5401. Given the absence of instruction in R.C. 4511.197(A), we conclude that Jackson's May 2, 2008 filing was sufficient to perfect his ALS appeal. Accordingly, the trial court abused its discretion in determining that Jackson's ALS appeal was untimely. Reversed and remanded. FROELICH, J. and WOLFF, J., concur. (Hon. William H. Wolff, Jr., retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio). Copies mailed to: Thomas M. Kollin, John T. Williams, Hon. Thomas M. Hanna. *Page 1

2013-10-30 07:38:20.314569+00

Wright

678 So. 2d 1187 (1996) Leigh C. HAND v. GREENSPRINGS STORAGE. 2950608. Court of Civil Appeals of Alabama. June 14, 1996. James H. McFerrin, Birmingham, for Appellant. Walter J. Price III of Huie, Fernambucq & Stewart, Birmingham, for Appellee. L. CHARLES WRIGHT, Retired Appellate Judge. Leigh Hand appeals from a summary judgment entered in favor of Greensprings Storage. This case is before us pursuant to § 12-2-7(6), Code 1975. This case involves an automobile accident which occurred on August 24, 1993. A vehicle driven by John Kelly allegedly struck the vehicle operated by Hand. *1188 In December 1993 Hand filed an action against John Kelly and Greensprings Storage, alleging that Kelly was an employee or agent of Greensprings Storage and that at the time of the accident, Kelly was driving a truck owned by Greensprings Storage. John Kelly was never served with the complaint. Greensprings Storage filed a motion for a summary judgment. The motion was supported by an affidavit of John Overby, the president of the corporation that operates Greensprings Storage. Overby averred as follows: "Greensprings Storage is owned by Milton Dommitt. Greensprings Storage is not incorporated. Greensprings Storage is in the self-storage business and it does not own or rent any trucks or other vehicles. In addition, Greensprings Storage did not own or rent any trucks or other vehicles on August 24, 1993. Greensprings Storage does not have any employees and did not have any employees on August 24, 1993." In response to Greensprings Storage's motion, Hand filed an affidavit, in which she stated the following: "Milton Dommitt came to the scene of the accident and told me that his company, Greensprings Storage, was responsible for the accident and would take care of all expenses. I had been told during my inspection, which was prior to the accident, that Mr. Dommitt was the owner of Greensprings Storage and other businesses located within the same location. It was made clear to me from the conversation with Mr. Dommitt that Mr. Kelly was either an employee or agent of Greensprings Storage." The trial court found that there was no genuine issue of fact and that Greensprings Storage was entitled to a summary judgment as a matter of law. A motion for a summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. McDonald v. Servpro, 581 So. 2d 859 (Ala.Civ.App.1991). If the moving party makes a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to go forward with evidence demonstrating the existence of a genuine issue of fact. Grider v. Grider, 555 So. 2d 104 (Ala.1989). In order to defeat a properly supported summary judgment motion, the nonmovant must create a genuine issue of material fact by presenting substantial evidence. McDonald. Pursuant to Rule 56(e), Ala.R.Civ.P., an affidavit opposing the motion must be based on personal knowledge, must set forth facts that would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated. Black v. Reynolds, 528 So. 2d 848 (Ala.1988). In her affidavit Hand stated that "[i]t was made clear to me from the conversation with Mr. Dommitt that Mr. Kelly was either an employee or agent of Greensprings Storage." "It is incumbent upon the nonmovant to support such assertions with admissible evidence, such as actual documents or affidavits of witnesses. Hearsay cannot create an issue of fact." Black. Although this case was filed in December 1993, Hand did not use any discovery tools to present evidence to dispute Greensprings Storage's supporting evidence. Concerning Kelly's employment status, Hand could have easily obtained such items as payroll records, payroll tax records, and time sheets. In order to rebut Greensprings Storage's showing that it did not own the truck driven by Kelly, Hand could have obtained evidence by way of a title search or county license registration records. Hand, however, made no such discovery requests. Hand's unsupported statements do not constitute substantial evidence. Her claim that Kelly was an employee or agent of Greensprings Storage is nothing more than speculation or conjecture, which cannot be used to create a genuine issue of material fact. Black. The judgment of the trial court is affirmed. The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status *1189 as a judge of this court under the provisions of § 12-18-10(e), Code 1975. AFFIRMED. ROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur.

2016-07-06 06:35:58.5866+00

DECISION Defendant-appellant, David Ronald Weaver, appeals a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, vacating a November 18, 1988 judgment entry for insufficient service and notice to plaintiff-appellee, Varanee Elm Weaver n.k.a. Inkanangkul. Appellant presents the following two assignments of error for review: I. THE TRIAL COURT ERRED IN FINDING THAT THE SERVICE OF PROCESS BY CERTIFIED MAIL ON THE PLAINTIFF WAS DEFECTIVE. II. THE TRIAL COURT ERRED FINDING THAT THE REQUIREMENTS OF RULE 60(B) HAD BEEN MET ENTITLING THE PLAINTIFF TO RELIEF. The parties were divorced in February 1984; appellee was granted custody of the parties' two minor children, subject to reasonable visitation with appellant. Appellant was ordered to pay child support of $40 per week, per child; additionally, appellant was ordered to pay child support of $20 per week for five years for another son of appellee's for whom appellant had assumed a support obligation. In May 1984, the court modified visitation and ordered that the minor children were not to be removed from the court's jurisdiction without permission. On September 9, 1988, appellant filed a motion pursuant to Civ.R. 60(B) or, alternatively, pursuant to R.C. 3109.05, asking the court for an order vacating the order that he pay child support effective April 5, 1984, or, in the alternative, suspending any possible accrual of child support until appellee complied with previous orders of the court. Appellant served a copy of the motion on appellee by means of certified mail posted on September 22, 1988, and addressed to "VARANEE EIM [sic] INKANANGKUL `WEAVER' C/O 1046 NAKONCHAISEE RD P.O. BOX 3-105, DUSIT BANGKOK, THAIL." The return receipt indicates that it was signed on October 17, 1988; however, the name of the person who signed it is illegible. On November 18, 1988, the trial court issued a judgment entry adopting the referee's report and overruling appellant's motion for relief from judgment, pursuant to Civ.R. 60(B), but suspending accrual of any child support arrearages effective April 5, 1984, until appellee returned the children to the jurisdiction of the court. "At that time, defendant'[s] liability for child support since that date maybe [sic] determined upon the filing of an appropriate motion." The referee's report included findings of fact that appellee did not appear at the hearing and that service of process was perfected upon appellee, pursuant to Civ.R. 4, by certified mail. The referee also found that appellee moved to Thailand with the minor children shortly after the April 5, 1984 order, appellee was a citizen of Thailand and, to the best of appellant's knowledge, she continued to reside there with the children. On January 27, 1999, appellee filed an amended motion to vacate the judgment entry concerning the suspension of child support pursuant to Civ.R. 60(B). A hearing on appellee's motion was held before a magistrate on May 14, 1999. Appellee testified at this hearing, and stated that, in November 1984, she and the children went to live at her mother's house in Thailand at 1038 Nakonchaisee Road, Dusit, Bangkok. Appellee's mother's house in Bangkok was part of a family compound consisting of several buildings whose street numbers were 1036 through 1048, and included 1046. The buildings in the compound that were on the street housed businesses run by appellee's brothers. Appellee's mother's house was behind the business buildings. Appellee testified that her mother's house had its own mail box and that there was no post office box. Appellee left her children with her mother in Thailand and returned to the United States in November 1985, where she lived in Florida. Appellee did not return to Thailand until June 1988, when she went to visit her children at her mother's. Appellee's passport established that she went to Bangkok on June 27, 1988, and returned to the United States on September 26, 1988. Appellee denied receiving service of the motion. Appellee testified that her address before and after her trip to Thailand, in 1988, was 3205 Apt G, Chipper Lake Lane. She testified that she had lived at this address for a year at this time. A letter from appellee to her former attorney indicates that this address is actually Whisper Lake Lane, Winter Park, FL 32792. Appellee testified that appellant knew she was in the United States and had her work number and home phone number at her Chipper Lake address, and called her at it in 1987 and 1988. Appellee did not testify that appellant had her address. Appellee testified that she learned of the September 9, 1988 motion for the first time in 1997, when she attempted to enforce her child support order. Appellant and his family traveled to Bangkok in July 1988, to visit his children. When appellant arrived at the compound, he saw his children, but testified they were quickly picked up and moved to the back of the compound, and appellant was not permitted to see them. Appellant also spoke to appellee at this time in front of the compound. Appellant believed that appellee traveled to Thailand when she learned of his plans to visit the children. Appellant had sent appellee a message to her brother's office in Thailand of his planned trip to Bangkok, and had apparently spoken to her in Florida before his departure. Appellant explained that all communications with appellee, except telephone calls, had to go through Thailand because appellee did not allow anyone to have her Florida address. Appellant testified that he had previously visited the family compound in Thailand, and that all the mail to the compound went to 1046 Nakonchaisee Road. Appellant vehemently denied knowing appellee's address in Florida, other than that it was in the Orlando area; however, appellant did know appellee's telephone number. Appellant did not indicate what effort, if any, he made to learn appellee's address in Florida. Appellant stated that, to the best of his knowledge, at the time the motion was filed he believed appellee's address was in Thailand. Appellant testified that he had spoken to appellee and suggested that she give him custody of the children since she was in Florida and they were in Thailand. Appellee allegedly responded that "she was going to come back to Thailand." Additionally, when appellee blocked appellant's attempts to visit the children in Bangkok, he testified she told him she was going to stay in Thailand with the children. Appellant also testified that he had direct contact with appellee several times after the November 1988 hearing on his Civ.R. 60(B) motion and that she was aware of the court's ruling on the motion. The magistrate noted that the certified mail return receipt was signed by a person other than appellee on October 17, 1988, after appellee had returned to the United States, that the building number of the service address was not for the building where appellee's mother resided, and that there was no post office box at the compound. The magistrate also found no evidence that service of the motion was forwarded to appellee, who had testified that she had no notice or knowledge of the 1988 proceedings until 1997. Citing Civ.R. 75(J), the magistrate stated that all motions must be served in accordance with Civ.R. 4 through 4.6, and that service must be issued to a party where it would be reasonably calculated that the party would receive notice of the proceeding and have an opportunity to respond. The magistrate found: * * * While defendant may have had good reason to believe that service could be obtained on plaintiff in Thailand, the address was defective in that the street number was inaccurate and there was no P.O. Box at that location. Further, plaintiff was not physically present at the address when the service was received, and there is nothing to indicate that anyone at the address ever attempted to see that plaintiff was made aware of the service, or that they even had a duty to do so. Accordingly, the magistrate finds that service upon plaintiff for the 1988 proceedings was insufficient and that the order suspending the accrual of arrears should be vacated. The magistrate ordered that the November 18, 1988 judgment entry be vacated for insufficient service and notice to appellee. Appellant objected to the magistrate's decision. Following a hearing on the objections, the trial court issued a decision overruling appellant's objections and ordering the parties to comply with the magistrate's decision. Under his first assignment of error, appellant asserts that the trial court erred when it found that service of process by certified mail on appellee was defective. When a party files a Civ.R. 60(B) motion in a domestic relations court, Civ.R. 5 governs service of the 60(B) motion.McCort v. McCort (July 20, 1989), Cuyahoga App. No. 55521, unreported. However, appellant's motion was not solely a Civ.R. 60(B) motion, appellant alternatively asked the court to suspend accrual of child support pursuant to R.C. 3109.05. Thus, appellant essentially sought a modification of the child support order. A request for modification of child support invokes the continuing jurisdiction of the domestic relations court. Bellamyv. Bellamy (1996), 110 Ohio App.3d 576, 580. Consequently, the service requirements for such a motion are different than for a Civ.R. 60(B) motion. Civ.R. 75(I) provides that, when continuing jurisdiction of a court is invoked, service must be made in a manner provided for service of process in Civ.R. 4 through 4.6. A court does not have continuing jurisdiction to consider a motion for modification of support when the service requirements of Civ.R. 75(I) and, thus, Civ.R. 4 through 4.6, have not been met.Hansen v. Hansen (1985), 21 Ohio App.3d 216, 218. See, also,Curp v. Curp (July 16, 1990), Montgomery App. No. 12059, unreported. The requirements of Civ.R. 75(I) and Civ.R. 4 are mandatory, and failure to serve a party against whom a motion is made as required by those rules constitutes a failure to perfect personal jurisdiction over that party. Because appellant sought both Civ.R. 60(B) relief and modification of the child support order under the court's continuing jurisdiction, appellant needed to comply with the stricter service requirements of Civ.R. 75(I). Civ.R. 4.5 addresses process in a foreign country. Civ.R. 4.5(B) provides that, when service is made by any form of mail requiring a signed receipt, proof of service "shall include a receipt signed by the addressee or other evidence of delivery to the addressee satisfactory to the court." (Emphasis added.) Appellant does not dispute appellee's statement that she did not sign the certified mail receipt. Additionally, the trial court found no evidence that appellee had received process of the motion. The record supports the trial court's finding. The service was not addressed to the residence of appellee's mother, but instead to a business owned by appellee's brother. Additionally, appellee testified that she did not receive it and established that she was no longer in Thailand when the certified mail was delivered. Accordingly, the trial court did not err when it found that service of appellant's motion on appellee was defective. Appellant's first assignment of error is overruled. In his second assignment of error, appellant asserts that the trial court erred when it found that appellee was entitled to Civ.R. 60(B) relief. Although the trial court discussed Civ.R. 60(B) in its decision, neither the magistrate nor the trial court ultimately based their decision on a determination that appellee had established entitlement to Civ.R. 60(B) relief. Instead, the trial court exercised its inherent power to vacate its own void judgment. As discussed under appellant's first assignment of error, service of appellant's motion on appellee was defective. Failure to serve a party against whom a motion is made, as required by Civ.R. 75(I) and Civ.R. 4, constitutes a failure to perfect personal jurisdiction over that party. Curp, supra. In turn, when a court lacks jurisdiction over a party, it lacks authority to determine the merits of a motion as to that party and any judgment it renders is null and void. Curp, citing LincolnTavern, Inc. v. Snader (1956), 165 Ohio St. 61. Thus, appellee did not have to meet the requirements of Civ.R. 60(B) in order that the judgment be vacated. Appellant's second assignment of error is overruled. For the above reasons, appellant's assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, is affirmed. BROWN and KENNEDY, JJ., concur.

2016-07-06 06:35:58.62216+00

JOURNAL ENTRY and OPINION {¶ 1} Appellant Brian Allen appeals his convictions for possession of drugs and drug trafficking. He assigns the following two errors for our review: "I. The trial court committed prejudicial error when it refused to continue the trial in this matter over defendant's claims that his trial attorney was not prepared or representing him competently." "II. The defendant was denied his constitutional rights due to ineffective assistance of counsel." {¶ 2} Having reviewed the record and pertinent law, we affirm Allen's convictions. The apposite facts follow. {¶ 3} The Cuyahoga Grand Jury indicted Allen on one count each of possession of drugs, drug trafficking, and possession of criminal tools. Allen entered a not guilty plea; and the trial court set the matter for a jury trial. {¶ 4} Before the trial court impaneled the jury, Allen, claiming tonsillitis, asked for a continuance. After noting the trial had been continued twice before, the trial court denied the motion for a continuance. The trial court, however, did allow Allen a two-hour lunch to receive medical treatment for his throat. The court stated a note from the emergency room was needed if it was determined he was too sick to attend trial. Instead of seeking medical treatment during the allotted time, Allen used the time to retrieve a surveillance videotape. {¶ 5} Allen then requested a continuance because he was not satisfied that his counsel was prepared to defend him at trial. Upon being questioned by the court on what grounds he based this allegation, Allen stated his attorney had not contacted him prior to trial, had not had the drug evidence fingerprinted, and was unaware of the surveillance tape. {¶ 6} The court denied the request for a continuance after noting this was Allen's second counsel. The court also noted Allen was out on bond and could have called his attorney with any of his concerns prior to trial, but failed to do so. The court also noted that Allen had tried to delay the trial based on his claim he was sick, and that this current request was another attempt to delay the trial. The matter then proceeded to trial. {¶ 7} On August 12, 2004 at approximately 8:30 p.m., Officers Hale and Perez responded to a radio dispatch that shots were fired in the area of East 105th and Somerset. According to the officers, the suspect was described as a tall, heavy-set, black male, wearing a gray shirt. {¶ 8} In order to surprise the suspect, the officers proceeded the wrong way down a one-way alley. As they did so, they observed Allen coming around the corner. Allen looked at them in surprise, stuffed a brown paper bag into his waistband, and then turned and ran in the opposite direction. According to the officers, Allen matched the description of the suspect. {¶ 9} The officers followed Allen into a corner store. Officer Hale observed Allen run down an aisle then return to the front of the store. Officer Hale grabbed Allen and handed him off to Officer Perez. Officer Hale contends he never left the aisle and did not observe anyone else go down the aisle besides Allen. {¶ 10} Officer Perez stated that a pat-down of Allen's person revealed he no longer had the brown bag on his person. Officer Hale proceeded down the aisle where he had seen Allen and found the brown bag on a shelf. Inside the bag were thirty rocks of cocaine with a total weight of 10.31 grams and 25.41 grams of marijuana. A further search of Allen's person revealed he had $295 stuffed into his sock. {¶ 11} From the above evidence, the jury found Allen guilty of one count each of drug possession and trafficking. The jury found Allen not guilty of possession of criminal tools. The trial court sentenced Allen to the minimum two years on each count to run concurrently. Failure to Grant a Continuance {¶ 12} In his first assigned error, Allen contends the trial court erred by failing to grant him a continuance to obtain new counsel. We disagree. {¶ 13} The Ohio Supreme Court has held that "the grant or denial of a continuance is a matter which is entrusted to the broad, sound discretion of the trial judge. An appellate court must not reverse the denial of a continuance unless there has been an abuse of discretion."1 An abuse of discretion connotes more than an error of law or judgment; rather, it implies that the trial court's attitude was unreasonable, arbitrary or unconscionable.2 {¶ 14} Whether the trial court abused its discretion by denying a motion to continue depends upon the reasons for the requested continuance at the time the request was made.3 On appeal, the reviewing court must weigh the potential prejudice against a court's right to control its own docket and the public's interest in the prompt and efficient dispatch of justice.4 Relevant factors include: "`[T]he length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or * * * dilatory, purposeful, or contrived; [and] whether the defendant contributed to the circumstance which gives rise to the request[.]'"5 {¶ 15} In the instant case, the trial court based its denial of Allen's last-minute request for a continuance on the grounds that (1) there had been prior continuances, (2) the jury was ready to undergo voir dire, (3) there was no evidence counsel was unprepared, and (4) the court was convinced Allen's request was a dilatory tactic because he had claimed to be sick earlier, when in fact, he was not. The trial court stated in pertinent part: "I do want to reiterate that many of the things that transpired this morning had to do with Mr. Allen's alleged sore throat, and the possibility that he might have tonsillitis, at which point the Court gave a two-hour recess in order for Mr. Allen to seek medical attention. Apparently medical attention was never sought, because at about quarter of two, Mr. Allen walked in this courtroom with a videotape in his hand. "Now, I understand that the videotape is the subject of much discussion between the State of Ohio and the defense. At this point, what we've got here, Mr. Allen, with as much respect as I can conjure up at this point, is the fact for the last probably five or six hours of this day, you've been conning me. And if you think I'm going to buy the fact right now that all of a sudden you want a new attorney — and it's not even midnight hour, we have begun to voir dire a jury. I think what is very clear is that recognizing that the Court and the State of Ohio are going to go forward with this case, there is as much stalling on your part as is humanly possible."6 {¶ 16} From the circumstances surrounding Allen's request for a continuance, we conclude that the trial court did not abuse its discretion in denying Allen's motion. Allen had sought to delay the trial on fraudulent grounds, approximately two hours earlier, based on his claims of being ill. At that time, he did not request a continuance because of his belief counsel was not prepared. It was not until after he returned to court with the video that he requested the trial be continued so that he could obtain new counsel. At that time, the jury was ready for voir dire, and witnesses were subpoenaed and waiting to testify. {¶ 17} Moreover, there was no indication there was any merit to Allen's contention that his attorney was unprepared. Allen was out on bail and, therefore, was free to call his attorney at any time prior to trial with concerns he had with his case or the attorney's preparation. Although Allen contended his attorney failed to respond to his repeated telephone calls, his attorney denied receiving any messages that Allen had called. Allen's attorney did not attend two of the pretrials; however, attorneys from his office covered for him. {¶ 18} Allen's attorney failed to have the bag and drugs fingerprinted and never attempted to locate the surveillance tape. However, as Allen's attorney explained, the duty is on the State to present evidence of Allen's guilt, and its failure to obtain fingerprints or the surveillance tape was an issue that Allen's counsel could raise to attack the State's case. In fact, a review of the record indicates Allen's counsel did so attack the State's case in this manner. {¶ 19} Additionally, Officer Perez testified the video was of poor quality because it recorded the store from four different angles at a fast rate of speed. It was, therefore, hard to determine what the video was depicting. We conclude Allen's contention that his attorney was unprepared was not supported by the record. Accordingly, Allen's first assigned error is overruled. Ineffective Assistance of Counsel {¶ 20} In his second assigned error, Allen contends his counsel was ineffective for not using the surveillance tape, not presenting witnesses from the store to testify, and failing to play the police dispatch tape, which indicated Allen did not match the description of the suspect. {¶ 21} This court reviews a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v.Washington.7 Under Strickland, a reviewing court will not deem counsel's performance ineffective unless a defendant can show his lawyer's performance fell below an objective standard of reasonable representation and that prejudice arose from the lawyer's deficient performance.8 To show prejudice, a defendant must prove that, but for his lawyer's errors, a reasonable probability exists that the result of the proceedings would have been different.9 Judicial scrutiny of a lawyer's performance must be highly deferential.10 {¶ 22} In a direct appeal, this court's review is limited to evidence presented at trial; we cannot consider matters outside the record before us.11 If an ineffective assistance of counsel claim concerns facts that are outside the record, we cannot consider the claim on direct appeal because we can only consider matters contained in the record.12 The videotape and police dispatch tape were not presented as evidence in the trial court. Therefore, we cannot consider them. In fact, Allen has not even presented this evidence on appeal. Therefore, any argument relating to the prejudice suffered by counsel's failure to present this evidence is pure speculation. {¶ 23} Allen also contends counsel was ineffective for failing to present testimony of witnesses from the store. However, there is no evidence that such witnesses existed and no indication what their anticipated testimony would be. This argument would require evidence outside the record in the form of affidavits. {¶ 24} Therefore, because the evidence that Allen contends counsel should have presented is not in the record before us, we cannot determine whether the result of Allen's trial would have been different if this evidence was presented. A petition for post-conviction relief would be a more appropriate vehicle for Allen to pursue his ineffective assistance of counsel claim.13 Accordingly, Allen's second assigned error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Sweeney, P.J., and Karpinski, J., Concur. 1 State v. Unger (1981), 67 Ohio St.2d 65, 67. 2 State v. Adams (1980), 62 Ohio St.2d 151, 157. 3 State v. Powell (1990), 49 Ohio St.3d 255, 259. 4 Id. 5 Id., quoting State v. Unger (1981), 67 Ohio St.2d 65,67-68. 6 Tr. at 25-26. 7 (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052. 8 State v. Bradley (1989), 42 Ohio St.3d 136, paragraph one of syllabus. 9 Id. at paragraph two of syllabus. 10 State v. Sallie (1998), 81 Ohio St.3d 673, 674. 11 State v. Ishmail (1978), 54 Ohio St.2d 402, paragraph one of the syllabus; State v. Carter, 89 Ohio St.3d 593,2000-Ohio-172; State v. Madrigal, 87 Ohio St.3d 378,2000-Ohio-448; State v. Keith, 79 Ohio St.3d 514,1997-Ohio-367. 12 State v. Cooperrider (1983), 4 Ohio St.3d 226, 228;State v. Hall, 10th Dist. No. 04AP-1242, 2005-Ohio-5162; 13 State v. Bogan, Cuyahoga App. No. 84468,2005-Ohio-3412.

2016-07-06 06:35:58.711865+00

OPINION Appellant Thomas Stevenson appeals the decision of the Stark County Court of Common Pleas, Domestic Relations Division, on the basis that Appellee Katherine Stevenson did not properly serve him with notice of a hearing date by publication. The following facts give rise to this appeal. The parties to this appeal were divorced on September 30, 1996. On July 21, 1999, Appellee Katherine Stevenson filed a motion seeking, in part, to terminate Appellant Thomas Stevenson's companionship rights. Appellee Katherine Stevenson accomplished service of the hearing date by publication only. Appellee Stevenson did not attempt to seek actual service of the motion. The trial court conducted a hearing on Appellee Katherine Stevenson's motion on September 7, 1999. Appellant Thomas Stevenson was not present for the hearing. On October 20, 1999, the trial court filed its judgment entry terminating the companionship rights of Appellant Thomas Stevenson. Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration: I. THE TRIAL COURT'S ORDER OF OCTOBER 20, 1999, IS VOID DUE TO A LACK OF SERVICE. II. THE ENTRY OF THE ORDER OF OCTOBER 20, 1999 VIOLATED THE APPELLANT'S RIGHT TO PROCEDURAL DUE PROCESS. I, II We will address appellant's First and Second Assignments of Error simultaneously because both concern the issue of service by publication. Appellant claims, in his First Assignment of Error, that the trial court's order of October 20, 1999, is void due to lack of service. In his Second Assignment of Error, appellant contends the trial court's order of October 20, 1999 violated his right to procedural due process. We agree with both assignments of error. Civ.R. 4.4 addresses the procedure for service by publication and provides, in pertinent part: (1) * * * service shall be made by publication in actions where such service is authorized by law. Before service by publication can be made, an affidavit of a party or his counsel shall be filed with the court. The affidavit shall aver that service of summons cannot be made because the residence of the defendant is unknown to the affiant, all of the efforts made on behalf of the party to ascertain the residence of the defendant, and that the residence of the defendant cannot be ascertained with reasonable diligence. Thus, Civ.R. 4.4 sets forth three elements an affidavit must contain before service by publication can be made: (1) residence of the defendant is unknown to the affiant; (2) all of the efforts made on behalf of the party to ascertain the residence of the defendant; and (3) the residence of the defendant cannot be ascertained with reasonable diligence. These requirements are to be strictly construed. See Northland Dodge, Inc. v. Damachi (1978), 56 Ohio App.2d 262. In the case sub judice, appellee filed the required affidavit on July 21, 1999. However, the affidavit fails to aver the efforts appellee undertook in order to ascertain appellant's address. Counsel for appellee explained at the hearing on the motion that "[t]he obvious reason for publication ought to be contained with the thickness of the file. We have about ten contempts that we were never able to serve." Tr. Hrng. Dec. 28, 1999, at 4. We find that the unsuccessful attempts to serve appellant in the past do not excuse appellee from explaining the efforts made to ascertain appellant's address for purposes of serving the motion filed on July 21, 1999. Accordingly, appellant's First and Second Assignments of Error are sustained. For the foregoing reasons, the judgment of the Court of Common Pleas, Domestic Relations Division, Stark County, Ohio, is hereby reversed and remanded for proceedings consistent with this opinion. __________________ WISE, J. Wise, J. Farmer, P.J., and Edwards, J., concur.

2016-07-06 06:35:58.737156+00

OPINION The Columbus Show Case Company, plaintiff-appellant, commenced an action in the Franklin County Court of Common Pleas against ABF Freight System, Inc. and Burnham Service Company, Inc., defendants-appellees, on December 31, 1997. Plaintiff sought damages for goods that it shipped through defendants that were either not delivered and lost or damaged during shipment. The total damages sought were $32,137.64. The shipments occurred during portions of 1994 and 1995. Plaintiff advanced two theories for recovery of the damages. First, that there was a breach of contract and, second, that there was negligence. Defendants, who are common carriers, denied liability and advanced, among other defenses, a time limitation for bringing the lawsuit which according to defendants had expired. Defendants served a motion for summary judgment based upon the fact that more than two years and one day had elapsed since plaintiff's claims for damages had been rejected by defendants. Plaintiff filed a motion for partial summary judgment seeking a holding that its time to bring the action had not expired. The trial court granted defendants' motion for summary judgment and denied plaintiff's motion for partial summary judgment. Plaintiff appeals, asserting two assignments of error: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY OVERRULING PLAINTIFF-APPELLANT'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF PLAINTIFF-APPELLANT BY SUSTAINING DEFENDANTS-APPELLEES' MOTION FOR SUMMARY JUDGMENT. The resolution of both of these assignments of error depend upon the same issue which is whether a standard contract statute of limitations of either six years or fifteen years applies, or whether the two year and one day limitation of action contained in ABF's Interstate Commerce Commission National Motor Freight Classification NMF100-U Tariff ("tariff") applies. Many of the facts pertinent to this appeal are not in dispute. Plaintiff used defendants as a common carrier for goods that plaintiff was shipping during 1994 and 1995. Twenty-one of the twenty-six shipments during this period were made before January 26, 1995, the time in which the parties entered into a standard transportation services agreement according to an undisputed affidavit of an employee of plaintiff. All shipments, both before and after entering into the standard transportation services agreement, were made using plaintiff's Straight Bill of Lading. Plaintiff timely filed damage claims with defendants for losses claimed to be suffered by it as a result of defendants either losing or damaging the materials which were shipped. Of the claims that were denied, the last written denial was dated August 24, 1995. The present action was instituted December 31, 1997, approximately two years and four months after denial of the last damage claim. At all relevant times hereto, ABF had filed with the Interstate Commerce Commission its tariff. A pertinent provision of that tariff reads as follows: Suits for loss, damage, injury or delay shall be instituted against any carrier no later than two years and one day from the day when written notice is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts of the claim specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier shall be liable, and such claims will not be paid. Paragraph four of the Terms and Conditions section of the Standard Transportation Service Agreement entered into between the parties on January 26, 1995 provides in part that: "ABF will investigate and dispose of cargo loss and damage claims like a common carrier as set forth in 49 C.F.R. Part 1005, and ICC NMF100 Series Items 300100 through 300155." These provisions contain no reference to a two year and one day limitation period. Columbus Show Case's Uniform Straight Bill of Lading used for all the shipments provides that shipments are "RECEIVED, subject to the classification and tariffs in effect on the date of issue of this Bill of Lading." The issue is whether Columbus Show Case Company is bound by the limitation of actions section of two years and one day for the claims at issue in this suit. There are claims involving two periods. The first period is for claims of shipments made prior to January 26, 1995 before the parties had entered into the Standard Transportation Services Agreement. The second period is for claims of shipments after the Standard Transportation Services Agreement had been entered into between the parties on January 26, 1995. The situation during the first period prior to the execution of the Standard Transportation Services Agreement was that Columbus Show Case used its own Uniform Straight Bill of Lading in which in small print at the bottom it is stated as follows: "RECEIVED, subject to the classifications and tariffs in effect on the date of the issue of this Bill of Lading." As previously noted, the tariff filed by ABF contained the two-year, one-day limitation of action provision. However, according to affidavits submitted by plaintiff's employees, they had no actual knowledge or notice of the two years and a day time limitation because defendants had not provided that information to plaintiff and they had not seen the tariff which defendant had filed containing that provision. The question is whether there is constructive notice of the limitation period based upon the reference in plaintiff's Uniform Straight Bill of Lading that the shipment is subject to the classifications and tariffs in effect on the date of issue of the Bill of Lading. There are distinctions between two types of provisions that may be contained within the terms of a tariff properly filed with the Interstate Commerce Commission. These types of provisions are mandatory and non-mandatory. Mandatory provisions include those which are required by law. A typical example is a rate figure which a carrier may charge a shipper. Non-mandatory provisions are those which are not required by the Interstate Commerce Act or rules promulgated thereunder but are still permitted by law. Time provisions upon the shipper's filing of loss or damage claims are not required by law. They are non-mandatory provisions. Comsource Independent FoodserviceCompanies, Inc. v. Union Pacific Railroad Company (1996),102 F.3d 438, 443; certiorari denied (1997), 520 U.S. 1229. In Comsource, summary judgment was denied to a common carrier whose tariff contained the same time limitation as in the instant case even though the suit was not filed within that time period, holding that the limitation was not applicable unless the shipper had reasonable notice of the limitations in the tariff provision. The court held that the mere fact that it is included within the filed tariff and the Bill of Lading provided by the shipper makes general reference toward to the tariff is not sufficient to constitute reasonable notice. The Comsource court quoted from the case of State Farm Fire Casualty v. United VanLines (1993), 825 F. Supp. 896, stating that "the caselaw is unclear on the exact parameters of the required notice." TheComsource court stated that holdings in related cases offer specific guidelines: * * * Courts have considered the following factors: whether the provision in the tariff was "specifically brought to the shipper's attention," Encyclopedia Britannica, 422 F.2d at 14; the shipper's "sophistication, abundant experience, or extensive prior dealings with a carrier[,]" Carmana Designs v. North Am. Van Lines, 943 F.2d 316, 321 (3d. Cir. 1991); whether the shipper "drafted the contract and directly negotiated its terms[,]" Hughes Aircraft, 970 F.2d at 612; and whether the tariff provision was specifically reproduced in the bill of lading, State Farm, 825 F. Supp. at 901. [Comsource at 444.] There is a genuine issue of fact in this case whether there was reasonable notice of the time limitation provision in the tariff. According to the affidavit of plaintiff's employee, defendants did not specifically bring the tariff provision to the attention of plaintiff; the tariff provision was not specifically reproduced in the Bill of Lading; and plaintiff claims that there was no actual knowledge of the provision. On the other hand, plaintiff used a Bill of Lading which it had drafted stating that shipment was received subject to the tariff. Plaintiff appears to be a sophisticated shipper with extensive prior dealings with defendants and it is alleged that it is commonly known by experienced shippers that carriers include a minimum limitations period in their tariffs. There is a genuine issue of fact concerning whether plaintiff had reasonable knowledge of the non-mandatory provision contained in defendants' ICC tariff. Summary judgment was not properly granted as the circumstances presented in the materials properly submitted with the summary judgment motions give rise to a genuine issue of fact about whether plaintiff had reasonable notice of the time limitation provision in the tariff. The first assignment of error is overruled. The second assignment of error is sustained. The case is remanded to the trial court with instructions to overrule defendants' motions for summary judgment and to conduct a trial on the merits of the claims. Judgment affirmed in part and reversed in part;and cause remanded with instructions. ________________________________ McCORMAC, PRESIDING JUDGE DESHLER and BROWN, JJ., concur. McCORMAC, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution.

2016-07-06 06:35:58.766629+00

OPINION {¶ 1} Defendant-appellant Mark Hunter appeals from his conviction and sentence for Vandalism, in violation of R.C. 2909.05(B)(2). Hunter contends that there is insufficient evidence in the record to support a finding, beyond reasonable doubt, that the damage he caused to a Dayton police cruiser equaled or exceeded $500 in value, an essential element of the offense. We agree. Consequently, Hunter's conviction and *Page 2 sentence for Vandalism is Reversed and Vacated. Hunter was also convicted of Failure to Comply, and sentenced for that offense. This appeal does not concern Hunter's Failure to Comply conviction and sentence, which remains unaffected by the outcome of this appeal. I {¶ 2} In September, 2005, Hunter was stopped by Dayton police officers Charles Tangeman and James George for a traffic violation, the van Hunter was driving not having any license plates. As Tangeman approached Hunter's vehicle, he ordered Hunter to turn off the ignition. Hunter did not comply with this order, but instead put the vehicle into reverse and sped backwards. George jumped away from the van in order to avoid being struck. {¶ 3} Hunter's vehicle collided with the police cruiser, causing damage. Hunter then sped off, narrowly missing Tangeman. A police pursuit ensued, with Hunter ultimately being stopped by the use of stop-sticks. Hunter was arrested and charged by indictment with two counts of Felonious Assault upon a Police Officer with a Deadly Weapon, one count of Failure to Comply with a Police Order, and one count of Vandalism of Government Property. {¶ 4} Following a bench trial, Hunter was acquitted on both Felonious Assault counts, but convicted as charged on the other counts. He was sentenced to five years imprisonment on the Failure to Comply conviction, and one year on the Vandalism conviction, to be served consecutively. Hunter appeals from his conviction and sentence for Vandalism. He has not appealed from his conviction and sentence for *Page 3 Failure to Comply. II {¶ 5} Hunter's sole assignment of error is as follows: {¶ 6} "THE TRIAL COURT'S JUDGMENT THAT APPELLANT IS GUILTY OF VANDALISM IS BASED ON LEGALLY INSUFFICIENT EVIDENCE." {¶ 7} Hunter was convicted of violating R.C. 2909.05(B)(2), which provides, in pertinent part, as follows: "No person shall knowingly cause serious physical harm to property that is owned, leased, or controlled by a governmental entity" {¶ 8} "Serious physical harm" is defined, in R.C. 2909.05(F)(2), as follows: {¶ 9} "`Serious physical harm' means physical harm to property that results in loss to the value of the property of five hundred dollars or more." {¶ 10} The State offered no direct proof of the dollar amount of the damage to the Dayton police cruiser caused by Hunter, but did offer three photographs of the cruiser, after the collision, depicting the damage. These photographs are in the record on appeal as State's Exhibits 18, 19 and 20. Officers George and Tangeman authenticated the photographs. Officer George testified that the "lights were busted" on the police cruiser. More specifically, George testified that the turn signals and headlight were not functional as a result of the collision. Officer Tangeman specifically testified that the damage appearing in the photographs was not present before the collision. {¶ 11} We have, of course, examined the three photographs, Exhibits 18, 19 and 20, depicting the damage to the police cruiser. All three photographs are limited to the right front quarter of the cruiser, and show damage only to the right front light, which is, *Page 4 indeed, "busted," and the area right around the light. It appears that the right side portion of the light is missing. There are discolorations to the bumper and right side panel immediately adjacent to the right front light, but no obvious deformation of these surfaces. It cannot be determined from the photographs whether these are discolorations that will easily rub out, or whether a paint job may be required. {¶ 12} Since it is an element of the offense, the State is required to prove, beyond a reasonable doubt, that the damage to the police cruiser equals or exceeds $500. The State cites State v. Williams,2006-Ohio-4653, Clark App. No. 2005 CA 106, for the proposition that damage to public property — in that case, also, a police cruiser — can be proven beyond reasonable doubt to be at least $500 in amount merely by the introduction of a photograph depicting the extent of the damage. We conclude that State v. Williams, supra, is distinguishable. {¶ 13} In State v. Williams, supra, "the state presented photographs of [the police cruiser] after the collision, which showed damage to the right rear door and wheel well. Specifically, the photographs indicated a sizable dent on the lower portion of the door and the front part of the wheel well, as well as damage to the paint in those areas. Although [the officer] did not testify at trial how much the repairs would cost, the jury could have reasonably concluded, upon review of the photographs, that the damage to the vehicle would require a substantial amount of money [$500 or more] to repair." Id, ]}24. {¶ 14} In State v. Williams, supra, the photographs, alone, would warrant a reasonable finder of fact in concluding, beyond reasonable doubt, that the repairs to the damage depicted therein would cost at least $500. In the case before us, it is possible *Page 5 that the repairs to the damage depicted in the photographs admitted in evidence may equal or exceed $500. But we conclude that a reasonable finder of fact, based solely upon these photographs, would not be warranted in finding, beyond reasonable doubt, that the cost of repairing the damage depicted therein equals or exceeds $500. The damage depicted therein is not as extensive as the damage depicted in State v.Williams, supra. {¶ 15} Hunter's sole assignment of error is sustained. III {¶ 16} Hunter's sole assignment of error having been sustained, that part of the judgment of the trial court convicting him of Vandalism, and sentencing him therefor, is Reversed and Vacated. The judgment of the trial court is Affirmed in all other respects. WOLFF, P.J., and BROGAN, J., concur. *Page 1

2016-07-06 06:35:58.854316+00

JOURNAL ENTRY AND OPINION *Page 3 {¶ 1} Plaintiff-appellant Nicole Dietrich appeals from a judgment of the domestic relations division of the common pleas court. She complains that the court abused its discretion by failing to designate her as the residential parent and legal custodian of the parties' three minor children and/or failing to adopt her shared parenting plan, by failing to award her the marital home, which has been adapted to the special needs of their daughter, by awarding her spousal support of only $153 per month, and by finding defendant-appellee, Mark Dietrich, had a traceable separate property interest in the marital residence. Appellee cross-appeals, arguing that the court failed to award him his full separate property interest in the marital home. We find that the court erred by adopting the appellee's proposed shared parenting order without making findings of fact and conclusions of law as required by R.C.3109.04(D)(1)(a)(ii). Furthermore, the court erroneously determined the amount of appellee's separate interest in the marital home. These erroneous decisions may bear upon the court's decisions regarding the division of marital property and the award of spousal and child support. Therefore, we reverse and remand for further proceedings. *Page 4 Procedural History {¶ 2} Appellant filed her complaint for divorce on June 2, 2004, requesting an allocation of parental rights, child support, spousal support and a division of marital property. Appellee filed a separate complaint for divorce on June 18, 2004. The two actions were consolidated in the trial court. {¶ 3} The case proceeded to trial on June 22 and 23, 2005, and continued on October 4 and November 3, 2005 and January 17, 2006. The court entered its judgment on April 21, 2006. The court found that the parties were married on May 24, 1997 and had three children, daughter Kayla, born 10/22/1997, who suffers from cerebral palsy, and twins Malina and Noah, born 4/23/2003. The parties agreed to shared parenting, but submitted separate shared parenting plans. The court found appellee's proposed plan to be in the children's best interests, and adopted that plan. That plan designated both parents as residential parents and legal custodians, and granted appellee possession of the children on a two-week schedule, from Thursday through Monday one week and from Friday through Monday the following week, with appellant having possession at all other times. {¶ 4} Appellant is a licensed registered nurse, employed part time earning $26 per hour without benefits. In 2004, she worked two days per month, and earned $3,324; as of May 22, 2005, she had earned $1,936. For purposes of calculating child support, the court determined that her income from employment was $4,000 *Page 5 per year. Appellee is a postal carrier. He earned $43,560 in 2005, more in the previous year with overtime. {¶ 5} The court awarded appellant spousal support of $150 per month for a period of 24 months, and ordered appellee to pay appellant child support of $290.80 per month per child, plus a 2% processing charge, for a total of $889.86 per month. Support obligations as to the twins would continue until they reached 18 years of age. Although the court's judgment entry reflected that appellee had a continuing obligation to support Kayla because of her disability, the shared parenting plan adopted by the court included a conflicting provision terminating appellee's obligation to support Kayla when she reached the age of majority. {¶ 6} The parties stipulated that appellant had a separate property interest in two accounts with a total value of $10,660. The court further found that appellee had a separate property interest in the marital residence of $44,486.02. It traced this amount to a downpayment of $41,749.77 which appellee made on a house he purchased at 8402 Pelham Drive, Parma, Ohio, before the parties' marriage and in which they continued to reside after their marriage until March 2002. The proceeds from the sale of this house were used to purchase the current marital residence, located at 2671 Bramblewood Drive, Broadview Heights, Ohio. The total downpayment on the marital residence was $64,821.26. The purchase price was $170,000; the parties stipulated that its current fair market value was $201,000. *Page 6 Thus, the total appreciation during the marriage was $31,000. The court calculated appellant's separate property interest in the appreciation as follows: {¶ 7} The court determined that the marital assets consisted of appellee's pension with the Federal Employee's Retirement System, valued at $15,186.74, two vehicles valued at $12,295 and $3,000 respectively, and the remaining equity in the marital residence, which the court calculated to be $42,201.39. It divided this property by granting appellee his pension, the $3,000 vehicle, and $18,156 of the remaining equity in the marital residence. Appellant was awarded the other vehicle and $24,045 of the remaining equity in the marital home. {¶ 8} The court awarded the marital residence to appellant, requiring her to hold appellee harmless from any expenses associated with it. The court allowed appellant two years to refinance the residence and transfer to appellee his $62,642 interest in the property. If she could not refinance or chose not to, appellee had the first option to purchase the residence. If neither party chose to retain the home, then the residence was to be sold and appellee paid first from the proceeds. Law and Analysis {¶ 9} Appellant first complains that the court abused its discretion by failing either to designate her as the residential parent and legal custodian of the children or to adopt her proposed shared parenting plan. *Page 7 {¶ 10} Appellant suggests that the court did not assess any of the statutory factors it was required to consider in determining whether the appellee's proposed shared parenting plan was in the children's best interests, citing R.C. 3109.04(F)(2). R.C. 3109.04(F)(2) sets forth factors the court was required to consider in deciding whether shared parenting was in the children's best interests, not which shared parenting plan (if any) served the best interests of the children. Therefore, R.C. 3109.04(F)(2) is inapplicable to the issue appellant raises. {¶ 11} The applicable statute in this case is R.C.3109.04(D)(1)(a)(ii), which provides in pertinent part: If each parent makes a request in the parent's pleadings or files a motion and each also files a separate plan, the court shall review each plan filed to determine if either is in the best interest of the children. If the court determines that one of the filed plans is in the best interest of the children, the court may approve the plan. * * * * If the court approves a plan under this division, either as originally filed or with submitted changes, * * * the court shall enter in the record of the case findings of fact and conclusions of law as to the reasons for the approval * * *. {¶ 12} In this case, the court approved and adopted appellee's proposed shared parenting plan, finding that it was in the best interests of the children without making the findings of fact and conclusions of law required by R.C.3109.04(D)(1)(a)(ii). Phillips v. Phillips, Stark App. No. 2004CA00105, 2005-Ohio-231, TITJ49-50;Stroud v. Lyons, Ashtabula App. No. 2002-A-0050,2003-Ohio-6773; Docie v. Burt (March 24, 1998), Athens App. No. 97CA19. Some courts have suggested that substantial compliance with the statute may be found where the *Page 8 reasons for the court's action are apparent from the record. SeeTheiss v. Theiss (April 11, 2001), Wayne App. No. 00CA0022. However, we cannot tell from the record why the court approved appellee's proposed plan. Both parties' proposed plans were submitted after the final trial date, so no discussion of the plans occurred on the record. Accordingly, we must reverse and remand for further consideration of the allocation of parental rights and responsibilities. {¶ 13} It is worth noting that, under R.C. 3109.04(D)(1)(a)(ii), the court is not bound to accept either party's proposed shared parenting plan verbatim, but may present objections to the parties which the parties may attempt to meet. The court further has the option to reject both parties' plans and to proceed as if no request for shared parenting had been made. The court has great discretion to fashion a parenting arrangement appropriate to the parties' circumstances, in the best interests of the children. This discretion is a critical tool to manage the particular and unusual circumstances of this case. {¶ 14} The court's final determination of parenting issues may or may not affect the award of spousal support and child support. Accordingly, we vacate those awards and remand for further consideration of spousal and child support as well. This determination renders moot appellant's third assignment of error. {¶ 15} Appellant's fourth assignment of error and appellee's cross-assignment of error raise related issues. Appellant contends that the court erred by finding appellee had a separate interest in the marital property on Bramblewood Drive *Page 9 because appellee supplied insufficient evidence of this interest. Appellee claims that the court should have found that his separate interest in the marital property was greater. We find the evidence was sufficient to support a finding that appellee had a separate interest in the Bramblewood Drive property, but that the court erroneously calculated the value of that interest. {¶ 16} The settlement statement from appellee's purchase of the Pelham Road property indicates that he paid $41,749.771 of his own funds to purchase the property in January 1991. The settlement statements from the sale of the Pelham Road property and the purchase of the Bramblewood Drive property indicate that the proceeds from the sale of the Pelham Road house were applied directly to the purchase of the Bramblewood Drive home. The court did not err by presuming that these proceeds consisted, in part, of appellee's downpayment on the Pelham Road property, and, given the direct transfer of the proceeds of the sale of one house toward the purchase of another, that appellee's separate interest in the Pelham Road property was transferred to the Bramblewood Drive home. *Page 10 {¶ 17} However, the domestic relations court went seriously awry when it attempted to apply the formula proposed by the court in Munroe v.Munroe (1997), 119 Ohio App.3d 530, to calculate appellee's separate interest in the Bramblewood Drive property. Munroe sets forth the following formula for determining a spouse's separate interest in the appreciated value of property which is part marital property: {¶ 18} The formula used by the court here did not followMunroe. The numerator used by the court consisted of appellee's initial payment for the Pelham Road house, including settlement costs. The denominator applied by the court-which should have equaled the parties' total investment in the Bramblewood Drive home — apparently only consisted of the total amount of appellee's initial investment in the Pelham Road property (including settlement costs) plus the amount of mortgage principal the parties paid on the Bramblewood property during their marriage. We cannot discern the reason for the court's use of this figure. Finally, the formula utilized by the court could not possibly have yielded the result the court reached, that appellee was entitled to only $2,736.25 of the $31,000 in appreciation to the marital home. Using the fraction proposed by the court, appellee should have been awarded approximately 89% of the appreciation, or $27,548.93. {¶ 19} We cannot imagine why, in calculating the parties' total investment in the Bramblewood Drive home, the court did not include the parties' $11,000 initial *Page 11 marital investment in the home, nor why the court did not exclude the settlement costs they paid. More important, however, the evidence before the court was insufficient to allow the court to determine the parties' total investment in the Bramblewood Drive home, so the court could not apply the formula set forth in Munroe. The court found that improvements were made to both the Pelham Road and Bramblewood Drive homes with marital funds and through volunteer work provided by appellant's father, but the court found "[n]o evidence was presented regarding any improvements and/or whether or not they increased the value of the property." Without such evidence, the court could not have determined the parties' "total investment" in the homes and thus the proportion of any appreciation (or depreciation) attributable to appellee's separate property. The court's reliance on incomplete evidence in applying theMunroe formula resulted in a fraction attributing an inaccurately large proportion of the property appreciation to appellee's separate property. Accordingly, we find the court erred by finding appellee's separate property interest in the marital home was $44,486.02. {¶ 20} This determination affects the court's entire division of marital property. Therefore, we must reverse the judgment and remand this matter to the domestic relations court for a redetermination of appellee's separate interest in the marital home and the appropriate division of the parties' marital property, including the *Page 12 disposition of the home. This decision moots appellant's second assignment of error. {¶ 21} Accordingly, we affirm the trial court's determination that appellee has a separate interest in the marital home, but otherwise reverse the judgment and remand for further consideration of the allocation of parental rights and responsibilities, child support, spousal support, and the division of marital property. {¶ 22} This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant and appellee share the costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. COLLEEN CONWAY COONEY, P.J., and CHRISTINE T. McMONAGLE, J., CONCUR. 1 Not all of this amount was applied to the purchase price. The settlement statement indicates that some $1,834.66 in closing costs were assessed to appellee on that purchase. These closing costs must be subtracted from the total payment made at closing to determine the portion of appellee's actual downpayment which was applied toward the purchase price of the home. Cf. Munroe v. Munroe (1997),119 Ohio App.3d 530, 534 (calculating part of total downpayment applied to purchase price). *Page 1

2016-07-06 06:35:58.888017+00

JOURNAL ENTRY and OPINION {¶ 1} The grand jury returned a four-count indictment against defendant Lewis Brown, charging him with one count of aggravated murder under R.C. 2903.01(A) [premeditation], one count of aggravated murder under R.C. 2903.01(B) [felony murder], one count of robbery and one count of carrying a concealed weapon. Each of the aggravated murder counts contained felony murder specifications. The charges stemmed from a robbery/murder of a store owner whom Brown and an accomplice followed as he left work and murdered outside the store owner's house. At the close of the guilty phase of trial, the jury found Brown guilty of all the charges. At the close of the penalty phase of trial, the jury returned a recommendation of life without parole on each of the aggravated murder counts. The court accepted the recommendation and sentenced Brown accordingly. Brown appeals and sets forth several trial errors which he believes entitles him to a new trial. Because none of the assigned errors challenges either the weight or sufficiency of the evidence, the relevant facts will be stated as necessary within our discussion of specific arguments. 1. I {¶ 2} The grand jury charged Brown with alternative theories of aggravated murder, each with a capital specification as permitted by R.C. 2929.04. As to the capital specification, the court instructed the jury that if it found beyond a reasonable doubt that Brown committed murder while committing or attempting to commit aggravated robbery as a principal offender, "or if not the principal offender, committed the aggravated murder with prior calculation or design, you must find him guilty of the felony murder specification." Brown argues that the court failed to charge the jury that it must find all of the elements of each specification separately and unanimously. He thus concludes that as to count 1, half of the jurors could have found him guilty of the felony murder specification while the other half could have found him guilty of the prior calculation and design specification. {¶ 3} Brown did not object to the court's jury instruction, so our review of the alleged error proceeds under the plain error analysis of Crim.R. 52(B). See State v. Moreland (1990),50 Ohio St.3d 58, 62-63. That being the case, we cannot reverse the conviction of the R.C. 2929.04(A)(7) death penalty specification "unless we determine that the outcome of appellant's trial would clearly have been otherwise had the error not occurred." Under the Crim.R. 52(B) plain error standard, it is up to Brown to show that (1) the court erred by failing to comply with a legal rule, (2) the alleged error was plain, and (3) the error affected his substantial rights. State v. Barnes (2002), 94 Ohio St.3d 21,27, 2002-Ohio-68. And we are cautious to invoke plain error in only exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, paragraph three of the syllabus. {¶ 4} We also note that this argument is not mooted by the jury's failure to recommend the death penalty, as guilty findings on the death penalty specifications meant that the jury could recommend a sentence of life without parole under R.C.2929.03(D)(2)(a), a finding not otherwise provided for as a penalty for a first degree felony. A {¶ 5} In State v. Woodard, 68 Ohio St.3d 70, 74-75,1993-Ohio-241, the supreme court considered Brown's argument relating to the prior calculation and design specification under a plain error standard and stated: {¶ 6} "Assuming arguendo that there was some confusion in the jury over the need for unanimity, we are unable to conclude that the alleged error by the trial court amounts to `plain error.' The jury found appellant guilty of both counts of aggravated murder. In finding appellant guilty of the second count of aggravated murder (premeditated murder), the jury specifically and unanimously found that appellant acted with prior calculation and design. Therefore, no `patchwork verdict' as to the death specification occurred. The jury was obviously unified in its determination that appellant purposely killed Akram with prior calculation and design. Furthermore, the evidence at trial did not reasonably suggest that Akram's murder was committed by anyone other than the appellant. Therefore, the jury must have also unanimously concluded that appellant was the principal offender." {¶ 7} Just as in Woodard, the jury's guilty verdict as to count 1 (aggravated murder by way of prior calculation and design) could only rationally mean that it found him guilty of the corresponding prior calculation and design specification under R.C. 2903.04. We therefore overrule this aspect of Brown's argument. B {¶ 8} The felony murder count is more problematic in the abstract, as it is possible that the court's lack of specificity in its instruction to the jury meant that the jury could have found that Brown committed the felony murder, but did not do so as the principal offender and thus acted only with prior calculation and design. Brown defended on the theory that one of his accomplices killed the victim, so the issue is at least colorable. {¶ 9} Nevertheless, using the plain error standard we must employ under the circumstances, we cannot say that the result of the trial would have been different had there been a more precise instruction. It makes little sense for the jury to find Brown guilty of aggravated murder with a prior calculation and design specification, but not guilty of a corresponding count of aggravated murder with a felony murder specification. To be sure, Brown defended the charges by saying that he had not been the principal offender. But the state offered proof to the contrary, providing evidence that Brown had told one witness that he "would leave no witnesses" after the robbery. A jailhouse witness also testified that Brown told him he pulled a gun on the victim and fired as the victim pleaded for his life. The strength of this evidence is such that we cannot say that a miscarriage of justice occurred. II {¶ 10} During the course of trial, several of the state's witnesses gave biographical or anecdotal testimony about the victim. In addition, the victim's wife testified to the financial hardship her family faced without the victim, telling the jury that the mortgagor had foreclosed on her house. Brown argues that none of this testimony was relevant as it was offered solely to create sympathy for the victim's family and create antipathy against him. A {¶ 11} "Victim impact evidence is excluded because it is irrelevant and immaterial to the guilt or innocence of the accused — it principally serves to inflame the passion of the jury." State v. Loyed, Cuyahoga App. No. 83075, 2004-Ohio-3961, ¶ 29, citing State v. White (1968), 15 Ohio St.2d 146. In other words, evidence of the consequences of a crime on the victim's family do nothing to prove whether the offense had been committed — it chiefly serves as a distraction for the trier of fact. {¶ 12} Nonetheless, the "circumstances of the victims are relevant to the crime as a whole. The victims cannot be separated from the crime." State v. Lorraine (1993), 66 Ohio St.3d 414,420. In proper circumstances, evidence relating to the victims can give valuable background information to the jury and is thus relevant. B {¶ 13} Brown first complains about a young witness who frequented the victim's store, describing the victim as "cool" and saying that if he did not have enough money to buy candy, the victim would sometimes give him the candy. Brown did not object to this testimony, so we review it only for plain error. {¶ 14} The witness overheard Brown's plan to rob the victim and tried to warn the victim before the robbery. The witness ran to the store but discovered that he was too late — the victim had departed. The following day, the witness learned of the murder. He went to the store and told the victim's brother-in-law what he had learned from Brown. Testimony relating to the young witness' relationship with the victim was relevant because it showed why he tried to warn the victim in advance of the robbery and why he told the brother-in-law about the crime. Evidence of the witness' relationship with the victim put the witness' subsequent actions into context, and tended to bolster the credibility of those actions. C {¶ 15} Another witness testified that he occasionally worked for the victim and said that the victim had a reputation for being well-liked in the community. This witness went on to testify that he often ran errands for the victim, including making bank deposits. During the course of this testimony, the witness said that the victim had been well-liked by virtually all of his customers. {¶ 16} We find no relevant purpose for this evidence and conclude that it was offered as victim impact evidence. Even the state characterizes it as "directed at the immediate aftermath [of] the victim's killing and its impact on the operation of the store." Appellee's brief at 10. But as with all the other testimony within this assignment of error, Brown failed to object. We see no possibility that the erroneous admission of victim impact evidence relating to the operation of the store would have contributed to the jury's verdict. D {¶ 17} The victim's wife testified, without objection, to the names and ages of her three children, their social activities, that she had to move because of foreclosure and that the victim worked seven days a week. The wife went on to testify that on the evening of the murder she heard gunshots, went outside and found the prone victim moaning. {¶ 18} While information relating to the names and ages of the victim's children is innocuous at worst, we agree that the information relating to the "social activities" of the children was irrelevant for purposes of guilt. However, Brown did not object to this testimony and we cannot say that the admission of this testimony rose to the level of plain error. Nothing in the record suggests to us that the admission of this testimony dictated the outcome of trial. Moreover, the wife did give relevant testimony relating to the circumstances of the offense, so the state's brief foray into her personal history was not so egregious as to suggest that her entire purpose in testifying was to give victim impact evidence. III {¶ 19} In voir dire, the state exercised three peremptory challenges to excuse minority jurors. The defense raised aBatson challenge to each excusal, but the court overruled all three objections. {¶ 20} Under Batson v. Kentucky (1986), 476 U.S. 79, a prima facie case of purposeful discrimination in choosing jurors is established when the accused demonstrates (1) that members of a recognized racial group were peremptorily challenged and (2) that the facts and circumstances raise an inference that the prosecutor used the peremptory challenge to exclude the jurors on account of their race. If a prima facie case is established, the state must then come forward with a neutral explanation. Once a race-neutral explanation for the peremptory challenge has been offered and the court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether a prima facie showing has been made becomes moot. {¶ 21} When a party opposes a peremptory challenge by claiming racial discrimination, the court must decide whether granting the strike will contaminate jury selection through unconstitutional means. Hicks v. Westinghouse Materials Co. (1997), 78 Ohio St.3d 95, 99, 1997-Ohio-227. The ultimate question is whether the trial court's analysis of the contested peremptory strike was sufficient to preserve a constitutionally permissible jury-selection process. Because the court is in the better position to evaluate the credibility questions that naturally arise in cases of juror strikes, we cannot reverse the court's decision unless we find the court acted in a clearly erroneous manner. A {¶ 22} The state struck juror Crosby because the assistant prosecuting attorney believed that he had prosecuted one of Crosby's family members. Crosby denied an affiliation. The state also struck juror Bradley, who indicated that he did not want to serve on the jury because it would adversely affect his business. Both of the jurors were members of a recognized racial group, so Brown had to show that the facts and circumstances were such as to raise an inference that the jurors had been excluded on account of their race. Defense counsel told the court the state had "kicked two blacks off the jury and I see this persisting and I think it is leading into a Batson challenge, and I'm making a motion that this jury be disqualified as a result of that." {¶ 23} Defense counsel's objection fell short of establishing a prima facie case of discrimination because it did not create an inference of purposeful exclusion on account of race. At best, counsel could only tell the court that he believed the strikes were "leading into a Batson challenge." Of course, a prima case is always made on inference, but this is not stuff of a classicBatson challenge. See Hicks v. Westinghouse Materials Co.,78 Ohio St.3d 95, 100, 1997-Ohio-227. {¶ 24} Even had Brown established a prima facie case, the state amply rebutted that case by showing race-neutral reasons for the dismissals. As the court noted, the state's representation that juror Crosby had a relative who had been prosecuted by the assistant prosecuting attorney could lead to the conclusion that the juror might have harbored animosity toward the state. Regardless whether Crosby denied that to be the case, the state's desire to ensure an objective jury overrode any inference that the strike had been racially motivated. {¶ 25} Likewise, the court noted that juror Bradley ackowledged that he did not want to be a juror because of his pressing business matters. Brown argues that other jurors expressed similar concerns about jury service, but were not struck. Unfortunately, Brown did not mention this at the time he made his Batson challenge, so the court had no reason to consider whether other similarly situated jurors of other races were not struck. As Brown had the obligation to make a prima facie case at the time he raised the challenge, we cannot say that the court was clearly erroneous in denying the challenge based upon the arguments made at the time of the motion. 1. B {¶ 26} The state later struck juror Carr, who was apparently the third of four black jurors to be struck. Given that 75 percent of the available black jurors had been excluded by peremptory challenges, we believe that Brown did establish a prima facie case under Batson. The court appeared to believe as much too, since it told the state "well, to the extent that you can state a reason other than race for excluding him, go ahead." In response, the state told the court that it had been concerned by the "extraordinarily long period of time" that juror Carr took when answering individual questions about his ability to recommend the death penalty, ultimately answering, "I guess." The state went on to note that when defense counsel explained the concept of lesser included offenses, juror Carr did not allow defense counsel to finish before saying, "I can do that." This led the state to believe that juror Carr would be predisposed against recommending the death penalty and would willingly seek to impose a lesser alternative. Finally, the state noted that juror Carr's body language gave it the impression that he "doesn't like this case, he doesn't want to be here." The court overruled the challenge without stating a reason. {¶ 27} The courts have held that body language and demeanor are permissible race-neutral justifications for the exercise of a peremptory challenge. See United States v. Changco (C.A.1, 1993), F.3d 837, 840 ("Passivity, inattentiveness, or inability to relate to other jurors [are] valid, race-neutral explanations for excluding jurors."). Admittedly, such reasons for striking a juror are subjective, and thus virtually impossible for us to review on appeal. In Hernandez v. New York (1991),500 U.S. 352, 365, the United States Supreme Court noted that because subjective assessments require a look into the prosecutor's state of mind, the trial court is better able to make judgments of credibility than an appellate court because the trial court alone has the opportunity to observe the demeanor of counsel. Hence, the clearly erroneous standard of review. {¶ 28} While the court did not articulate any reasons for denying the challenge, we cannot say that the decision to deny the Batson challenge as to juror Carr was clearly erroneous. We have to assume that if the court believed there were grounds to find that the state offered a pretext for dismissing juror Carr, it would have said so, particularly in light of its tacit acknowledgment that Brown had set forth a prima facie case. In other words, having accepted for purposes of the motion that Brown had made out a prima facie challenge under Batson, the court's curt denial of the challenge could only mean that it found no merit whatsoever to the challenge and fully accepted the state's race-neutral reasons for discharge. {¶ 29} This is not to say that any dismissal on grounds of body language is essentially unreviewable. The potential for abuse is always present and the courts have the obligation to state adequate reasons on the record for denying challenges under those circumstances. However, the attorneys must take steps to "develop the record concerning the specific behavior by venire members that motivated the peremptory challenge * * * and the district court should assess the credibility of the explanation."United States v. Jenkins (C.A.8, 1995), 53 F.3d 743, 746 (internal citation omitted). {¶ 30} The state told the court that it took copious notes during voir dire and cited to them when responding to theBatson challenge. While we would have preferred that the court make fuller findings of fact in response to the state's representations, the factual record presented tends to compel the court's ruling, and thus our conclusion that its decision to deny the Batson challenge was not clearly erroneous. IV {¶ 31} Prior to trial, Brown filed a motion in limine to exclude testimony by two separate witnesses who would testify that Brown had previously planned and aborted a robbery attempt. Douglas Lloyd was to testify that he and Brown conspired to rob the victim, but Lloyd backed out when he learned that Brown intended to murder the victim. At the same time, Lloyd and Brown had agreed to rob a person named "Darrin" after completing the robbery on the victim, but Lloyd backed out of that robbery because Brown said that he would get another gun and Lloyd did not want to be involved since he believed that Brown had killed the victim in the earlier robbery. The court overruled the motion in limine and Lloyd testified over objection to the facts stated above. Brown argues that Lloyd's testimony amounted to inadmissible other acts evidence and was used strictly to bolster Lloyd's credibility — credibility which Brown maintains had been suspect in light of conflicting statements he gave to the police. {¶ 32} Under Evid.R. 404(B), "evidence of other crimes, wrongs, or acts is not admissible to prove" a defendant's character as to criminal propensity. It may, however, be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. {¶ 33} The court did not err by denying the motion in limine because Lloyd gave testimony directly related to Brown's intent in committing the murder. The testimony showed that Brown willingly carried a firearm with him during the robbery, going so far as to seek another weapon for use in a robbery he planned to commit after killing the victim. To be sure, this other acts evidence was prejudicial, but its relevance was undeniable in light of Brown's defense that he did not commit the murder. {¶ 34} Likewise, the testimony showed preparation, as the details given by Lloyd relating to the planned robbery of "Darrin" were very similar indeed to those used on the victim. The testimony showed that Brown planned to rob each victim with the use of a gun, and his statements about not leaving any witnesses behind could manifest an intent to kill. Consequently, we find that Lloyd's testimony was admissible for the purposes set forth in Evid.R. 404(B). V {¶ 35} Finally, Brown argues that all of the instances in which counsel failed to object constituted ineffective assistance of counsel. {¶ 36} In order to establish ineffective assistance grounds, a defendant must show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.Strickland v. Washington (1984), 466 U.S. 668, 687. Deficient performance does not prejudice a defendant unless there is a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. State v.Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. {¶ 37} As we noted in our discussion of the relevant instances where we invoked the plain error analysis, none of the alleged errors would have required reversal on grounds of a manifest miscarriage of justice. While that standard is higher than the "result of trial would have been different" standard set forth in Bradley, it nonetheless informs our conclusion under the ineffective assistance of counsel standard of review. As our analysis of the claimed errors showed, we found no argument of substance to merit a reversal, and our conclusion under theBradley standard is no different. Brown makes no argument that but for counsel's trial errors, the result of the trial would have been different. Absent an argument to that effect, we have no choice but to overrule the claim of ineffective assistance of counsel. {¶ 38} The only real matter of contention is that counsel failed to object to the victim impact evidence offered by the state. Ordinarily, we would be disinclined to suggest that counsel's failure to object to inadmissible evidence constituted a "trial tactic." However, the circumstances of this case may have presented defense counsel with a difficult decision since repeated objections to the testimony of the victim's wife may have soured the jury. It is possible that the jurors would have viewed counsel's objections as an affront to a sympathetic witness, and counsel could rationally conclude that an objection was not worth the risk of antagonizing the jury. While we admit that all of this is in the realm of possibility, not probability, our standard of review for ineffective assistance of counsel requires us to give strategic decisions of counsel wide latitude. Viewing Brown's argument under that standard, we cannot say that counsel failed to perform effectively. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Calabrese, P.J., and Rocco, J., Concur. (*SITTING BY ASSIGNMENT: Judge James D. Sweeney, Retired, of the Eighth District Court of Appeals.)

2016-07-06 06:35:56.462007+00

ACCELERATED DOCKET JOURNAL ENTRY AND OPINION Appellant Joseph P. Dailey appeals the order of the trial court denying his Civ.R. 60(B) motion. Dailey assigns the following error for our review: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF RELIEF FROM JUDGMENT WHEN THIS COURT'S SUBSEQUENT RULING RENDERED THE JUDGMENT'S PROSPECTIVE RELIEF INCAPABLE OF PERFORMANCE. Having reviewed the record and the legal arguments of the parties, we affirm the trial court's decision. The apposite facts follow. The procedural history of this case is important because it explains why Dailey is now asking us to reverse the lower court's decision that denied his Civ.R. 60(B) motion to vacate a summary judgment rendered in his favor by the lower court. Originally, the trial court awarded him summary judgment on his complaint against his developer who he sued for fraud in failing to reveal certain latent defects in his condominium's garage. In the summary judgment, the trial court granted Dailey money damages against the developer, which the trial judge could do; however, the trial judge also granted Dailey a discharge of Envoy Condominium Unit Owners Association's lien, which the trial court could not do. In the interim, Envoy condominium Unit Owners Association (Envoy), having assessed Dailey his charge of monies it needed to repair the condominium's garage, eventually filed a foreclosure action against Dailey for the balance due on the assessment as well as maintenance fees. It is important to note that the trial court granted Dailey's motion for summary judgment against the developer after Envoy filed its foreclosure action. None of the parties moved to consolidate Envoy's foreclosure action with Dailey's fraud action. Before a different trial judge Envoy, on September 4, 1997, moved for summary judgment against Dailey in its foreclosure action. Dailey defended by arguing that a prior trial court in a different action had discharged Envoy's lien in July 1996. The trial court, unimpressed by Dailey's argument, granted Envoy's summary judgment. Dailey appealed, and on July 29, 1999, this court issued an opinion holding that the trial court that issued the discharge of Envoy's lien acted without jurisdiction because Envoy was not a party to that action. Thus, the subsequent trial court acted properly in granting Envoy's summary judgment. Additionally, this court held collateral estoppel inapplicable in that case because Envoy, not a party to the action, was not bound by its judgment. See Envoy Cond. Unit Owners Assoc. v. Dailey (July 29, 1999), Cuyahoga App. No. 76123, unreported. Some three to four months later, October 15, 1999, Dailey filed his Civ.R. 60(B) motion for relief from the original summary judgment in his favor, which is the subject of this appeal. In his motion, he argued the relief granted in the summary judgment no longer satisfied him because of this court's decision in Envoy v. Dailey; wherein we held the trial court had no jurisdiction to discharge Envoy's liens. Dailey specifically claimed relief under Civ.R. 60(B)(4), and (5), but developed an argument only under provision (4). He argued he has a meritorious claim because he could not have foreseen this court's decision in Envoy v. Dailey. The trial court hearing the Civ.R. 60(B) motion denied that motion on October 26, 1999, and this appeal followed. Dailey's sole assigned error is the trial court abused its discretion when it denied him relief from the prior judgment. In substance, he argues the lien discharge was a part of the favorable relief sought by Dailey in his suit against the developer; consequently, because that relief is no longer available, he should be allowed to reopen the case and obtain the necessary relief from the developer. We disagree. Our standard of review is guided by the premise that the granting of a Civ.R. 60(B) motion rests in the sound discretion of the trial court. See Doddridge v. Fitzpatrick (1978), 53 Ohio St.2d 9,371 N.E.2d 214; Adomeit v. Baltimore (1974), 39 Ohio App.2d 97,316 N.E.2d 469, Rose Chevrolet, Inc. v. Adams (1988),36 Ohio St.3d 17, 520 N.E.2d 564. Consequently, the trial court's granting of a Civ.R. 60(B) motion will not be disturbed by this court unless we conclude the trial court has abused its discretion. Id.An abuse of discretion exists when the trial court's granting of a Civ.R. 60(B) motion is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,450 N.E.2d 1140. The Supreme Court of Ohio has held that, to constitute a reversible abuse of discretion, the trial court's ruling must be so palpably and grossly violative of fact or logic that it evidences not the exercise of will but the perversity of will, not the exercise of judgment but the defiance of judgment, not the exercise of reason but instead passion or bias. Nakoff v. Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1,3. The granting of a Civ.R. 60(B) motion is unreasonable when either of the following has not been satisfied and the trial court has ignored that fact: (1) a meritorious defense; (2) a ground under any one of Civ.R. 60(B)(1) through (5); and (3) timeliness. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146,351 N.E.2d 113. Svoboda v. Brunswick (1983), 6 Ohio St.3d 348,453 N.E.2d 648. The first prong of GTErequires the movant to show that he has a meritorious claim to present in the event that his Civ.R. 60(B) motion is granted. Dailey argues he has a meritorious Civ.R. 60(B)(4) claim but fails to establish what bases he has for reopening his original lawsuit against the developer. The developer has satisfied the judgment rendered by the trial court by paying the $1,674.96. GTE requires the movant to show a claim or defense in the underlying action as well as establishing that the movant is entitled to Civ.R. 60(B) relief under one of the stated five categories. A movant may very well have relief under one of the stated Civ.R. 60(B) provisions but fails to show that he has a meritorious claim in the underlying lawsuit. A movant's failure to show a meritorious claim is fatal to his Civ.R. 60(B) motion. Here, Dailey has a meritorious claim against the developer for fraud. We know this because the original trial court awarded Dailey summary judgment and the developer did not appeal that ruling. The developer satisfied that part of the judgment rendered against it; consequently, the developer should then have the right to rely on the finality of that judgment. Historically, the law in Ohio has been that a court may vacate or correct an erroneous entry of satisfaction after the term at which it was rendered. Colvin v. Abbey's Restaurant, Inc. (1999),131 Ohio App.3d 439, 722 N.E.2d 630, Kipp v. Bowman (1935), 20 Ohio Law Abs. 698. However, a court may not vacate a satisfied judgment unless it does so pursuant to Civ.R. 60(B) under one of the enumerated categories. Dailey claims relief under Civ.R. 60(B)(4). Under Civ.R. 60(B), the court may grant a party relief from judgment for the following reasons: (4) * * * it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from judgment. The Supreme Court of Ohio has stated that Civ.R. 60(B)(4) should be construed to provide relief from a judgment which has clearly become inequitable due to subsequent circumstances. Wurzelbacher v. Kroger (1974), 40 Ohio St.2d 90,92, 320 N.E.2d 666, 668. However, [t]he * * * it is no longer equitable * * * clause of Civ.R. 60(B)(4) was designed to provide relief to those who have been prospectively subjected to circumstances which they had no opportunity to foresee or control. Knapp v. Knapp (1986), 24 Ohio St.3d 141, 146, 493 N.E.2d 1353,1357. Dailey argues he could not have foreseen that the original trial court's discharge of Envoy's lien was invalid. Envoy was not a party to Dailey's fraud case. When Envoy first assessed Dailey, he could have joined it as a party. When Envoy sued him for the debt in foreclosure, he could have consolidated the cases. To now claim inability to anticipate the lack of a jurisdictional issue when the lien holder is not a party to the action where relief is sought against the lien holder, is beyond this court's comprehension. The rule is to obtain relief against a party, that party must be named in the action or made a party thereto. See State, ex rel. Ballard v. O'Donnell (1990), 50 Ohio St.3d 182,553 N.E.2d 650; State, ex rel. Tod v. Fairfield Cty Ct of Common Pleas (1864), 15 Ohio St. 377. Besides, in the original action, nothing prevented Dailey from recovering the full amount of his damages from the developer. At one point in the proceedings, he prayed for the full amount but for some unexplained reason, reduced the prayer from $4,947.87 to $1,674.96. In this case, we are not concerned with whether the trial court had subject matter jurisdiction to discharge the lien but whether it had jurisdiction over Envoy. Consequently, we believe that Civ.R. 60(B) is the proper avenue for a claim as this one; however, the movant has not shown that he is entitled to relief under Civ.R. 60(B)(1) through (5). Additionally, Dailey did ask for relief under Civ.R. 60(B)(5) but did not develop any grounds to show why this category should apply to his facts. Recently, in Cerney v. Norfolk W.Ry.Co. (1995), 104 Ohio App.3d 482, 491, 662 N.E.2d 827, 833, this Court made the following observation: Civ.R. 60(B)(5) is a catchall provision that is not to be used as a substitute for Civ.R. 60(B)(1), (2) or (3), when it is too late to seek relief under those provisions. It is to be used only in extraordinary and unusual cases when the interests of justice warrant it. Adomeit v. Baltimore (1974), 39 Ohio App.2d 97, 105 68 O.O.2d 251, 255, 316 N.E.2d 469, 476. Civ.R. 60(B)(5) reflects the inherent power of a court to relieve a person from the unjust operation of a judgment. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 5 OBR 120, 448 N.E.2d 1365, paragraph one of the syllabus. The court in State ex rel. Gyurcsik v. Angelotta (1977), 50 Ohio St.2d 345, 4 O.O.3d 482, 364 N.E.2d 284, quoted Justice Black in Klapprott v. United States (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, recognizing that the other reason clause made available all equitable grounds for relief from a final judgment: `In simple English, the language of the `other reason' clause, for all reasons except the five particularly specified, vests power in the courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.' Id. at 346, 4 O.O.3d at 483, 364 N.E.2d at 285. Matters of an extraordinary nature fall within the purview of Civ.R. 60(B)(5). See Caruso-Ciresi. This means that if the motion should have been brought under one of the more specific provisions of Civ.R. 60(B), this provision does not apply unless the movant can show operative facts different from and/or in addition to those contemplated by one of the more specific provisions. Whitt v. Bennett (1992), 82 Ohio App.3d 792, 613 N.E.2d 667. For example, here Dailey argues Civ.R. 60(B)(4) is applicable. We have found that he cannot obtain relief under that provision. In fact, his facts look more like the provisions under Civ.R. 60(B)(1). However, Dailey has not shown operative facts different from and/or in addition to those contemplated under Civ.R. 60(B)(1). Consequently, we conclude Civ.R. 60(B)(5) is inapplicable. Accordingly, Dailey's failure to show all of the prongs of GTE is fatal to his Civ.R. 60(B) motion. In light of the above discussion, we conclude it unnecessary to address whether the October 15, 1999 filing of his motion was timely. It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ____________________________________ PATRICIA ANN BLACKMON, JUDGE TIMOTHY E. McMONAGLE, P.J., and JAMES D. SWEENEY, J., CONCUR.

2016-07-06 06:35:56.67593+00

DECISION. In eight assignments of error, defendant-appellant Willie Bush appeals from his conviction on one count of robbery and the three-year prison term imposed by the trial court following a bench trial. Because the trial court failed to make the findings required for review of the sentence under R.C. 2929.14(B), we vacate the sentence imposed and remand this case to the trial court for resentencing. On December 29, 1999, Robert Choates entered his apartment building. While climbing the stairs to his third-floor apartment, he was robbed at gunpoint by an assailant wearing a ski mask. The perpetrator ordered Choates to get on the floor and then took his money. Choates then observed the perpetrator rob Anthony Oats on another stair landing. Oats was also ordered to the floor at gunpoint and robbed of eighty dollars and his identification card. After the robbery, Oats fled and summoned police. Oats testified that he had seen Bush with another building tenant before he was robbed. Oats later identified Bush in a police lineup. After the state rested, the court granted Bush's Crim.R. 29 motions for a judgment of acquittal on the two counts naming him as the perpetrator of the Choates robbery. In his defense, Bush and his mother then testified that he was caring for her at her home when the crimes were committed. The trial court acquitted Bush of the aggravated robbery of Oats, but convicted him of robbery in violation of R.C. 2911.02(A)(2), as he stood charged in the second count of the indictment. The trial court sentenced Bush to a three-year term of imprisonment. In the judgment entry, the court erroneously identified the violation of R.C. 2911.02(A)(2) as a third-degree felony. Robbery, in violation of R.C. 2911.02(A)(2), is punishable as a second-degree felony. See R.C. 2911.02(B). In his third assignment of error, Bush contends that the trial court sentenced him without considering the purposes of felony sentencing and without making the felony-sentencing findings required by statute. See,e.g., R.C. 2929.12, 2929.13 and 2929.14(B). He also argues that he was entitled to the shortest prison term authorized for robbery pursuant to R.C. 2911.02(A)(2). The minimum definite prison term for robbery of the second degree is two years, see R.C. 2929.14(A)(2), and there is a presumption in favor of a prison term for a second-degree felony conviction. See R.C. 2929.13(D). The record certified for review does not demonstrate that the trial court satisfied the mandates of Am.Sub.S.B. No. 2, effective July 1, 1996. The trial court did not complete a felony-sentencing worksheet and make it part of the record. See R.C. 2953.08(F)(2). The trial court did not make a finding that Bush had previously "served a prison term," thus permitting the imposition of more than the shortest prison term. See R.C.2929.14(B). Neither did it enunciate, according to the transcript of the sentencing proceedings, any of the required factors or findings, save an oblique reference to some prior involvement with the court system.1 See R.C. 2953.08(F)(3). On the state of this record, a reviewing court cannot fulfill its obligation to "review the record, including the findings underlying the sentence * * * given by the sentencing court." R.C. 2953.08(G)(2) (modified by H.B. No. 331, effective Oct. 10, 2000); see, also, State v.Edmondson (1999), 86 Ohio St.3d 324, 715 N.E.2d 131. Therefore, Bush's third assignment of error is sustained, as the trial court failed to comply with the felony-sentencing statutes. See State v. Richardson (Aug. 20, 1999), Hamilton App. No. C-980860, unreported. In his fourth assignment, Bush claims that the trial court erred by failing to inform Bush, at the time of sentencing, of the potential for "post-control release" following his release from prison. Bush correctly notes that when imposing a prison term for a felony of the second degree, the trial court "shall * * * notify the offender that a period of post-release control pursuant to section 2967.28 of the Revised Code will be imposed following the offender's release from prison[.]" R.C.2929.19(B)(3)(c); see Anderson's Ohio Criminal Practice and Procedure (6 Ed. 2000) 316, Section 33, Appendix A. Here, however, our resolution of the third assignment of error, requiring the trial court to resentence Bush, provides the opportunity to satisfy R.C. 2967.28 and thus removes any prejudice resulting from the trial court's original error. The fourth assignment of error is overruled. Bush's first and second assignments of error, in which he claims error based upon the absence of a written jury waiver from the record, are overruled, as, pursuant to App.R. 9(E), the record has been corrected to reflect a nunc pro tunc entry of the jury waiver signed by Bush before his bench trial. See State v. Wallace (Dec. 10, 1999), Hamilton App. No. C-980314, unreported. Bush also challenges the trial court's erroneous entry of a judgment that stated, inter alia, that he had entered pleas of no contest. This assignment of error is also overruled, as, pursuant to App.R. 9(E), the trial court has corrected the record to reflect that it granted Bush's motions for a judgment of acquittal on counts three and four, and that, following a bench trial, Bush was acquitted on count one, but was convicted on count two. The seventh assignment of error is overruled. In two interrelated assignments of error, Bush challenges the weight and the sufficiency of the evidence adduced to support his conviction for robbery. Our review of the entire record fails to persuade us that the trial court, sitting as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. See Tibbs v. Florida (1982),457 U.S. 31, 102 S.Ct. 2211; see, also, State v. Thompkins (1997),78 Ohio St.3d 380, 387, 678 N.E.2d 541, 546-547. Moreover, the record contains substantial, credible evidence from which the court could have reasonably concluded that all elements of the crime were proven beyond a reasonable doubt. See State v. Waddy (1991), 63 Ohio St.3d 424,588 N.E.2d 819, certiorari denied (1992), 506 U.S. 921, 113 S.Ct. 338. Furthermore, the trial court did not err in denying Bush's motion for a judgment of acquittal on the charge of robbery, as reasonable minds could have reached different conclusions as to whether each element of the crime had been proven beyond a reasonable doubt, including that Bush robbed Oats at gunpoint. See Crim.R. 29; see, also, State v. Bridgeman (1978), 55 Ohio St.2d 261, 381 N.E.2d 184. The fifth and sixth assignments of error are overruled. In the last assignment of error, Bush's appointed counsel raises six "improprieties" that he believes are not meritorious, but that Bush maintains were prejudicial to him. The state also urges this court to "review the entire record in accordance with" the no-error doctrine ofAnders v. California (1967), 386 U.S. 738, 87 S.Ct. 1369. As we have previously held, we cannot entertain an assignment of error raised pursuant to Anders in a brief that otherwise complies with App.R. 12(A) and 16(A)(7) by raising substantive assignments of error. See, e.g.,State v. Burrow (Dec. 20, 2000), Hamilton App. No. C-990641, unreported. In light of Bush's concerns over the fairness of his trial, in conducting the review of the record mandated by Tibbs v. Florida and State v.Thompkins, we have scrutinized those issues raised by Bush that are developed in the record. Those "improprieties" not identified in the record or argued separately are disregarded. See App.R. 12(B). The eighth assignment of error is overruled. Therefore, pursuant to the resolution of the third assignment of error, the sentence imposed by the trial court is vacated, and the cause is remanded for resentencing in accordance with law and this Decision. Gorman, P.J., Sundermann and Winkler, JJ. 1 Police and victim-impact statements were referred to by the prosecutor, and are part of the record. No presentence-investigation report, if one was prepared, has been made part of the record.

2016-07-06 06:35:56.819495+00

OPINION Defendant-appellant, Wade Jackson, appeals the decisions of the Butler County Court of Common Pleas adjudicating him a sexual predator and sentencing him to the maximum allowable prison term for gross sexual imposition and attempted sexual battery. We affirm the decision of the trial court. Appellant, a thirty-four-year-old male, was indicted on one count of gross sexual imposition in violation of R.C. 2907.05-(A)(1), a fourth-degree felony, and one count of sexual battery in violation of R.C. 2907.03(A)(5), a third-degree felony. According to the record, appellant touched his thirteen-year-old stepdaughter's erogenous zone and forced his penis between her buttocks and vaginal area in September 1998. The state later amended the charge of sexual battery to attempted sexual battery, a fourth-degree felony. See R.C. 2907.03(A)(5) and 2923.02. Appellant entered Alford pleas of guilty to one count of gross sexual imposition and one count of attempted sexual battery. See NorthCarolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160. After finding appellant guilty of the offenses, the trial court ordered a forensic evaluation and a presentence investigation report. Following a hearing on February 17, 2000, the trial court determined that appellant is a sexual predator as defined by R.C. Chapter 2950, and sentenced him to prison terms of eighteen months on each count to be served concurrently. Appellant appeals raising two assignments of error. Assignment of Error No. 1: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT BY FINDING HIM TO BE A SEXUAL PREDATOR. In his first assignment of error, appellant contends that the trial court abused its discretion because the evidence was not clear and convincing that he is likely to engage in future sexually oriented offenses. Specifically, appellant argues that the trial court erred by relying primarily upon the psychologist's opinion because her statistics represent a "best guess" and are unscientific. A sexual predator is "a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." R.C. 2950.01(E). To determine whether an offender is a sexual predator, the trial court holds an adjudication hearing where the parties are given an opportunity to testify, present evidence, and call and cross-examine witnesses and expert witnesses. R.C. 2950.09(B)(1). After considering all the evidence and testimony, a trial court may find a person convicted of a sexually oriented offense to be a sexual predator if there is clear and convincing evidence that an offender is likely to commit one or more sexually oriented offenses in the future. See R.C. 2950.09(B)(3); State v.Williams (2000), 88 Ohio St.3d 513, 519. "Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. * * * Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof." (Citations omitted.) Cross v. Ledford (1954), 161 Ohio St. 469,477. R.C. 2950.09(B)(2) requires the trial court to consider "all relevant factors" including the following: (a) The offender's age; (b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses; (c) The age of the victim of the sexually oriented offense for which sentence is to be imposed; (d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims; (e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offenses or to prevent the victim from resisting; (f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders; (g) Any mental illness or mental disability of the offender; (h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; (i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; (j) Any additional behavioral characteristics that contribute to the offender's conduct. The trial court may also consider a defendant's past behaviors as an indication of his propensity to engage in future sexually violent behavior. State v. Naegele (Jan. 12, 1998), Clermont App. No. CA97-04-043, unreported, at 5, affirmed, 84 Ohio St.3d 19. It is also well-settled that the trial court is not required to state on the record the factors it considered in making its determination. State v. Cook (1998), 83 Ohio St.3d 404, 426. However, in an effort to ensure that the appropriate criteria are addressed, the Ohio Supreme Court, in State v.Eppinger (2001), 91 Ohio St.3d 158, suggested three objectives for a sexual-offender-classification hearing: (1) to create a clear and accurate record for review; (2) to appoint an expert, if necessary, to assist the trial court in making a determination concerning the offender's likelihood of recidivism; and (3) to discuss on the record the particular evidence and statutory factors upon which the trial court relies in determining the offender's likelihood of recidivism. Id. at 166. In the instant case, the sexual-offender classification hearing was conducted by the same judge who presided over appellant's plea hearing. The state presented the testimony of Dr. Bobbie G. Hopes, a psychologist with the Center for Forensic Psychiatry concerning the forensic report she had prepared on appellant. The report was introduced into evidence without objection. Appellant offered no evidence. At the conclusion of the hearing, the trial court stated it considered the legal criteria in R.C. 2950.09(B)(2) as well as Dr. Hope's testimony before classifying appellant a sexual predator. The report and Dr. Hopes' testimony set forth extensive background information regarding appellant's family, educational, relationship, employment, substance abuse, criminal, medical, mental health and sexual histories. The information concerning appellant is based upon his own statements to Dr. Hopes, reports from children services and law enforcement agencies and court documents concerning the case. According to the report, the offenses were part of a pattern of sexual abuse. The victim had reported several other incidents of sexual abuse by appellant when she was nine and eleven years old. At various times, the victim had been placed in foster care due to domestic violence in the home and her mother's neglect and substance abuse. At the time the offenses occurred in September 1998, appellant, who was then divorced from the victim's mother, was living with the family without the approval of children services. The report also indicates that appellant has an "antisocial personality disorder" which is associated with a significantly increased risk of sexual recidivism. He has accepted no responsibility for his actions. According to the Violence Risk Appraisal Guide, appellant has a forty-eight percent probability of reoffending within ten years after release from prison. The Sex Offender Risk Appraisal Guide indicates a fifty-nine percent probability of reoffending within ten years after release from prison. Appellant had convictions for breaking and entering, theft, disorderly conduct, indecent exposure, public intoxication, driving under the influence, and driving without a license. Although drug and alcohol were not involved in the commission of the current offenses, appellant admits drug and alcohol abuse since he was a teenager. He further admits that his drinking has resulted in both verbal and physical abuse of women. The report also contains a discussion of the evidence as it relates to each of the R.C. 2950.09(B)(2) factors. The report concludes that appellant has a moderate to high likelihood of committing one or more sexually oriented offenses in the future. Appellant takes issue with Dr. Hopes' inclusion of his indecent exposure conviction in her assessment of his likelihood to re-offend. However, Dr. Hopes testified that even without that incident she would have the same opinion. Based upon the foregoing, we conclude that there was clear and convincing evidence in the record to support the trial court's finding that appellant is a sexual predator. Appellant's first assignment of error is overruled. Assignment of Error No. 2: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT BY SENTENCING HIM TO THE MAXIMUM TERM ON EACH COUNT WITHOUT STATING ITS REASONS FOR IMPOSING THE MAXIMUM SENTENCES. In his second assignment of error, appellant contends that the trial court abused its discretion by sentencing him to the maximum sentence on each offense without stating its reasons on the record pursuant to R.C. 2929.19(B)(2)(e). An abuse of discretion is no longer the proper standard of review by an appellate court for sentences imposed after July 1, 1996 under the felony sentencing guidelines. See State v. Scruggs (Apr. 30, 2001), Butler App. No. CA2000-05-094, unreported, 6-7; State v. Mariana (Dec. 30, 1999), Butler App. No. CA98-09-202, unreported, at 12-13. R.C. 2953.08, which now governs the appeal of felony sentences, dictates that an appellate court may not disturb a sentence imposed under felony sentencing law unless it finds by clear and convincing evidence that the sentence is not supported by the record or is contrary to law. R.C. 2953.08(G)(1); Statev. Garcia (1998), 126 Ohio App.3d 485, 487. The applicable record to be reviewed by the appellate court shall include the following: (1) the presentence investigative report; (2) the trial court record in the case in which the sentence was imposed; and (3) any oral or written statements made to or by the court at the sentencing hearing at which the sentence was imposed. R.C. 2953.08(F)(1)-(3). The possible prison term for a fourth-degree felony is six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, or eighteen months. R.C. 2929.14(A)(4). A trial court may impose the maximum sentence "only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes, upon certain major drug offenders * * *, and upon certain repeat violent offenders * * *." R.C. 2929.14(C). When imposing a maximum sentence, R.C. 2929.19(B)(2) provides: The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances: * * * (e) If the sentence is for two or more offenses arising out of a single incident and it imposes a prison term for those offenses that is the maximum prison term allowed for the offense of the highest degree by division (A) of section 2929.14 of the Revised Code, its reasons for imposing the maximum prison term. Cf. State v. Edmonson (1999), 86 Ohio St.3d 324, 326. In the instant case, the trial court sentenced appellant to the maximum sentence of eighteen months on each count. Pursuant to R.C. 2929.14(C), the trial court made a finding that appellant had committed the worse form of the offense. On the record, the trial stated that "[f]orcing yourself on a family member, a victim female of this age[,] the court can't envision you committing much worse of a crime." Although the trial court did not specifically recite the "magic words" contained in the statute, R.C. 2929.14(C) requires only substantial compliance. See Statev. Blondheim (May 27, 1998), Summit App. No. 18594, unreported. The record also reveals that the pursuant to R.C. 2929.19(B)(2)(e), the trial court gave its reasons for the sentences as the victim's age, the psychological harm inflicted upon the victim, and appellant's use of a position of trust within the family to perpetrate the crime. Appellant, however, argues that the trial court's reasons are not supported by the record. In particular, appellant argues that the state did not established that the victim suffered psychological harm because the trial court heard statements concerning the victim's emotional problems from only lay persons and not an expert on psychological harm. At the sentencing hearing, the prosecutor, the detective who investigated the case and the victim's foster parent gave statements to the trial court, without objection, that the victim had emotional problems; witnessed domestic violence, alcohol and drug abuse in the home; and/or had been diagnosed with post-traumatic stress syndrome. Such information may be presented by the prosecutor, a representative of the victim and any other person permitted by the trial court. See R.C.2929.19(A). The trial court also had before it the presentence investigation report that indicated the victim suffered severe psychological harm as a result of appellant's actions, and that this condition might require on-going treatment. As such, there is clear and convincing evidence in the record that the victim suffered severe psychological harm. Appellant further argues that the record does not support his sentence based upon a statement made by the trial court at the sentencing hearing. After imposing the sentences, the trial judge stated to appellant that it "may entertain in the hopes that you don't re-offend some type of early release if it's possible to get you within the CCC program towards the end of your sentence. You may want to consider that. I'm not promising anything." Appellant cites State v. Gray, 1999 Ohio App. LEXIS 834, at *7 (Mar. 9, 1999), Cuyahoga App. No. 72940, unreported, appeal not allowed,86 Ohio St.3d 1420, for the proposition that "it would be inconsistent for the judge to say on the one hand that defendant committed the worst form of offense yet on the other hand say that he would grant a motion for shock probation that would effectively grant defendant an early release from that maximum term." The trial court imposed the maximum sentence after Gray entered a plea of guilty to gross sexual imposition based upon sexual conduct with a thirteen-year-old girl. Id. at *6. Although there were no reasons stated on the record for imposing the maximum sentence, the Eighth District Court of Appeals vacated the maximum sentence because it found that the trial "court did not, and could not find that the offender committed the worst form of the offense or posed the greatest likelihood of committing future crimes" when it stated that it would consider shock probation." Id. at *7. We do not find Gray persuasive. Under the felony sentencing guidelines, when the sentence imposed is not a mandatory sentence for an offense, the sentencing judge has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in R.C. 2929.11. R.C. 2929.12(A). The trial court retains jurisdiction over the sentence and may grant judicial release under the guidelines set forth in R.C. 2920.20. Here, the maximum sentences imposed for the two fourth-degree felonies did not preclude appellant from being an eligible offender for judicial release. See R.C. 2929.20. Early judicial release, formerly known as "shock probation" merely suspends the remainder of the prison sentence until the offender either successfully completes the maximum five year term of "community control" or violates the conditions of the release, in which case the original prison sentence is reinstated with credit for time already served. R.C. 2929.20(I); Statev. Fugate (Nov. 13, 2000), Butler App. No. CA2000-02-031, unreported, at 6; State v. Gardner (Dec. 1, 1999), 1999 Ohio App. WL 1075424 at *3, Union App. No. 14-99-24, unreported. Therefore, a statement that the trial court may consider judicial release does not make appellant's maximum sentences unsupported by the record or contrary to law because the trial court has discretion to grant judicial release. We therefore conclude that the trial court provided the statutory finding and reasons required to impose the maximum sentences, and those findings and reasons were clearly and convincingly supported by the record and not contrary to law. Appellant's second assignment of error is overruled. VALEN and WALSH, JJ., concur.

2016-07-06 06:35:59.205068+00

OPINION *Page 2 {¶ 1} Plaintiffs-appellants N. Kathryn Walker, et al. appeal the decision of the Stark County Court of Common Pleas finding that applicable law requires the owners of manufactured home parks, such as Appellants herein, to provide potable water to their residents. {¶ 2} Defendant-appellee is the Stark County Health Department. STATEMENT OF THE FACTS AND CASE {¶ 3} Appellants, N. Kathryn Walker and William E. Walker, Sr., are the owners and operators of a manufactured home park, known as Hillview Mobile Home Park, located in Sugarcreek Township, Stark County, Ohio (hereinafter "Hillview"). Hillview is located within the Stark County Combined General Health District, Appellee herein, a general health district organized under Chapter 3709 of the Ohio Revised Code (hereinafter "Board"). {¶ 4} The Board is the licensor of Hillview pursuant to R.C. § 3733.01 and OAC3701-27-01(J). R.C. § 3733.01 requires a general health district to assure compliance with R.C. § 3733.01 through R.C. § 3733.08 and the rules promulgated thereunder. R.C. § 3733.02 authorizes the public health council, pursuant to Chapter 119, to adopt rules of uniform application throughout the state governing, among other areas, the issuance of licenses for manufactured home parks; the sanitation, safety and operation of those parks. {¶ 5} OAC 3701-27-12 requires the operator of a manufactured home park ensure that the water system is maintained in a safe and sanitary manner so as not to create a hazard to the health of its residents. *Page 3 {¶ 6} Hillview therefore was required to have a water supply "from a public water system approved by the Ohio Environmental Protection Agency." {¶ 7} In 2001, the USEPA lowered the maximum contaminant level (MCL) of arsenic from 50 ppb to 10 ppb, and the Ohio EPA adopted those levels effective January 1, 2006. Employees of the Board were made aware by the Ohio EPA that the arsenic levels in the water supply to the residents of Hillview exceeded the maximum contaminant level (MCL) as established in OAC 3745-81-11. {¶ 8} On April 30, 2007, Appellants Walker were sent a letter by the Environmental Director of the Board, explaining what the problem was with the arsenic levels in Hillview's water system and advising them to correct it. {¶ 9} On May 17, 2007, pursuant to the authority granted under R.C. 3707 and 3709, Appellants were issued a Public Health Order by William Franks, Health Commissioner for the Board, commanding the Appellants to provide a safe alternative water source to the residents of Hillview, and to seek corrective measures to comply with Ohio EPA public water system requirements. {¶ 10} On May 21, 2007, Appellants were sent a notification from the Ohio EPA that they had failed to comply with OAC 3745-81-60, which requires a periodic sanitary survey of Hillview's community water system. {¶ 11} On May 24, 2007, Appellants were sent a letter from Ohio EPA stating that Hillview was in violation for exceeding MCL standards for arsenic (currently .010 mg/1), and that Hillview's annual average for arsenic in the first quarter of 2007 is 0.091 mg/L. {¶ 12} On May 21, 2007, Appellants herein filed a Verified Complaint for Declaratory and Injunctive Relief against Appellees herein. *Page 4 {¶ 13} Appellee Board filed an Answer and Verified Counterclaim for Preliminary and Permanent Injunctive Relief on June 6, 2007. {¶ 14} The trial court requested that the parties submit briefs on the issue. {¶ 15} The trial court entered a Judgment Entry on July 18, 2007, in favor of Appellees herein, and directed them to prepare an appropriate Judgment Entry. {¶ 16} The trial court filed said Judgment Entry on July 23, 2007. {¶ 17} It is from those Entries that Appellants have appealed, assigning the following errors for review: ASSIGNMENTS OF ERROR {¶ 18} "I. TRIAL COURT ERRED TO THE WALKERS' PREJUDICE, IN FAILING TO HOLD THAT THE DEPARTMENT ACTED BEYOND ITS AUTHORITY WHEN THE DEPARTMENT REDEFINED THE STATE'S PUBLIC POLICY CONCERNING A MANUFACTURED HOME PARK OPERATOR'S OBLIGATION BY REQUIRING THE WALKERS TO "OBTAIN" IN ADDITION TO "MAINTAIN" A PUBLIC WATER SYSTEM IN ORDER FOR THEM TO QUALIFY FOR A MANUFACTURED HOME PARK LICENSE. {¶ 19} "II. THE TRIAL COURT ERRED TO THE WALKERS' PREJUDICE WHEN IT RULED THAT THE WALKERS MUST IMPLEMENT A PLAN TO ABATE A NUISANCE BECAUSE THE STARK COUNTY HEALTH DEPARTMENT DOES NOT HAVE THE AUTHORITY TO REGULATE THE USE OF NONPOTABLE WATER FOR CLEANING AND HYGIENIC PURPOSES OR TO DECLARE ITS USE A NUISANCE." *Page 5 I., II. {¶ 20} We shall address Appellants' assignments of error simultaneously. {¶ 21} A "public water system" is defined in OAC 3745-81-01, as: {¶ 22} "(FFF) "Public water system" or "PWS" means a system which provides water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least sixty days out of the year. Such term includes any collection, treatment, storage, and distribution facilities under control of the operator of such system and used primarily in connection with such system, any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system, and any water supply system serving an agriculture labor camp, as defined in section 3733.41 of the Revised Code. A public water system is either a "community water system" or a "noncommunity water system." {¶ 23} "(1) "Community water system" or "CWS" means a public water system which serves at least fifteen service connections used by year-round residents or regularly serves at least twenty-five year-round residents. {¶ 24} "(2) "Noncommunity water system" or "NCWS" means a public water system that is not a community water system. {¶ 25} "(a) "Nontransient noncommunity water system" or "NTNCWS" means a public water system that is not a community water system and that regularly serves at least twenty-five of the same persons over six months per year. *Page 6 {¶ 26} "(b) "Transient noncommunity water system" or "TNCWS" means a noncommunity public water system that does not regularly serve at least twenty-five of the same persons over six months of the year." {¶ 27} Upon review, we find that Appellants' mobile home park falls under OAC 3701-27-12(B)(2)(a) which requires a public water system approved by the Ohio EPA. {¶ 28} Ohio Administrative Code § 3701-27-12 Water systems, provides: {¶ 29} "(A) The operator of a manufactured home park shall ensure that the water system is maintained in a safe and sanitary manner so as not to create a hazard to the health of the manufactured home park occupants. {¶ 30} "(B) The water supply for a manufactured home park shall be: {¶ 31} "(1) For portions of the park developed after the effective date of this rule: {¶ 32} "(a) * * * {¶ 33} "(b) * * * {¶ 34} "(2) For portions of a manufactured home park developed on or before the effective date of this rule: {¶ 35} (1) From a public water system approved by the Ohio environmental protection agency; or {¶ 36} "(2) From a private water system which meets the requirements of Chapter 3701-28 of the Administrative Code. {¶ 37} "* * *" {¶ 38} The public water system must provide water for human consumption. {¶ 39} OAC § 3745-81-01, defines "human consumption" as: *Page 7 {¶ 40} "(OO) "Human consumption" means the ingestion or absorption of water or water vapor as the result of drinking, cooking, dishwashing, hand washing, bathing, showering, or oral hygiene." {¶ 41} Initially, we find that Appellant's argument that the Stark County Health Department exceeded their authority in requiring Appellants' to "obtain" in addition to "maintain" a public water system to qualify for a manufactured home park license is without merit. Appellants already had a public water system at their manufactured home park and were therefore required to maintain said public water system in accordance with EPA guidelines. As the EPA had recently reduced the acceptable standard for acceptable amount of arsenic in drinking water, Appellants were required to take the appropriate measures to meet these new guidelines. {¶ 42} We further find that Appellants are incorrect in their assertion that the Stark County Health Department does not have the authority to regulate the use of "nonpotable water for cleaning and hygienic purposes or to declare it a nuisance." {¶ 43} The Stark County Health Department is authorized pursuant to the following Revised Code statute: {¶ 44} R.C. § 3709.21 Orders and regulations of board of generalhealth district {¶ 45} "The board of health of a general health district may make such orders and regulations as are necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement, or suppression of nuisances. * * *." {¶ 46} Pursuant to the above authorization, the Stark County Board of Health had the authority to assure compliance with the following statute: *Page 8 {¶ 47} R.C. § 3733.10 Operator's duties; breach {¶ 48} "(A) A park operator who is a party to a rental agreement shall: {¶ 49} "(1) Comply with the requirements of all applicable building, housing, health, and safety codes which materially affect health and safety and rules of the public health council; * * *. {¶ 50} Pursuant to the authority contained in the foregoing Revised Code statutes and Ohio Administrative Code sections, we find that the Stark County Health Department had the authority to order Appellants to maintain the public water system at their mobile home park in accordance with current Ohio EPA regulations. {¶ 51} Accordingly we find Appellants' first and second assignments of error not well-taken and overrule same. {¶ 52} For the foregoing reasons, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Wise, J. Gwin, P. J., and Edwards, J., concur. *Page 9 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs assessed to Appellant. *Page 1

2016-07-06 06:35:59.232743+00

DECISION AND JUDGMENT ENTRY {¶ 1} This case is before the court on appeal from a judgment of the Huron County Court of Common Pleas. The following procedural facts are necessary to a disposition of this cause. {¶ 2} In May 1998, Linda D. Nunes, who was 45 years old, died as the result of multiple organ failure. Prior to her death, Nunes was hospitalized for a lengthy period while her physicians attempted to treat a perianal abscess/infection, which later invaded other parts of her body and led to the organ failures. {¶ 3} After dismissing a prior wrongful death action, without prejudice, appellant, Patricia Jackson, Executrix of the estate of Linda D. Nunes, timely commenced the instant wrongful death/medical malpractice action. Appellees, Farid H. Said, M.D.; Souheil Al-Jadda, M.D.; Fisher-Titus Medical Center; Ralph N. May, M.D.; and The Norwalk Clinic, Inc. were the named defendants in appellant's complaint. {¶ 4} Subsequent to deposing Calvin M. Kunin, M.D., one of appellant's proposed expert witnesses, the defendants filed motions in limine in which they asked the court to exclude Dr. Kunin's testimony at trial. The defendants based their motions on Dr. Kunin's alleged failure to meet the requirements, as set forth in Evid.R. 601(D), to testify as an expert witness in a medical malpractice action. On May 17, 2004, the trial court entered a preliminary ruling granting the defendants' motions in limine. The case then proceeded to a jury trial. {¶ 5} At the trial of this matter, appellant never offered Dr. Kunin as a witness, either as an expert or otherwise. The jury returned a verdict in favor of appellees, and the trial court entered its judgment on that verdict. Appellant appeals and contends that the following error occurred in the proceedings below: {¶ 6} "The trial court erred, abused its discretion and/or committed reversible error when it granted defendants' motion in limine to exclude the testimony of plaintiff's [appellant's] expert witness, Calvin Kunin, M.D." {¶ 7} Because the question of whether the lower court abused its discretion in excluding Dr. Kunin's testimony is not properly before this court, we will not address the merits of appellant's assignment of error. {¶ 8} A preliminary ruling on a motion in limine is "1a tentative, interlocutory, precautionary ruling * * * [and] finality does not attach when the motion is granted.'" Dent v.Ford Motor Co. (1992), 83 Ohio App.3d 283, 286, quoting Statev. Grubb (1986), 28 Ohio St.3d 199, 202. Thus, the ruling on a motion in limine does not preserve the record on appeal and an appellate court will not rule on the propriety of a motion in limine unless the introduction of the evidence, in this case expert testimony, is also made during trial, and a final ruling is obtained. Gable v. Gates Mills, 103 Ohio St.3d 449,2004-Ohio-5719, at ¶ 34. Therefore, because appellant failed to offer the testimony of Dr. Kunin at trial and obtain a final ruling on this evidentiary matter, she has waived all but plain error. Id. at ¶ 43. See, also, Goodenow v. Carbone (Dec. 13, 1993), 11th Dist. No. 93-L-061 (finding that consideration of the grant of a motion in limine excluding a physician's testimony was foreclosed because the appellant did not seek to introduce that testimony at trial.). {¶ 9} With regard to plain error, we can reverse a jury verdict in a civil case on the basis of plain error only in those "extremely rare" cases that involve "exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfussv. Davidson (1997), 79 Ohio St.3d 116, 122-123. See, also, Gable, at ¶ 43. A review of the case before us reveals that it is not that kind of case. {¶ 10} Accordingly, our review of appellant's sole assignment of error is foreclosed, and the judgment of the Huron County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Erie County. JUDGMENT AFFIRMED. Handwork, J., Skow, J., Parish, J., concur.

2016-07-06 06:35:59.295811+00

OPINION {¶ 1} Defendants-appellants/cross-appellees, RSV, Inc., et al., appeal a decision of the Jefferson County Common Pleas Court finding them in contempt and in violation of Ohio's environmental laws. Plaintiff-appellee/cross-appellant, State of Ohio, ex rel. Jim Petro, Attorney General of Ohio, appeals the same decision arguing that the trial court failed to impose adequate injunctive relief. {¶ 2} Defendant-appellant/cross-appellee, RSV, Inc. (RSV), operates a construction and demolition debris landfill facility known as the Pine Hollow Construction Demolition Debris Facility (Pine Hollow). RSV is controlled exclusively by defendant-appellant/cross-appellee, Robert S. Vukelic (Vukelic). Vukelic, through RSV, purchased the facility in 1994 and commenced operations. The facility is not a solid waste landfill and is only authorized to accept construction and demolition debris materials. Construction and demolition debris materials are "those materials resulting from the alteration, construction, destruction, rehabilitation, or repair of any manmade physical structure, including, without limitation, houses, buildings, industrial or commercial facilities, or roadways." R.C.3714.01(C). Examples of such materials include bricks, wood, shingles, drywall, etc., which are generated as the result of construction or demolition activities. {¶ 3} In 1990, the Ohio General Assembly passed R.C. Chapter 3714, comprehensive legislation designed to regulate construction and demolition debris facilities. On September 30, 1996, the Ohio Environmental Protection Agency adopted construction and demolition debris (CDD) regulations. Ohio Adm. Code 3745-400-01 et seq. The regulations require the owners and operators of construction and demolition debris facilities to obtain operational licenses. Because Pine Hollow was an "existing facility" under the regulations at the time of their adoption, the facility was allowed to continue operating without a license until the Director of the OEPA denied the license and RSV exhausted its administrative appeals. RSV applied for a license each year from 1997 through 2001, but no license was ever issued due to its noncompliance with the regulations. However, RSV continued to operate the facility while it appealed the OEPA's proposed denial of the licenses. {¶ 4} Nearly from the time RSV began operations at the facility, it experienced numerous and repeated regulatory compliance problems. This appeal focuses only on two of those problems. First, RSV unlawfully accepted solid waste into its CDD landfill from November 1996 until September 2001. The second problem at the facility concerned a stream known as Rush Run. Waste deposited at the site blocked its flow. In early 1997, after repeatedly being cited for failing to divert Rush Run around the facility in accordance with CDD regulations and the Surface Water rules, RSV routed Rush Run through the facility with a culvert pipe which created a number of compliance issues. RSV was required to obtain permits before changing the course of Rush Run. Also, problems developed with the pipe and water did not flow through it properly causing water to divert into other areas of the landfill. {¶ 5} On March 23, 2001, the plaintiff-appellee/cross-appellant, State of Ohio, ex rel. Jim Petro, Attorney General of Ohio (the State), on behalf of the OEPA, filed an injunctive action against RSV and Vukelic. The complaint set forth 24 counts alleging numerous violations of the construction and demolition debris regulations. The complaint also sought monetary fines and corrective action to bring the facility into compliance with the regulations. {¶ 6} The parties attempted to resolve disputed issues and reached an agreement embodied in a consent order filed April 10, 2001.1 RSV was ordered to abate surface water violations at the site because of concerns about the flow of a stream into the landfill. Unsatisfied with RSV's efforts to comply with the order, the State filed charges in contempt in February 2002. {¶ 7} On April 10, 2002, the trial court again ordered RSV to remedy the surface water violations at the facility and imposed a civil penalty of $10,000. Both orders set forth stipulated penalties should RSV fail to comply with the terms of the agreements. {¶ 8} Still unsatisfied with RSV's efforts to comply with the terms of the two consent orders, the State filed a second motion for contempt on August 1, 2002. On September 17, 2002, the trial court combined the bench trial and contempt hearing and heard the case. {¶ 9} On November 13, 2002, the trial court issued a ruling of liability and then a final order on December 12, 2002. The trial court found RSV in violation of thirteen counts of Ohio's environmental laws and two counts of contempt. The court also awarded the State a monetary penalty of $413,225. Both parties appealed. {¶ 10} RSV's first assignment of error states: {¶ 11} "The trial court erred in imposing a penalty against Defendants on Count III of the State's Charges in Contempt, when, at the conclusion of the liability phase, the trial court had found `substantial efforts' on the part of the Defendants to comply with this agreement and therefore not in contempt for failing to complete the channel." {¶ 12} RSV argues that the trial court's decision with regard to the surface water diversion plan (i.e., Rush Run) was inconsistent with its factual findings. It appears that RSV's argument contains some merit. Additionally, the State does not really dispute that the trial court's decision and findings are inconsistent in this respect. {¶ 13} Both Counts II and III of the State's Second Motion for Contempt relate to the building of a diversion channel on the west side of the facility. Count II related to the construction of an open trapezoidal channel on the southwest portion of the landfill. Count III related to the installation of a storm sewer pipe on the northwest portion of the landfill. It is undisputed that these were not considered separate and distinct diversion channels. {¶ 14} The trial court did not find RSV liable under Count II in connection with construction of the open channel, concluding that RSV had performed "substantial efforts" to comply with the agreed judgment entry. The trial court specifically noted that RSV had made substantial efforts in attempting to remove large quantities of rock, and that these efforts were hampered by a gas line and the State's concerns about that gas line. {¶ 15} The trial court then found RSV liable under Count III of the State's Second Motion for Contempt, finding that RSV's failure to install the storm pipe was "without showing good cause." The pipe portion of the diversion channel, which is the area relevant to Count III of the contempt motion, is the area where the rock needed to be removed before installing the pipe. The trial court acknowledged that RSV had made "substantial efforts" in attempting to remove the rock, and that these efforts, coupled with unforeseen circumstances, justified RSV's failure to meet the deadline set forth in the agreed judgment entry. Count II, on the other hand, related to the construction of an open channel which did not require the removal of any rock, as was needed to install the pipe. The area covered by Count II was relatively flat and, therefore, RSV installed this portion of the diversion channel using standard construction methods and equipment. There was no difficulty building the open channel because it only involved cutting a ditch deep enough to tie into the end of the storm pipe. The trial court's acknowledgment of RSV's substantial efforts with regard to the removal of the rock, and that these efforts were sufficient to warrant a finding that RSV was not in contempt, illustrates an inconsistency within the court's own findings. {¶ 16} The State simply argues that even if the court's findings in this regard are construed as inconsistent, there were enough other violations proven to justify the ultimate finding of contempt. {¶ 17} Given the specificity of the State's complaint and the counts contained therein, and the specificity of the trial courts imposition of civil penalties regarding these counts, this portion of the trial court's findings is reversed. {¶ 18} Accordingly, RSV's first assignment of error has merit. {¶ 19} RSV's second assignment of error states: {¶ 20} "The trial court erred in imposing `per day' penalties against Defendants on Count III of the State's Charges in Contempt after August 31, 2002, the undisputed date when Defendant's Certifying Engineer certified the completion of 560 feet of the storm pipe, the distance ordered by the Court to be installed." {¶ 21} RSV's second assignment of error is rendered moot by our resolution of RSV's first assignment of error. {¶ 22} RSV's third assignment of error states: {¶ 23} "The trial court erred in assessing a penalty against Defendants for a violation of ORC3734.03 when the penalty statute, ORC3734.99 requires the State to prove defendants acted `recklessly,' and no evidence of reckless conduct was ever entered into the record." {¶ 24} Count I of the State's Amended Complaint alleged that RSV "caused, permitted and/or allowed solid waste to be disposed of on the ground at the facility in such a manner that constitutes open dumping" in violation of R.C. 3734.03. At the conclusion of the liability phase, the trial court found that RSV "accepted solid wastes and permitted open dumping from November 22, 1996 continuously through September 21, 2001" and, therefore, was subject to a fine of not more then $10,000 per day. The trial court then assessed a fine of $5.00 per day, in the total amount of $10,910.00. {¶ 25} RSV points out that under R.C. 3734.99, fines can be imposed against whoever recklessly violates any section of that chapter. RSV argues that the State did not present any evidence of reckless conduct on the part of RSV in accepting solid waste. {¶ 26} As the State correctly explains, RSV's argument is flawed because the trial court assessed civil penalties for violations of R.C. 3734.03 in accordance with R.C. 3734.13(C), the appropriate statute for assessing civil penalties. R.C.3734.03(C) states that "the court may impose upon the person acivil penalty of not more than ten thousand dollars for each day of each violation." (Emphasis added.) R.C. 3734.99, referred to by RSV, is a criminal statute. The State did not pursue its case under that statute. The State pursued its case under R.C. Chapter 3734 which imposes strict civil liability for anyone who violates it. Therefore, all the State had to do was prove the violations in order for a civil penalty to be imposed. {¶ 27} Accordingly, RSV's third assignment of error is without merit. {¶ 28} RSV's fourth assignment of error states: {¶ 29} "The trial court applied an erroneous `continuing violation' standard in assessing the `per day' penalties for the illegal disposal of solid waste in Defendant's landfill." {¶ 30} RSV argues that the trial court erred by applying a "continuing violation" standard in assessing civil penalties for Counts One and Eight of the State's complaint. {¶ 31} Again, as the State correctly points out, RSV's argument is not supported by caselaw and is contrary to the civil penalty language of R.C. Chapters 3734 and 3714. In this case, the trial court correctly assessed civil penalties in accordance with R.C. 3734.13(C) for violations of R.C. 3734.03 as established in Count One of the State's Complaint. Upon finding RSV liable for Count Eight of the State's Complaint, the trial court assessed civil penalties under the applicable statute, R.C.3714.11(B), for violations of the CDD regulations. R.C.3734.13(C) and R.C. 3714.11(B) state that a court may impose upon a person a civil penalty of not more than $10,000 for each day of each violation. The statutes and caselaw relied upon by RSV deal exclusively with criminal law and are not relevant to the proceedings herein. {¶ 32} Accordingly, RSV's fourth assignment of error is without merit. {¶ 33} The State's sole assignment of error states: {¶ 34} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE STATE BY FAILING TO ORDER INJUNCTIVE RELIEF IN ITS DECEMBER 12, 2003 FINAL ORDER UPON FINDING VIOLATIONS OF OHIO'S ENVIRONMENTAL LAWS" {¶ 35} The trial court found RSV liable for failure to submit surface water and groundwater monitoring plans in accordance with Ohio Adm. Code 3745-4001-1(B)(13) and 3745-400-11(Q)(5). Also, the trial court found RSV liable for unlawful open dumping (i.e., accepting solid waste). The State takes issue with the trial court's failure to issue injunctive relief to remedy these violations. {¶ 36} The State argues that these are strict liability statutes and that the trial court was required to issue injunctive relief. Specifically, the State refers to R.C. 3734.10 and R.C. 3714.11(A) which state that a court "shall grant preliminary injunctive relief upon a showing that the person against whom the action is brought has violated, is violating, or is threatening to violate any section of this chapter [or] rules adopted thereunder." {¶ 37} The law does provide for the State to receive injunctive relief. However, the law does not require the trial court to grant every type of relief that the State requests. The court should grant the relief which is reasonable under the circumstances. See State v. Alexander Bros., Inc. (1974),43 Ohio App.2d 154, 72 O.O.2d 362, 334 N.E.2d 492. In this case, RSV has already been subjected to multiple injunctive relief orders and fines. The State simply disagrees with the extent of the relief imposed by the trial court. {¶ 38} More specifically, the State argues that the trial court failed to order the proper disposal of solid waste deposited at RSV's site and failed to order RSV to submit a groundwater and surface water monitoring plan for the facility. Regarding the disposal of solid waste, RSV ceased accepting waste materials on September 21, 2001, and proceeded to cap the landfill in accordance with closure regulations. Concerning the surface water monitoring plan, the trial court ordered injunctive relief requiring RSV to construct a new surface water diversion system. The court also found that related problems have been contained, managed, disposed, or maintained. {¶ 39} In sum, the court granted injunctive relief which was reasonable under the circumstances in this case. The facility has been enjoined from receiving any more waste, of any form. The facility has been "capped," which means the facility is permanently closed and incapable of receiving any more waste. RSV was also enjoined to construct the surface water diversion system already discussed and has been enjoined to take numerous other actions to address violations which were not the subject of this appeal. {¶ 40} Accordingly, the State's sole assignment of error is without merit. {¶ 41} The judgment of the trial court is hereby reversed in part and affirmed in part. In accordance with our finding merit to RSV's first assignment of error, it is sustained, and the trial court's findings with respect to Count III of the State's Second Motion for Contempt and the attendant fines are reversed and vacated. RSV's second assignment of error is rendered moot, and its third and fourth assignments of error are overruled. The State's sole assignment of error is overruled. The remainder of the trial court's decision is affirmed. Vukovich, J., concurs. Waite, J., concurs. 1 "CONSENT ORDER FOR PRELIMINARY INJUNCTION AS TO DEFENDANTS ROBERT S. VUKELIC AND RSV, INC."

2016-07-06 06:35:59.349737+00

OPINION {¶ 1} Defendant, Matthew Mackendrick, was indicted on two counts of rape of a child under ten years of age, R.C. 2907.02(A)(1)(b), (B), and two counts of gross sexual imposition involving a child under thirteen years of age, R.C. 2907.05(A)(4). Pursuant to a negotiated plea agreement, *Page 2 Defendant was charged by way of bill of information with one count of rape of a child under thirteen, R.C. 2907.02(A)(1)(b), and Defendant entered pleas of guilty to that charge and count four of the indictment, gross sexual imposition involving a child under thirteen. In exchange, the State dismissed the remaining charges, and the parties agreed that Defendant would be sentenced within a specific range, between five and ten years, on both charges. The trial court accepted Defendant's guilty pleas and sentenced him to concurrent prison terms of ten years for rape and five years for gross sexual imposition. {¶ 2} Defendant timely appealed to this court from his conviction and sentence. Defendant's appellate counsel filed an Anders brief,Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396,19 L.Ed.2d 493, stating that he could find no meritorious issues for appellate review. We notified Defendant of his appellate counsel's representations and afforded him ample time to file a pro se brief. None has been received. This case is now before us for our independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346,102 L.Ed.2d 300. {¶ 3} Defendant's appellate counsel has identified one possible issue for appeal, that the trial court abused its *Page 3 discretion with respect to the sentence it imposed. The parties agreed as part of their plea agreement that Defendant's sentence would be within a specific range, not less than five nor more than ten years, on both charges. The sentence imposed by the trial court clearly falls within that agreed upon range, i.e. concurrent terms of ten years for rape and five years for gross sexual imposition. Furthermore, the sentences imposed were authorized by law. The rape charge is a felony of the first degree which carries a prison term of three, four, five, six, seven, eight, nine or ten years. R.C. 2929.14(A)(1). The gross sexual imposition charge is a felony of the third degree that carries a prison term of one, two, three, four or five years. R.C. 2929.14(A)(3). Under these circumstances Defendant's sentence was an "agreed sentence" that is not reviewable on appeal per R.C. 2953.08(D). State v. Carson, Montgomery App. No. 20285, 2004-Ohio-5809. This assignment of error lacks arguable merit. {¶ 4} In addition to reviewing the possible issues for appeal raised by Defendant's appellate counsel, we have conducted an independent review of the trial court's proceedings and have found no error having arguable merit. Accordingly, Defendant's appeal is without merit and the judgment of the trial court will be affirmed. *Page 4 BROGAN, J. And DONOVAN, J., concur. Copies mailed to: Carley J. Ingram, Esq. Mark A. Fisher, Esq. Matthew Scott Mackendrick Hon. A. J. Wagner *Page 1

2016-07-06 06:35:59.439023+00

DECISION AND JUDGMENT ENTRY This is an accelerated appeal from a partial summary judgment issued by the Ottawa County Court of Common Pleas in a suit involving an insurance subrogation claim. On September 3, 1996, Michael Hogrefe suffered injuries in an auto accident allegedly caused by appellee, John Trumpy. Appellee's insurer offered Hogrefe the limits of appellee's policy, $25,000. Hogrefe's insurer, appellant, State Farm Mutual Insurance Co., declined the offer, apparently believing that appellee had assets sufficient to provide payment of a larger sum. Appellant instead opted to pay Hogrefe the full amount of his underinsured motorist coverage, $100,000, in exchange for Hogrefe's assignment of the "* * * proceeds of any settlement or judgment" from any person "responsible for [Hogrefe's] bodily injury * * *." As part of this "Release and Trust Agreement", Hogrefe agreed to, "* * * hold in trust for the benefit of [appellant] all rights of recovery * * *" and to "* * * do whatever is proper to secure * * * such rights." Appellant also paid Hogrefe $5,000 for the medical coverage portion of his automobile insurance coverage. On June 5, 1997, appellant, in its own name, sued appellee to recover the $105,000 it had paid to Hogrefe. Hogrefe was not named as a party in that suit. On March 22, 1999, appellant voluntarily dismissed the suit, refiling its complaint on June 14, 1999. On March 8, 2000, appellee moved for partial summary judgment, arguing that neither the statutory right of subrogation contained in R.C. 3937.18(E), nor the terms of the "Release and Trust Agreement", executed by Hogrefe, gave appellant an independent cause of action against a tortfeasor. The trial court declined to reach the statutory subrogation issue, but concluded that the language of the "Release and Trust Agreement" failed to bestow on appellant a right to bring an independent claim in its own name. Moreover, the trial court concluded that appellant could not now join Hogrefe pursuant to Civ.R. 17, but must substitute him as a party. Substitution, however, was barred by the statute of limitations. For these reasons, the trial court granted appellee's motion for summary judgment. The matter is now before us on appeal pursuant to the trial court's Civ.R. 54(B) certification. Appellant asserts as error 1) the trial court's refusal to permit the suit to go forward in appellant's name; 2) its failure to find OhioInsurance Co. v. Faulds (1997), 118 Ohio App.3d 351 and Cincinnati Ins.Co. v. Keneco (Nov. 19, 1999), Wood App. No. WD-99-020, unreported, inapplicable to this case; and, 3) the court's denial of appellant's motion to join its insured in the case. There are no disputed facts in this matter; therefore, the question is whether appellee was entitled to judgment as a matter of law. Civ.R. 56. With respect to Faulds and Keneco, appellant is correct. Both cases define a narrow exception to the rule that a personal injury insurer who pays an insured's claim has a subrogated right to recover against a tortfeasor. Bogan v. Progressive Cas. Ins. Co. (1988), 36 Ohio St.3d 22,29 overruled on other grounds McDonald v. Republic Franklin Ins., Co. (1989), 45 Ohio St.3d 27, 31. Faulds, Keneco, and their antecedent,Westfield Ins. Co. v. Jeep Corp. (1988), 55 Ohio App.3d 109, hold that an insurer obtains no independent claim for contribution from an insuredjoint tortfeasor. Faulds at 354. Since in the present case, contribution among joint tortfeasors is not at issue, these cases are inapplicable. In that respect, appellant's second assignment of error is well-taken, but somewhat unavailing because the trial court did not rely upon _Faulds and Keneco in determining that appellant had no independent right to sue. Instead, the court relied on the language of the "Release and Trust Agreement" between appellant and Hogrefe. In doing so, however, the trial court ignored the right of subrogation which arises under the statute and at common law when contribution among tortfeasors is not at issue. Bogan, supra, citing Newcomb v. Cincinnati Ins. Co. (1872),22 Ohio St. 382, syllabus. "Subrogation" is the substitution of one person in place of another to the extent that the substituted assumes the rights of the other in relationship to a claim. Keneco citing Black's Law Dictionary (5th Ed. 1979) 1279. See, also, Aetna Cas. Sur. Co. v. Hensgen (1970),22 Ohio St.2d 83, paragraph five of the syllabus. Subrogation may arise conventionally, by express or implied contract, or by law, where one pays a claim owed by another under circumstances in which he or she is in equity entitled to the obligation held by the claimant who has been paid. State Dept. of Taxation v. Jones (1980), 61 Ohio St.2d 99, 102, citing Federal Union Life Ins. Co. v. Deitsch (1934), 127 Ohio St. 505,510. In the present matter, it is undisputed that appellant compensated Hogrefe for his claim against appellee. Unless appellee was a volunteer in making this payment (a scenario no one raises), the payment was made with the expectation that the payor would be substituted for Hogrefe in his claim against appellee. Whether there was an express or implied subrogation by contract or whether subrogation arose at law, appellant is, as a result of that subrogation, now the real party in interest. Civ.R. 17. As such, appellant is entitled to pursue this claim in its own name. See Shealy v. Campbell (1985), 20 Ohio St.3d 23, 25. The trial court erred in ruling otherwise. Accordingly, appellant's first assignment of error is well-taken. Appellant's Assignment of Error No. 3 is moot. On consideration whereof, the judgment of the Ottawa County Court of Common Pleas is reversed. This matter is remanded to said court for further proceedings consistent with this decision. Costs to appellee. Melvin L. Resnick, J. James R. Sherck, J. George M. Glasser, J., JUDGES CONCUR. Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.

2016-07-06 06:35:59.520314+00

DECISION AND JUDGMENT ENTRY {¶ 1} Matthew J. Love appeals the conviction and sentence entered against him by the Ross County Court of Common Pleas for murder with a firearm specification and having a weapon under disability. Love contends that the trial court violated his right to due process and committed plain error when it allowed the state to introduce evidence that he invoked his constitutional right to silence, and that we should exercise our discretion under Crim.R. 52(B) to correct that error. Because we cannot say that the error clearly affected the outcome of the trial or seriously affected the fairness, integrity or public reputation of judicial proceedings, we disagree. Next, Love contends that his trial counsel was ineffective in failing to: (1) object to the introduction of evidence that he invoked his constitutional right to remain silent; (2) object to certain evidence that he claims directly refuted his claim of self defense; and (3) failing to try the weapon under disability charge to the court, instead of trying it to the jury. Because we find that Love has not established that, but for his trial counsel's individual or cumulative errors, there was a reasonable probability that the result of the proceeding would have been different, we disagree. Accordingly, we overrule each of Love's assignments of error and affirm the trial court's judgment. I. {¶ 2} On April 30, 2004, the Ross County Grand Jury indicted Love on one count of murder in violation of R.C. 2903.02 with both gun and repeat violent offender specifications, and one count of having a weapon under a disability in violation of R.C.2923.13, a felony of the third degree.1 The indictment resulted from an incident on April 25, 2004 at the Misty Harbor Campground in Ross County, in which David A. Pickell was killed. {¶ 3} David Driggs, testified that, at the time of the Pickell's death, Driggs had resided at the campground in his trailer with his girlfriend, Cindy Curtis, for two to three weeks. Love resided in a trailer across the road from Driggs' trailer. Pickell lived in a trailer up the road. {¶ 4} Driggs testified that Pickell stopped by his trailer and asked Curtis to drive him to the store to get cigarettes. Curtis agreed, and they left in Curtis' car. While Curtis and Pickell were gone, Love stopped by looking for Pickell. Love told Driggs that Pickell picked up a chain from Love's yard the previous day. Love wanted that chain back, and indicated that he needed it to secure the door of his trailer. Love asked Driggs to tell Pickell that he wanted his chain back. {¶ 5} Curtis and Pickell eventually returned to the campground. Curtis dropped Pickell off at the top of the road, near his trailer, and returned to Driggs' trailer. Pickell walked down to Driggs' trailer five or ten minutes later and sat in the yard drinking beer and talking. Driggs testified that approximately twenty minutes later, Love came over and told Pickell that he wanted his chain because he needed to lock his trailer as he was going to the Veteran's Hospital. Pickell responded that he would walk back up to his trailer to get it in awhile. Love turned around and walked back to his own trailer. {¶ 6} Driggs stated that approximately twenty minutes later, he was still talking with Pickell and Curtis in front of his trailer when he heard Love's Jeep start. Love spun his tires and drove really fast toward Driggs' trailer. He stopped, got out of the Jeep, walked over to Pickell and said, "I want that chain, and I want it now." Driggs stated that Pickell told Love that since he brought the Jeep, Love could run him up to his trailer to get the chain. Love started walking toward his Jeep, saying something about wanting that chain, not some other chain. Pickell said, "You gonna pull something out on me?" Pickell then stood up and started walking slowly toward the Jeep. Love and Pickell exchanged words. Love kept talking about the chain, and Pickell said, "Fuck you and that chain." Love reached in to get something out of the Jeep, and Pickell was right behind him. Pickell asked if Love was going to pull a gun. Driggs could not initially see what Love was getting from the Jeep, but then heard Curtis scream he was getting a gun. {¶ 7} Driggs indicated that Pickell was only two or three feet away from Love when Love turned around with the gun pointed in the air. Driggs saw Pickell grab at Love's wrist or arm. He then saw Love jerk backwards and start walking backwards with the gun still in his hand. When Love was about six feet away from Pickell, Pickell put his hands up. Pickell was far enough away from Love that he could not have reached the gun with his hands. Then, Love pointed the gun at Pickell and shot him in the chest. When the first shot hit him, Pickell wobbled a little bit but remained standing. Three to four seconds later, Love pulled the trigger again even though Pickell had not made a move toward Love. The second shot hit Pickell, turned him around, and he fell backward to the ground. Love walked up to Pickell, stood over him, and pointed the gun at Pickell's head. Love then started walking back toward his trailer saying that it was self defense. {¶ 8} Driggs told Curtis to call 911 and checked Pickell's pulse. A deputy sheriff arrived after approximately ten to fifteen minutes. At trial, Driggs identified Love's gun as depicted in a photograph introduced as state's exhibit 7. {¶ 9} Upon cross-examination, Love's counsel questioned Driggs about a statement he allegedly gave to Detective Pierce on the day of the incident, wherein counsel claimed that Driggs told the Detective that Pickell grabbed Love by the wrist and held on as Love maneuvered and made a complete circle around Pickell. However, Driggs denied making such a statement and indicated that when Pickell grabbed Love's wrist, Love jerked away, started backing up, and then made the circle around Pickell. {¶ 10} Cynthia Curtis, the next witness for the state, essentially corroborated Driggs' testimony. Curtis testified that Love's legs were shaking real bad while he argued with Pickell. She also stated that while Love held the gun and backed away, Pickell, with his hands up, moved toward Love just before Love shot him. She indicated that before Love fired the shots, the two men did not push, hit or fight with each other, and she did not hear Pickell make any threats to Love. {¶ 11} Jim Perry, another campground resident, testified that he lived next to Love. He knew Love and visited Love in Love's trailer the morning of Pickell's death. He and Love went to town where they each purchased four twenty-four ounce beers. Then they returned to Love's trailer to drink and watch TV. While Perry was with Love, Love mentioned Pickell and the chain several times, and claimed he was going to "kick Pickell's ass." Perry also testified that, before he left Love's trailer on the day of Pickell's death, he saw a pistol under Love's mattress, where Love always kept it. He identified state's exhibit three, as the pistol he saw at Love's trailer. {¶ 12} Perry left Love's trailer about one fifteen or one thirty. He stopped by Driggs and Curtis' trailer for ten or fifteen minutes, and then went home to take a nap. When he awoke, he got up and went to the sink to wash his face. He then heard two pops that sounded like gunshots. He opened his trailer door to see what was going on. He saw Love standing outside Love's trailer and walked over to see what was happening. Perry testified that Love told him, "I just shot Pickell." Perry then told Love, "You fucked up," and Love responded, "[Y]eah, I fucked up." Perry asked Love where the gun was, and Love pointed to the woodpile where he apparently attempted to conceal the weapon. Later, when Perry visited Love in jail, Love told him that he did not want to shoot in the direction of Perry's trailer because he did not want to hit Perry. {¶ 13} Sergeant Stanley Addy, of the Ross County Sheriff's Department testified that he was the first law enforcement officer to arrive at the scene of the shooting. He walked over to Pickell, who was lying motionless on the ground, and bent down to check for a pulse. He did not find a pulse, but observed a gunshot wound to Pickell's chest. He spoke with Driggs, who was standing next to the body. He asked Driggs what happened, and Driggs replied that Love shot Pickell. Sgt. Addy asked where Love was at that time, and Driggs pointed east to Love's lot, approximately one hundred yards away. Sgt. Addy saw two men standing there, one in a green shirt, and one in a blue shirt. He asked Driggs which man was Love, and Driggs informed him that Love was wearing a green shirt. {¶ 14} Sgt. Addy drew his service weapon, approached the men on foot, and ordered them to put their hands up. The man in the blue shirt, who Det. Addy later identified as Perry, complied, and the man in the green shirt, who Det. Addy later verified was Love, just looked at him. He repeated his order for Love to put his hands up, and he did. Sgt. Addy then told the men to lie face down on the ground. Perry went down immediately, and after Sgt. Addy repeated the order a couple of times, Love went down on the ground. {¶ 15} As Sgt. Addy placed the cuffs on him, Love said that he told Pickell not to come any closer, and that he feared for his safety. Sgt. Addy testified that he advised Love of his Miranda rights and that Love said he wanted a lawyer. Deputy Young arrived on the scene as Sgt. Addy was cuffing Love, and Sgt. Addy asked him to pat down Love. When they did not find any weapons on Love's person, Sgt. Addy asked Love where the gun was, and Love told him it was behind the woodpile. Dep. Young then took Love to the back of his patrol car and Sgt. Addy walked behind the woodpile, where he found a black revolver on a pile of wood. Sgt. Addy identified state's exhibit three as the weapon he found on the woodpile. Defense counsel did not cross-examine Sgt. Addy. {¶ 16} Detective David Bower of the Ross County Sheriff's Department testified that he searched Love's trailer and vehicles. He stated that he discovered a holster and a green duffle bag in Love's Jeep. In the green duffle bag, he found lead ball ammunition and a pair of black, military style leather gloves. He also testified that when he went to the Ross County Jail to perform a gunshot residue collection on Love, Love told him that he held the gun in his right hand. {¶ 17} Next, Dr. Lee Lehman, a forensic pathologist and the Chief Deputy Coroner in Montgomery County, Ohio, testified regarding the autopsy he performed on Pickell. Dr. Lehman indicated that upon his initial visual inspection of Pickell's body, he observed three individual gunshot wounds, one which passed through Pickell's left arm, and one which appeared to be a re-entrance wound. He explained that one bullet entered the left side of Pickell's chest, penetrated his aorta, went through his right lung, and exited his back by his right scapula. Dr. Lehman indicated that the wound to the aorta would not have had much of an immediate effect on Pickell, other than causing pain. He stated that it would not have knocked Pickell down immediately, and that Pickell would have had fifteen to thirty seconds of consciousness before he would have collapsed. {¶ 18} The other bullet entered under Pickell's left breast, went through his chest wall, diaphragm, liver, stomach, adrenal glands, and stopped in his spine, next to his spinal cord. Dr. Lehman also indicated that the wound to Pickell's arm lined up very well with the wound under the left breast, and that, based upon the orientation of the wounds, Pickell's elbows had to be at his side at the time he was shot. Dr. Lehman further indicated that the wound next to his spinal cord should have caused lower extremity paralysis, which would have caused Pickell to fall. Dr. Lehman also testified that Pickell would not have had the ability to walk or fight after either of the wounds. {¶ 19} Dr. Lehman testified that Pickell basically bled to death from his gunshot wounds. He indicated that both of Pickell's chest wounds were fatal without medical treatment, and that he did not think Pickell could have survived the wound to his aorta even with medical treatment. {¶ 20} Deputy Donald Walker of the Highland County Sheriff's Department was the state's next witness. He testified that Love had previously been convicted of felonious assault in Highland County and that, as a result of that conviction, Love was placed on probation. {¶ 21} Finally, William Mark, a firearms examiner with the Bureau of Criminal Investigation testified that the gun recovered by the Ross County Sheriff's Deparment was functional. He also indicated that, based upon a comparison with a bullet he fired from the weapon, the bullet recovered during Pickell's autopsy was consistent with being fired from that weapon. {¶ 22} The defense did not call any witnesses, and both the state and the defense rested following the admission of the state's exhibits. The trial court instructed the jury, and included an instruction on the lesser included offense of involuntary manslaughter. The jury returned guilty verdicts on both the murder and the weapon under disability charges, as well as the firearm specification. {¶ 23} The trial court sentenced Love to fifteen years to life in prison for the murder charge, three years in prison for the gun specification, and three years in prison for the charge for having a weapon under disability. Love timely appeals, raising the following assignments of error: "[I.] DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE PROSECUTION SUBMITTED EVIDENCE OF THE DEFENDANT'S INVOCATION OF HIS RIGHT TO SILENCE. THIS VIOLATED DEFENDANT'S RIGHTS AS GUARANTEED BY THE FIFTH,SIXTH AND FOURTEENTH AMENDMENTS UNDER THE UNITED STATES CONSTITUTION AND ARTICLE 1, §§ 10 AND 16 OF THE OHIO CONSITUTION. [II.] APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTIONS." II. {¶ 24} In his first assignment of error, Love contends that the state violated his constitutional right to due process by eliciting testimony regarding his invocation of his right to remain silent. Specifically, Love contends that the state improperly elicited testimony that, after Sgt. Addy advised Love of his Miranda rights, Love said he wanted a lawyer. {¶ 25} Love concedes that he failed to object to the alleged error at trial, and that, by failing to object, he has forfeited all but plain error. Pursuant to Crim.R. 52(B), we may notice plain errors or defects affecting substantial rights, although they were not brought to the attention of the court. The Ohio Supreme Court has found that "[b]y its very terms, the rule places three limitations on a reviewing court's decision to correct an error despite the absence of a timely objection at trial." State v. Barnes (2002), 94 Ohio St.3d 21, 27,2002-Ohio-68. First, an error must exist. Id., citing State v.Hill (2001), 92 Ohio St.3d 191, 200, citing United States v.Olano (1993), 507 U.S. 725, 732 (interpreting Crim.R. 52[B]'s identical federal counterpart, Fed.R.Crim.P. 52[b]). Second, the error must be plain, obvious, or clear. Id. (Citations omitted.) Third, the error must affect "substantial rights," which the court has interpreted to mean "but for the error, the outcome of the trial clearly would have been otherwise." Id. citing Hill at 205; State v. Moreland (1990), 50 Ohio St.3d 58, 62; Statev. Long (1978), 53 Ohio St.2d 91, paragraph two of the syllabus. {¶ 26} Even if a reviewing court finds that a forfeited error satisfies all three prongs of the test, it is not required to notice the error, but retains discretion to decide whether it should correct the error. A reviewing court should use its discretion under Crim.R. 52(B) to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Barnes, supra, citing Long at paragraph three of the syllabus, and Olano,507 U.S. at 736 (suggesting that appellate courts correct a plain error "if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,'" quoting UnitedStates v. Atkinson [1936], 297 U.S. 157, 160). {¶ 27} The Ohio Supreme Court has acknowledged that "since the adoption of Crim.R. 52(B), this court has followed federal precedents in directing the rule be invoked only in exceptional circumstances to avoid a miscarriage of justice." Long at 96. (Citation omitted.) The United States Supreme Court has stated, "we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence." Olano, 507 U.S. at 736. (Emphasis in original.) "An error may `seriously affect the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." Id. at 736-737. {¶ 28} In Doyle v. Ohio (1976), 426 U.S. 610, the United States Supreme Court held that: "[W]hile the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings." Doyle at 618. There, the court's holding specifically prohibited the prosecution's use of an arrested person's silence to impeach an explanation he subsequently offered at trial. Id. In Wainwright v. Greenfield (1986),474 U.S. 284, the court expanded the application of its holding inDoyle, stating "What is impermissible is the evidentiary use of an individual's exercise of his constitutional rights after the State's assurance that the invocation of those rights will not be penalized." Wainwright at 295. Thus, under the holding inWainwright, the state may not use an accused's silence after receiving his Miranda warnings as evidence of his guilt during its case-in-chief. {¶ 29} In State v. Rogers (1987), 32 Ohio St.3d 70, the Ohio Supreme Court addressed the prosecution's use of the defendant's post arrest silence to attack the defendant's insanity defense throughout the trial. In reversing the trial court's conviction and remanding the cause for a new trial, the court noted that the prosecution's use of the defendant's exercise of his constitutional rights permeated all phases of the trial from the prosecution's case-in-chief to its closing argument. Id. at 73-74. The court recognized that some of the evidence regarding the defendant's obtaining legal counsel was probative of his sanity when he committed the acts in question. Id. at 74. However, the court held "we must nevertheless abide by the principle of law mandated upon us by the United States Supreme Court that an exercise of rights under the Constitution cannot be used as evidence against appellant where such exercise was in response to the Miranda rights being read to him." Id. {¶ 30} Here, unlike the situation in Rogers, supra, we have one brief mention of Love's request for an attorney at the time of his arrest. Sgt. Addy revealed the information during his testimony describing the events leading to Love's arrest. Sgt. Addy explained in detail what happened when he arrived on the scene, including his discovery of Pickell's body, Driggs' statement identifying Love as the shooter, and Love's hesitancy to get down on the ground upon his command. {¶ 31} The prosecutor then said: "All right. What happened then?" Sgt. Addy responded: "I approached the male in the green shirt and . . . I had pulled my cuffs out to go ahead and detain him. At this time he was identified as Matt Love. Mr. Love told, at this time he told me that he told him not to come any closer. He shot him. He was in fear for his safety. I went ahead and cuffed him. As I was cuffing him, Deputy Danny Young pulled in. I started advising Mr. Love of his Miranda Rights at this time he said he wanted a lawyer." {¶ 32} Under the holdings of Doyle and Wainwright, supra, the admission of Sgt. Addy's testimony that Love said he wanted a lawyer was clearly error. Thus satisfying the first two prongs of the Barnes analysis. Therefore we must proceed to the next step of the analysis to determine whether the error affected Love's substantial rights. {¶ 33} We note the prosecutor did not directly elicit the testimony regarding Love's request for a lawyer, but received it in response to a general question about what happened during the course of Love's arrest. Once Sgt. Addy revealed that Love requested an attorney, the prosecutor did not attempt to elicit further testimony on that issue or otherwise dwell upon that fact. Instead, he promptly moved on, stating, "Okay. All right. Now, so you're there, you got these two individuals there on the ground. Young appears. What do you tell Young to do?" No one mentioned Love's request for an attorney again during his trial. {¶ 34} Although the Ohio Supreme Court has found that "we cannot condone even an isolated reference to a defendant's post-arrest silence," the court has specifically declined to notice plain error where a prosecutor made a single remark regarding a defendant's post-arrest silence during closing argument. State v. Rahman (1986), 23 Ohio St.3d 146, 153. Moreover, the United States Supreme Court has recognized that not all constitutional errors are prejudicial. Chapman v.California (1967), 386 U.S. 18, 22, overruled on other grounds,Brecht v. Abrahamson (1993), 507 U.S. 619, 636-638 (holding that the "harmless error beyond a reasonable doubt" analysis is not applicable in habeas cases); State v. Williams (1983),6 Ohio St.3d 281, paragraph six of the syllabus. Rather the court has recognized that "* * * there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Chapman at 22;Williams at 286. In order to deem a constitutional error nonprejudicial, a reviewing court must find that it is "harmless beyond a reasonable doubt." Chapman at 24; Williams at 286. An error is harmless beyond a reasonable doubt if the remaining evidence, standing alone, constitutes overwhelming proof of the defendant's guilt. Williams at paragraph six of the syllabus. {¶ 35} Applying such an analysis, the Ohio Supreme Court has previously held that a single comment by a police officer regarding a suspect's silence without any suggestion that the jury infer guilt from the silence constitutes harmless error.State v. Treesh (2001), 90 Ohio St.3d 460, 480, citing Meeksv. Havener (C.A.6, 1976), 545 F.2d 9, 10. {¶ 36} Here, Love contends that the submission of Sgt. Addy's statement regarding his request for a lawyer was inherently prejudicial, because he asserts that a jury's natural inclination upon hearing that a defendant has sought the advice of counsel is to assume that he is guilty. Love's request for a lawyer and assertion of his right to remain silent may imply his guilt. {¶ 37} However, the other testimony properly admitted at trial, if believed by the jury, demonstrates that Love armed himself and set out to confront Pickell. Driggs and Curtis, two eyewitnesses, reported that, after exchanging words with Pickell, Love walked to his Jeep and pulled out the gun. Although Driggs and Curtis testified that Pickell attempted to grab at Love's wrist or arm while Love had the gun in his hand, they reported Love was able to either avoid Pickell's grasp or break free of it. Love then backed away from Pickell, and when Love was approximately six feet away and out of Pickell's reach, Pickell put his hands up. Love then pointed the gun at Pickell and shot him in the chest. Although Driggs and Curtis testified that Pickell did not make a move toward Love after the first shot, and Dr. Lehman testified that he would have been unable to do so, Love fired a second shot at Pickell's chest, which caused him to drop to the ground. Love then stood over Pickell, holding a gun to his head as he lie motionless on the ground, before he walked away. {¶ 38} In the absence of the pervasive references to the defendant's invocation of his constitutional right to silence found in Rogers, supra, and in light of the overwhelming evidence of Love's guilt, we cannot find that: (1) but for the solitary mention of Love's request for an attorney, in the context of the arresting officer's narrative of his arrest, the outcome of the trial clearly would have been different; or (2) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Instead, we conclude that the error is harmless beyond a reasonable doubt because the remaining evidence, standing alone, constitutes overwhelming proof of Love's guilt. Accordingly, we overrule Love's first assignment of error. III. {¶ 39} In his second assignment of error, Love contends that he did not receive effective assistance of counsel at trial. Specifically, Love asserts that his trial counsel was deficient because he failed to: (1) object to the Doyle error; (2) object to speculative evidence of the decedent's intent which directly refuted Love's self defense claim; (3) try the weapon under disability charge to the court. {¶ 40} In order to reverse a conviction or sentence based upon ineffective assistance of counsel a reviewing court must find: (a) deficient performance, "errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and (b) prejudice, "errors * * * so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." State v. Ballew (1996), 76 Ohio St.3d 244, 255, citing Strickland v. Washington (1984), 466 U.S. 668, 687. If a court can resolve a claim of ineffective assistance of counsel under only one prong of this two-pronged test, then the court does not have to analyze both prongs. See, e.g., State v.Madrigal (2000), 87 Ohio St.3d 378, 389. {¶ 41} With regard to deficient performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Strickland at 689. Furthermore, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. The United States Supreme Court has noted that "there can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial." United States v. Hasting (1983),461 U.S. 499, 508-509. Additionally, with regard to prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Strickland, 466 U.S. at 694. {¶ 42} Here, Love first asserts that his trial counsel was ineffective because he failed to object to Sgt. Addy's testimony regarding Love's request for an attorney at the time of Love's arrest. While we found that the trial court's admission of that statement was erroneous in our analysis of Love's first assignment of error, we also found that: (1) that single reference to Love's request for an attorney did not constitute plain error; and (2) in light of the overwhelming evidence of Love's guilt, that error was harmless beyond a reasonable doubt. Therefore, Love cannot demonstrate that he suffered any prejudice as a result of his attorney's failure to object to Sgt. Addy's statement. Moreover, we note that, in light of the single, brief reference to Love's request for an attorney in the context of Sgt. Addy's narrative, it may have been sound trial strategy for Love's counsel to ignore the statement, rather than drawing additional attention to it by voicing an objection. {¶ 43} Next, Love contends that his trial counsel was ineffective because he failed to object to speculative evidence of Pickell's intent which directly refuted Love's claim of self defense. Specifically, Love contends that his trial counsel failed to object to Driggs' testimony that Pickell was not attempting to grab the gun, but was merely trying to grab Love's wrist before the shooting occurred. Love contends that Driggs' testimony constituted inadmissible speculation and that it destroyed his self defense argument. {¶ 44} In Ohio, the affirmative defense of self defense has three elements: (1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that he was in imminent danger of death or great bodily harm and that his only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247, 249, citing State v. Robbins (1979), 58 Ohio St.2d 74, paragraph two of the syllabus. The defendant must prove these elements by a preponderance of the evidence in order to demonstrate that he acted in self defense. Williford at 249. {¶ 45} Our review of the transcript reveals that there was only one occasion where Driggs specifically stated, "No, he wasn't trying to grab the gun. He was trying to get a hold of his arm." All of the other references to the brief scuffle, including defense counsel's cross-examination of Driggs, refer to Pickell's attempts to grab Love's arm or wrist. In fact, when defense counsel cross-examined Driggs, he brought up a statement Driggs allegedly gave to Lt. Pierce on the day of the shooting, wherein counsel claimed that Driggs reported that Pickell did grab Love's arm, and held on while Love made a complete circle. On the stand, Driggs denied that it happened that way. He testified "But they must have wrote it down wrong because I was trying to explain to him when he retched (sic) up to try to grab a hold of the weapon, you know like he's going to try grab his wrist, [Love] just jerked back and started making a circle around [Pickell]." In our view, the jury could still have construed Pickell's reaching for Love's wrist or arm, while Love held the gun in his hand, as Pickell's attempt to gain control of the weapon. Accordingly, we fail to see how the distinction between Pickell's reaching for Love's wrist or arm versus reaching directly for the gun destroys Love's claim of self defense. {¶ 46} Even if the distinction between Pickell's reaching for Love's wrist or arm versus reaching directly for the gun did somehow diminish the viability of Love's claim of self defense, it was not the most significant problem with Love's defense. The state presented undisputed testimony that, if believed, established Love was at fault in creating the violent situation giving rise to Pickell's death. Witnesses testified that Love went looking for Pickell several times on the day of the shooting. The last time Love set out to confront Pickell, he brought a gun. After Love and Pickell exchanged words, Love first resorted to violence by pulling the gun out of his Jeep. Pickell tried to grab at Love's wrist or arm before Love broke free and backed approximately six feet away from Pickell. Even if Pickell's efforts to grab at Love's arm or wrist were actually attempts to gain control of Love's gun, in light of the undisputed testimony that Love was the aggressor, such efforts would not change the situation to one of self defense. See, e.g.,State v. Fluellen (Sept. 20, 1977), Franklin App. No. 77AP-332. {¶ 47} Moreover, Love failed to present any evidence that he did not violate the duty to retreat. Generally, "a person may not kill in self-defense if he has available a reasonable means of retreat from the confrontation." Williford at 250, citingRobbins at 79-81. Here, the state's witnesses testified that even after Pickell attempted to grab at Love's wrist, Love managed to break free and back away. Yet, when Love was out of Pickell's reach, approximately six feet away, and still holding the gun, Love did not attempt to retreat to the relative safety of his Jeep or his trailer. Instead, Love shot Pickell, not once, but twice in the chest. No reasonable jury could possibly believe that Love satisfied any duty to retreat. Furthermore, the firing of multiple shots also undercuts Love's claim of self defense.State v. Palmer (1997), 80 Ohio St.3d 543, 564. See, also,State v. Hall, Franklin App. No. 04AP-17, 2005-Ohio-335, at ¶40; State v. Brown, Franklin App. No. 03AP-858, 2004-Ohio-5064, at ¶ 31. Thus, even in the absence of counsel's failure to object to Drigg's testimony that Love was not trying to reach the gun, Love failed to prove by a preponderance of the evidence that he acted in self defense when he killed Pickell. {¶ 48} Finally, Love contends that he received ineffective assistance of counsel because his trial attorney failed to try the weapon under a disability charge to the court in order to prevent the jury from learning of his prior conviction. Pursuant to R.C. 2923.13(A)(2), the existence of Love's prior conviction was an essential element of the weapon under a disability charge. However, Love asserts that because he did not testify at trial, the evidence of his prior conviction for felonious assault would not have been admitted but for his counsel's decision to try both the murder and weapon under a disability charges to the jury. He claims that the admission of his prior conviction was prejudicial because of the risk that the jury convicted him based upon his propensity for violence, rather than the weight of the evidence. {¶ 49} Love now argues that there was no strategic reason for trying the weapon under disability charge to the jury. However, the state notes, inter alia, that the chance of an acquittal, or even a hung jury, is considerably greater when charges are tried to a jury, rather than a judge. We must accord deference to defense counsel's strategic choices made during trial and cannot second guess those strategic choices through hindsight.Strickland at 689. It would have been preferable for the jury not to learn of Love's previous conviction for felonious assault. However, in light of the evidence submitted by the state, as well as the corresponding lack of evidence that Love was not the aggressor and did not violate any duty to retreat, we cannot find that trial counsel's decision to try the weapon under a disability charge to the jury unduly prejudiced Love or denied him a fair trial. {¶ 50} In conclusion, we find that Love has not established a reasonable probability that, but for his trial counsel's individual or cumulative errors, the result of the proceeding would have been different. Even if none of the alleged errors occurred, the state submitted overwhelming evidence of Love's guilt in the form of strong eyewitness testimony regarding the shooting and the events leading up to support Love's conviction. Moreover, no evidence was presented that would allow a reasonable jury to conclude that Love was not the aggressor, or that Love satisfied any duty to retreat. Accordingly, we overrule Love's second assignment of error and affirm the trial court's judgment. JUDGMENT AFFIRMED. JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and Appellee recover of Appellant costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. The stay as herein continued will terminate in any event at the expiration of the sixty day period. The stay shall terminate earlier if the appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec.2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of said sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. Abele, J. and McFarland, J.: Concur in Judgment and Opinion. 1 Although it is not at issue in this appeal, we note that the indictment erroneously identified count two as a fifth degree felony.

2016-07-06 06:35:59.554264+00

OPINION Plaintiff-appellant, Dennis Weatherby ("Weatherby"), appeals from the November 19, 1998 judgment of the Ohio Court of Claims finding: (1) that the former president of Central State University, Herman B. Smith, and a former faculty member, Dianne Love, were entitled to personal immunity; (2) that defendant-appellee, Central State University ("CSU" or "University") did not defame Weatherby; and (3) that CSU breached its contract with Weatherby, but he was only entitled to damages for the 1996-1997 academic year. For the reasons that follow, we affirm in part and reverse in part. Weatherby had joined the faculty of the International Center for Water Resources Management ("ICWRM") at CSU in 1989 as an instructor and, in 1994, he was promoted to Assistant Professor and applied for tenure. Weatherby held a regular appointment to the CSU faculty pursuant to a collective bargaining agreement between CSU and the American Association of University Professors ("CSU-AAUP Agreement"). In June 1994, Dianne Love joined the CSU faculty with a regular appointment in the ICWRM. Plaintiff-appellee, Victor Okereke, the ICWRM chairman at the time, and Weatherby believed this was a temporary arrangement as Love did not teach any courses in Water Resources and was supposed to be paid from sources outside the ICWRM. As a result of this arrangement, the ICWRM incurred a deficit of approximately $53,000 for the 1994-1995 academic year which Okereke and Weatherby attributed to the payment of Love's salary from ICWRM funds. Okereke and Weatherby opposed the continuation of this arrangement, and Weatherby voiced his concerns to other faculty members. In March 1995, the University Board of Trustees appointed Dr. Herman B. Smith president of CSU. In June 1995, Weatherby and Okereke became embroiled in a conflict with Smith over an ICWRM student who wanted to graduate with his class but who had not completed all the requirements for graduation. The student had informed Smith that he needed only one credit to graduate when the student actually needed twenty-seven credits. Okereke and Weatherby were opposed to allowing the student to graduate. Ultimately, the student was allowed to graduate, and Smith expressed great anger over what he perceived as Weatherby's and Okereke's incompetence in handling the situation. In July 1995, Smith removed Okereke as Director of the ICWRM and replaced him with Love with whom he had previously worked at Jackson State University. Love then took control of Weatherby's student files and would not allow him to copy them. She relocated his first floor office to a smaller windowless office with no telephone. Weatherby did not get a telephone in his new office until October. In September 1995, Weatherby discovered his paycheck was short, and found out that a supplemental contract from which he was paid had been unilaterally terminated. During this time, Weatherby and Okereke had been negotiating and building positive relationships with administrative personnel from the Ohio EPA. The Ohio EPA planned to provide scholarships to two CSU ICWRM students in the fall of 1995. The Ohio EPA also proposed to donate over a million dollars of used equipment to ICWRM. Love, however, instructed the Ohio EPA to deal only through her, and not through Weatherby. As a result of Love's actions, the Ohio EPA administrators became concerned about the program and did not award any scholarships or donate the used equipment. Love began a review of ICWRM files. Love believed that Dr. Okereke had improperly approved expenditures from a Packard grant to allow Weatherby to obtain an advance degree. Thereafter, Dr. Smith contacted legal counsel for the purpose of determining how the University could terminate Okereke and Weatherby. On December 15, 1995, Weatherby was formally charged with "[g]ross negligence in scholarship and University service relative to improper and unallowed utilization of Packard Grant Fund for Professional Development." (Plaintiff's Exhibit 2.) According to the notice, the charges were supposedly supported by the following "facts": 1. Packard Grant monies were improperly utilized and converted by D. Weatherby for the purchase of a Ph.D. degree from LaSalle University in the area of Environmental Engineering. 2. No line item was contained in the Packard Grant budget for "Professional Development." 3. No prior approval was sought or obtained from the Packard Foundation to convert monies from other categories to a line item entitled "Professional Development." 4. Misuse of the CSU issued American Express card by initially charging this expense to the corporate card. The American Express corporate card was issued for the purpose of business travel. All users were advised that the card was not a "credit card"; that credit was not extended to the user and users would not be subject to a "credit limit." The card agreement entered into expressly provided that the card was issued for "business travel only." [Plaintiff's Exhibit 2.] Effective December 31, 1995, Weatherby was suspended with pay pending the outcome of a hearing. Id. Pursuant to the terms of the CSU-AAUP Agreement for terminating a faculty member for cause, the matter went to an ad hoc committee for a hearing. The ad hoc committee that investigated the charges unanimously found that there was no evidence that Weatherby improperly used funds and there was inadequate evidence to support termination for cause on the grounds stated in the charges. The committee report stated in pertinent part: The Committee was unanimous in its view that Packard Grant funds were neither used to reimburse Dennis Weatherby for his payment of charges on his University issued American Express card nor to pay LaSalle University. The facts showed the following: After Dennis Weatherby initially requested the use of Packard Grant money to enroll in a degree program and to pay for courses at LaSalle University, it was determined that no money was available under the Packard Grant fund = 8384. Subsequently, enrollment in a degree program and for courses at LaSalle were paid from the ICWRM's Training Fund = 8388. The Committee collected information and heard testimony concerning LaSalle University. The Committee discussed the implications of the phrase "purchase a Ph.D. degree" * * *. In sum, while some Committee members expressed reservations about the advisability of Dennis Weatherby's decision to pursue a degree from LaSalle, as well [sic] the use of ICWRM money to pay tuition and other fees for such a degree, we found no evidence that Dennis Weatherby intended to "purchase a degree" or to obtain a degree without working for it. In the absence of a clear policy governing the use of faculty development funds and the accreditation status of degree programs acceptable to Central State University, there is no evidence that Dennis Weatherby improperly used funds. * * * The Committee was unanimous in its view that Dennis Weatherby did use the American Express card in a way that violated the agreement which card users signed when they were issued the card. However, we were also unanimous in holding that policy statements concerning the use of the card were not consistent and that one of those policy statements (the memo from Gerald Shields, January 24, 1995) provided a loophole for use of the card for purposes other than business travel. Further, we were unanimous in our view that Dennis Weatherby did not benefit monetarily from his use of the card, that he made no attempts to "hide" what he was doing nor the purpose for which he was using the card, and that his using the card as he did, did not constitute gross negligence as set forth in the GROUNDS. [Plaintiff's Exhibit 75.] While suspended from the University, Weatherby and Okereke sued CSU on November 12, 1996. Weatherby claimed that Smith and Love engaged in a personal vendetta to deny him tenure and terminate his employment with CSU. The amended complaint alleged three claims against CSU: breach of contract; negligent hiring; and defamation. With respect to the issue of immunity, Weatherby did not contend that Smith and Love acted outside the scope of their employment. Rather, he contended that their attempt to remove him from the CSU faculty for cause was undertaken with malicious purpose, in bad faith, or in a wanton or reckless manner. Despite the findings of the ad hoc committee that were published on February 27, 1997, the University never took any action to reinstate Weatherby. The trial court bifurcated the issue of damages from the issues of civil immunity and liability. After a four-day trial, the parties filed post-trial briefs. The claim of negligent hiring was withdrawn. On November 18, 1998, the trial court issued a decision finding that Smith and Love were entitled to personal immunity, that the University had not defamed Weatherby, but CSU had breached its contract with him by failing to pay him for the 1996-1997 academic year, but not, as Weatherby had contended, by failing to pay him for the 1997-1998 academic year. On February 7, 2000, the parties filed joint stipulations as to damages. On May 17, 2000, the trial court awarded Weatherby $10,101.84 in damages. Weatherby appealed, assigning as error the following: 1. Whether the trial court erred in ruling that Herman Smith and Dianne Love were entitled to immunity under Ohio Rev. Code § 9.86 for attempting to remove Dennis Weatherby from the CSU faculty on false charges of misconduct? 2. Whether the trial court erred in ruling that Central State University did not defame Dennis Weatherby by attempting to remove him from the CSU faculty on false charges of misconduct? 3. Whether the trial court erred in ruling that the notice to Dennis Weatherby, dated December 28, 1995, of intent to terminate him for cause constitutes a constructive notice to terminate without cause in accordance with Art. 13.14 of the AAUP-CSU collective bargaining agreement? In his first assignment of error, Weatherby contends the trial court erred in finding that Smith and Love were entitled to civil immunity as to his defamation claim. R.C. 2743.02(F) and 9.86 govern a determination as to whether or not a state employee is entitled to personal immunity. R.C. 2743.02(F) provides, in pertinent part: A civil action against an officer or employee, as defined in section 109.36 of the Revised Code, that alleges that the officer's or employee's conduct was manifestly outside the scope of his employment or official responsibilities, or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code and whether the courts of common pleas have jurisdiction over the civil action. R.C. 9.86 states, in part: * * * [N]o officer or employee shall be liable in any civil action that arises under the law of this state for damage or injury caused in the performance of his duties, unless the officer's or employee's actions were manifestly outside the scope of his employment or official responsibilities, or unless the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner. While the issue of immunity is a question of law, consideration of specific facts is necessary to the determination. Nease v. Medical College Hosp. (1992), 64 Ohio St.3d 396, 400, citing Conley v. Shearer (1992),64 Ohio St.3d 284, 292; Long v. Bowling Green State Univ. (June 30, 1997), Franklin App. No. 96API12-1736, unreported. In this regard, matters involving credibility should be resolved by the trial court, and judgments supported by some competent, credible evidence going to all essential elements of the case will not be reversed as being against the manifest weight of the evidence. Brooks v. Ohio State Univ. (1996),111 Ohio App.3d 342, 350, citing C. E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. Malicious purpose encompasses exercising "malice," which can be defined as the willful and intentional design to do injury, or the intention or desire to harm another, usually seriously, through conduct that is unlawful or unjustified. Jackson v. Butler Cty. Bd. of Cty. Commrs. (1991), 76 Ohio App.3d 448, 453-454, citing Teramano v. Teramano (1966), 6 Ohio St.2d 117, 118; and Bush v. Kelley's, Inc. (1969),18 Ohio St.2d 89. Bad faith has been defined as the opposite of good faith, generally implying or involving actual or constructive fraud or a design to mislead or deceive another. Lowry v. Ohio State Highway Patrol (Feb. 27, 1997), Franklin App. No. 96API07-835, unreported, quoting Black's Law Dictionary (5 Ed. 1979) 127. Bad faith is not prompted by an honest mistake as to one's rights or duties but by some interested or sinister motive. Id. Finally, reckless conduct refers to an act done with knowledge or reason to know of facts that would lead a reasonable person to believe that the conduct creates an unnecessary risk of harm and that such risk is greater than that necessary to make the conduct negligent. Hackathorn v. Preisse (1995), 104 Ohio App.3d 768, 771, citing Thompson v. McNeill (1990), 53 Ohio St.3d 102, 104-105, citing 2 Restatement of the Law 2d, Torts (1965) 587, Section 500. The term "reckless" is often used interchangeably with the word "wanton" and has also been held to be a perverse disregard of a known risk. Jackson, citing Thompson, at 104, fn. 1, and Poe v. Hamilton (1990), 56 Ohio App.3d 137, 138. As to all of the above terms, their definitions connote a mental state of greater culpability than simple carelessness or negligence. See Jackson, supra, at 454. Here, the issue of whether Smith and Love were entitled to immunity requires an examination of the motives behind the actions taken against Weatherby. The charges against Weatherby centered on allegations that he had improperly used grant monies to purchase an advanced degree from an unaccredited institution. These charges went to the very core of Weatherby's personal and professional integrity. At trial, Weatherby attempted to show that these charges were utterly false, trumped up, and so lacking in any factual basis that, even if they were made in the course of Smith and Love's employment, Love and Smith knew they were false or failed to make any effort to determine the truth before making such accusations. In its decision, the trial court did not discuss any of the evidence concerning Smith and Love's intent in taking the actions that they did. However, at one point in the trial, the trial judge intervened to question Love about her claim that Weatherby had used Packard Grant funds without authorization. THE COURT: Excuse my interruption, but looking at Exhibit BB, your letter of November 20, to Dr. Willie Houston THE WITNESS: Yes. THE COURT: — the third sentence says that subsequently, the request was approved by Victor Okereke and Dr. Willie Washington. THE WITNESS: Yes. THE COURT: Where did you get that information? THE WITNESS: On the on the attachments, Your Honor. If you will look at let me see Page 5 of the exhibit, this is Mr. Weatherby's letter to Dr. Okereke requesting use of funds. THE COURT: Doesn't that say to the note by Okereke, doesn't that say, if funds are available? THE WITNESS: Approved if funds are available from the Packard Project. So he was approving the expenditures of funds, if the funds were there, yes. THE COURT: If they were available from but they weren't. THE WITNESS: I don't think they knew that. I don't think that was known then. That was known later that the funds were not available. When usually when we put a requisition in for payment, it has to go to budget, and budget determines whether there is enough money in the grant to pay for whatever expenditure you're requesting. Then they say yea or nay. THE COURT: Would you go to the fourth page of that exhibit. THE WITNESS: Yes. THE COURT: There has been previous testimony that fund 8384 was Packard money. THE WITNESS: Yes. THE COURT: 8388 is not from the Packard Foundation, but rather part of the normal budget of the department or center? THE WITNESS: 8388 is a training grant that is used to pay for visiting faculty. Like if we have people from Korea or anywhere to come to take classes, we have we offer, like, special courses in the center for water resource management. And 8388 would be the tuition that they that fund consists of tuition that they paid for classes and so forth. So that's what the training fund was set up for, not to pay for not to pay for tuition costs for faculty. THE COURT: It was approved; was it not? Somebody approved it. THE WITNESS: Somebody approved it, yes. BY MS. WRIGHT: Q. And who approved it? THE COURT: And that was sending a check out of the wrong fund? THE WITNESS: Yes, but somebody approved it. THE COURT: But it was not Packard money? THE WITNESS: The original when I earlier when I was questioned about this particular purchase requisition, I didn't understand basically what they whether they it seemed to me that they got it from 8388, but then, like, there was a lot of scratch-outs and initials and stuff. I wasn't sure [Tr. Vol. III, at 785-788.] The trial court also questioned Love about her statement that Weatherby requested certain grant monies "for the purchasing of a Ph.D. degree from LaSalle University." (Plaintiff's Exhibit 67.) THE COURT: Let me jump in again. Let's assume LaSalle was the diploma mill. Do you have any knowledge that Mr. Weatherby knew of that — THE WITNESS: No. THE COURT: — and assumed that he wouldn't have to do any work and get the Ph.D just for the money? THE WITNESS: He said that in his letter. He said that in his letter, he said that he outlined to Dr. Okereke on Exhibit 67, Your Honor THE COURT: What's the number? THE WITNESS: Exhibit 67. MR. FORG: Plaintiffs' Exhibit 67. THE WITNESS: On Page 6. THE COURT: Doesn't Page 6 negate the idea that all he has to do is pay LaSalle and he automatically gets a Ph.D? THE WITNESS: No, we were looking at complete degree studies without any classroom attendance required. I picked up on the time limits and not going to class. [Tr. Vol. IV, at 1002-1003.] If believed, the trial court could have concluded from Love's testimony that Love was not acting with a sinister motive or with the intent to harm or mislead, but, rather, honestly, but mistakenly, believed Weatherby had misused grant monies to obtain an advanced degree from a diploma mill. The trial court also concluded that, with respect to the defamation claim, plaintiffs failed to prove that the "remarks in question" were defamatory or that they were made with actual malice. Given the trial court's ultimate decision regarding immunity, the above referenced statements, and the trial court's finding with respect to the defamation claim, we presume that, in matters of credibility, the trial court found Love's testimony to be credible.1 Even though the ad hoc committee eventually found insufficient evidence to support the charges against Weatherby, if Love's testimony is to be believed, there is some evidence in the record that would support a finding that Love's decision to initiate an investigation into Weatherby's use of a university charge card and the potential misuse of grant monies to pay for his enrollment in an unaccredited institution was taken for legitimate reasons related to the business of CSU. In response to the question: Q. Why did you want the matter investigated? A. Because when I became director, I was actually responsible for the budgets, you know, for the grants and the projects. And I wasn't sure that this was a valid expenditure for — for the Packard Grant from looking at the budget. * * * [Tr. Vol. III, at 778.] On appeal, we are not to substitute our judgment for that of the trial court in matters of credibility. Therefore, given Love's testimony that she was "casually" looking through the Packard Grant file and came across what appeared to be potential misuse of grant monies, it was not error for the trial court to find that Love was entitled to immunity. The evidence with respect to Smith's motivation is even sparser. Smith became angry with Okereke and Weatherby over perceived incompetence in handling the student who was short credit hours. Smith contacted legal counsel for the purpose of determining how the University could terminate Okereke and Weatherby. There was no evidence that Smith acted with malice, bad faith or in a reckless or wanton manner. The first assignment of error is not well-taken. In his second assignment of error, Weatherby argues that, even if Smith and Love are entitled to personal immunity, the University is liable for the actions of Smith and Love under a theory of respondeat superior. Weatherby argues that the University ratified Smith and Love's defamatory conduct by bringing false charges of misconduct and by failing to take any action after Weatherby's exoneration by the ad hoc committee. The University responds by arguing that, even if the statements were defamatory, the trial court found that they were made within the course of Smith and Love's employment and, as such, were protected by a qualified privilege. A defamatory statement generally is defined "as a false * * * publication, made with some degree of fault, reflecting injuriously on a person's reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his or her trade, business or profession." A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council (1995), 73 Ohio St.3d 1,7; see, also, Dale v. Ohio Civ. Serv. Emp. Assn. (1991), 57 Ohio St.3d 112,117; Matalka v. Lagemann (1985), 21 Ohio App.3d 134, 136; 3 Restatement of the Law 2d, Torts (1977) 156, Section 559 and Comment b. The Restatement explains that a communication is defamatory if: (1) it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him; (2) it exposes another to hatred, ridicule, or contempt; or (3) it tends to disparage another by reflecting unfavorably upon his personal morality or integrity. Id. We are at a loss to understand the basis for the trial court's finding that plaintiffs failed to prove the communications were untrue or that the publication of such comments caused injury to his reputation. As discussed above, the statements made by Dianne Love that Weatherby misappropriated grant monies to purchase an advanced degree formed the basis of the charges that were brought in an attempt to have him dismissed from his employment for cause. The ad hoc committee formed to investigate the charges unanimously found that there was no evidence that Weatherby improperly used funds or that he intended to purchase a degree without working for it. The trial court went on to rule, however, that, even if the statements made against Weatherby were defamatory, Smith and Love were protected by a qualified privilege. A communication made in good faith between an employer and an employee or between two employees concerning the conduct of a third employee concerning a matter of common interest is qualifiedly privileged. Gray v. General Motors Corp. (1977), 52 Ohio App.2d 348. Where a qualified privilege exists, the plaintiff must show actual malice in order to recover for defamation. Springer v. Physician Sales and Service (Aug. 28, 1998), Montgomery App. No. 16940, unreported. A finding of malice in the context of defamation requires a clear and convincing showing that the defendant knew the statement was false or acted with reckless disregard as to the statement's truth or falsity. Jacobs v. Frank (1991), 60 Ohio St.3d 111, paragraph two of the syllabus. In this case, the question of actual malice again hinged on a determination of Love's credibility. As discussed previously, the trial court apparently believed Love's testimony that her inspection of the files led her to believe Weatherby had improperly used grant monies to purchase an advanced degree in which he would not be required to attend class. On the advice of legal counsel, Love subsequently contacted the Packard Grant foundation to ascertain if grant monies could be used for degree studies, and she later contacted the Federal Department of Education to ascertain if LaSalle University were an accredited institution. (Plaintiff's Exhibits 72 and 69.) The trial court could have inferred from this evidence that Love was not acting with reckless disregard as to the truth or falsity of her accusations. The second assignment of error is not well-taken. In his third assignment of error, Weatherby argues the trial court erred in finding that the December 28, 1995 notice to terminate Weatherby's employment for cause was constructively a notice to terminate without cause. Because the University's contract makes no provision for constructive notice of nonreappointment, we agree. The CSU-AAUP Agreement provides for the termination of a regular faculty member during his probationary period either with cause or without cause. Under Article 13.14, a nontenured faculty member may be terminated without cause ("non-reappointment"), but only if he receives appropriate written notice of that termination. Under Article 17.1, a faculty member may be terminated at any time for "just cause." It is uncontroverted that Weatherby was suspended with pay on December 28, 1995, effective December 31, 1995, and that the letter he received served as notice of the University's intent to terminate him for cause pursuant to Article 17.1. (Plaintiff's Exhibit 2.) After the ad hoc committee unanimously recommended against termination for cause, the University never took any final action to terminate Weatherby for cause. Nor did the University follow through with official, formal steps to terminate Weatherby's employment without cause. Because Weatherby was not a tenured professor, the CSU-AAUP Agreement provided a simple mechanism by which the University could terminate his employment: serve notice of nonreappointment pursuant to Article 13.14. However, not until September 10, 1997, when CSU notified Weatherby that the Board of Trustees voted to deny all pending applications for tenure, did the University alter Weatherby's employment status from that of suspended with pay. Under Article 13.17, a faculty member denied tenure would ordinarily be terminated at the end of the following academic year. Applying this reasoning, Weatherby's appointment automatically terminated on June 30, 1998, at the end of the 1997-1998 academic year. The trial court, however, found that the December 28, 1995 letter suspending Weatherby with pay pending the outcome of a hearing served as constructive notice of the University's intention not to reappoint him. In doing so, however, the trial court ignored the plain language of the letter, stating that "[t]his letter serves as official notification of the University's intent to terminate your employment for cause" and suspending him "pending the outcome of a hearing." The University's notice that it intended to initiate proceedings to terminate Weatherby for cause pending the outcome of a hearing makes sense only in the context of an Article 17 "Termination for Cause" proceeding. The plain language of Article 16.3 of the Agreement, titled "Notice of Non-Reappointment," specifies that, "[w]hen a Bargaining Unit member is not reappointed during the probationary period, the Bargaining Unit member will be given appropriate notice as specified in Article 13.14." Article 13.14 of the Agreement is titled "Appropriate Notice" and speaks of "[n]otice of intention to recommend non-reappointment." As a matter of law, the University's notice that it intended to initiate proceedings to terminate Weatherby for cause could not serve as a notice of non-reappointment. If we were to construe the notice of the University's intent to terminate Weatherby for cause as a notice of non-reappointment, there would be no need for a hearing. The evidence was clear and unequivocal that the University failed to follow its own procedures in not reappointing Weatherby. The third assignment of error is well-taken, and the matter must be remanded for a determination of additional damages under the breach of contract claim. Based on the foregoing, the first and second assignments of error are overruled, the third assignment of error is sustained, and the judgment of the Ohio Court of Claims is affirmed in part and reversed in part and the matter is remanded for further proceedings in accordance with this opinion. _____________ LAZARUS, J. DESHLER and KENNEDY, JJ., concur. 1 Smith did not testify.

2016-07-06 06:35:59.587308+00

OPINION Gary Freeland Smith appeals from the trial court's determination that he is a sexual predator. Smith contends that judgment is against the manifest weight of the evidence. Smith was convicted in 1981 of the attempted rape of his eight year old stepdaughter. The facts surrounding Smith's conviction are set out in the Montgomery County Probation Pre-Sentence Investigation Report which is part of this record. (See State's Exhibit 1). On March 3, 1981, Smith was indicted for one count of rape under case number 81-CR-271, and one count of grand theft under case number 80-CR-1727. The underlying allegations of the rape charge involve Smith molesting his eight-year old stepdaughter throughout the summer of 1980, in which Smith engaged in repeated acts of intercourse and oral sex with her. Smith told the child and her ten-year old sister not to tell anyone, but eventually, the older sister did tell. The child was taken to the hospital for a physical examination, which revealed that her hymen was torn. A review of the pre-sentence investigation report reveals that Smith denied the allegations, although it appeared apparent that he knew what he had done. Id. at 1, 4, and 5. Smith stated to police that if the acts had occurred, that they happened while he was under the influence of drugs and alcohol. Id. Further investigation by the police through interviews of family members revealed that Smith had a drug and alcohol problem. On June 6, 1981, pursuant to a plea agreement, Smith pled guilty to a lesser-included of attempted rape, and the other case was nolled. A sentencing hearing was set, but Smith absconded and a warrant was issued. Finally, on July 19, 1985, Smith was apprehended in Colorado. During the interim years as a fugitive, he had been convicted of robbery in Colorado. In 1982, he was sentenced to eighteen months for the robbery; thereafter, he was paroled. Then, on May 20, 1985, he was convicted and sentenced to ten years for sexual assault, for having sexual relations with his fifteen-year old step-daughter in Colorado. Thereafter, back in Ohio, Smith was sentenced to three to fifteen years for the original attempted rape conviction on August 5, 1985. This sentence was to run consecutive to the sentence for the sexual assault from Colorado. While incarcerated in Colorado, Smith completed several programs, including a stress management group, a drug and alcohol group, and phase one of the sex offenders program. The same year, after he had been transferred back to Ohio, he was considered for early release, but his individual counselor from Colorado recommended against it. The counselor stated that he was against early release because he viewed Smith as being a "long-term fixated pedophile" and having "tendencies of rage and abuse toward women." The counselor stated he had worked with a large number of fixated pedophiles with aggressive tendencies and their prognosis for successful community adjustment is always poor. The Montgomery County Adult Probation Department concurred in the recommendation against early release, which was then denied by the trial court. In preparation for a sexually oriented offender designation hearing, Dr. Daniel Hrinko, of the Forensic Psychiatry Center for Western Ohio, performed a psychiatric evaluation of Smith. 1999 Forensic Psychiatric Report (hereinafter Psych. Report). The evaluation took place on June 23, 1999. Id. Prior to the evaluation, Dr. Hrinko reviewed a variety of court documents, law enforcement investigation reports, a Minnesota Multi phasic Personality Inventory-2 evaluation dated June 22, 1999, and various pre-sentence investigation summaries and addendum. Id. at 2. Although Smith was polite in his exchange with the doctor, he made it clear that he did not intend on cooperating with the evaluation process, because he had no intention of complying with the registration requirements upon his release. Id. at 3. A sexually oriented offender designation hearing was held on October 24, 2000. At the hearing, although Smith did speak before the court, he did not present any exhibits or testimony. Tr. 6. Smith informed the court that he had completed several programs and that he had become a program agent, helping others with the programs. Tr. 6. After hearing Smith speak, the trial court determined that Smith is a sexual predator. Tr. 8. At that hearing, the State presented State's Exhibit 1 that contained several documents. Tr. 2-3. Specifically, the documents included: a House Bill 180 Screening Instrument, the Forensic Psychiatry Report dated July 9, 1999; an Adult Probation Department Report dated July 25, 1985; a Termination Entry dated August 5, 1987; an Adult Probation Department Report dated April 2, 1986; an Adult Probation Department Report dated October 26, 1987; an Adult Probation Department Report dated March 2, 1990; an Adult Probation Department Report dated July 10, 1990; a Colorado Department of Corrections Report dated January 22, 1988; and a Pre-sentence Investigation Report dated August 14, 1981. Smith contends the judgment of the trial court is against the manifest weight of the evidence because he has taken responsibility for the offense at issue and he has taken numerous measures to shed any and all motivations which caused him to commit the rape offense. Specifically, Smith notes that he completed the sex offender program in Colorado as well as a drug and alcohol program, a stress management program, and an anger management program. Smith argues that the statutory factors found at R.C. 2950.09(B)(2) militate in his favor in determining whether the State proved that he is a sexual predator. He notes he will be 48 when he is scheduled for release from prison and Dr. Hrinko noted that "data suggests that individuals experience a decrease in the likelihood for future violence or sexual offenses as they pass their mid-40's. Smith notes that he does not suffer from any mental illness or disability and his sexual conduct with his eight year old step-daughter was not part of a demonstrated pattern of abuse nor did he display cruelty during the commission of the offense. The State argues that we should affirm the trial court's determination because the statutory factors militate in the favor of his sexual predator classification. The State notes that sexual abuse of small children elevates the risk of recidivism because this type of behavior demonstrates a defendant's lack of restraint. The State also notes that substantial abuse is a recidivist factor and the fact that Smith remained sober during incarceration is not indicative of his ability to remain sober upon his release. The State also notes that Dr. Hrinko performed psychological tests which demonstrated that Smith had a self-serving attitude which the doctor stated could increase his risk of recidivism. Finally, the State argues that Smith's criminal record, his flight to avoid prosecution, and his determination not to comply with reporting requirements if he were found to be a sexual predator also suggest he is likely to engage in sexually oriented offenses in the future. R.C. 2950.01(E) defines a sexual predator as "a person who has been convicted of or plead guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." Attempted rape and gross sexual imposition are considered sexually oriented offenses pursuant to R.C. 2950.01(D)(1), (7). R.C. 2950.09(B)(3) requires that the trial court determine by clear and convincing evidence whether appellant is a sexual predator. Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. Cross v. Ledford (1954), 161 Ohio St. 469, 477. In evaluating the evidence, R.C. 2950.09(B)(2) sets forth several non-exclusive factors for the trial court to consider in making its determination. Those factors are not limited to, but include: A. the offender's age; B. the offender's prior criminal record regarding all offenses, including but not limited to, all sexual offenses; C. the age of the victim of the sexually oriented offense for which sentence is to be imposed; D. whether the sexually oriented offense for which sentence is to be imposed involves multiple victims; E. whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting; F. if the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense, and, if the prior offense was a sex offense or sexually oriented offense, whether the offender participated in available programs for sexual offenders; G. any mental illnesses or mental disability of the offender; the nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse; H. whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty; The Ohio legislature did not assign any particular weight to the factors set out in R.C. 2950.09(B)(2). The legislature acknowledged the overwhelming statistical evidence supporting the high potential of recidivism among sex offenders whose crime involves the exploitation of young children. See, Kansas v. Hendricks (1997), 521 U.S. 346; State v. Condron (March 27, 1998), Montgomery App. 16430 unreported. See, R.C.2950.09(B)(2)(c). Dr. Hrinko noted that while there are no indications that Smith used overt threats of cruelty or engaged in acts of cruelty to influence his victim, "being an eight year old attempting to cope with the inappropriate advances of an adult male stepparent indicates that a significant difference in power and influence exists which may be interpreted as cruel or potentially cruel to the victim." Dr. Hrinko also noted that Smith was angry at the system because he was denied parole. Dr. Hrinko stated that such an attitude can be a factor that may increase the chances for recidivism. A majority of the factors in R.C. 2950.09(B)(2) need not apply for the court to make a sexual predator designation. State v. Fugate (February 2, 1998) Butler App. CA-97-03-065, unreported. The trial court did not explain why it found Smith to be a sexual predator. Presumably the trial court gave greater weight to the defendant's assaults on young girls and defendant's substance abuse and criminal record than it gave to the defendant's apparent completion of sex offender, drug and alcohol abuse programs. The facts are not essentially in dispute in this matter. The conclusion the trial court reached that Smith is likely to commit sexually oriented offenses in the future is supported by this appellate record. The judgment is not against the manifest weight of the evidence. Judgment Affirmed. __________ BROGAN, J. WOLFF, P.J., and GRADY, J., concur.

2022-07-29 03:07:58.707438+00

PER CURIAM. Affirmed.

2016-07-06 06:35:58.529645+00

Fain

Plaintiffs-appellants, John Davey and Nelson Smith ("the officers"), appeal from an adverse judgment rendered after a bench trial upon their complaint for a declaratory judgment, promotion, and back pay. The officers contend that the trial court erred in holding, as a matter of law, that the vacant positions to which they sought to be promoted could be abolished before being filled. They also contend that the trial court erred in not finding that defendant-appellee, the city of Springfield, acted in bad faith in abolishing the positions to which they sought to be promoted, and that, in this connection, the trial court erred in sustaining objections to certain testimony, based upon hearsay. We conclude that the trial court correctly excluded the testimony as hearsay, and that the record in this case supports the trial court's finding that the city acted in good faith. We further conclude that the city could lawfully abolish the positions to which the officers sought to be promoted without first filling those positions. Accordingly, the judgment of the trial court will be affirmed. I Davey and Smith were both sergeants on the Springfield police force who had sought promotion to the position of lieutenant. They both sat for a promotional examination in 1988, and were eligible for promotion from the list established as a result of that examination, for one year beginning in September 1988. The highest score on the examination was recorded by David Walters, who was promoted to lieutenant in 1988. Smith recorded the second-highest score, and Davey recorded the third-highest score. In December 1988, two vacancies in the position of lieutenant occurred as a result of the retirement of Lieutenants Barcelona and Beady. In January 1989, the City Commission for the city of Springfield adopted an ordinance abolishing the two vacant lieutenant positions on the Springfield police force, citing a shortage of funds. The promotion list for lieutenant expired in September 1989. Neither Davey nor Smith was promoted prior to the expiration of the promotional list. Section 92 of the Springfield City Charter includes the following provision: "In providing for the classification of the personnel of the Police and Fire Divisions, the City Commission shall not abolish any position until a vacancy shall have occurred therein." *Page 304 R.C. 124.44, as construed by Zavisin v. Loveland (1989),44 Ohio St.3d 158, 541 N.E.2d 1055, provides that vacancies in police departments in positions above the rank of police patrolman must first be filled by appointment before those positions may be abolished. The central issue before the trial court, which is now before this court, was how to reconcile the conflict between the Springfield City Charter provision and R.C. 124.44. The officers also claimed, in their complaint, that the city acted in bad faith in abolishing the two lieutenant positions to which they sought promotion. In that connection, the officers sought to introduce testimony by Smith to the effect that Roger Marcum had told him that Springfield Police Chief Roger Evans had told Marcum that Evans did not want Davey to be promoted. The trial court excluded this testimony as hearsay. The trial court, following a bench trial, concluded that the Springfield City Charter provision was in direct conflict with R.C. 124.37 and 124.44; that the charter provision prevailed, as a matter of law; that the lieutenant positions were properly abolished in accordance with the charter provision; and that the officers had failed to establish bad faith or the existence of an ulterior motive. The trial court entered judgment accordingly. From the judgment, this appeal is taken. II The officers' first assignment of error is as follows: "The trial court erred in ruling that the city's abolition of two lieutenants positions in the Springfield Police Department in January, 1989, did not violate Ohio law." Both parties agree that Section 92 of the Springfield City Charter, which provides that a position in the police division may not be abolished until it has become vacant, is in direct conflict with R.C. 124.44, which, at least as interpreted byZavisin v. Loveland, supra, provides that a vacancy in a position above the rank of patrolman must be filled before the position may be abolished. The city contends that its charter provision should prevail, and the officers contend that R.C.124.44, being part of Ohio's civil service statutes, should prevail. The city cites State, ex rel. Bardo, v. Lyndhurst (1988),37 Ohio St.3d 106, 524 N.E.2d 447, and State, ex. rel. Canada, v.Phillips (1958), 168 Ohio St. 191, 5 O.O.2d 481, 151 N.E.2d 722, in support of the proposition that provisions in a municipal charter adopted pursuant to Section 3, Article XVIII, Ohio Constitution which pertain to the appointment of officers within a city's *Page 305 police force are an exercise of local self-government, and, as such, prevail in the event of a conflict with statutory civil service provisions. We agree that the cases cited by the city support its proposition, and we further agree that if these were the Supreme Court's last words on the subject, the city would prevail. The Supreme Court's last pronouncement on this issue isRocky River v. State Emp. Relations Bd. (1989), 43 Ohio St.3d 1,539 N.E.2d 103. In that case, the Supreme Court considered a conflict between provisions in a municipal charter adopted pursuant to Section 3, Article XVIII of the Ohio Constitution, and the provisions of the Public Employees' Collective Bargaining Act, codified in R.C. Chapter 4117. In an opinion written by Justice Douglas, and concurred in by three other justices, the Supreme Court held that the provisions of R.C. Chapter 4117 prevailed over conflicting provisions of the municipal charter in that case. The Supreme Court relied heavily upon Section 34, Article II of the Ohio Constitution which provides as follows: "Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and the general welfare of all employees; and no other provision of the constitution shall impair or limit this power." The Supreme Court, in Rocky River, supra, held that the provisions for collective bargaining by public employees enacted in R.C. Chapter 4117 were enacted pursuant to the grant of legislative power contained in Section 34, Article II, so that the restriction upon the General Assembly's legislative power inherent in the home rule powers extended by Section 3, Article XVIII was incapable of limiting the General Assembly's exercise of power, pursuant to the final clause of Section 34, Article II. The city contends that the situation in the case before us is distinguishable in that Ohio's civil service laws, and in particular R.C. 124.44, were not enacted pursuant to Section 34, Article II. In this connection, footnote 14 in Rocky River v. State Emp.Relations Bd., supra, at 43, 539 N.E.2d at 113, is significant. That footnote reads, in its entirety, as follows: "But, see, State, ex rel. Canada, v. Phillips (1958),168 Ohio St. 191, 5 O.O.2d 481, 151 N.E.2d 722, paragraph four of the syllabus, which, however, needs to be read in context with the issues involved in that case. Canada is a case involving civil service and concerns Section 10, Article XV of the Ohio Constitution. It does not deal in any way with Section 34, Article II, which is so central to the case before us today. *Page 306 "In any event, a review of the constitutional debates concerning Section 3, Article XVIII reveals that the narrow interpretation adopted by the Canada court is unwarranted. Mr. George W. Knight, a convention delegate and a chief proponent of the amendment, characterized its purpose as follows: `[T]his proposal undertakes * * * to provide that municipalities shall have the power to do those things which are not prohibited, that is, those things with reference to local government, with reference to the affairs which concern the municipality, which are not forbidden by the lawmaking power of the state, or arenot in conflict with the general laws of the state under the police power and the general state regulation. * * *' (Emphasis added.) 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio (1913) 1433. Obviously, this characterization of Section 3, Article XVIII is totally inconsistent with the interpretation espoused by the Canada court." While the above-quoted footnote in Rocky River first suggests that the Canada case is distinguishable, because it involves a conflict between a home-rule charter provision and the civil service statutes, that footnote concludes by suggesting that theCanada case is no longer good law because the Supreme Court, in that case, misunderstood the scope of the home-rule amendment. Civil service laws are specifically provided for in Section10, Article XV of the Ohio Constitution, which provides as follows: "Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing forthe enforcement of this provision." (Emphasis added.) Because Section 10, Article XV specifically provides for civil service legislation, we presume that when the General Assembly enacted the civil service statutes, including R.C.124.44, it did so pursuant to Section 10, Article XV, not pursuant to Section 34, Article II. Therefore, the final clause in Section 34, Article II, which the Supreme Court found controlling in Rocky River, supra, would, as noted in footnote 14 of that opinion, have no application where the Ohio civil service statutes are concerned. Consequently, we conclude, as that footnote suggests, that a conflict between a home-rule charter provision and a civil service statute is distinguishable from a conflict between a home-rule charter provision and the Public Employees' Collective Bargaining Act. There remains the suggestion, in footnote 14 of Rocky River,supra, that State, ex rel. Canada, v. Phillips, supra, in which it was held that a home-rule charter provision must prevail in event of a conflict with the civil service statutes, is not good law. Such a conclusion was not essential to the holding inRocky River, and formed no part of its syllabus. Up until RockyRiver *Page 307 was decided, it had become settled law that a home-rule charter provision must prevail when it is in conflict with the civil service statutes, at least insofar as the charter provision pertains to the appointment (or, as in this case, the promotion) of municipal officers. State, ex rel. Bardo, v. Lyndhurst (1988), 37 Ohio St.3d 106, 524 N.E.2d 447; State, ex rel.Willcox, v. Kettering (1984), 20 Ohio App.3d 178, 20 OBR 222,485 N.E.2d 722. We are not prepared to deem this settled proposition of law to have been overruled by dictum appearing in a footnote in Rocky River v. State Emp. Relations Bd., supra, notwithstanding the high regard we have for the illustrious author of that footnote. We conclude that Section 92 of the Springfield City Charter prevails to the extent that it is in conflict with R.C. 124.44. Pursuant to the Springfield Charter provision, the city was required to wait until the two lieutenant positions were vacant before abolishing those positions. Obviously, then, it had the power to abolish those positions while they were vacant; indeed, it lacked the power to abolish those positions unless they were vacant. The officers' first assignment of error is overruled. III The officers' second assignment of error is as follows: "The city acted in bad faith in abolishing these two lieutenant positions, and Ohio law prohibits such conduct." The officers argue that bad faith should be presumed from the mere fact that the city acted in violation of R.C. 124.44. In view of our conclusion in Part II, above, that Section 92 of the Springfield City Charter prevails to the extent of its conflict with R.C. 124.44, we obviously do not agree that the city's bad faith may be presumed from its actions. It acted in reasonable reliance upon Section 92 of its Charter. Finally, in connection with this assignment of error, the officers argue that the trial court improperly excluded as hearsay Smith's testimony that Roger Marcum had told Smith that Chief Roger Evans had told Marcum that Evans did not want Davey to become a lieutenant. It may be that Chief Evans' out-of-court statement would have been admissible as part of the res gestae, since the mere fact that Chief Evans made that statement, if he did so, is evidence of bad faith. However, Marcum's testimony was not offered. Smith's testimony was in the nature of double hearsay, since Smith was relating what Marcum had told Smith that Chief Evans had told Marcum. *Page 308 Marcum's out-of-court statement was being offered for its truth, and, as such, was properly excluded as hearsay. The officers' second assignment of error is overruled. IV Both of the officers' assignments of error having been overruled, the judgment of the trial court will be affirmed. Judgment affirmed. WOLFF, P.J., and BROGAN, J., concur.

2016-07-06 06:35:58.792977+00

Farmer

{¶ 1} On March 24, 2005, a complaint was filed alleging appellant, B.H., to be a delinquent child based on an allegation that appellant had committed acts that if committed by an adult would constitute the offense of rape in violation of R.C. 2907.02. *Page 332 {¶ 2} On April 14, 2005, appellant filed a motion requesting an evaluation to determine her competency for the adjudicatory hearing and her sanity at the time of the offense. By judgment entry filed April 18, 2005, the trial court denied the request. {¶ 3} On April 26, 2005, appellant filed a motion to reconsider the request. A hearing was held on May 13, 2005. By judgment entry filed May 16, 2005, the trial court once again denied the request. {¶ 4} An adjudicatory hearing before a magistrate was held on May 24, 2005. By decision filed June 7, 2005, the magistrate found appellant to be a delinquent child. Appellant filed objections. By judgment entry filed January 5, 2006, the trial court denied the objections and affirmed the magistrate's decision. {¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows: I {¶ 6} "The trial court committed harmful error in denying the request of the trial counsel for the appellant to order an evaluation of the child to determine her competency to stand for adjudication." II {¶ 7} "The trial court committed harmful error in proceeding with the adjudication of the child when the record failed to demonstrate that she was able to understand the nature of the proceedings and assist in her own defense." III {¶ 8} "The trial court committed harmful error in overruling the child's objections to the magistrate's adjudication of her as an alleged delinquent child as the record fails to demonstrate that she was legally competent to proceed with the adjudicatory hearing." IV {¶ 9} "The record created below is insufficient to demonstrate, by proof beyond a reasonable doubt, that the child was delinquent for committing the acts specified in the complaint filed against the child." I, II, III {¶ 10} These assignments challenge the trial court's procedure on the issue of appellant's competency to stand trial. Appellant claims that the trial *Page 333 court erred in failing to appoint an expert under Juv.R. 32 on the issue of competency. We agree. {¶ 11} The decision to appoint an expert to evaluate competency lies within the trial court's sound discretion. Juv.R. 32(A). In order to find an abuse of that discretion, we must determine that the trial court's decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. {¶ 12} It is not contested by either party that appellant is entitled to be competent and to participate in her own defense and hearing. Juv.R. 32 governs social history, physical examination, and mental examination before adjudication and states: {¶ 13} "The court may order and utilize a social history or physical or mental examination at any time after the filing of a complaint under any of the following circumstances: {¶ 14} "(1) Upon the request of the party concerning whom the history or examination is to be made; {¶ 15} "(4) Where a party's legal responsibility for the party's acts or the party's competence to participate in the proceedings is an issue." {¶ 16} In appellant's April 14, 2005 motion for evaluation of competency to face adjudication and sanity, defense counsel stated: {¶ 17} "Counsel's contact with Ms. [H.] and her family has caused her concern about her ability to appreciate the instant proceedings, assist in her own defense and understand the nature of her actions. As Ms. [H.] is currently indigent, it is requested that it be ordered that the evaluation be performed at public expense." {¶ 18} The trial court sua sponte denied the motion without hearing, finding that "[i]t was not apparent to this Court by her demeanor or any other factor that the child was incompetent or suffers from any mental deficiencies warranting a mental evaluation." {¶ 19} On April 26, 2005, appellant filed a motion for reconsideration. By judgment entry filed April 28, 2005, the trial court ordered the following: {¶ 20} "1. The Court shall immediately appoint a guardian ad litem to represent the child's best interests. The guardian ad litem shall interview the child. {¶ 21} "2. The motion for reconsideration shall come before the Court for an oral hearing. The child shall attend, as well as all other parties, legal counsel for the juvenile, the guardian ad litem, and an assistant prosecuting attorney. The *Page 334 Court will hear evidence and argument in support of the motion for reconsideration." {¶ 22} During the hearing, the state did not oppose the competency evaluation and pretrial psychological examination. Defense counsel explained to the trial court the reason for the request for the competency evaluation and accompanied the explanation with appellant's Individualized Education Program ("I-E-P") test scores: {¶ 23} "In my representation and contact with Ms. [H.] and in interviews with her family thus far I do have concern as to whether she is able to assist me in her defense and understand the nature of her actions and appreciate the instant proceedings. Ms. [H.] has limited communication abilities which are making it difficult to prepare her defense as her counsel and I'm unsure if these limitations from our conversations are due to immaturity or competency and thus have requested a professional psychologist to determine so. Further, although it's not readily apparent on the surface, Ms. [H.] does — has suffered from family history that most children and young teenagers fortunately haven't had to live through. She's witnessed abuse in her family. She has lost both parents at one time or other — another and has been in and out of foster care homes since she was nine. Not surprisingly Ms. [H.] has been seeing and has seen counselors in the past for both emotional mental concerns. Currently [B.H.] is enrolled as an eighth grade student but she is in special ed classes and she's in the middle school but acting under an I-E-P to accommodate the lower functioning. And I do apologize for not attaching it to the motion. I just obtained her I-E-P today and the I-E-P does state that she is reading and comprehending at an upper second grade level so she's not at the functioning level of an eighth grader." {¶ 24} The guardian ad litem further substantiated appellant's request as follows: {¶ 25} "I found [B.H.] to be a very happy, bubbly child and that's exactly the word I would use is child. She is fourteen years of age. She is going to be going into high school. However, her emotional abilities and her emotional personality is much younger than that of a fourteen-year-old and I had serious concerns when I did speak with her with regard to her level of understanding. I don't know that it's necessarily competency, however, if you look at the Rules, I believe it's a child of seven, age seven and under or perhaps it's six, a child under that age is presumed incompetent so — and if you look at what the I-E-P states which is that she's reading at a second grade level, that's a child of seven and eight years old. So I believe it would be in the best interest for her to have a psychological evaluation to at least determine whether she really understands the seriousness of these proceedings, whether she understands the wrongfulness of her acts in this matter. She does have a very, very horrible living history. She *Page 335 has been in no less than ten placements over her lifetime which is a very short period of time considering, and she's been bounced around, and there are history of sexual molestation and rape, and accusations of molestation throughout her family. So I do believe it would be in her best interest to have a psychological evaluation." {¶ 26} The trial court called appellant's aunt to the stand and asked her about appellant's competency. The aunt testified to the following: {¶ 27} "I've had her for more than just now. I've had them the most of their lives so I pretty much know what — what they do and what they don't know. And — and she don't understand. It's just, I mean, if you — if you sit and explain something to her, it's just like they get a blank look on their face like they — it just goes like it's not comprehending through to them what you're trying to — tried saying it to them." {¶ 28} The trial court then called appellant's father, who appeared not to remember appellant's schooling and disability, but did state that he had no problem communicating with her and that she understood the house rules. {¶ 29} The trial court then questioned appellant. The trial court asked the standard competency questions, whether she knew her attorney and what the attorney's role was, whether she knew what the judge was and what the judge's role was. Appellant did not know what a judge did, did not know what a witness was, and did not know the purpose of the adjudication hearing. Appellant knew she was in court accused of rape and understood "later this month the Court will hear evidence as to whether or not you did what you were accused of." {¶ 30} Although the trial court engaged in the standard "competency" dialogue seen in adult criminal court, it does not mitigate against the opinions of three people, defense counsel, the guardian ad litem, and appellant's aunt. All of these three people were in more intense contact with appellant than the trial court was during its cursory questioning. {¶ 31} We concur with the trial court's analysis that this case is not an adult criminal proceeding. However, we find that the record as a whole substantiates the fact that a medical expert should have been ordered to render an opinion of competency sub judice. {¶ 32} Assignments of Error I, II, and III are sustained. The matter is remanded to the trial court for the appointment of an expert to evaluate appellant's competency to participate in her own defense during the adjudicatory hearing. *Page 336 IV {¶ 33} This assignment is rendered moot and the adjudication is reversed for a new trial pending the results of the competency evaluation. {¶ 34} The judgment of the Court of Common Pleas of Licking County, Ohio, Juvenile Division is hereby reversed and remanded. Judgment reversed and cause remanded. GWIN, P.J., and HOFFMAN, J., concur.

2016-07-06 06:35:59.142027+00

Jones

Defendant-appellant, American Funding Corporation, appeals an order of the Clermont County Court of Common Pleas overruling its motion to stay the trial of an action filed by plaintiff-appellee, Richard R. Ervin, under Ohio's Business Opportunity Purchaser's Protection Act.1 In October 1990, appellee observed a classified advertisement appellant placed in a Cincinnati, Ohio area newspaper offering a business opportunity. After initially responding to the advertisement, appellee had various discussions and meetings with the defendants that culminated in appellee's and appellant's *Page 521 executing a written agreement under the terms of which appellee paid $27,300 to appellant in exchange for becoming a broker to lease equipment and provide associated services on behalf of appellant. In January 1992, appellee filed a complaint for rescission, damages and other relief, alleging that the agreement violated R.C. 1334.01 et seq., the Ohio Business Opportunity Purchaser's Protection Act. Appellant responded with a motion to stay trial pursuant to R.C. 2711.02, claiming that the terms of the agreement mandated that the parties' dispute be submitted to arbitration. In a decision which did not set forth its reasoning, the trial court denied appellant's motion for stay. As its sole assignment of error, appellant claims the trial court erred in overruling its motion to stay. The parties' agreement contains a provision which provides that "[a]ny dispute or disagreement between the parties arising out of, or in relation to this agreement, not settled within thirty (30) days of first written notice by complaining party, shall be settled by arbitration * * * and, any judgment upon the award may be entered in any court having jurisdiction." It is appellant's position that the question of whether the agreement violated certain provisions of R.C. Chapter 1334 must first be submitted to arbitration before the matter may be tried in a court of law. In support of its position, appellant relies on R.C. 2711.02, which provides: "[I]f any action is brought upon an issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement * * *." As a general rule, Ohio courts favor the amicable resolution of disputes through the use of arbitration. See Youghiogheny Ohio Coal Co. v. Oszust (1986), 23 Ohio St.3d 39, 41, 23 OBR 57, 58, 491 N.E.2d 298, 299. However, "an arbitrator's authority is confined to the resolution of issues submitted regarding contractual rights." Id. at 41, 23 OBR at 59, 491 N.E.2d at 300. Within the context of R.C. 2711.02, an arbitration clause will be judicially enforced unless a court is firmly convinced that the clause is inapplicable to the dispute or issue in question.Independence Bank v. Erin Mechanical (1988), 49 Ohio App.3d 17,550 N.E.2d 198. The issue of whether a controversy is arbitrable under an arbitration provision of a contract is a question of law for the court to decide upon an examination of the contract.Divine Constr. Co. v. Ohio-American Water Co. (1991), 75 Ohio App.3d 311, 599 N.E.2d 388; Gibbons-Grable Co. v. Gilbane Bldg.Co. (1986), 34 Ohio App.3d 170, 517 N.E.2d 559. *Page 522 In light of the foregoing, we are faced with the question of whether a controversy involving the application of R.C. Chapter 1334 is a matter subject to arbitration under the parties' agreement. The issues presented by appellee's action are whether the business relationship created by appellee's contract with appellant constitutes a "business opportunity" and whether that opportunity, as offered by appellant, failed to comply with applicable statutory provisions governing the offering of such opportunities in Ohio. It is not a question of whether either party has violated any of the agreement's provisions, a clearly arbitrable matter. Rather, the dispute is one involving the applicability of specific statutory provisions to the agreement. Under such circumstances, we do not believe that this particular dispute is referable to arbitration. We accordingly conclude that the trial court did not err in finding that the issues raised herein were not referable to arbitration. The court correctly denied appellant's motion for a stay under R.C. 2711.02 and the assignment of error is hereby overruled. Judgment affirmed. KOEHLER and WILLIAM W. YOUNG, JJ., concur. 1 In addition to appellant, North American Capital, Inc., Dan Presson, and Michael Bukowsky were named as defendants. However, defendants' counsel filed a notice of appeal in which "the defendants, American Funding Corporation, et al.," appealed the trial court's judgment. This court has held that a notice of appeal containing the term "et al." is insufficient to name all parties appealing a decision and does not comply with the requirement of App.R. 3(C) that the notice of appeal specify theparty or parties taking the appeal. Seipelt v. Motorists Mut.Ins. Co. (1992), 81 Ohio App.3d 530, 611 N.E.2d 917. We accordingly conclude that American Funding Corporation is the only appellant in this case and that the remaining defendants have not appealed the lower court's decision.

2016-07-06 06:35:59.323753+00

Per Curiam

The Milcrest Nursing Home, located in Union County, was constructed approximately eight years ago and upon completion was licensed for operation by the Director of Health. On March 8, 1976, it was inspected by an inspector of the Division of State Fire Marshal and found deficient in a number of respects with reference to insufficient sprinkler head fire protection and the Fire Marshal notified the home accordingly. On July 28, 1976, the Director of Health notified the owner and operator of the home that he proposed to revoke its license to operate for violation of R. C. 3721.071. On August 17, 1976, counsel for the home requested a hearing on the proposed revocation which convened before an attorney examiner of the Department of Health on October 20, 1976. Meanwhile, another inspection was conducted by an inspector of the Division of State Fire Marshal on October 4, 1976, and he found that sprinkler heads still needed to be installed (1) in the attic area, (2) in the entrance vestibule area, (3) in the 28" by 40" clothes closet in the front entrance hall, (4) in the 55" by 27" clothes closet adjacent to the nurses' station, (5) in the 15" by 51" by *Page 117 78" closet next to the kitchen door, (6) in the duct work over the cooking surface of the range, and (7) in the area which is accessible to storage under the basement stairway. At the October 20th hearing the evidence was to the effect that the existing sprinkler heads were ineffective to reach the areas found by the inspector to be unprotected, but that no combustibles were stored in such areas. The theory of the licensee's appeal was that there was no legal requirement, under the circumstances, that sprinkler head protection be extended to the areas in question. On November 2, 1976, the hearing examiner concluded that the nursing home was in violation of R. C. 3721.071 and recommended that the Director of Health revoke its license. On November 6, 1976, the home submitted to the Director documents evidencing its intent and arrangments to correct the sprinkler head deficiency over the range and on November 16, 1976, submitted its objections to the report and recommendations of the referee. On December 13, 1976, the Director of Health signed his entry confirming and approving the referee's recommendations and revoked the license to operate issued to the named operator and home. Appeal was then taken by the corporate owner of the home to the Court of Common Pleas of Union County. Pursuant to the owner's application the court ordered one Walter Fowler, as officer of the court to "inspect the wood decking and trusses in the crawl space in said nursing home, to take photographs of the same and to report back to this Court his findings as to the fire treating stamp on said wood." Fowler testified at the hearing on the appeal over the objection of counsel for the Ohio Department of Health as to the photographs which he took and as to what he saw. Upon the request of the Department of Health the Common Pleas Court made separate findings of fact and conclusions of law and filed its journal entry finding in accordance therewith that the "order of the Ohio Department of Health revoking Appellant's license is not supported by reliable, probative and substantial evidence, is not in accordance with law, is unreasonable, void, arbitrary, is *Page 118 against the manifest weight of the evidence, is unconstitutional and amounts to the taking of Appellant's property without due process of law," and ordered "that the order of the Director of Health of the State of Ohio revoking Appellant's license to do business as a nursing home is reversed and vacated," and that he be "restrained from revoking Appellant's license for the alleged deficiencies set forth in the Fire Marshal's recommendations and the Ohio Department of Health's orders in the instant case." It is from this judgment that appeal has been taken to this Court by the "Ohio Department of Health," the appellant assigning error of the Common Pleas Court as hereinafter more fully set forth. All of the assignments of error involve the application of the provisions of R. C. 3721.071 which became effective after the construction of the home herein involved was completed and which, in addition to requiring compliance by existing homes, provides in pertinent part: "The building in which a home is housed shall be equipped with * * * an automatic fire extinguisher system * * *. Such systems shall conform to standards set forth in the regulations of the board of building standards and the state fire marshal." In our opinion this statutory provision does not empower either the Board of Building Standards or the State Fire Marshal to adopt standards which shall become effective after the original effective date of R. C. 3721.071, i. e., December 30, 1972, but incorporates by reference the standards of the Board of Building Standards and the State Fire Marshal existing on that date. This conclusion is buttressed by the provisions of R. C. 3721.03, also effective December 30, 1972, which, among other things empowers the fire marshal to adopt regulations pertaining to fire safety in homes which shall be in addition to those fire safety regulations that the Board of Building Standards and the Public Health Council are empowered to adopt and which "shall be adopted prior to December 31, 1972," i. e., on or before December 30, 1972. The Board of Building Standards' authority to adopt applicable regulations, as it existed on December 30, 1972, *Page 119 was derived from R. C. 3781.11 giving it authority to provide "uniform minimum standards and requirements for construction and construction materials, * * *, to make buildings safe and sanitary as defined in section 3781.06 of the Revised Code." In existence on December 30, 1972, was the Board of Building Standards regulation BB-57-32(C) prescribing: "(C) A sprinkler system shall be installed and maintainedthroughout all nursing and rest homes. In hospital building of Type I construction, sprinklers shall be installed in all hazardous areas as defined in section BB-57-36 OBC. In hospital buildings of all other types of construction, sprinklers shall be installed in all areas, except hospital operating rooms and special care areas. * * *." (Emphasis added.) The Board of Building Standards regulations do not further define the word "throughout" nor do they make any exceptions to this sprinkler installation requirement for any areas of nursing and rest homes as is done for hospitals. On the other hand, the parties have briefed, as being applicable, a regulation of the State Fire Marshal, apparently effective on or before December 30, 1972, specifically Article 14, Ohio Fire Code, prescribing among other things, not here pertinent as follows: "Section 14.1. Scope. "This article shall apply to new and existing conditions. "* * *. "Section 14.3. "Fire protection equipment, systems and devices shall be installed and maintained in operative condition according to nationally recognized good practices. For the purposes of this section and except where otherwise specifically provided for in OFC, the following standards constitute nationally recognized good practice: [Here follows a listing of 10 standards published by the National Fire Protection Association, including NFPA 13, `Sprinkler Systems, Installation'] * * *. "Section 14.4. *Page 120 "Approved automatic sprinkler systems shall be installed throughout buildings as follows: "a. All buildings classified as a Home for the Aging, Nursing Home or Rest Home under section 3721.01 Ohio Revised Code. "The time for compliance with division (a) of this section shall not be later than January 1, 1975. "Each sprinkler system required by division (a) of this section shall be a `supervised' system conforming to NFPA No. 71, NFPA No. 72A, NFPA No. 72B, NFPA No. 72C or NFPA 72D as set forth in section 14.3 of the Amended AIA Fire Prevention Code. Water flow alarms shall also be interconnected with the firm alarm system required by section 14.6 of this article. * * *" The appellant has furnished us with copies of NFPA standards numbers 13, 71, 72A, 72B, 72C and 72D, all in forms effective on or after 1975. All except number 13 deal with signalling systems and have nothing directly to do with our problem, whereas number 13 sets forth the "nationally recognized good practices" of sprinkler installation which the appellant claims require compliance as found by the fire marshall and his inspectors. Notwithstanding that we do not have before us for consideration those NFPA standards which were in existence when R. C. 3721.071 first became effective and which might, therefore, have been incorporated by reference therein by the incorporation therein at such time of the fire marshal's regulations, it is apparent that by such reference in the fire marshal's regulations, those regulations differed from the regulations of the Board of Building Standards which merely specified that sprinkler systems be installed "throughout all nursing and rest homes." This apparent inconsistency in the fire marshal regulations and those of the Board of Building Standards is resolved, however, by the statutes. Although R. C. 3721.03 provides that in case of disputes as to the interpretation or application of a "specific fire safety law or regulation, the interpretation of the marshal shall prevail," the General Assembly has further prescribed by R. C. 3781.11 that: "The rules and regulations of the board of building *Page 121 standards shall supersede and govern any order, standard, rule or regulation of the department of commerce division of fire marshal * * * and the department of health * * * in all cases where such orders, standards, rules or regulations are in conflict with the rules and regulations of the board of building standards." Consequently, if there is a conflict between the regulations of the fire marshal with reference to installation of sprinkler systems, whatever those regulations happen to be, and the regulation of the Board of Building Standards that a "springler system shall be installed and maintained throughout all nursing and rest homes," the regulation of the Board of Building Standards governs. The word "throughout" in this regulation is used adverbally. Webster's Third New International Dictionary defines the word, as so used, and in the context of the regulation, as meaning "in or to every part: from one end to the other: EVERYWHERE." It is the more apparent that this all inclusive meaning is the meaning intended by the Board of Building Standards because it is consistent with the board's action in making no exceptions for nursing homes as it did for certain areas of hospitals. Further consistent with this meaning it appears that the legislative intent was that all areas of nursing homes should be protected by being able to receive an effective spray from the sprinkler system whether such areas were actually being used for the storage of combustibles, were constructed of combustible materials, or were otherwise hazardous. It necessarily follows that there was valid regulatory justification for the order of the director of health appealed from. The trial court committed error prejudicial to the appellant as asserted in the first assignment of error in finding that the Director's adjudication order was not based on reliable, probative and substantial evidence and was not in accordance with law because, as we have interpreted the law, the mere showing that the disputed areas were areas of the nursing home required their being sprinklered. The trial court did not, as asserted in the second assignment of error, err in failing to find that the attic *Page 122 area requires sprinkler coverage, "because it is enclosed by exposed combustible construction." Its error with respect to the attic was not because the construction was combustible but because the attic was an area of the rest home coming within the requirement of the regulation of the Board of Building Standards incorporated by reference in R. C. 3721.071. The trial court erred prejudicially to the appellant in finding that the vestibule area and the area beneath the basement stairwell did not require sprinkler coverage as set forth in the third assignment of error for the reason that the said regulation required same. In the fourth assignment of error the appellant claims error of the trial court in allowing the introduction of additional evidence which could have been submitted at the administrative hearing. By the provisions of R. C. 3721.03, any person whose license is revoked by the order of the Director of Health may appeal "in accordance with sections 119.01 to 119.13 of the Revised Code." R. C. 119.12 then prescribes that unless otherwise provided by law the Common Pleas Court on considering an appeal from the Director's order "is confined to the record as certified to it by the agency," and that unless otherwise provided by law, that court "may grant a request for the admission of additional evidence when satisfied that such additional evidence is newly discovered and could not with reasonable diligence have been ascertained prior to the hearing before the agency." The evidence here involved which was adduced in the Common Pleas Court on appeal pertained to a static condition in the attic of the rest home existing since the home was constructed. It was neither newly discovered nor of such nature that it could not with reasonable diligence have been ascertained prior to the hearing before the agency. The error of its admission would necessarily have been prejudicial had it been relevant to the determination of the issue before the Common Pleas Court but since that issue, as we view it, had to be determined without reference to the combustibility of the attic materials, such evidence was not relevant to the issue and should not have had *Page 123 any effect on its outcome. Nevertheless, it appears that the Common Pleas Court did rely on same so we must conclude that the error was prejudicial. In the fifth assignment of error the appellant asserts that the "adjudication order of the director, based as it was on statutes and regulations which bears a rational relationship to the evils sought to be eliminated, was an enforcement of those statutes and regulations and therefore, was a valid and constitutional exercise of the police power granted to the state." So phrased this was really not an assignment of error but a proposition of law. For the purposes of this opinion, however, we will assume that the assignment of error is that the Common Pleas Court erred in finding the order unconstitutional amounting to the taking of property without due process of law. The position of the Common Pleas Court is further explained by the following extracted from its separate conclusions of law: "The requirement that nursing homes be sprinklered `throughout' is subject to many interpretations, but it is not in itself sufficiently definitive (without additional criteria or regulations) to require sprinklers in every nook and cranny, every incombustible area, every corner of a structure. This requirement must be construed in conjunction with F. M.-5-01 THE INTENT OF THE FIRE CODE, which is to prescribe regulations forsafeguarding, to a reasonable degree, life and property. Since there is no standard laid down by the Fire Marshal other than this and the rule making is left up to the interpretation of the individual inspector, these rules could not have a general and uniform application; and to require Appellant to comply with these orders is unreasonable, is void, and is arbitrary. All of which amounts to the taking of Appellant's property without due process of law." However, as we have pointed out in our discussion of the first three assignments of error the applicable regulation of the Board of Building Standards prevails over that of the fire marshal and the "intent of the fire code" has nothing to do with the interpretation of the regulation of the Board of Building Standards. That regulation does *Page 124 not compromise the safeguarding of the patients of a nursing home to that of only a reasonable degree. It obviously requires such patients to be safeguarded to the highest degree; witness, the lack of exceptions with application to the sprinklering of nursing homes creating even a higher standard than that applicable to hospitals. It is the obvious intent of R. C. 3721.071, and the applicable regulations incorporated therein, that the threat of fire in nursing homes, where the safety of elderly and non-ambulatory patients is primarily involved, be diminished to the maximum degree by the requirement of sprinkler systems that will not only take care of conditions arising from construction but also arising from use and occupancy. Even a building constructed from non-combustible materials constitutes a danger and threat to its occupants if after construction it becomes occupied by combustibles. It is to diminish this hazard to life and health that the requirement of sprinklers "throughout," applied in that word's ordinary sense and meaning, becomes uniform and general in its application, and a proper and constitutional exercise of the police power of the state. A clear and sufficient determination of policy has been legislatively made and adequate rules and standards exist. Compare Carney v. Board of Tax Appeals (1959), 169 Ohio St. 445,451. We find the fifth assignment of error well taken. For the errors of the Common Pleas Court heretofore set forth in all but the second assignment of error, which errors were prejudicial to the appellant, the judgment of the Common Pleas Court must be reversed and vacated. In that the evidence is conclusive as to the application of the regulation of the Board of Building Standards, final judgment must be entered finding that the order of the Director of Health is supported by reliable, probative, and substantial evidence and is accordance with law, and affirming that order. Judgment reversed. MILLER, P. J., GUERNSEY and COLE, JJ, concur. *Page 125

2016-07-06 06:35:59.408198+00

Brogan

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 416 OPINION This case involves a bitter dispute between adjoining property owners over about one-tenth of an acre of land. The dispute has been played out through repeated calls to the police to report "missing property stakes," general acrimony in the trial court, and opposing motions for a restraining order to prevent the other party from entering the disputed property. Originally, John and Anna Bocklet owned approximately 13.94 acres of land in Greene County, Ohio. On August 13, 1955, a registered surveyor, Ben Pierce, conducted a survey, and a 1.20 acre parcel was subdivided from the main parcel. The small parcel was then conveyed to Robert and Betty Beason on September 6, 1955. At the time, Greene County did not require surveys to be filed, and Pierce *Page 417 did not file a survey. However, the deed indicated that it was based on Pierce's survey of August 13, 1955. Subsequently, on April 5, 1957, the Beasons conveyed their parcel to Chester and Miriam Barton. In turn, the Bartons conveyed their land to Wesley and Edith Green on April 6, 1959. After owning the land for more than twenty years, Mr. Green conveyed it to his son, Louis, and Louis' wife, Joyce, on December 18, 1979. Louis and Joyce Green were the plaintiffs below, and still owned the property at the time they filed their lawsuit in June, 1996. The main 12.74 acre parcel was kept by the Bocklets for some time, but was then sold. A subsequent owner, Richard Bull, conveyed this parcel to the defendants, Mike and Janet Lemarr, on September 21, 1991. At some point after the Lemarrs bought the property, a dispute arose about the ownership of the land abutting a creek or channel. Mr. Green maintained that the property line was on the east side of the creek, which would mean that he owned the creek and the adjoining land. In contrast, Mr. Lemarr claimed the property line was on the west side of the creek, and that the disputed land belonged to him. Mr. Green was a licensed surveyor. On May 3, 1996, Mr. Green filed an affidavit with the Greene County Recorder, indicating that the deed conveying the 1.20 acre parcel was erroneous and did not conform to the intent of Pierce's original survey of August 13, 1955. In the affidavit, Green pointed out various discrepancies between the deed and survey, including the fact that the survey placed the property line on the east side of a stone-walled channel, while the deed placed the same courses and distances on the west side of a ditch. Subsequently, Green commissioned surveyor, Randy Norfleet, to perform a resurvey. Norfleet attempted to retrace Pierce's original survey notes, and concluded that the property line was on the east side of the creek. After Norfleet's survey was filed in the Greene County Surveyors' Records, the Greens transferred their property, with a revised description, to trustees. The trustees then transferred the land back to the Greens, and this action to quiet title followed. The Lemarrs answered the complaint, and also filed a counterclaim for slander of title. In the counterclaim, they alleged that Mr. Green had removed survey monuments along the true boundary and had wrongfully filed documents to gain title to 0.153 acres of disputed land. They also raised the issue of adverse possession. On October 8, 1996, the matter was referred to a magistrate, who subsequently issued three decisions. The first, on October 13, 1997, granted summary judgment to the Defendants. The second, on February 19, 1998, corrected some errors in the first decision, awarded the Defendants judgment on their counterclaim, and overruled the Plaintiffs' motion for summary judgment. Finally, the third decision awarded Defendants $602.50 in attorney fees. Eventually, on *Page 418 December 10, 1999, the trial court adopted the magistrate's decisions, after overruling the objections of both sides. This appeal then followed., Appellants (the Greens) raise the following five assignments of error: I. The trial court erred in confirming the Magistrate's Decision [sic] failing to find that there were survey pins at the 159 foot mark along Gultice Road, failing to find that there were no survey pins on the west side of the stone ditch, failing to find that the two surveyors hired by the Plaintiff found that there was monumentation of a fallen tree noted in the description, and failing to find that the intent of the original surveyor was to have the line fall on the east side of the natural monument, the ditch, dividing the parties' property. II. The trial court erred in confirming the Magistrate's Decision [sic] failing to apply the law of boundaries as stated by the Ohio Supreme Court. III. The trial court erred in confirming the Magistrate's Decision [sic] failing to find the "survey" relied upon by the Defendant was not, in fact, a survey of the Plaintiff's property, but only an attempt to locate the dividing line between Plaintiff's and Defendant's property and that it did not comport with Ohio Revised Code, Chapter 4733 and its Administrative Rules. IV. The trial court erred in confirming the Magistrate's Decision wherein she failed to consider the letter sent by Randy Norfleet, a surveyor, and the response of the State Board of Registration for Professional Engineers and Surveyors. The trial court further erred in confirming the Magistrate's Decision wherein she incorrectly found the letters to be immaterial despite the fact that Norfleet's survey found the disputed property line to be as claimed by the Plaintiff. V. The trial court erred in confirming the Magistrate's Decision wherein she found slander of title. On the cross-appeal, Appellees (the Lemarrs), assert the following two assignments of error: I. The trial court erred to the prejudice of the Defendant-Appellees [sic] when it ruled that they were entitled to an award of only $602.50 in attorney fees. II. The trial court erred to the prejudice of the Defendant-Appellees [sic] when it ruled that they were not entitled to an award of special damages as they related to timber removed from the land, removed boundary markers, and other similar events. After considering the record and the assignments of error, we find that genuine issues of material fact precluded summary judgment. Accordingly, this matter will be reversed and remanded to the trial court for further proceedings. An explanation of our decision follows. *Page 419 I In the first two assignments of error, Appellants point out various factual and legal deficiencies in the decisions of the magistrate and trial court. In particular, Appellants focus on the failure of the magistrate and trial court to consider relevant evidence from surveyors and to correctly apply the law of boundaries. Although the assignments of error do not specifically mention the existence of genuine issues of material fact, we interpret Appellants' argument to be that such issues of fact exist. Furthermore, Appellants raised the fact that the case was not appropriate for summary judgment when they filed objections to the magistrate's report. Our review of summary judgment decisions is de novo, i.e, we apply the standards used by the trial court. Long v. Tokai Bank of California (1996), 114 Ohio App.3d 116, 119. Under well-established standards: summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Zivich v. Mentor Soccer Club, Inc. (1998), 82 Ohio St.3d 367, 369-370. Before specifically applying summary judgment standards to this case, we should note that the procedural history of this case is troubling. Shortly after the Lemarrs' answer was filed, the trial court referred the matter to a magistrate and set various deadlines. In an entry, which was filed on October 8, 1996, the court scheduled a pre-trial for December 18, 1996. Additionally, the court set discovery and motion deadlines for thirty days prior to the pre-trial, meaning that the parties had only about six weeks to conduct discovery. A January 22, 1997 hearing date (presumably a trial date) was also set. In pre-trial statements filed in December, 1996, both sides disclosed the identity of witnesses and reserved the right to add witnesses as needed. Subsequently, on December 12, 1996, the Greens asked for leave to file a motion for summary judgment. On December 18, 1996, the court filed an entry giving both sides until December 31, 1996, to submit motions for summary judgment. Before the deadline passed, the Greens asked for more time, and were given until January 22, 1997, to file their motion. The motion was timely filed, and the court set a deadline of February 11, 1997, for responses. To support their motion, the Greens relied on the filed deposition of surveyor, Randy Norfleet, and affidavits from Louis Green and his siblings about the correct location of the property line. After the motion deadline had passed, the Lemarrs asked for permission to file for summary judgment. As a result, the court gave the Lemarrs until March 4, *Page 420 1997, to file both a motion and a response to the Greens' motion for summary judgment. When the Lemarrs filed their motion and response, they relied on the deposition of surveyor, Douglas Sutton, who had been asked to survey the property line in 1990. They also filed an affidavit from an original grantee that conflicted with some statements in the Green affidavits. Additionally, Michael Lemarr filed an affidavit alleging that Louis Green had removed boundary markers from the disputed property. The Greens responded to the summary judgment motion on March 18, 1997. Attached to their response was a field survey done on March 13, 1997, by surveyor, Edward Roach, and photos illustrating the monuments recorded on the survey. Also included was an affidavit from Louis Green, which contradicted the statements made in Michael Lemarr's affidavit. Subsequently, on March 25, 1997, the Lemarrs moved to strike the Greens' response. The Lemarrs were primarily upset because Roach had not been identified as a witness. In response, the Greens claimed that Roach's testimony would be admissible at trial on rebuttal. The Greens also offered to let the Lemarrs depose Roach. The final action regarding summary judgment was Mr. Lemarr's second affidavit, filed on April 23, 1997. In the affidavit, which was also filed beyond the deadline, Lemarr contested the facts set out in the Greens' response. Notably, Lemarr's affidavit said: Mike Lemarr, * * * does hereby assert * * * [t]hat he is a Defendant in this case, and that he disputes completely the affidavit of Louis A. Green, dated April 4, 1997, and filed herein. At the Lemarrs' request, a trial set for June 9, 1997, was rescheduled for September 29, 1997. The September trial was then apparently canceled by the court (no entry is in the record). On October 13, 1997, the magistrate filed a decision granting the Lemarrs' motion for summary judgment. In the decision, the magistrate commented that the facts in the case were "undisputed." She then discussed only the Norfleet and Sutton surveys, and found that Sutton's survey was "credible" in locating the disputed boundary line. The basis for this conclusion was that "as a matter of law, the Sutton survey followed the applicable legal principles of surveying while Norfleet's survey failed to do so." The magistrate did not mention the pending motion to strike, the Roach survey, or any of the conflicting affidavits that had been submitted. On October 23, 1997, the Greens filed a timely motion under Civ.R. 52 for written findings of fact and conclusions of law. According to Civ.R. 53(E)(3), if a party makes such a request, the magistrate shall include the findings of fact and conclusions of law in an amended magistrate's decision. Civ.R. 53(E)(3)(a) also says that if a request for findings of fact and conclusions of law is made, the time *Page 421 for filing objections to the magistrate's decision begins to run when the magistrate files a decision including findings of fact and conclusions of law. Subsequently, on November 26, 1997, the Greens filed a motion to withdraw their motion for findings of fact and conclusions of law. Additionally, the Greens asked for an extension of time of fourteen days to file objections to the magistrate's decision. However, this motion was not necessary, since the time for objections had already been tolled and the magistrate had not yet filed any findings of fact and conclusions of law. The Lemarrs did not file a timely request for findings of fact and conclusions of law. However, on December 1, 1997, the Lemarrs filed a motion for findings of fact and conclusions of law. They also opposed the Greens' motion to withdraw their request for findings of fact. In particular, the Lemarrs stated that "[t]he magistrate should be afforded a full and complete opportunity to supplement the written record with separate findings of fact and conclusions of law explaining the rationale behind her decision." Before the magistrate ruled on these motions, the Greens went ahead and filed their objections on December 30, 1997. In response, the Lemarrs filed a motion to exclude the objections as premature and untimely. Subsequently, on February 19, 1998, the magistrate filed a "supplemental" decision. In this decision, the magistrate noted that her prior decision of October 13, 1997, did not make a specific ruling on the Greens' motion for summary judgment, nor did it adjudicate the Lemarrs' counterclaim for slander of title. Additionally, the magistrate stated that several motions were pending and that none of the motions filed after the motions for summary judgment had been ruled on. However, the only motions that the magistrate mentioned were the respective motions for findings of fact and the motion to exclude the Greens' objections. Specifically, the magistrate made no comment about the motion to exclude the Greens' summary judgment response. After commenting about the existence of pending motions, the magistrate concluded that the Lemarrs' motion for specific findings was well-taken. Unfortunately, despite the magistrate's conclusion, the decision contains nothing that can arguably be construed as separate findings of fact and conclusions of law. Instead, the magistrate simply corrected some procedural errors, like her prior failure to expressly overrule the Greens' motion for summary judgment. She also corrected a factual error in a footnote. The remaining part of the decision then dealt briefly with the counterclaim for slander of title. After granting summary judgment for the Lemarrs on this counterclaim, the magistrate set a hearing on damages for March 23, 1998. Finally, the magistrate said that her decision was interlocutory and that objections would not be considered until after a final adjudication on the issue of damages. *Page 422 A damages hearing was held on March 23, 1998, and evidence was presented about items of damage like attorney fees, the value of cut wood, and some miscellaneous costs. At the hearing, the magistrate agreed to reconsider her decision on slander of title, and to allow the parties to file supplemental memoranda. Responses and rebuttals to the responses were then filed in April and May, 1998. Subsequently, on August 14, 1998, the Greens filed a motion to supplement the record. Attached to the motion were various documents relating to a complaint Mr. Lemarr allegedly made to the Ohio State Board of Registration for Professional Engineers and Surveyors about Randy Norfleet's survey. After investigating, the State Board found that Norfleet had not violated the minimum standards in the Ohio Administrative Code for boundary surveys. As a result, the Board closed the inquiry. The point of this evidence, according to the Greens, was that slander of title could not exist because Norfleet's survey validated the allegations in the affidavit Louis Green had filed with the county recorder. The Board's finding was dated June 15, 1998, i.e., it was issued after the hearing on damages, and after the supplemental memoranda were filed. On August 19, 1998, the magistrate overruled the motion to supplement. She reasoned that the documents were irrelevant because Norfleet's survey was performed after Green filed his affidavit. Therefore, she concluded that Green could not have relied on Norfleet's survey. In a separate decision issued the same day, the magistrate reaffirmed her prior decision on slander of title and awarded the Lemarrs $602.50 in damages. On September 2, 1998, both sides filed timely objections to the magistrate's decisions. In October, 1998, the parties then filed memoranda regarding the objections they had made. The Greens attached additional evidence to their memorandum, in the form of an affidavit from a title agent and attorney who had performed a title examination. According to this title expert, the affidavit filed by Louis Green did not show up in the Lemarrs' chain of title, did not cast doubt on their title, and did not stand in the way of their full and free exercise of ownership. Over one year later, on December 10, 1999, the trial court issued a short decision adopting the three reports of the magistrate. The court's only discussion of the substantive objections raised by the Greens was as follows: At the outset, the Court notes that much of Plaintiff's argument in support of his objections are [sic] based on evidence previously excluded without objection and the attempted introduction of new evidence which was not before the Magistrate. This was incorrect, for three reasons. First, the magistrate never ruled on the motion to strike, and she never specifically excluded any evidence other than the materials relating to the complaint filed with the Board of Registration. Second, *Page 423 the excluded evidence from the Board was pertinent, if at all, to the counterclaim for slander of title, not to the "quiet title" action. Third, while the Greens did attempt to introduce new evidence in the form of the title search, that evidence again related only to the counterclaim for slander of title. After the trial court made the above comments, it then briefly discussed the slander of title claim. In this regard, the court found that the Lemarrs did not establish special damages. As a result, the court approved the minimal damages the magistrate had awarded. In addition to the above procedural errors, we are troubled by the conduct of the parties' attorneys. As the Ohio Supreme Court recently noted, some lawyers are increasingly exhibiting a lack of professionalism. See Nakoff v. Fairview Gen. Hosp. (1996),75 Ohio St.3d 254, 256. As examples of this regrettable trend, we offer the following items, which we could not help but notice as we reviewed the record: 1) While discovery deadlines were incredibly short, the Greens' attorney still did not list Roach as a witness prior to the cut-off, and did not move for an extension of discovery deadlines. Instead, he simply attached evidence to his response to the summary judgment motion. Evidence attached to the motion to supplement was also not in the proper form required by the Civil Rules; 2) Counsel for the Lemarrs did not appropriately file a request for findings of fact and conclusions of law, and filed a request that was clearly untimely under the Civil Rules; 3) Counsel for the Greens continued to try to "sneak in" evidence after the damages hearing, by submitting a report from a title attorney who was never identified as a witness and did not even conduct a title examination until six months after the damages hearing; 4) Even more troubling, counsel for the Lemarrs made unsupported factual and procedural allegations in the trial court and continued to do so on appeal. Specifically, in the Lemarrs motion for summary judgment, counsel referred to the affidavit of a witness and alleged that she is "in good health, of clear mind, and fully capable of distinguishing between those matters of which she is certain and those of which she is less than certain." However, no evidence of record exists about these "facts." Later in the memorandum, counsel goes on to say, in disputing the accuracy of the Norfleet survey, that: "It is regrettably true that Plaintiff's Surveyor, Mr. Randy Norfleet, has been a personal friend of the Plaintiff for years, and I believe, has allowed his friendship and desire to support his friend to overrule his professional objectivity in this case." *Page 424 There were no facts of record to support these comments. Norfleet was not asked about any relationship during his deposition, and the affidavit of Louis Green, filed after these remarks, indicates that he does not recall ever meeting Norfleet before the first time he discussed the survey in Norfleet's office. The survey was conducted in May, 1996, the lawsuit was filed in June, 1996, and Norfleet's deposition was taken in September, 1996 — a matter of about six months. Even after Green's affidavit was filed, counsel persisted (without factual support) in referring to Norfleet as a "close friend" of Louis Green. See Defendant's Response to Plaintiff's Objections, filed on October 19, 1998. Additionally, counsel for the Lemarrs represented to the trial judge, and has represented to this court on appeal, that the Everett Roach survey was excluded by order of the trial court and without the filing of an objection. We have diligently searched the record, and we cannot find a reference in any trial court order to the Roach survey. Furthermore, since no order existed, the Greens cannot be faulted for failing to file a specific objection. Nonetheless, in objections filed on September 2, 1998, the Greens did specifically raise the magistrate's failure to credit both the Roach and Norfleet depositions. Other examples of counsel's reliance on facts not of record can be found in the trial court file. However, the above examples more than amply illustrate a course of conduct which we find deeply disturbing. 5) Like defense counsel, the Greens' counsel improperly referred to facts not of record. For example, in the memorandum opposing summary judgment, the Greens' counsel argued that an affiant, Betty Beason, had not been on the property for 40 years. A similar assertion was repeated in a later memorandum. No evidence of record supports this claim. Likewise, counsel for the Greens referred at length in a memorandum to "customary" land surveying practice, including how a surveyor observes angles between two monuments using instruments. Counsel also mentioned Dthat in 1955, surveyors used tapes to measure distance. These "facts" may be true, but they are not established by any evidence of record. In addition to the above matters, the actions of the litigants themselves are troubling, including: 1) Louis Greens' use of "straw man" deeds to transfer legal title of the disputed property to himself and his wife before this action was filed; 2) Michael Lemarr's repeated calls to the police to report "trespassing" and removal of boundary stakes during the time that possession of the property was in dispute. In this regard, we note that Lemarr attached an April 19, 1997 police report to a request for reconsideration of a motion for restraining order. The police report indicates that the April, 1997 report was the sixth report on the *Page 425 situation in the past twelve months. The other reports attached to the motion indicate that Lemarr filed three more police reports in November, 1997. Unfortunately, the property has to be awarded to one of these litigants. The issue before us is whether summary judgment was the correct way to make the award. In this regard, probably the only real undisputed fact in this case is that the deed description was erroneous. Douglas Sutton, the surveyor relied on by the Lemarrs, stated that the closure "wasn't worth a darn," and that the deed description was "very erroneous." As written, the deed did not close by about 69 feet. One problem was that the deed contained an obvious repeated call. However, even after the repeated call was taken out, the deed still did not close by about twenty feet. As we mentioned earlier, conflicting survey opinions were presented to the magistrate. The magistrate accepted the survey of the Lemarrs' expert, Sutton, but rejected the survey of the Greens' expert, Norfleet, because she felt that Norfleet failed to follow applicable legal principles of surveying. We disagree with this conclusion for two reasons. First, we have previously stressed that summary judgment is not an appropriate way to resolve credibility issues and conflicts in testimony. Napier v. Brown (1985), 24 Ohio App.3d 12, 13-14, citing Dukev. Sanymetal Products Co. (1972), 31 Ohio App.2d 78, 83. As the court inDuke observed, credibility questions should be left to the trier of facts who have the opportunity to observe the demeanor of the witnesses. Only through a visual presentation of the testimony can the jury, or the trial court, filter out any bias that may have subtly manifested itself in the depositions. 31 Ohio App.2d at 83 (emphasis added). See, also, Fairfield Cty. Commrs.v. Merritt (Apr. 14, 1999), Fairfield App. No. 98CA64, unreported (holding that where two experts presented conflicting testimony about location of a boundary line, the ultimate decision must be made by the trier of fact at trial, not at a hearing on a motion for summary judgment). Consequently, because the testimony of Sutton and Norfleet conflicted, summary judgment was not the proper vehicle for resolving the issues. Furthermore, we disagree that Norfleet failed to follow applicable legal principles of surveying as a "matter of law." Minimum standards for boundary surveys have been established by the Ohio State Board of Registration for Professional Engineers and Surveyors. See Ohio Adm. Code Chap. 4733-37. The rules in this chapter were adopted based on statutory powers given to the Board by R.C. 4733.07. Although authority interpreting the regulations is sparse, one court has held that the minimum *Page 426 boundary standards are "valid rules promulgated pursuant to the Board's implied power." Satterfield v. Ohio State Bd.of Registration For Professional Engineers and Surveyors (May 20, 1999), Adams App. No. 98CA670, unreported, p. 6. Ohio Adm. Code 4733-37-01 indicates that the rules adopted by the Board are "intended to be the basis for all surveys relating to the establishment or retracement of property boundaries in the state of Ohio." Regarding research and investigation, Ohio Adm. Code 4733-37-02 provides that: (A) When the deed description of the subject property and the deed descriptions of adjoining properties do not resolve the unique locations of the corners and lines of the property being surveyed, the surveyor shall consult other sources of information in order to assemble the best possible set of written evidence of every corner and line of the property being surveyed. These sources include, but are not limited to: records of previous surveys, deed descriptions of adjacent properties, records of adjacent highways, railroads and public utility lines; also include subdivision plats, tax maps, topographic maps, aerial photographs, and other sources as may be appropriate. (B) After all necessary written documents have been analyzed, the survey shall be based on a field investigation of the property. The surveyor shall make a thorough search for physical monuments, analyze evidence of occupation and confer with the owner(s) of the property being surveyed. In addition, the surveyor shall, when necessary, confer with the owner(s) of the adjoining property and take statements. These standards have been in effect since 1980. As was indicated above, the deed description was admittedly erroneous and did not resolve the location of the property line. In his deposition, Norfleet testified that he and his survey crew went through a series of different procedures to find out if there was one particular bearing which would cause the survey not to close. Based on all the possible combinations, they felt no good legal description existed. As a result, they did what they had always done under boundary law, i.e., they looked at anything that would show the intent of the parties when the survey was done. Norfleet and his survey crew had a package of information, including current and prior deeds for the Greens' property, plat surveys, auditor maps, and surrounding deeds (including the Lemarr property deed). Additionally, they had the field notes of Ben Pierce, who originally surveyed the property in August, 1955. Norfleet did not find a formal, filed survey from Pierce, as Greene County did not require surveys to be filed in 1955. The deed itself referred to the Ben Pierce survey of August 14, 1955, and the field notes bore the same date. Accordingly, Norfleet felt the survey notes were the most accurate information available which was done at the time of the original survey. Norfleet was *Page 427 not aware that Douglas Sutton had done a survey of the boundary line in 1990 (Sutton had never filed his survey). The above procedure is consistent with Ohio Adm. Code 4733-37-02, which indicates that other sources of information shall be consulted when deeds do not resolve a boundary line. Norfleet's team also did a field investigation and searched for monuments. The survey did not just take the Green property into consideration, but also used 20-25 points (railroad spikes and iron pins) from surrounding properties to help pinpoint where the Green property should start and end. Again, this procedure was consistent with the requirements of Ohio Adm. Code 4733-37-02. Pierce's survey notes showed a 159' foot call along Gultice Road (as opposed to a 139' call in the deed). Norfleet used this call rather than the one shown in the deed. Due to the 20 foot difference, the property line ended up on the east side of the ditch or channel, rather than the west side, as reflected in the deed. However, in contrast to the deed, Pierce's notes also indicated that pins were set on the east side of the ditch, not on the west. According to the survey notes, a railroad spike was set on a bridge at the end of the 159' call. Norfleet's team did not find a railroad spike, but they did find two concrete survey nails at about the159' mark. Because the bridge was no longer there and had been replaced with a culvert, Norfleet assumed the points were replaced after the culvert was constructed. From that point on, Norfleet did not find any further monuments. He proceeded down the east side of the creek, following the measurements in the field notes, and basically ended up having to add about ten feet to allow the deed to close. By the time of his deposition, Norfleet had read the affidavit of Betty Beason, who was one of the original grantees of the Green property. Beason's affidavit indicated that the property line was supposed to be on the west side of the ditch. Beason also recalled a fence on the west side of the ditch which may or may not have been exactly on the property line. Norfleet said that Beason's affidavit could hold some importance, but he could not really say because he had not talked to her and did not know her physical or mental state. He also stressed that no physical evidence was found in the field to verify Beason's statement, and that physical evidence was found to verify the correctness of the 159' call. In view of the above evidence, we do not think one could conclude as a matter of law that Norfleet failed to follow acceptable principles of surveying. As we mentioned earlier, the Beasons owned the 1.2 acre parcel for about a year and a half and conveyed it to the Bartons. The Bartons then owned the property for two more years before conveying it to the Green family in 1959. Since that time, the property has been owned by a member of the Green family. *Page 428 In contrast to Beason's affidavit, affidavits from Green family members indicated that the tract they purchased included a rock-walled channel (also known as the ditch or stream). The original grantor, John Bocklet, regularly occupied a small cottage located on the east side of the channel and observed the Greens many times clearing debris from the channel, crossing it, and mowing the lawn on the east side of the channel. The Greens also testified that no fence was ever located on the west side of the ditch. Instead, Bocklet and others erected a wire fence eight to ten feet east of the channel. Additionally, the Greens' affidavits indicated that neither Bocklet nor any adjoining property owner disputed the Greens' ownership of the channel, and no one ever asserted a contrary claim. In 1990, Doug Sutton surveyed the boundary line for Richard Bull, the predecessor in title to the Lemarrs. As we mentioned, the Sutton survey was not recorded. Sutton also did not have Pierce's field notes. Basically, Sutton used the measurements in the deed, disregarded the repeated call, and assumed that another erroneous call (of 75.8' to a 12 inch walnut tree), contained a typographical error and should have been 95.8 feet instead. Using these assumptions, Sutton eventually closed his survey within three inches of the original deed. Basically, both Sutton and Norfleet agreed on the property lines up to Gultice Rd. At that point, Sutton used the deed call of 139' to a railroad spike. However, Sutton did not find the railroad spike called for in the deed. Because Sutton used the 139' distance, the property line ended up on the west side of the creek. Again, following the measurements in the deed, Sutton found two iron pipes at the distances mentioned in the deed. Sutton described these pipes as "[j]ust an iron pipe driven in the ground. One inch probably, maybe. I don't know. I'd have to look at my notes, see if it even said." The deed does not refer to iron pipes. Instead, it says "iron pins." As a potential explanation for this discrepancy, the Lemarrs submitted the affidavit of Nathan Burr, who worked with Pierce, although not until around two years after the survey in question. Burr indicated that Pierce occasionally used iron pipe to mark positions referred to in his descriptions as "iron pins." The third surveyor, Edward Roach, found existing wire fence on the east side of the channel. He also found two iron pipes next to concrete slabs on the west side of the channel and one iron pipe on the east side of the channel. These iron pipes were about 20 feet from the pipes Sutton found. However, Roach did not find the pipes mentioned in the Sutton survey. An affidavit from Louis Green indicated that the concrete slab and pipes were part of a bridge Green's father built across the creek. Green also indicated that in 1994 (or about three years before Green's April, 1997 affidavit), Mr. Lemarr pointed these pipes out to him as the boundary lines of the property. Mr. Lemarr disputes this, of course, *Page 429 and indicated in an affidavit that the two iron pipes he pointed out to Mr. Green were, in fact, the two pipes which Sutton found. Additionally, Lemarr contends that the two pipes or posts have since been removed — allegedly by Mr. Green. During his original visit to the property, Sutton also did not find a 12 inch walnut tree at the location described in the deed, i.e., 75.8 feet from the last iron pin. After calculating places to look based on the monuments and angles, Sutton later found a 15 inch walnut stump at 95.8 feet and at a slight degree deviation from the angles listed in the deed. He, therefore, assumed that a typographical error existed in the deed and that the walnut tree he found was the 12 inch walnut tree referred to in the deed. The 95.8' distance does correspond with the figure in Pierce's field notes, but not the deed. Pictures of the site show many walnut trees on the property. Clearly, this is a case of disputed material facts if ever one existed. Undoubtedly, the parties induced the error somewhat by filing cross-motions for summary judgment. Nonetheless, based on the circumstances outlined above, the blame for the error cannot be placed just on the appealing party. Even more unfortunate, litigation costs to date have probably exceeded the value of the land, even taking into consideration the grove of walnut trees that the parties are apparently fighting over. However, this is the price the parties will have to pay for their actions and those of their attorneys. In view of the obvious trial court error and many factual disputes, we are compelled to find that the grant of summary judgment was improper. Based on the preceding discussion, the first two assignments of error are sustained. This case will be reversed and remanded for trial of all issues. II The third assignment of error is based on the Greens' contention that Sutton's survey failed to comply with the requirements of R.C. Chap. 4733 and Ohio Adm. Code Chap. 4733. In particular, the Greens claim that Sutton failed to comply with Ohio Adm. Code 4733.-37-02 because he did not locate Pierce's prior survey, did not review descriptions of adjoining properties, and did not find certain monuments located by the other surveyors. The Greens additionally argue that Sutton relied too heavily on mathematical calculations designed to close the property description, rather than looking for monuments. Based on these alleged deficiencies, the Greens believe the trial court should not have relied on Sutton's survey. In view of the preceding discussion, this assignment of error is moot. As we said, the surveys conflict. On remand, the trial court will have a chance to judge the credibility of all surveyors, after hearing them personally testify. *Page 430 III The fourth and fifth assignments of error and the two cross-assignments of error deal with the judgment the Lemarrs received on the slander of title counterclaim. Because the case is being reversed and remanded for a full trial on the merits, these assignments of error are moot. However, for purposes of remand, we make the following observations about the correct standards for slander of title. The slander of title claim arose from the affidavit Louis Green filed with the Greene County Recorder. As we mentioned earlier, Green's affidavit stated that the deed conveying the 1.20 acre parcel was erroneous and did not conform to the intent of Pierce's original "survey" of August 13, 1955. Green also pointed out various discrepancies between the deed and survey, including the fact that the survey placed the property line on the east side of a stone-walled channel, while the deed placed the same courses and distances on the west side of a ditch. Green's affidavit was filed on May 3, 1996, and the Norfleet survey was performed and recorded shortly thereafter. The Greens then transferred their property to two trustees, who transferred the property back, with the new legal description. In the fifth assignment of error, the Greens contend that Mr. Green cannot be guilty of slander of title because his affidavit was statutorily authorized by R.C. 5301.252. Additionally, the Greens say that malice cannot exist because two other surveyors, Norfleet and Roach, agreed with Green about the location of the property line. The fourth assignment of error contests the magistrate's decision to exclude the evidence of Norfleet's compliance with minimum standards for boundary surveys. As we mentioned earlier, the magistrate found this particular evidence irrelevant because Norfleet's survey was done after Mr. Green's affidavit was filed. By contrast, the cross-assignments of error deal with the trial court's failure to award full attorney fees and to allow recovery of "special damages" relating to the removal of timber and boundary markers from the disputed property. Slander of title is a tort action which may be "`brought against any one who falsely and maliciously defames the property, either real or personal, of another, and thereby causes him some special pecuniary damage or loss.'" Buehrer v. Provident Mut. Life Ins. Co. ofPhiladelphia (1930), 37 Ohio App. 250, 257, affirmed (1931),123 Ohio St. 264 (citation omitted). To prevail, a claimant must prove: (1) there was a publication of a slanderous statement disparaging claimant's title; (2) the statement was false; (3) the statement was made with malice or made with reckless disregard of its *Page 431 falsity; and (4) the statement caused actual or special damages. Colquhoun v. Webber (Me. 1996), 684 A.2d 405, 409. Typically, slander of title cases involve documents filed against a particular piece of property by parties who claim an interest in the property. Specific examples would include mortgage-holders, parties who have judgment liens, or parties who may have signed contracts to purchase or lease the property. Generally, the claim arises because the presence of the affidavit or other filed document prevents the titled owner from completing a proposed sale. For example, in Childers v. CommerceMortgage Investments (1989), 63 Ohio App.3d 389, a mortgage company purchased and then recorded a mortgage even though it knew the lender had not disbursed the mortgage money to the plaintiffs. Subsequently, the mortgage company refused to cancel the mortgage and the plaintiffs were not able to sell the property because of the cloud on the title. Id. at 390. Ultimately, the mortgage company was found liable for slander of title. Likewise, in Wendover Rd. Property Owners Assn. v. Kornicks (1985),28 Ohio App.3d 101, a property owners' association filed affidavits under R.C. 5301.252 against three property owners who did not pay their proportionate share of road improvements. Id. at 101. One owner sold his property and counter-sued the association for slander of title because $15,000 of the purchase price was held in escrow pending resolution of the association's lawsuit to recover the cost of the improvements. Id. at 102. Similarly, in Madden v. Muth (Aug. 26, 1981), Columbia App. No. 80-C-41, unreported, the plaintiffs and defendants entered into a purchase agreement for property. The defendants refused to close the transaction and the plaintiffs sold the property to another party. When the defendants learned of the pending sale, they filed an affidavit under R.C. 5301.252, claiming they had an interest in the real estate because of the purchase agreement. Id. at p. 1. Subsequently, plaintiffs filed an action to quiet title and for slander of title. Id. at p. 2. The affidavit filed by Mr. Green was authorized by R.C. 5301.252. This statute lets any person with knowledge of facts pertaining to possession of real estate, location of monuments, and so on, file an affidavit with the county recorder in the county where the real estate is situated. The affidavit itself is not an instrument which casts doubt on the property's title and does not stand in the way of a record owner's "full and free exercise of * * * ownership." Catawba West, Inc. v. Domo, (1991),75 Ohio App.3d 80, 83. The magistrate in the present case acknowledged that filing a statutory affidavit does not normally create a cloud on a title. However, relying on a prior unreported *Page 432 decision from our district, the magistrate found that an action for slander of title is possible under circumstances where the affidavit does create a potential cloud on the title. See Carman v. Entner (Feb. 2, 1994), Montgomery App. No. 13978, unreported. Carman involved a dispute between adjacent landowners over an easement. In that case, the plaintiffs owned a dominant estate which received utility service through utility lines located on the servient estate. An express easement and survey had been recorded, but the surveyors drew the path of the easement outside the actual location of the utility lines.Id at p. 1. No one discovered the mistake until the defendants learned of a pending sale of the dominant estate. When the plaintiff refused to pay for removing the utility lines, the defendants filed an affidavit with the county recorder, alleging that the easement was mis-located. They also threatened in the affidavit to revoke use of the easement.Id. at 2. As a result, the sale fell through and the plaintiffs brought an action for slander of title and tortious interference with contractual relations. Id. At the beginning of our analysis of the slander of title claim, we noted, citing Catawba, that the filing of an affidavit under R.C. 5301.252 does not support an action to quiet title or to remove a cloud on title.Id. at 6. We then said, however, that when such an affidavit creates a potential cloud on title, an action for slander of title may be brought by the aggrieved owner of the property described in the affidavit. Also, nothing in Catawba prevents an action from being brought for tortious interference with contract. Id. After considering the content of the affidavit, we decided that the defendants had a privilege to file the affidavit, for two reasons: 1) the assertion of a location error in the easement was partly true; and 2) the defendants had an interest in protecting themselves from a future finding of acquiescence in the easement's location. Accordingly, we found that the defendants could not be liable for slander of title. Id. We then considered the issue of tortious interference with contract. In this regard, we were disturbed by the defendants' implied threat to the use of the easement. We noted that a privilege to interfere with a contract "arises if there is a `bona fide doubt' as to the remote party's rights under the contract." Id. at 7 (citation omitted). Specifically, where there is no need to interfere with a contract to protect a genuine legal right, even truthful statements, calculated to interfere with the contract, are actionable. The exception is where the interfering party has a bona fide belief that the contract will impair or destroy his genuine legal rights. Id. Again, we found that because the defendants needed to give notice of the location error and their intent to seek reformation, any interference from those statements was not actionable. Id. at 8. On the other hand, we decided that the defendants had exceeded their privilege by threatening the use of the easement, *Page 433 and by refusing to take corrective action about the affidavit when they were told it would interfere with the potential sale. In this context, we said: [t]he * * * [defendants] cannot credibly argue that they were exercising a legal right in interfering with the contract. Once their right to notify * * * [plaintiff] of the location error was exercised, the * * * [defendants] had no further need to do any act or maintain any posture that they knew or should have known would interfere with the contract. After the affidavit was filed, the * * * [defendants] were given the opportunity to withdraw their threat, and failed to do so. At bare minimum, the refusal of the * * * [defendants] to withdraw the unprivileged threat between the first and second closing was an unjustified interference with the contract, since at that point in time, the * * * [defendants] had no remaining interest in the contract. However, we do not think that the privilege to assert a right provides a co-extensive privilege to make an otherwise privileged threat. Id. In view of the above analysis, we reversed the judgment against the defendants for slander of title but affirmed the judgment against them for tortious interference with contractual relations. Id. at 10. The present case involves somewhat different facts than Carman and is unique compared to typical situations involving use of a statutory affidavit. Specifically, Mr. Green's affidavit did not even mention or identify the Lemarr property and was not filed as an affidavit on the Lemarr property. Instead, Green filed the affidavit about his own property. As a result, we do not think the Greens could be held liable merely for filing a statutory affidavit about their own property. However, as in Carman, related issues exist concerning whether the Greens' actions in filing a quit-claim deed to a "straw-man" and receiving a deed back went beyond their statutory privilege. We have not been able to find Ohio law on this specific point, but other jurisdictions have found liability for slander of title where a party claims title in himself without any reasonable basis. See TXO ProductionCorp. v. Alliance Resources Corp. (1992), 187 W. Va. 457, 466,419 S.E.2d 870, 879, affirmed (1993), 509 U.S. 443, 113 S.Ct. 2711,125 L.Ed.2d 366. In TXO, a jury found the defendant liable for recording a quit-claim deed that it knew to be frivolous, and the West Virginia Supreme Court affirmed. Specifically, the West Virginia Supreme Court said: [r]ecording a quit-claim deed that one knows to be frivolous is no different from saying to a potential purchaser — "I don't think you should buy that land. You know there is a cloud on the title * * *." * * * As a general rule, courts have found that wrongfully recording an unfounded claim to the property of another is actionable as slander of title. * * * This is *Page 434 so provided that the other elements for slander of title, namely malice and special damages, are present. 187 W. Va. at 466-67, 419 S.E.2d 879-80. See, also, Colquhoun (Me. 1996), 684 A.2d 405 (finding defendant liable for filing frivolous quit-claim deed during pendency of quiet title action). Based on the above authority, we think the Greens could be held liable if they frivolously filed the quit-claim deed and took a deed back, as long as the remaining elements for slander of title, i.e, malice and special damages, are also proven. Again, these are factually disputed matters that must be resolved through the trial process. In this regard, an additional point is important. As we mentioned earlier, the magistrate rejected evidence about the State Board's investigation of Norfleet's survey. The basis for rejection (other than the Greens' failure to properly authenticate documents) was relevance. Specifically, because the survey was prepared after Green filed his affidavit, the magistrate did not feel that Norfleet's survey was relevant to Mr. Green's state of mind. We disagree. As we said, the affidavit itself did not affect the Lemarrs' title. What did potentially cloud the Lemarrs' title was the new legal description contained in the deed back from the trustee. In this regard, we note that Norfleet's survey was recorded on May 29, 1996, and the quit-claim transaction took place thereafter, on June 3, 1996. Consequently, the fact of a supporting survey is directly relevant to the issue of whether the Greens claimed title in themselves without a reasonable basis. We express no opinion on the admissibility of the Board's investigation and report, or the weight, if any, to be given to this evidence. The magistrate excluded the evidence for other reasons and no one has addressed the issue of whether the evidence is otherwise admissible. The final point which should be discussed is the question of proper damages. After hearing evidence, the magistrate allowed attorney fees only for the period of time between May 3, 1996 (when the affidavit was filed with the county recorder) and June 14, 1996 (the date the Greens filed their complaint to quiet title). As a basis for this decision, the magistrate commented that the remaining expenses and costs related directly to the Greens' quiet title action or were indistinguishable from expenses flowing from the filing of the affidavit. Subsequently, in adopting the magistrate's decision, the trial court found that the Lemarrs had not shown special damages because the expenses of defending the quiet title action and prosecuting the slander of title claim were indistinguishable. We do not think these were correct reasons for refusing to award damages. In Childers, the court indicated that plaintiffs in slander of title cases may recover only for "special pecuniary loss."63 Ohio App.3d at 392. "Recoverable pecuniary loss" was defined as: "(a) the pecuniary loss that results directly and immediately from the effect of the conduct of third *Page 435 persons, including impairment of vendibility or value caused by disparagement, and "(b) the expense of measures reasonably necessary to counteract the publication, including litigation to remove the doubt cast upon vendibility or value by disparagement." Id. at 393, quoting from Restatement of the Law2d, Torts (1977) 355, Section 633 (1)(a) and (b). Attorney fees would obviously be included within expenses reasonably necessary to counteract a disparaging publication, but Childers did not specifically discuss the issue of fees. Other Ohio cases are also of limited help. For example, in Carman, substantial attorney fees were awarded, but the only claims involved in the case were the plaintiffs' claims for slander of title and tortious interference. Moreover, the judgment on slander of title was reversed, meaning that attorney fees would only be available as a result of the tortious interference claim. The majority rule on special damages in slander of title actions is that "an aggrieved party has the right to recover as special damages the litigation expenses incurred in removing the effects of the slander, even in the absence of an impairment of vendibility." Colquhoun,684 A.2d at 410. The court also noted in Colquhoun that: the costs of litigation and attorney fees in the action for slander of title itself cannot constitute the required special damages. * * * The prevailing party in a slander of title action may recover as special damages those attorney fees and expenses incurred to remove the cloud on title but not those incurred to prosecute the slander of title action. Id. at 411 (citations omitted). Two reasons were given for this holding. First, the court commented that the costs of prosecuting a slander of title action are not "expenses reasonably necessary" to counteract the disparaging publication. Id. at 413, citing Prosser Keeton on Torts (5th Edition 1984), Section 128, and Restatement of the Law2d, Torts (1977) 355, Section 633 (1)(b). Second, the court believed that an award of such fees violates the "American Rule," which requires litigants to bear their own attorney fees and litigation costs "absent a statutory provision or contractual agreement." Id. Ohio follows the American Rule. Notably, an exception to the American Rule exists "when the party against whom attorney fees are sought to be taxed is found to have acted ` * * * in bad faith, vexatiously, wantonly, obdurately, or for oppressive reasons," or in cases of torts involving malice, where punitive damages are found to be warranted. Farmers StateBank Trust Co. v. Mikesell (1988), 51 Ohio App.3d 69, 86. See, also,Vance v. Roedersheimer (1992), 64 Ohio St.3d 552, 556. The bad faith exception was not discussed in Colquhoun. Therefore, we think in a proper case, a party could recover the attorney fees incurred in removing a cloud on title, as "special damages," and could also recover attorney fees for *Page 436 prosecuting a slander of title action. The latter fees would not be included in "special damages" but would arise from a finding of bad faith. Consequently, the magistrate incorrectly concluded that the Lemarrs could not recover costs related to the quiet title action. These were precisely the type of special damages which were appropriate. Furthermore, we are perplexed by the magistrate's decision to award fees only for the short period (less than six weeks) between the filing of Mr. Green's affidavit and the filing of the Greens' complaint to quiet title. As we said, we disagree that attorney fees are proper only for actions taken with regard to the slander of title claim. However, even if we agreed on this point, the effect of the magistrate's decision was to allow fees for a period of time when the Lemarrs had not even been served with the complaint to quiet title. Specifically, the fees which were awarded would not even cover the time counsel spent drafting the counterclaim for slander of title. The remaining damages which the Lemarrs have mentioned on appeal are expenses associated with the Greens' alleged removal of timber from the disputed property and the cost of restoring missing boundary markers. As we read Section 633 of the Restatement of Torts and the comments to that section, "special damages" would not include these items. Specifically, the matters discussed in Section 633 and the comments are losses which directly result from the disparaging publication. For example, the publication may prevent the sale of the property to a particular purchaser, or may cause a potential purchaser to offer less for the property. See, Section 633, comments (c) through (j). The point is that the alleged items of damage may be recovered under some other theory, but they are not appropriate damages for slander of title. In view of the preceding analysis, assignments of error one and two are sustained. The remaining assignments of error and the two cross-assignments of error are moot. The judgment of the trial court is, therefore, reversed, and this case is remanded for further proceedings consistent with this opinion. ______________________ BROGAN, J. WOLFF, J., and YOUNG, J., concur. *Page 437

2016-07-06 06:35:59.484002+00

Harsha

West Virginia Electric Supply Co., plaintiff-appellant, appeals from a summary judgment entered by the Gallia County Court of Common Pleas finding that its mechanic's lien was invalid and, accordingly, that its claims for relief against Ohio River Plaza Associates, Ltd. ("ORPA"), Robert A. Darden Co. ("Darden"), and St. Paul Mercury Insurance Co. ("St. Paul"), defendants-appellees, were without merit. Appellant assigns the following as its sole assignment of error: "The trial court erred in holding that former Ohio Revised Code Section 1311.04 required a materialman to provide certificates or affidavits as a condition precedent to obtaining a valid mechanics' lien." In 1988, ORPA entered into a contract with Darden to act as general contractor to design and construct the Ohio River Plaza in Gallipolis, Ohio.1 The project was to consist of a Big Bear grocery store, several other stores, and various site improvements. Darden entered into a subcontract with Clark Electric Co. ("Clark"), a West Virginia corporation, in which Clark agreed to furnish the labor, material, and insurance required to complete all of the electrical work for the Big Bear grocery store. Appellant furnished materials to Clark for the project. St. Paul, the bonding company for Darden, acted as a surety on the mechanic's lien bond filed for appellant's protection. At the time that construction was substantially completed, Darden had paid Clark the vast majority of the contract price. However, Clark never paid appellant for materials supplied by appellant for the project. Accordingly, appellant filed an affidavit and an amended affidavit of mechanic's lien with *Page 608 the Gallia County Recorder's Office, noting a claim in the ultimate amount of $65,204.98. Appellant filed a complaint seeking to enforce its mechanic's lien against ORPA, Darden, St. Paul, and to obtain a money judgment against Clark for the materials supplied. ORPA, Darden, and St. Paul filed a joint answer which asserted, in part, that appellant had failed to perfect its mechanic's lien in accordance with Ohio law. These defendants also filed a cross-claim for indemnification against Clark. On August 5, 1991, the trial court entered a default judgment in favor of appellant and ORPA, Darden, and St. Paul against Clark in the amount of $61,096.22 ($65,204.98 minus credits due Clark). The trial court additionally granted leave to the remaining defendants to file a motion for summary judgment on the issue of whether appellant properly perfected its mechanic's lien. The parties stipulated that the only issue as to the validity of appellant's mechanic's lien would be whether the lien was properly perfected. Upon the filing of the motion, the trial court granted summary judgment to appellees, finding that the applicable version of R.C. 1311.04 required materialmen such as appellant to provide a certificate or affidavit to the contractor showing the unpaid balance owed for materials furnished by appellant at the construction site. Since it was uncontested that appellant did not provide any certificate or affidavit, the court found that appellant's mechanic's lien was invalid. Appellant's sole assignment of error asserts that the trial court erred in holding that the applicable version of R.C.1311.04 required a materialman to provide certificates or affidavits to the contractor as a condition precedent to obtaining a valid mechanic's lien. We agree. The portion of the applicable version of R.C. 1311.04 that is controlling in the case at bar provides: "Whenever any payment of money becomes due from the owner, part owner, or lessee, or whenever the original contractor desires to draw any money from the owner, part owner, or lessee, under their contract, or whenever any mortgagee makes a written demand, the contractor shall make out and give to the owner, part owner, lessee, or mortgagee, or his agent, a statement under oath, showing the name and address of every laborer in his employ who has not been paid in full and also showing the name and address of every subcontractor in his employ, and of every person furnishing machinery, material, or fuel, and giving the amount which is due or to become due to them, or any of them, for work done, or machinery, material, or fuel furnished to him, which statement shall be accompanied by a certificate signed by every person furnishing machinery, material, or fuel to him. Address, as used in *Page 609 this section and in section 1311.06 of the Revised Code, means last known address. * * * "* * * "The original contractor shall also deliver to the owner, part owner, lessee, or mortgagee similar sworn statements from each subcontractor, accompanied by like certificates from every person furnishing machinery, material, or fuel to the subcontractor. The owner, part owner, lessee, or his agent shall retain out of any money then due or to become due to the principal contractor, an amount sufficient to pay all demands that are due or to become due to the subcontractors, laborers, and materialmen, as shown by the contractors' and subcontractors' statements and the certificates of materialmen for work done or machinery, material, or fuel furnished, and shall pay said money to them according to their respective rights. All payments so made shall, as between such owner, part owner, lessee, or mortgagee, and the contractor, subcontractors, and persons performing labor or furnishing machinery, material, or fuel, be considered the same as if paid to the original contractor, and such owner, part owner, lessee, or mortgagee shall thereupon be released of any further liability to the extent of the payments so made. "Until the statements are made and furnished in the mannerand form provided for in this section, the contractor has noright of action or lien against the owner, part owner, orlessee, on account of such contract, and the subcontractor hasno right of action or lien against the owner, part owner,lessee, or contractor, until he has furnished such statements, and any payments made by the owner, part owner, or lessee, before such statements are made or without retaining sufficient money, if that amount is due or it is to become due, to pay the subcontractors, laborers, or materialmen, as shown by the statements and certificates, are illegal and made in violation of the rights of the persons intended to be benefited by sections1311.01 to 1311.24 of the Revised Code, and the rights of the subcontractors, laborers, and materialmen to a lien, are not affected thereby. When the appropriate period within which any liens can be filed has expired, and no liens on account of the improvement exist, then the failure of the contractor to furnish the affidavit as provided in this section shall not act as a bar or defense in any suit or cause of action to collect any claim. If the owner, part owner, lessee, or his agent cannot be found within the county, then it is not necessary for the contractor or subcontractor to make and deliver the statements and certificates as a prerequisite to a lien or to the institution of a suit or proceedings." (Emphasis added.) In the instant case, it was uncontroverted that appellant acted neither as a contractor nor subcontractor in connection with the construction project, but *Page 610 rather solely as a materialman to subcontractor Clark pursuant to R.C. 1311.01(B). See, e.g., Monitor-Rentenbach v. BethlehemSteel Corp. (May 6, 1992), Hamilton App. Nos. C-910353 and C-910379, unreported, 1992 WL 98015. The trial court held that the language of the applicable version of R.C. 1311.04 requires materialmen such as appellant to provide the specified statements, and that failure to do so precluded the perfection of a mechanic's lien. Accordingly, the disposition of this appeal is dependent upon the statutory construction of the applicable version of R.C. 1311.04, a purely legal question which we address independently of the trial court's determination. In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. State v. S.R. (1992), 63 Ohio St.3d 590, 594, 589 N.E.2d 1319, 1322. Under Ohio law, it is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 218,574 N.E.2d 457, 461. In interpreting a statute, the words must be taken in their usual, normal or customary meaning. State v.S.R., supra, 63 Ohio St.3d at 595, 589 N.E.2d at 1323; John KenAlzheimer's Ctr. v. Ohio Cert. of Need Review Bd. (1989),65 Ohio App.3d 134, 138, 583 N.E.2d 337, 339. The mechanic's lien statutes are remedial legislation designed to protect the laborers whose work, goods, and skill create the structures to which the liens attach; the statutes are to be liberally construed to effectuate this remedial purpose once a mechanic's lien is established. Fairfield Ready Mix v. Walnut Hills Assoc.,Ltd. (1988), 60 Ohio App.3d 1, 2, 572 N.E.2d 114, 115. However, the procedural steps necessary to create a mechanic's lien must be strictly satisfied, since the statutes are in derogation of the common law. Id. See, also, Reliance Universal, Inc. v.Deluth Constr. Co. (1981), 67 Ohio St.2d 56, 21 O.O.3d 36,425 N.E.2d 404. A review of the explicit language of the applicable version of R.C. 1311.04 indicates that a failure to provide to the owner the statements specified precludes only contractors and subcontractors from raising a claim for relief based upon a mechanic's lien. Nowhere in the applicable version of R.C.1311.04 is there a similar preclusion against materialmen who fail to provide to the contractor the specified certificates concerning their furnishing of material.2 Courts do not have authority to ignore the plain and unambiguous language of a statute under the guise of statutory interpretation, but, rather, in such situations the courts must give effect to the words used. *Page 611 Wray v. Wymer (1991), 77 Ohio App.3d 122, 601 N.E.2d 503; see, also, Ohio Dental Hygienists Assn. v. Ohio State Dental Bd. (1986), 21 Ohio St.3d 21, 23, 21 OBR 282, 284, 487 N.E.2d 301,303. In other words, courts may not delete words used or insert words not used. Cline v. Ohio Bur. of Motor Vehicles (1991),61 Ohio St.3d 93, 97, 573 N.E.2d 77, 80. Furthermore, it is a basic doctrine of construction that the express enumeration of specific classes of persons in a statute implies that the legislature intended to exclude all others. Indep. Ins. Agentsof Ohio, Inc. v. Fabe (1992), 63 Ohio St.3d 310, 314,587 N.E.2d 814, 817, citing Fort Hamilton-Hughes Mem. Hosp. Ctr. v.Southard (1984), 12 Ohio St.3d 263, 265, 12 OBR 342, 343,466 N.E.2d 903, 905. In that the interpretation of the applicable version of R.C. 1311.04 adopted by the trial court would insert words not contained in the statute, it erred in holding that appellant's failure to provide a statement or certificate pursuant to the applicable version of R.C. 1311.04 precluded it from perfecting a valid mechanic's lien on the subject property. The trial court was persuaded to hold that appellees were entitled to summary judgment on this issue because it found the cases of M.J. Kelly Co. v. Haendiges (1979), 58 Ohio St.2d 505, 12 O.O.3d 409, 391 N.E.2d 723, and Clifton Concrete, Inc. v.Tibaldi (Mar. 17, 1988), Cuyahoga App. No. 52600, unreported, 1988 WL 32106, to be persuasive authority. In Kelly, supra,58 Ohio St. 2d at 506, 12 O.O.3d at 409-410, 391 N.E.2d at 724, the Ohio Supreme Court noted that the narrow issue before the court was "whether a subcontractor is required to file the affidavit of subcontractor referred to in R.C. 1311.04 with either the general contractor or the property owner as a prerequisite to obtaining a mechanic's lien." However, it noted in obiter dictum at 506, 12 O.O.3d at 410, 391 N.E.2d at 724, that the applicable version of R.C. 1311.04 "must be complied with before a contractor, subcontractor, materialman or laborer can sue or obtain a lien for money due him." (Emphasis added.) Nevertheless, as noted by appellant on appeal, this dicta could not have been intended to overrule the court's previous holding in Matzinger v. Harvard Lumber Co. (1926), 115 Ohio St. 555,155 N.E. 131, where the court held at paragraph two of the syllabus that the nearly identical statutory predecessor to the applicable version of R.C. 1311.04, G.C. 8312, requiring notice to be served upon the owner of a structure constructed under a contract, applied to contractors and subcontractors, but not to materialmen. It is axiomatic that the syllabus of an opinion issued by the Ohio Supreme Court states the law of the case, and all lower courts in this state, including our own, are bound to adhere to the principles set forth therein. Smith v. Klem (1983), 6 Ohio St.3d 16, 18, 6 OBR 13, 15, 450 N.E.2d 1171,1173; State v. Decker (Sept. 4, 1990), Highland App. No. 725, unreported, at 7, 1990 WL 127070. Considering the fact that the statement in Kelly was unnecessary to *Page 612 the narrow issue presented in that case for review, that the statement was further unsupported by the manifest language of the applicable version of R.C. 1311.04, and that it could not have been intended to overrule the holding in Matzinger, we reject appellees' reliance on Kelly as "persuasive authority" in the case sub judice. A panel of the Eighth District Court of Appeals inClifton, in a two-to-one decision, relied on the dicta contained in Kelly to hold that the provisions of the applicable version of R.C. 1311.04 apply equally to contractors, subcontractors, and materialmen and that a materialman's failure to comply with the applicable version of R.C. 1311.04's formal requirements precluded its obtaining a valid mechanic's lien. However, as aptly noted by appellant, the holding in Clifton has been rejected, either explicitly, Blanchester Lumber Supply, Inc.v. White (1989), 61 Ohio Misc.2d 466, 580 N.E.2d 81, or implicitly, Holmesbrook, Inc. v. Lazar (Jan. 16, 1991), Summit App. No. 14715, unreported, 1991 WL 6136, and Queen City LumberCo. v. Crosley (Sept. 23, 1981), Warren App. No. 389, unreported, 1981 WL 5211, by other Ohio courts. A materialman is not precluded from perfecting a mechanic's lien by failing to file certificates or affidavits with the contractor under the version of R.C. 1311.04 applicable to this case. Holmesbrook,supra; Queen City, supra.3 Appellees raise the additional argument that there is "no obvious policy reason" why a distinction should be made between materialmen and subcontractors pursuant to the applicable version of R.C. 1311.04. However, reviewing courts are not in the position to second-guess the policy decisions made by the General Assembly. See, e.g., State v. Smorgala (1990), 50 Ohio St.3d 222, 553 N.E.2d 672. Additionally, as mentioned in appellant's reply brief, citing Leach, Currie Decker, Ohio Construction Law and Mechanic's Liens (1990) 227-228, unlike a contractor or a subcontractor, there are no legally acknowledged statutory lien rights behind or below the material supplier that have to be taken into consideration pursuant to the doctrine of superiority. The correctness of rendering a summary judgment depends on a tripartite demonstration by the movant that (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, said party being entitled to have the evidence construed most strongly in his favor. See Trout v. Parker (1991), 72 Ohio App.3d 720, 722, 595 N.E.2d 1015, 1016, citingHarless v. Willis Day Warehousing Co. *Page 613 (1978), 54 Ohio St.2d 64, 66, 8 O.O.3d 73, 74, 375 N.E.2d 46, 47. Because the trial court erred in determining that as a matter of law, appellant's failure to file certificates or statements pursuant to the applicable version of R.C. 1311.04 precluded it from perfecting a valid mechanic's lien, we reverse and remand for further proceedings consistent with this opinion. Judgment reversedand cause remanded. STEPHENSON, P.J., and PETER B. ABELE, J., concur. 1 Am.Sub.H.B. No. 238 was enacted effective April 10, 1991. 143 Ohio Laws, Part III, 3676. The provisions of that law which govern mechanic's liens are applicable only to projects in which the construction contract was executed on or after January 1, 1992. In keeping with one of the bill's primary purposes of minimizing the need to file liens by adopting more streamlined procedures to bring valid claims to the attention of owners and original contractors, the new law amends R.C. 1311.04 and 1311.05 to require materialmen (as well as original contractors and subcontractors) to serve a "Notice of Furnishing" upon the owner or original contractor within twenty-one days of providing the materials. Service of the notice is a mandatory condition precedent to assertion of lien rights on all private projects except home construction contracts, as defined by statute, and oil and gas projects. The mechanic's lien statutes existing prior to January 1, 1992 will continue to control projects contracted for prior to that date even if they continue past January 1, 1992. Accordingly, Ohio will have two sets of mechanic's lien statutes for several years. We deal with the provisions of the earlier statute here in light of the date of the contract. The difference between the two statutory schemes is significant. 2 It would appear that only upon demand by the contractor or subcontractor does a materialman have any duty to provide a certificate. There is no express sanction provided by the statute for failure of the materialman to comply with this request. 3 In fairness to the trial court, it should be emphasized that appellant's trial counsel failed to cite the cases now relied upon by its appellate counsel during the proceedings below.

2016-07-06 06:35:59.61156+00

JOURNAL ENTRY and OPINION. {¶ 1} Defendant-appellant Randy Robinson appeals his conviction for aggravated burglary following a bench trial. We find no merit to this appeal and affirm. {¶ 2} The events leading to Robinson's arrest occurred on August 12, 2002, at noon, at the residence of Sharena Black. Black lived with her grandparents and brother. Although she and Robinson had been involved in a romantic relationship for approximately three years, she claimed that they had "broken up" prior to August 12. {¶ 3} At trial, Black testified that she was walking home with her new boyfriend, William Webb, when she saw Robinson sitting on his bicycle across from her house. She and Webb went upstairs to her kitchen, and she heard Robinson running up the driveway. He entered the side door without permission, pushed the housekeeper who was standing on the landing, and climbed the stairs to the kitchen. {¶ 4} Black told Robinson to leave. He ignored her request and attempted to enter the kitchen. Webb grabbed the door handle to shut the door, but Robinson forcefully pushed the door open. {¶ 5} Black further testified that Robinson grabbed her and they began wrestling. Webb also struggled with Robinson until Black's brother, Rayshawn, came upstairs. He and Rayshawn then wrestled with Robinson, while Black telephoned the police. The two men subdued Robinson only after Rayshawn was slammed into the refrigerator. Webb and Rayshawn pushed Robinson out of the house and onto the driveway. {¶ 6} After Robinson was forced out of the house, Black went to check on the housekeeper, while Webb and Rayshawn returned upstairs to the kitchen. While Black was on the landing at the side door, Robinson pulled her outside. She screamed at Robinson to let her go, but he dragged her approximately fifteen feet down the driveway. Black testified that Robinson grabbed her arm and forced her down the driveway while he was on his bicycle. {¶ 7} Rayshawn and Webb responded to Black's screams and came outside to assist her. Robinson released Black but challenged Webb to "fight him" in the middle of the street. The police arrived and arrested Robinson. {¶ 8} Both Webb and Rayshawn testified, corroborating Black's testimony. Specifically, Webb stated that Robinson pushed the housekeeper "out of his way so he could come inside the house." Webb further testified that upon entering the kitchen, Robinson told him to move out of the way and the two began to wrestle. {¶ 9} Rayshawn testified that he was sleeping downstairs when Robinson first arrived but was awakened by the "commotion" in the kitchen. He reiterated that Webb and Robinson were "wrestling"; Robinson refused to leave; and he intervened when Robinson moved toward his sister. {¶ 10} Robinson testified on his own behalf. He claimed that he telephoned Black to ask for his pager, and she invited him over to her house to retrieve it. He claimed that Black was waiting in the front yard when he arrived at the house. {¶ 11} Robinson further testified that he and Black were talking outside and "next thing you know, * * * she just went ballistic. She started flipping out saying she don't want to be with me no more." Webb, whom Robinson had never met before the incident, grabbed him from behind and placed him in a choke-hold. In response, Robinson grabbed Webb's "private part" and broke free from Webb's hold. Once released, Robinson saw Rayshawn outside for the first time. Before Robinson could hit Webb, the police arrived. Robinson adamantly denied ever entering Black's residence. He claimed that he and Black were still dating on the day of the incident and he had no knowledge of her relationship with Webb. {¶ 12} At the conclusion of trial, the court found Robinson guilty of aggravated burglary and sentenced him to three years in prison. Robinson appeals, raising two assignments of error. Manifest Weight of the Evidence {¶ 13} In his first assignment of error, Robinson contends that the trial court's verdict is against the manifest weight of the evidence. Specifically, Robinson claims that his testimony was more believable than the contradictory testimony offered by the State's witnesses, and that even if the testimony was believed, no evidence existed to prove he had the requisite intent for aggravated burglary. We disagree. {¶ 14} The standard of review for a manifest weight challenge is summarized in State v. Martin (1983), 20 Ohio App.3d 172, 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." (Citations omitted.) {¶ 15} The weight of the evidence and credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967),10 Ohio St.2d 230, paragraph one of the syllabus. The power to reverse a judgment of conviction as against the manifest weight of the evidence must be exercised with caution and in only the rare case in which the evidence weighs heavily against the conviction. State v. Martin, supra, at 175. {¶ 16} In determining whether a judgment of conviction is against the manifest weight of the evidence, this court adopted the following guidelines set forth in State v. Mattison (1985), 23 Ohio App.3d 10: "1) The reviewing court is not required to accept as true the incredible; (2) whether the evidence is uncontradicted; (3) whether a witness was impeached; (4) what was not proved; (5) the certainty of the evidence; (6) the reliability of the evidence; (7) whether a witness' testimony is self-serving; (8) whether the evidence is vague, uncertain, conflicting or fragmentary." {¶ 17} A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the prosecution proved the offense beyond a reasonable doubt. State v.Eley (1978), 56 Ohio St.2d 169. {¶ 18} Robinson was convicted of aggravated burglary under R.C.2911.11(A)(1), which provides, in pertinent part: "(A) No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: "(1) The offender inflicts, or attempts or threatens to inflict physical harm on another." {¶ 19} Robinson argues that based on the inconsistencies in the testimony of the State's witnesses, the trial court should have rejected the witnesses' account of the incident and believed his testimony. In support of this argument, he points to the following inconsistencies: (1) Webb and Rayshawn testified that Robinson was not on his bicycle when they responded to Black's scream, but Black stated Robinson dragged her while sitting on his bicycle; (2) Black and Officer Steele stated that the police arrived within minutes of the call, whereas Rayshawn recalled the police arriving 20 minutes after Black had been dragged down the driveway; and (3) Webb stated that he and Rayshawn were cleaning in the kitchen when Robinson dragged Black, whereas Rayshawn stated the two were just talking. {¶ 20} After a careful review of the record, we find Robinson's argument lacks merit. At best, Robinson has identified minor inconsistencies, which on their own do not render the testimony of the witnesses inherently unreliable, but merely places the witnesses' credibility at issue. Mattison, supra. The trial court was free to believe the State's witnesses over Robinson's self-serving testimony. SeeState v. Chaney, Cuyahoga App. No. 81348, 2003-Ohio-1161. {¶ 21} Moreover, all three witnesses provided a detailed account of the incident with an overall accurate rendition of the key facts. These minor inconsistencies, therefore, are not unreasonable given the duration and circumstances surrounding the incident. Thus, the trial court's decision to believe the State's witnesses and disbelieve Robinson does not constitute a miscarriage of justice warranting a reversal and new trial. {¶ 22} Robinson also argues that, even if the trial court believed the State's witnesses, the State failed to prove that he entered the house with the intent to commit any criminal act, and therefore, the conviction for aggravated burglary is against the manifest weight of the evidence. Again, we find this argument lacks merit. {¶ 23} Testimony by Black and Webb indicated that Robinson pushed the housekeeper to gain entry into the house and, furthermore, he pushed Webb and Rayshawn once inside the house and refused to leave. Additionally, Rayshawn stated that he saw Robinson wrestling Webb and "trying to get" Black. Black, Webb, and Rayshawn testified that Robinson returned to the side door and ultimately dragged Black down the driveway. {¶ 24} As noted by the trial court, the evidence of Robinson's persistence towards Black resulting in the aggressive pushing of anyone in his way, demonstrated at a minimum, his intent to commit an assault and/or kidnapping. Moreover, the manner in which he forcibly entered the house and refused to leave provided circumstantial evidence of his intent to commit a criminal act inside the house. {¶ 25} Therefore, we find that the trial court did not clearly lose its way. We find substantial, competent, credible evidence to support the court's conclusion that Robinson intended to commit a criminal act inside the house. {¶ 26} Robinson's first assignment of error is overruled. Sufficiency of the Evidence {¶ 27} Robinson claims in his second assignment of error that he was denied due process of law because the State failed to present sufficient evidence to satisfy a charge of aggravated burglary. Specifically, he contends that the State failed to produce any evidence that he possessed the requisite intent to commit a criminal act once inside Black's house. We disagree. {¶ 28} The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: "Pursuant to Criminal Rule 29(A), a court shall not order an entry ofjudgment of acquittal if the evidence is such that reasonable minds canreach different conclusions as to whether each material element of acrime has been proved beyond a reasonable doubt." {¶ 29} See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19,23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: "An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry 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." (Citations omitted.) {¶ 30} Robinson argues that he went to the house merely to retrieve his pager. As we discussed in regard to the first assignment of error, sufficient evidence existed to convince any rational trier of fact, beyond a reasonable doubt, that Robinson intended to commit a criminal act within the house. Accordingly, the trial court properly denied the motion for acquittal. {¶ 31} Robinson's second assignment of error is overruled. Judgment affirmed. ANNE L. KILBANE, P.J. and SEAN C. GALLAGHER, J. CONCUR

2016-07-06 06:35:59.641027+00

DECISION. {¶ 1} The plaintiffs-appellants, James and Alexandra Whiteside, appeal from the trial court's judgment awarding James Whiteside $34,000 for injuries that he suffered in a car accident caused by defendant-appellee Lewis Bennett in the course of his employment with defendant-appellee Roylan King d.b.a. King's Towing ("King").1 For the following reasons, we reverse. {¶ 2} Pursuant to a referral by the trial court for compulsory arbitration, a panel of arbitrators originally awarded the Whitesides $70,000. Bennett and King appealed the arbitration award, and the case was subsequently tried before a jury on the issues of proximate cause and damages. The jury awarded damages for Mr. Whiteside's past pain and suffering ($5,500), medical expenses ($10,500), lost wages ($2,500), future medical expenses ($2,000) and the effect of the injury on Mr. Whiteside's ability or inability to perform usual activities ($13,500). The jury expressly awarded no damages for Mr. Whiteside's future pain and suffering. {¶ 3} In their first assignment of error, the Whitesides contend that the trial court erred by denying their motion, under Civ.R. 59(A)(6), for a new trial on the single issue of future pain and suffering, because the jury's award was against the manifest weight of the evidence. They argue that the jury ignored uncontroverted evidence that Mr. Whiteside would suffer future pain and suffering. {¶ 4} Whether to grant a new trial on the weight of the evidence is within the sound discretion of the trial court.2 To set aside a damage award as inadequate and against the manifest weight of the evidence, a reviewing court must determine that the verdict is so gross as to shock the sense of justice and fairness, cannot be reconciled with the undisputed evidence in the case, or is the result of an apparent failure by the jury to include all the items of damage making up the plaintiff's claim.3 {¶ 5} Under App.R. 12(D), a reviewing court may order a retrial of only those specific issues, claims, or defenses from the original trial that resulted in error.4 This is so because error as to one issue need not attach to others, and issues tried without error must be allowed to stand.5 {¶ 6} Here, the evidence was undisputed that Mr. Whiteside would continue to suffer some degree of pain as a result of the accident. His physical injuries from the accident included costochondritis, which involved pain in the lower rib cage where the "ribs join into the sternum at the cartilage" and sternomanubrial dislocation, which caused a physical deformity in Mr. Whiteside's chest wall. {¶ 7} Dr. John Wolf, M.D., on behalf of the defense, examined Mr. Whiteside and reviewed his medical records. He testified that although Mr. Whiteside's injuries may have healed, he would continue to suffer from arthritic pain in the future in those areas where he had been injured. Dr. Wolf testified that Mr. Whiteside had developed arthritis as a result of the injuries he had suffered from the car accident. Dr. Wolf also testified that he would prescribe over-the-counter anti-inflammatory medications on an as-needed basis to alleviate the pain. Elizabeth Woolford, M.D., Mr. Whiteside's personal physician, testified that Mr. Whiteside would continue to suffer pain in the future. She prescribed acupuncture and chiropractic treatments to help with pain management. Additionally, Robert Hiltz, M.D., another physician that Mr. Whiteside had been seeing for pain management, testified that Mr. Whiteside's injuries were permanent, and he prescribed physical therapy, a muscle relaxer, and acetaminophen. Finally, Mr. Whiteside testified that although the accident had occurred in September 2002, he continued to suffer from pain several years later. {¶ 8} Based on the foregoing, we hold that the trial court abused its discretion by not granting a new trial on the issue of Mr. Whiteside's damages for future pain and suffering, as clearly the award of no damages was contrary to the manifest weight of the evidence.6 All three doctors, including the doctor retained by the defense, testified that Mr. Whiteside would continue to suffer some pain in the future, regardless of whether it could be controlled by over-the-counter medications. Accordingly, the trial court should have granted the Whitesides' motion for a new trial on the issue of damages for future pain and suffering. The first assignment of error is sustained. {¶ 9} In their second assignment of error, the Whitesides contend that the trial court erred in denying their motion for a judgment notwithstanding the verdict on the issue of pain and suffering. In their third assignment of error, the Whitesides contend that the jury's verdict was against the manifest weight of the evidence. Under both of these assignments of error, the Whitesides only address the issue of damages for future pain and suffering. Because we have already dealt with that issue in the first assignment of error, the remaining assignments of error are moot. {¶ 10} Accordingly, we reverse the judgment of the trial court in part and remand this case for a hearing on the issue of damages with respect to Mr. Whiteside's future pain and suffering. With respect to the damages actually awarded by the jury, the judgment is affirmed. Judgment reversed in part and cause remanded. Hildebrandt, P.J., Doan and Hendon, JJ. 1 Alexandra Whiteside was awarded $1000 on her loss-of-consortium claim. 2 Yungwirth v. McAvoy (1972), 32 Ohio St.2d 285, 286,291 N.E.2d 739. 3 Bailey v. Allberry (1993), 88 Ohio App.3d 432, 435,624 N.E.2d 279. 4 Mast v. Doctor's Hospital North (1976),46 Ohio St.2d 539, 541, 350 N.E.2d 429. 5 Id.; see, also, Trauth v. Dunbar (1983), 5 Ohio St.3d 68,70, 448 N.E.2d 1368. 6 See Scott v. Condo (May 3, 2002), 1st Dist. No. C-010123.

2016-07-06 06:35:59.667533+00

DECISION {¶ 1} Plaintiff-appellant, Robin A. Gilbert, appeals the trial court's judgment of November 26, 2003, affirming the determination by defendant-appellee Ohio Department of Job and Family Services ("ODJFS"), based on a decision of the Ohio Unemployment Compensation Review Commission ("Commission"), that Gilbert was ineligible for unemployment-compensation benefits because she was not available for and actively seeking suitable employment pursuant to R.C. 4141.29(A)(4)(a). For the following reasons, we reverse the trial court's judgment. {¶ 2} Gilbert was employed by Super Food Services ("SFS") solely as a part-time employee from August 2000 through January 17, 2002. SFS decided to change the part-time position to a full-time position and informed Gilbert of this decision. SFS offered the full-time position to Gilbert. Gilbert had worked on a part-time basis because of her responsibilities for a special-needs child.1 Gilbert informed SFS that she was unavailable to accept the full-time position because of her special child-care responsibilities. {¶ 3} In the Commission's two-part decision, it first concluded that Gilbert was not disqualified from receiving benefits because SFS, having converted her part-time position to a full-time position, in effect eliminated Gilbert's position and replaced it with a different position. Thus, no disqualification would result from a separation due to a lack of work. But, in the second part of its decision, the Commission concluded that Gilbert was ineligible for unemployment-compensation benefits because she was not seeking full-time work because of her child-care responsibilities, and it, accordingly, denied her claim for benefits for the week ending January 26, 2002. Subsequently, Gilbert filed a request for further review by the Commission, which was denied. Gilbert then filed an appeal in the Hamilton County Court of Common Pleas. The trial court's decision of November 26, 2003, stated that "after due consideration of the certified record of the Review Commission, the legal briefs filed by the parties, and the applicable legal authority, the Court hereby finds that the decision of the Review Commission in this case was not unlawful, unreasonable or against the manifest weight of the evidence pursuant to R.C. 4141.282(H)." The court accordingly affirmed the denial of unemployment benefits to Gilbert pursuant to R.C. 4141.29(A)(4)(a). {¶ 4} Our review of an appeal from the Commission's decision is identical to that of the trial court.2 We must affirm the Commission's decision unless we determine that the decision is unlawful, unreasonable, or against the manifest weight of the evidence.3 An appellate court may not make independent factual findings or determine the credibility of the witnesses, but it does have a duty to determine whether the Commission's decision is supported by the evidence in the record.4 {¶ 5} The purpose of the Unemployment Compensation Act is "to ameliorate the burdens on employees suffering from involuntary unemployment and to provide short-term financial relief."5 To be eligible for unemployment benefits, the claimant must be "able to work and available for suitable work."6 We acknowledge that we have been unable to find any Ohio decisions that are factually on point with the case sub judice. But none of the decisions cited by ODJFS support its view that a part-time employee like Gilbert who has atypical child-care issues for a special-needs child, and who has been separated from her employment, must be available for and seeking permanent full-time employment before being eligible for unemployment compensation. The record shows that Gilbert's work history had been to work part-time, not to maintain some more desirable lifestyle7 or to avoid permanent work, but for the laudable purpose of providing care for a four-year-old child with special needs. In this extraordinary situation, suitable work for Gilbert was part-time work at the time she applied for unemployment benefits after the elimination of her part-time position. R.C. 4141.46 mandates that the Unemployment Compensation Act be liberally construed. And the courts of this state have confirmed that the Act is to be liberally construed in favor of the person seeking benefits.8 {¶ 6} On this record, in the absence of legal precedent holding an individual in Gilbert's extraordinary circumstances ineligible for benefits, and in light of the statutory language requiring a claimant to be "able to work and available for suitable work," we hold that the trial court's determination upholding the denial of unemployment benefits to Gilbert, pursuant to R.C. 4141.29(A)(4)(a), was unlawful, unreasonable, and against the manifest weight of the evidence. {¶ 7} Accordingly, we reverse the trial court's judgment and remand this case for further proceedings consistent with law and this decision. Judgment reversed and cause remanded. Doan and Gorman, JJ., concur. 1 In a telephone hearing conducted on September 9, 2002, Gilbert stated that her four-year-old daughter suffered from polycycstic kidney disease. 2 See Tzangas, Plakas Mannos v. Admr., Ohio Bur. of Emp.Servs., 73 Ohio St.3d 694, 696, 1995-Ohio-206, 653 N.E.2d 1207. 3 See id.; R.C. 4141.282(H), formerly R.C. 4141.28(N). 4 See Tzangas at 696, 1995-Ohio-206, 653 N.E.2d 1207. 5 See Abate v. Wheeling-Pittsburgh Steel Corp. (1998),126 Ohio App.3d 742, 748, 711 N.E.2d 299. 6 See R.C. 4141.29(A)(4)(a). 7 See State ex rel. Baker Concrete Constr., Inc. v. Indus.Comm., 102 Ohio St.3d 149, 151, 2004-Ohio-2114, 807 N.E.2d 347, at ¶ 18. 8 See Abate at 748, 711 N.E.2d 299; Roberts v. Hayes, 9th Dist. No. 21550, 2003-Ohio-5903, at ¶ 20.

2016-07-06 06:35:59.69416+00

OPINION {¶ 1} Appellees-Appellants, Ohio School Facilities Commission ("OSFC") and State Employment Relations Board ("SERB"), appeal from a decision of the Franklin County Court of Common Pleas that reversed SERB'S dismissal of three petitions for amendment of certification filed by appellant-appellee, Ohio Civil Service Employees Association, AFSCME, Local 11, AFL-CIO ("OCSEA"). For the following reasons, we affirm. {¶ 2} OCSEA is the certified exclusive representative for certain collective bargaining units composed of State of Ohio employees. In 2001, OCSEA negotiated with the state to include within those collective bargaining units the employees of OSFC. When the negotiations failed, OCSEA filed three petitions for amendment of certification and three petitions for clarification of a bargaining unit with SERB. {¶ 3} While the six petitions were pending before SERB, the Ohio General Assembly enacted Am. Sub. H.B. No. 405. Along with amending, enacting, and repealing various other sections of the Revised Code, Am. Sub. H.B. No. 405 amended R.C. 3318.31, which governs the powers and responsibilities of OSFC. As amended, R.C. 3318.31(B) stated: The employees of the commission shall be exempt from Chapter 4117. of the Revised Code and shall not be public employees as defined in section 4117.01 of the Revised Code. {¶ 4} Relying upon this newly enacted provision, OSFC filed with SERB a motion to dismiss the six petitions. OSFC argued that R.C. 3318.31, as amended by Am. Sub. H.B. No. 405, excluded OSFC employees from the category of "public employees." As only public employees have collective bargaining rights under Chapter 4117, OSFC contended that amended R.C.3318.31 rendered OCSEA's petitions moot. SERB agreed and granted OSFC's motion. {¶ 5} In response, OCSEA filed a petition for a writ of mandamus in this court and asserted that SERB had improperly dismissed the six petitions. We held that Am. Sub. H.B. No. 405 violated the "one-subject rule" of the Ohio Constitution, and we severed from R.C. 3318.31 the provision that Am. Sub. H.B. No. 405 had added to it. State ex rel. OhioCivil Sen/.Employees Assn., AFSCME, Local 11, AFL-CIO v. State Emp.Relations Bd., 152 Ohio App.3d 551, 2003-Ohio-2021, at ¶ 30. Because SERB based its decision to dismiss the petitions upon an unconstitutional, invalid amendment, we issued a writ of mandamus ordering SERB to reinstate the petitions within 30 days and to render its decision on the petitions in accordance with law. Id. at ¶ . {¶ 6} SERB sought reversal of our ruling in the Supreme Court of Ohio, but the appeal did not succeed. State ex rel. Ohio Civil Sen/. EmployeesAssn., AFSCME, Local 11, AFL-CIO v. State Emp. Relations Bd,104 Ohio St.3d 122, 2004-Ohio-6363. The Supreme Court of Ohio affirmed our judgment, and in accordance with our order, SERB reinstated the petitions. {¶ 7} While the reinstated petitions were pending before SERB, the General Assembly enacted Sub. S.B. No. 56, which struck from R.C. 3318.31 the unconstitutional provision and reinserted the exact same language. After this second amendment to R.C. 3318.31 became effective, SERB again dismissed OCSEA's petitions.1 {¶ 8} OCSEA filed an R.C. 119.12 appeal from the dismissal order. In part, OCSEA argued that SERB erred in applying amended R.C. 3318.31 retrospectively to OCSEA's pending petitions. Accepting OCSEA's argument, the trial court found SERB'S dismissal order to be contrary to law, and ordered it reversed and the matter remanded to SERB. Both OSFC and SERB now appeal that judgment to this court. {¶ 9} On appeal, OSFC assigns the following error: The common pleas court's decision was contrary to law, when it held that because an amendment to R.C. § 3318.31 is presumed to be prospective in application, the State Employment Relations Board was obligated to apply the law as it existed at the time the union filed its representation petitions, notwithstanding the fact that at the time SERB acted, the subject employees were no longer "public employees" subject to the collective bargaining act or within SERB'S jurisdiction. {¶ 10} SERB assigns a similar, if more generic, assignment of error: THE COMMON PLEAS COURT ERRED TO THE PREJUDICE OF APPELLANTS STATE EMPLOYMENT RELATIONS BOARD AND OHIO SCHOOL FACILITIES COMMISSION WHEN IT REVERSED SERB'S DISMISSAL OF THREE PETITIONS FOR AMENDMENT OF CERTIFICATION FILED BY APPELLEE OHIO CIVIL SERVICE EMPLOYEES ASSOCIATION, AFSCME LOCAL 11, AFL-CIO. {¶ 11} OCSEA assigns the following conditional assignments of error: 1. In The Absence Of A Contrary Legislative Intent Expressly Stated In Sub. S.B. No. 56, R.C. § 1.58 Prohibits A Retrospective Application Of R.C. 3318.31(B) To The Petitions Pending Before SERB. 2. SERB'S Application Of Sub. S.B. No. 56 To The Pending Petitions Violates Article II, Section 28, Of The Ohio Constitution And Article I, Section 10 Of The United States Constitution. 3. R.C. § 4117.10(A) Requires That In The Event Of A Conflict Such As The Conflict Between Newly Enacted R.C. § 3318.31 (B) And R.C. § 4117.01 (C), The Latter Prevails. 4. R.C. § 4117.10(A) Requires That In The Event Of A Conflict Such As The Conflict Between Newly Enacted R.C. § 3318.31(B) And The Parties' Negotiated Labor Agreement, The Latter Prevails Over R.C. § 3318.31(B). {¶ 12} Before we may address these assignments of error, we must first address OCSEA's motion to dismiss for lack of subject-matter jurisdiction. OCSEA contends that R.C. 119.12 prohibits appellants from appealing the trial court's judgment to this court. We disagree. {¶ 13} In relevant part, R.C. 119.12 states: The judgment of the court [of common pleas] shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may be taken either by the party or the agency * * * Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction, or interpretation of statutes and rules of the agency * * * The Supreme Court of Ohio has interpreted this "clear language" to allow agencies "the right to appeal only on questions of law pertaining to state statutes as well as rules and regulations which where promulgated by the agency." Miller v. Dept. of Indus. Relations (1985),17 Ohio St.3d 226-227. Significantly, that an appeal raises a question of law is not sufficient; the question of law must relate to the constitutionality, construction, or interpretation of a statute or rule.Wolff v. Ohio Dept. of Job and Family Services, 165 Ohio App.3d 118,2006-Ohio-214, at ¶ 8; Garwood v. State Med. Bd. of Ohio (1998),127 Ohio App.3d 530, 532. {¶ 14} At the core of the instant appeals is a single question — should this court interpret R.C. 3318.31, as amended by Sub. S.B. No. 56, to apply to OCSEA's petitions ¶ This is a question of law that relates to the interpretation of a statute, thus giving OSFC and SERB the right to appeal to this court. Accordingly, we deny OCSEA's motion to dismiss. {¶ 15} We now turn to appellants' assignments of error, which we will address together. By these assignments of error, appellants argue that the trial court erred in concluding that the application of amended R.C.3318.31 to OCSEA's petitions would render that statute retroactive. We disagree. {¶ 16} In an administrative appeal pursuant to R.C. 119.12, the trial court reviews an agency's order to determine whether it "is supported by reliable, probative, and substantial evidence and is in accordance with law." R.C. 119.12. Although the trial court must defer somewhat to the agency's findings of fact, it must construe the law on its own. OhioHistorical Soc. v. State Emp. Relations Bd. (1993), 66 Ohio St.3d 466,471 ("To the extent that an agency's decision is based on construction of the state or federal Constitution, a statute, or case law, the common pleas court must undertake its R.C. 119.12 reviewing task completely independently."). Likewise, this court's review of whether the agency's order is "in accordance with law" is plenary. Kistler v. Ohio Bur. ofWorkers' Comp., Franklin App. No. 04AP-1095, 2006-Ohio-3308, at ¶ 9;Gralewski v. Ohio Bur. of Workers'Comp., 167 Ohio App.3d 468,2006-Ohio-1529, at ¶ 17. {¶ 17} " `Retroactive laws and retrospective application of laws have received near universal distrust of civilizations.' " State v.Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, at ¶ 9, quoting Van Fossen v.Babcock Wilcox Co. (1988), 36 Ohio St.3d 100, 104. Evidencing that distrust, Ohio law includes both a statutory and constitutional barrier to retroactive laws, and incorporates both barriers into a framework for determining whether a statute is impermissibly retroactive. First, R.C.1.48 establishes a presumption that statutes operate prospectively, unless they are "expressly made retrospective." Second, Section 28, Article II of the Ohio Constitution, prohibits the General Assembly from passing retroactive laws that affect substantive rights. Initially, a court must engage in the statutory inquiry, which requires the court to determine whether the General Assembly intended the statute to be retroactive. Rubbermaid, Inc. v. Wayne Cty. Auditor, 95 Ohio St.3d 358,2002-Ohio-2338, at ¶ 4; Walls, supra, at ¶ 10; Bielat v. Bielat,87 Ohio St.3d 350, 353, 2000-Ohio-451. If the court answers this inquiry affirmatively, it moves on to the question of whether the statute is substantive, rendering it unconstitutionally retroactive, or merely remedial. Rubbermaid, at ¶ 4; Walls, at ¶ 15; Bielat, at 353. {¶ 18} When applying R.C. 1.48 to a particular statute, a court must ascertain the express intent of the General Assembly. Without a " `clear indication of retroactive application, * * * the statute mayonly apply to cases which arise subsequent to its enactment.' "Walls, supra, at ¶ 10, citing Van Fossen, supra, at 106 (emphasis sic). In other words, if a court cannot find a clearly expressed legislative intent for retroactivity, then the statute is solely prospective in application. State ex rel. Kilbane v. Indus. Comm., 91 Ohio St.3d 258,259, 2001-Ohio-34; State v. LaSalle, 96 Ohio St.3d 178, 2002-Ohio-4009, at1J14. {¶ 19} Here, amended R.C. 3318.31 contains no language that indicates that the General Assembly intended it to apply retrospectively. Accordingly, it operates prospectively, which means it cannot impair the application of pre-existing law to OCSEA's petitions. SERB, therefore, erred in dismissing OCSEA's petitions on the basis of amended R.C.3318.31. {¶ 20} Appellants, however, argue that the above analysis ignores the threshold question of whether SERB actually applied amended R.C. 3318.31 in a retrospective manner. Appellants assert that amended R.C. 3318.31 is not retroactive because it did not impair any vested rights or otherwise affect transactions or considerations already past. {¶ 21} Determining whether or not a newly enacted statute has an effect on vested rights or past transactions is at the core of the constitutional retroactivity inquiry. Bielat, supra, at 354 ("[A] retroactive statute is substantive — and thereforeunconstitutionally retroactive — if it impairs vested rights, affects an accrued substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction.") (Emphasis sic.) As we stated above, a court may only initiate the constitutional inquiry if it first finds that the General Assembly intended a statute to have retrospective application. Appellants' argument erroneously shifts the constitutional inquiry to the fore. {¶ 22} Appellants are correct when they assert that a court may sometimes have to initially question whether the issue of retroactivity is present in a case. However, the key inquiry in such cases is not whether the statute affects substantive rights, but rather whether the statute affects any rights accrued or remedies employed during the time period preceding the effective date of the statute. See DiscountCellular, Inc. v. Pub. Utilities Comm., 112 Ohio St.3d 360,2007-Ohio-53, at ¶ 47 (PUCO could not apply an order retrospectively to dismiss a complaint seeking a declaration of rights on past facts and upon laws existing prior to the order); Bielat, supra, at 353 (defining retroactive laws as laws that are " `made to affect acts or facts occurring, or rights accruing, before it came into force' "); U.S.X.Corp. v. Ohio Unemployment Comp. Bd. of Review (1990),70 Ohio App.3d 566, 569 ("[Retroactive application of a statute typically occurs when the statute, then in effect, is applied to a time period preceding the effective date of the statute."). {¶ 23} The difference between a statute that applies retrospectively and one that does not is illustrated by State v. Hawkins (1999),87 Ohio St.3d 311, and LaSalle, supra. In Hawkins, the newly enacted statute divested the trial court of jurisdiction over a defendant found not guilty by reason of insanity once the maximum prison term the defendant could have received expired. The state argued that the statute was retrospective in its operation when applied to defendants that were found not guilty by reason of insanity prior to the effective date of the statute. The Supreme Court disagreed, holding that the application of the newly enacted statute "affect[ed] nothing past, neither right nor remedy." Id. at 314. In other words, the statute did not deprive the defendant of any rights or remedies associated with the not guilty by reason of insanity finding or his commitment. {¶ 24} LaSalle stands at the other end of the spectrum. There, the defendant filed an application to seal the record of his conviction for domestic violence, a first-degree misdemeanor. Four months later, a newly enacted statute that prohibited the sealing of records of first-degree misdemeanor domestic violence convictions went into effect. After applying R.C. 1.48, the Supreme Court held that the newly enacted statute could not be applied retrospectively to the defendant's application to seal his record. Unlike the situation inHawkins, the application of the newly enacted statute would have adversely affected something past, i.e., the defendant's pre-existing application to seal his record. Due to this adverse effect, the newly enacted statute operated retrospectively, and thus, it triggered an R.C.1.48 inquiry. {¶ 25} We find LaSalle, not Hawkins, applicable to the case at bar. Before amended R.C. 3318.31 went into effect, OSFC employees, as "public employees," had the right to join any employee organization of their choosing and to receive representation from that organization. R.C.4117.03(A)(1) and (3). Given the OSFC employees' status as "public employees," OCSEA could petition for amendment of certification — the grant of which would allow the OSFC employees to realize their rights. Ohio Adm. Code 4117-5-01(E). By depriving OSFC employees of their right to representation, amended R.C. 3318.31 vitiated OCSEA's ability to proceed with its petitions to amend. Consequently, because amended R.C.3318.31 acted retrospectively in that it adversely affected the pre-existing petitions, an R.C. 1.48 inquiry into whether the General Assembly intended that retroactive effect is necessary. {¶ 26} As the General Assembly did not expressly make amended R.C.3318.31 retroactive, SERB erred in applying it retrospectively. Accordingly, we overrule appellants' assignments of error. Given our resolution of appellants' assignments of error, we find OCSEA's conditional assignments of error moot and do not address them. {¶ 27} For the foregoing reasons, we deny OCSEA's motion to dismiss, overrule appellants' assignments of error, and overrule as moot OCSEA's conditional assignments of error. Further, we affirm the judgment of the Franklin County Court of Common Pleas. Motion denied; judgment affirmed. TRAVIS and DESHLER, JJ., concur. DESHLER, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 At the time of this dismissal, only OCSEA's petitions for amendment of certification remained pending. SERB had previously dismissed OCSEA's petitions for clarification of a bargaining unit, finding that OCSEA could not achieve its goal of altering the existing bargaining units through such a petition. OCSEA did not appeal that ruling.

2016-07-06 06:35:59.836039+00

OPINION Appellants Antioch Baptist Church, et al., appeal a summary judgment of the Stark County Common Pleas Court dismissing their complaint against appellees, Richard Jordan, et al.: ASSIGNMENT OF ERROR: THE LOWER COURT ERRED IN GRANTING APPELLEES' MOTION FOR SUMMARY JUDGMENT. ON August 6, 1994, appellee Reverend Richard Jordan entered into a contract with the Board of Trustees and the Deacon Board of appellant Antioch Baptist Church to serve as Pastor of the church. Thereafter, problems arose in the church. Some members believed that Reverend Jordan was securing raises and other financial benefits beyond the scope of his contract, causing the church to encounter financial difficulties. A group of church members filed the instant action on April 24, 1998, alleging that Reverend Jordan and the Board of Trustees had breached fiduciary obligations by expending funds without propr authority, and by denying appellants access to the corporate records of the church. The complaint sought review of the corporation records by the members of the church, and repayment of money disbursed without proper authority. The complaint further alleged that the Board of Trustees was not properly elected in accordance with the bylaws of the church, yet continued to spend money without proper election or authorization. Appellees filed a Motion for Summary Judgment, alleging that appellants' complaint should be dismissed for failing to comply with the pleading requirements found in Civ.R. 23.1, concerning a derivative lawsuit. Thereafter, appellants filed an amended complaint, setting forth the same causes of action and prayer for relief, but adding ninety-nine individual plaintiffs. The court granted the motion for summary judgment, finding that the complaint did not comply with the requirements of Civ.R. 23.1. The court accordingly dismissed the complaint. Both appellants and appellees have used an incorrect case number on their briefs. An early appeal filed from a partial summary judgment entry was given the Case No. 1998CA00240. The appeal from the entry dismissing the lawsuit pursuant to Civ.R. 23.1 was given the Case No. 1998CA00258. However, all parties have filed their briefs concerning the issues assigned Case No. 1998CA00258, under the Case No. 1998CA00240. Accordingly, both briefs are deemed amended to change the case number from 1998CA00240 to 1998CA00258. This appeal will concern itself solely with the issues raised as to the September 9, 1998 judgment of the court. Case No. 1998CA00240, concerning the judgment dated August 24, 1998, will be decided when it proceeds through the proper channels in this court. In addition, appellants have filed a Supplemental Brief, bearing Case No. 1998CA00240, which addresses the issues in the August 24, 1998 judgment. The case number on this Brief will not be deemed amended, and we will not consider these issues in the instant appeal. The issues concerned in that Brief will be considered with the appeal in Case No. 1998CA00240, from the August 24, 1998 judgment of the Stark County Common Pleas Court. I. Appellants argue that the instant action is not a derivitive action, as the church was not incorporated on the day the alleged injuries occurred. The evidence before the court on summary judgment reflects that the Secretary of State issued a certificate on July 22, 1998, stating that the church was incorporated as a non-profit corporation in good standing as of that date, and the church had been incorporated on October 23, 1946. In the response to appellees' summary judgment motion, appellants maintained that the corporate status lapsed for failed to file a statement of continued corporate existence on September 13, 1991, and was not reinstated to its corporate status until July 22, 1998. Appellants claimed that the parties stipulated to the lapse of corporate status at the August 5, 1998 hearing. However, there is no record of this hearing, and there is no evidence in the record to demonstrate that corporate status had lapsed. In any event, all parties agree that the corporate status did lapse in September of 1991. When an entity has been incorporated pursuant to all requirements of law regarding corporation, the entity is known as a de jure corporation. Where the charter powers of a corporation are canceled for failure to make necessary reports and pay taxes, and the corporation is later reinstated by complying with statutory requirements, the corporation is de facto during the time between such cancellation and reinstatement, and maintains its corporate capacity for purposes of suing, being sued, and making contractual commitments. Hines vs. Board of Education of the Cleveland City School District (1985), 26 Ohio Misc.2d 15, 18, citing I. J. Goldstein Company vs. Mitchell (1921), 14 Ohio App. 231. In the instant case, the church continued to operate without question from the Secretary of State during the time where the parties claim its corporate status technically lapsed. The church was operating as a def facto non-profit corporation during this time period, and appellants cannot now challenge its corporate status. More importantly, the action in the instant case is clearly derivative in nature. An action is considered to be derivative in nature when the alleged injury is suffered in common by all of the members, and is the consequence of wrongs directed against a corporation. Weston vs. Weston Paper and Manufacturing Company (1976), 74 Ohio St.3d 377. An action is not derivative, and may be maintained by a member directly, only if the complaining member is injured in a way that is separate and distinct from an injury to the corporation and to its members collectively. Crosby vs. Beam (1989), 47 Ohio St.3d 105, 107. The allegations in the instant case do not allege harm separate and distinct to each of the individual appellants. The claims for relief specifically state injury to the church and to all of its members alike. The complaint and amended complaint allege that Pastor Jordan, the Board of Deacons, and the Board of Trustees: (1) denied the church members access to certain corporate records, (2) breached the fiduciary duties to the church members through disbursing funds without proper authority as set out in the church bylaws, and (3) failed to properly hold an election in accordance with the church bylaws for the members of a new church Board of Trustees. As these actions are clearly claims of injury to the church as a whole and to each of its members alike, the action is derivative in nature. Pursuant to Civ.R. 23.1, there are specific allegations which must be stated in the complaint in order to maintain a derivative cause of action. The complaint must be verified. A plaintiff shall specifically set forth in the complaint to have been a shareholder both at the time of the alleged harm, and at the time when the action is brought. The rule requires that a demand must have been made to the Board of Directors, and if necessary, to the shareholders, before a derivative action may be maintained. The complaint, therefore, must alleged with particularity the efforts undertaken in attempt to obtain the desired action from the Board of Directors, the reasons why such efforts failed, or the reasons why such demand prior to the lawsuit would be futile. In addition, the derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interest of the shareholders similarly situated in enforcing the right of the corporation. The complaint in the instant case did not comply with Civ.R. 23.1. The court, therefore, did not err in dismissing the complaint on summary judgment. The Assignment of Error is overruled. The judgment of the Stark County Common Pleas Court is affirmed. By: Reader, V.J. Gwin, P. J. and Hoffman, J. concur.

2016-07-06 06:35:59.940598+00

OPINION {¶ 1} Defendant-appellant Betty Williams appeals from a judgment of the trial court revoking her community control and sentencing her to seven months incarceration on each of seven counts and ordering that the sentences run consecutively, for a total of forty-nine months in prison. *Page 2 {¶ 2} Williams contends that the trial court erred by revoking community control without first establishing that she willfully and intentionally failed to pay restitution. Williams further contends that the imposition of a further prison term was an abuse of discretion caused by the trial court's dissatisfaction with the result of the original sentence. {¶ 3} We conclude that the trial court erred in revoking community control without inquiring into Williams's ability to pay restitution. Because this conclusion disposes of this appeal, we need not address the second assignment of error. Accordingly, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings. I {¶ 4} In September 2002, Betty Williams was indicted on four counts of Theft and five counts of Forgery, all of which were fifth-degree felonies. Williams filed a petition to enter a plea of guilty, and the court then found Williams guilty on all charges in January 2003. After a pre-sentence investigation, the court sentenced Williams in February 2003 to a definite term of eleven months each on two of the Theft charges (counts one and two), with the terms to be served consecutively, for a total of twenty-two months in prison. The court also sentenced Williams to five years community control on the remaining seven counts. In the sentencing entry, and also at the sentencing hearing, the court indicated that violations of community control could result in a longer or more restrictive sanction, up to and including a prison term of nine months on each count to be served consecutively for a total sentence of sixty-three months. Community *Page 3 control was to begin when Williams was released from prison. As part of community control, Williams was ordered to pay restitution to the victim in the amount of $190,000. An offender payment agreement was filed in February 2003, indicating that Williams would pay a total of $3,010 per month for supervision fees, court costs, and restitution. {¶ 5} Williams was transported to the Ohio Reformatory for Women in March 2003, where she entered and completed an Intensive Prison Program that resulted in her release from prison after serving four months of the twenty-two month sentence. From February 2004, through September 2004, Williams made regular monthly payments of $200 for restitution. In October 2004, an order was entered modifying the monthly payment from $3,010 to $200, to allow Williams to make affordable monthly payments. {¶ 6} From October 2004 though November 2005, Williams made the $200 monthly payments as ordered. She missed the December 2005 payment, made payments of $200 in January, February, March, May, and July 2006, and in January 2007. In January 2007, the State filed a motion for violation of community control and asked the court to set the matter for a hearing. The State noted that Williams had failed to pay restitution in August through December 2006. {¶ 7} The court set a probable cause hearing for February 7, 2007, and upon finding probable cause, set the matter for an evidentiary hearing in March 2007. At the hearing, the following exchange occurred: {¶ 8} "THE COURT: We are here today for an evidentiary hearing based upon a Motion and Affidavit that was previously filed in this Court alleging the Defendant had violated the community control terms previously granted to her. We are here today to *Page 4 conclude this matter. {¶ 9} "I will ask Counsel at this time, how do you wish to proceed? {¶ 10} "MS. HINDS-GLICK: We would just like to enter into the record, Your Honor, that Ms. Williams did miss several payments and she readily admits that. There were some problems at that time. I believe it was August through December where she had experienced a death in her family and a temporary separation from her husband where she was handling all of her household bills on her own and did get behind in her rent. {¶ 11} "Over the past month she has made a great effort to pay that back and get it caught up, bringing in 11 of the $1,600 that she was behind. She is willing to commit to upped restitution payments in order to get this caught up and even continue on that higher payment plan if that would be made available to her. {¶ 12} "THE COURT: All right. Do you wish to admit the allegations in the motion or do you wish the State to present evidence that would ask the Court to make that determination? {¶ 13} "MS HINDS-GLICK: No, she's willing to admit that she did miss the restitution payments. {¶ 14} "THE COURT: Ms. Williams, is it your desire, based on what your Counsel has indicated to the Court, to admit to the community control violations in this case or do you wish to have a hearing? {¶ 15} "THE DEFENDANT: I will agree with my counsel. {¶ 16} "THE COURT: I'm sorry? {¶ 17} "THE DEFENDANT: I agree with my counsel. *Page 5 {¶ 18} "THE COURT: All right. In that case, the Court will find that there is substantial evidence that the Defendant has violated the community control granted to her in this case as alleged in the Motion and Affidavit. As such, the Court is prepared to proceed forward with disposition." Transcript of March 9, 2007 Proceedings, pp. 2-4. {¶ 19} Immediately following this dialogue, the court asked the State if it wished to present any information. The State requested that the victim be allowed to speak. The victim reiterated that in addition to the amount of money that had been taken, his business's reputation had been harmed. He also expressed dismay that Williams had been released from prison after serving only four months. After offering Williams and her counsel an opportunity to speak, the court made the following comments: {¶ 20} "Now when you originally came before this Court, there was an understanding and expectation that you would be serving in excess of 20 months in prison before you would be released. And because of circumstances unfortunately which were beyond the control of this Court, you were released early. I say unfortunately because that was not this Court's plan, to release you from prison early because this Court's expectation and opinion was that you would be serving this sentence in the form of punishment for the conduct you committed. {¶ 21} "And despite any efforts from this Court, I was able to determine that there was nothing this Court could do regarding that particular sentence that was cut short, and you failed to satisfy the expectation this Court had in this particular manner. {¶ 22} "Nevertheless, from your perspective that had to be considered an opportunity. {¶ 23} ". . . . *Page 6 {¶ 24} "Despite the fact you were released early, I guess one could say that provided the opportunity for you to begin your restitution in an earlier fashion and apparently that began. {¶ 25} ". . . . {¶ 26} "THE COURT: There was a point in time in here where restitution was not paid at all. I understand the record does reflect that when the State realized that that had occurred and they brought the matter to the Court's attention . . . you made efforts to catch that up. {¶ 27} "THE DEFENDANT; Yes. {¶ 28} "THE COURT: And caught it up significantly, but you are currently, at this time, still remaining in arrears. That arrears is a function of your failure during that eight-month period to make those payments on a monthly basis as required. {¶ 29} "The Court can only draw one conclusion from that failure to pay and that is somehow the break, and that's the only word I can use to say what the State did in this case, . . . the break to let you out early from prison somehow did not stick to you, and I've been in this business long enough to understand that a victim is victimized the first time that they are in the hands of an offender who causes them to lose their money, but they're victimized, and particularly impacted, by the failure of the person to do what they were supposed to do on community control and pay those restitution payments. And I couldn't find, in light of this particular case, any justification which would satisfy this Court for your failure to do so." Id. at 6-9. {¶ 30} After making the above comments, the court imposed a prison term of seven months for each of the seven counts on which community control had previously *Page 7 been imposed and ordered the terms served consecutively, for a total sentence of forty-nine months. Williams was then immediately taken into custody and transported to prison. {¶ 31} Williams appeals from the judgment revoking community control and the sentence imposed by the court. II {¶ 32} Williams's First Assignment of Error is as follows: {¶ 33} "THE TRIAL COURT ERRED WHEN IT REVOKED DEFENDANT'S COMMUNITY CONTROL FOR FAILURE TO PAY RESTITUTION WITHOUT FIRST ESTABLISHING THAT SHE WILLFULLY AND INTENTIONALLY FAILED TO PAY AND NO OTHER VIOLATIONS OF HER COMMUNITY CONTROL WERE ASSERTED." {¶ 34} Under this assignment of error, Williams contends that indigent probationers cannot be imprisoned for failure to make restitution payments where the record indicates that the only reason for non-payment is inability to pay. William further contends that the trial court erred by failing to inquire into her ability to pay restitution during the period of violation. {¶ 35} "The right of the defendant to continue on probation rests within the sound discretion of the court." State v. Scott (1982),6 Ohio App.3d 39, 41, 452 N.E.2d 517. Therefore, we review the trial court's decision for abuse of discretion, which "means more than a mere error of law or an error in judgment. It implies an unreasonable, arbitrary, unconscionable attitude on the part of the trial court." State v.Richardson, Montgomery App. No. 21113, 2006-Ohio-4015, at ¶ 36. A decision is unreasonable and, *Page 8 therefore, an abuse of discretion if no sound reasoning process supports the decision. State v. Picklesimer, Greene App. No. 06-CA-118,2007-Ohio-5758, at ¶ 28, citing AAAA Enterprises, Inc. v. River PlaceCommunity Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 161,553 N.E.2d 597. {¶ 36} Applying this standard, we conclude that the trial court's decision was not supported by a sound reasoning process. In Bearden v.Georgia (1983), 461 U.S. 660, 672-673, 103 S.Ct. 2064, 2073,76 L.Ed.2d 221, the United States Supreme Court held that: {¶ 37} "[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State's interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine." {¶ 38} We have applied this rule on a number of occasions. See,e.g., State v. Richardson, Montgomery App. No. 21113, 2006-Ohio-4015, at ¶ 25 (reversing due to trial court's failure to inquire into reasons why defendant did not pay child support); and Scott, 6 Ohio App.3d at 42 (holding that trial court abused its discretion in revoking *Page 9 probation in absence of testimony that probationer could meet restitution payments). {¶ 39} In contending that the trial court correctly imposed a prison term, the State relies on State v. Simpson, Butler App. No. CA2000-12-251, 2002-Ohio-1909, 2002 WL 649352. In Simpson, the Twelfth District Court of Appeals found that a probationer's unequivocal admission of a probation violation, along with his failure to assert an inability to pay at either of two hearings, constituted evidence that his failure to pay was willful. 2002 WL 649352, at * 3. The Twelfth District, therefore, distinguished Bearden and concluded that the record supported a finding that the probationer had "`willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay'" Id. The State contends that Williams similarly admitted to a violation and failed to assert her inability to pay. We disagree. {¶ 40} In the first place, the Twelfth District's distinction ofBearden was based on the defendant's failure to either assert or present evidence of inability to pay. In this regard, the Twelfth District stated that: {¶ 41} "We find this case distinguishable from Bearden. In this case, appellant admitted to violating rule twelve of his probation conditions. Appellant, who was represented by counsel, did not present any evidencenor did he assert, either at the probation revocation hearing in October 2000 or the disposition hearing in November 2000, that he did notpossess the ability to pay the fines and restitution." Id. (Emphasis added.) {¶ 42} In contrast to the defendant in Simpson, Williams did advance reasons for her failure to pay restitution. On its face, the record indicates that Williams made consistent and regular payments for two years after her release from prison, but then *Page 10 suffered financial difficulties, including a family death and a temporary separation from her husband, which caused her to miss some payments. Rather than conducting an inquiry into these matters, the trial court stated that it could "only draw one conclusion" from the failure to pay, which was that the "break" to let Williams out early from prison "did not stick." However, Williams, through her attorney, proffered an explanation for her failure to pay restitution that would support a different conclusion, and the court should have conducted an inquiry into the reasons for non-payment. As we stressed in State v.Walden (1988), 54 Ohio App.3d 160, 162, 561 N.E.2d 995, "a sentencing court must inquire into (and consider) the reasons for the failure to pay restitution before it can revoke probation based on that failure." (Emphasis added.) Here, the trial court, having been proffered reasons for the failure to pay restitution, conducted no inquiry, but treated the proffered reasons as immaterial. {¶ 43} Accordingly, Williams's First Assignment of Error is sustained. III {¶ 44} Williams's Second Assignment of Error is as follows: {¶ 45} "THE TRIAL COURT EXERCISED ABUSE OF DISCRETION IN IMPOSING A FURTHER PRISON TERM DUE TO THE TRIAL COURT'S DISSATISFACTION WITH THE ORIGINAL SENTENCING." {¶ 46} Under this assignment of error, Williams contends that the trial court was improperly motivated by its frustration at Williams's early release from prison and a desire to see punishment carried out as the court had originally intended. We decline to address this assignment of error, as it is moot. *Page 11 IV {¶ 47} Williams's First Assignment of Error having been sustained, and Williams's Second Assignment of Error having been overruled as moot, the judgment of the trial court is Reversed, and this cause is Remanded for further proceedings consistent with this opinion. WOLFF, P.J., and GRADY, J., concur. *Page 1

2016-07-06 06:35:59.762936+00

Resnick

* Reporter's Note: An appeal to the Supreme Court of Ohio is pending in case no. 2002-2025. The court of appeals denied a motion for reconsideration in 2002-Ohio-6364. *Page 646 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 647 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 648 DECISION AND JUDGMENT ENTRY {¶ 1} This cause involves two separate actions brought by appellant, Perrysburg Township, against (1) the city of Rossford, Mark Zuchowski, the Mayor of the city of Rossford and President of the Rossford Arena Amphitheater Authority ("RAAA") and John Doe Defendants 1-10 ("Action 1"); and (2) the RAAA and *Page 649 John Doe Defendants 1-10 ("Action 2"). In each case, the trial court granted appellees' motion to dismiss appellant's claims based upon R.C. Chapter 1707, negligent misrepresentation and unjust enrichment for failure to state a claim upon which relief can be granted. In Action 1, the trial court also determined that appellant's claim for breach of contract did not state a claim upon which relief can be granted. The cases were consolidated by this court for the purpose of determination on appeal. {¶ 2} Appellant's first four assignments of error in both appeals are identical and assert that the common pleas court erred in the following respects in reaching its decision: {¶ 3} "I. The trial court erred, as a matter of law, by not applying the correct Civ.R. 12(B)(6) legal standard to the determination of appellee's motion to dismiss." {¶ 4} "II. The trial court erred, as a matter of law, by dismissing counts one through six of appellant's first amended complaint, because claims upon which relief may be granted is presented under Ohio securities law." {¶ 5} "III. The trial court erred, as a matter of law, by dismissing count seven of appellant's first amended complaint, because a claim upon which relief may be granted is presented under the law of negligence." {¶ 6} "IV. The trial court erred, as a matter of law, by dismissing count eight of appellant's first amended complaint, because an alternative claim upon which relief may be granted is presented under the law of unjust enrichment." {¶ 7} In Action 1, appellant's Assignment of Error No. V reads: {¶ 8} "The trial court erred, as a matter of law, by dismissing count nine of appellant's first amended complaint because an alternative claim upon which relief may be granted is presented under the law of contracts." {¶ 9} In addition, in Action 1 and Action 2, appellant's Assignments of Error Nos. VI and V, respectively, are the same and contend: {¶ 10} "The trial court erred, as a matter of law, by not providing appellant with a meaningful opportunity to conduct discovery before dismissing appellant's claims against the unidentified John Doe defendants named in the action." {¶ 11} In its Assignments of Error Nos. I in Actions 1 and 2, appellant contends that the trial court failed to apply the proper standard in dismissing their claims for relief, in particular, in dismissing those claims (Counts 1-6) based upon violations of Ohio securities law, R.C. Chapter 1707. {¶ 12} In the present case, a written agreement between appellant, the RAAA and the Rossford/Perrysburg Joint Economic Authority/Port Authority ("Port Authority") is the basis for the claims set forth in Counts 1-6 of appellant's *Page 650 amended complaints. Appellant insists, inter alia, that the trial court was required to read the agreement in conjunction with the allegations in the complaints to determine whether this instrument "is so clear and unambiguous on its face that the Court can conclude to a certainty that there is no set of facts that could support" appellant's R.C. Chapter 1707 claims. {¶ 13} Our standard of review on a Civ.R. 12(B)(6) motion to dismiss is de novo. Hunt v. Marksman Products (1995), 101 Ohio App.3d 760,762. A motion to dismiss for failure to state a claim upon which relief can be granted is procedural and tests the sufficiency of the complaint.State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs. (1992),65 Ohio St.3d 545, 548. The court will look only to the complaint or, in a proper case, the copy of a written instrument upon which a claim is predicated to determine whether the allegations are legally sufficient to state a claim. Id.; Slife v. Kundtz Properties (1974), 40 Ohio App.2d 179,185-186. A Civ.R. 12(B)6) motion should be granted "only where the allegations in the complaint show the court to a certainty that the plaintiff can prove no set of facts upon which he might recover, or where the "writing presents an insuperable bar to relief." Slife v. KundtzProperties, 40 Ohio App.2d at 186; Grosko v. Dana Commercial Credit Corp. (September 1, 2000), Lucas App. No. L-00-1060. Dismissals under Civ.R. 12(B)(6) are proper where the language of the writing is clear and unambiguous. Slife v. Kundtz Properties, 40 Ohio App.2d at 184. {¶ 14} Here, in both amended complaints, Counts 1 through 6 characterize the agreement as a "security" within the meaning of R.C.1707.01(B). Each of the claims in those counts are predicated upon a determination that this agreement is a "security." In applying the standard set forth in Slife, the common pleas court did apparently read the agreement in conjunction with the allegations in the complaint, specifically, the court expressly referred to the comments made by Mayor Zuchowski in seeking appellant's financial support for a proposed arena and amphitheater to be constructed and operated by the RAAA. Based upon this application of the law, the court below determined that the agreement was not a security for the purposes of R.C. Chapter 1707. Therefore, the court decided, in essence, that the agreement was plain and unambiguous, thereby presenting an insuperable bar to the claims raised in Counts 1-6 of appellant's amended complaints and/or that appellant failed to offer any set of facts upon which it might recover. Accordingly, appellant's arguments as to the propriety of the standard applied to the Ohio securities law claims are without merit. {¶ 15} With regard to the remaining counts in each amended complaint, appellant maintains that the trial court focused upon and interpreted selected *Page 651 portions of the agreement without any reference to the allegations in its amended complaint or the "insuperable bar to relief standard applicable" to appellees' motions to dismiss. {¶ 16} We must disagree. Our reading of the trial court's judgment entries reveals that the common pleas court granted the motion to dismiss Counts 7, 8 and 9 in Action 1 and Counts 7 and 8 in Action 2 for failure to state a claim upon which relief could be granted based upon the allegations, or lack thereof, in the amended complaints. Thus, for the foregoing reasons, appellant's Assignments of Error Nos. I in both Actions 1 and 2 are found not well-taken. {¶ 17} The facts relevant to our disposition of appellant's Assignments of Error Nos. II in Actions 1 and 2 are taken from the complaints and the agreement entered into by the parties. {¶ 18} On February 22, 1999, the city of Rossford passed an ordinance authorizing its law director to establish a not-for-profit corporation known as the RAAA. The RAAA is also a "public agency" of the city of Rossford. One of the purposes of the RAAA was to facilitate the development of a sports arena and amphitheater. Upon completion, the RAAA would also own, operate and maintain the arena and amphitheater. {¶ 19} As part of obtaining financing for the project, the RAAA entered into a written agreement with Perrysburg Township. Mark Zuchowski, in his capacity as the President of the RAAA, signed the agreement on behalf of the RAAA. The Port Authority is also a signatory on the agreement as the party responsible for remitting assigned funds (contributions and repayments) between the RAAA and appellant. {¶ 20} Article I of the agreement is titled "CONTRIBUTION BY THE TOWNSHIP AND REPAYMENT BY THE RAAA," and states: {¶ 21} "A. At the time of the execution and delivery of this Agreement by the parties hereto, the Township hereby agrees to contribute to the Port Authority with respect to the [arena/amphitheater] Project the amount of $5,000,000 to be used for construction costs and related expenses of the Project and, if necessary, debt service on the obligation of the RAAA resulting from such contribution. {¶ 22} "B. The RAAA hereby agrees to pay the Port Authority, in consideration of the contribution referred to in Paragraph A above, such amount of $5,000,000 on the date which two years from the date of execution and delivery hereof, together with interest thereon a rate of eight per cent per annum, payable semiannually on the dates which are six, twelve, eighteen and twenty-four months after such date of execution and delivery. Such amount to be paid by the RAAA shall be paid from any revenues of the RAAA but shall be subject and subordinate to the pledge of revenues to any first lien bonds issued by the RAAA for *Page 652 the Project or payable from the proceeds of the Ohio Arts Sports Facilities grant for Ohio Sports Facilities projects which the RAAA agrees to apply for and pursue diligently. The aforementioned interest payments to be escrowed in advance from this contribution of first lien bonds. {¶ 23} "C. The parties hereto agree that the RAAA may prepay its obligation under Paragraph B above, in whole or in part, at any time by the payment of the unpaid principal amount thereof together with the interest accrued thereon." {¶ 24} Appellant's Assignments of Error Nos. II in Actions 1 and 2 maintain that in reading the face of the agreement in conjunction with the allegations in the amended complaint, provable facts exist to demonstrate that the writing constitutes both an investment contract and a debt security within the meaning of R.C. 1707.07(B). {¶ 25} Because the city of Rossford is neither an express party to the agreement that is allegedly a "security" under R.C. Chapter 1707 nor can be deemed a party to the agreement by application of the principles of agency, see our disposition of appellant's Assignment of Error No. V in Action 1, infra, it follows that appellant failed to set forth claims upon which relief can be granted in Counts 1-6 (securities law violations) of the complaint in Action 1. Therefore, appellant's Assignment of Error No. II in Action 1 is found not well-taken. {¶ 26} In addition, appellant's appellant's Assignment of Error No. II in Action 1 as to Mark Zuchowski is found not well-taken. Zuchowski signed the agreement between appellant and the RAAA as its president, i.e., agent. Ohio law provides that an authorized agent who contracts with a third party on behalf of a disclosed principal is not personally liable on the contract. Grimm v. USLife Credit Life Ins. Co. (May 19, 1999), Auglaize App. No. 2-98-35, citing Oelberg v. Skaggs (June 4, 1998), Franklin App. No. 97APE10-1383. In such cases, the contract is entirely the principal's contract, and the agent incurs no liability. Id. Therefore, Counts 1-6 of Action 1 fail to set forth claims against Zuchowski upon which relief can be granted. {¶ 27} The following discussion is therefore applicable only to Counts 1-6 in Action 2 as raised against the RAAA. {¶ 28} The purpose of the Ohio Securities Act, generally referred to as Ohio Blue Sky Law, "is to prevent those persons willing to market worthless or unnecessary risky securities from soliciting the purchasing public without first subjecting themselves and their securities to reasonable licensing and registration requirements designed to protect the public from its own stupidity, gullibility and avariciousness."Bronaugh v. R. E. Dredging Co.(1968), 16 Ohio St.2d 35, 40-41. It is undisputed that the agreement between appellant, the RAAA and the Port Authority was never registered. Thus, if it is *Page 653 found to be a security, appellant can raise several claims (Counts 1-6) based upon alleged violations of R.C. Chapter 1707. {¶ 29} R.C. 1707.07(B) broadly defines a "security" as: "* * * any certificate or instrument that represents title to or interest in, or is secured by any lien or charge upon, the capital, assets, profits, property, or credit of any person or of any public or governmental body, subdivision, or agency. It includes * * * promissory notes, * * * evidences of indebtedness, * * * any investment contract, * * * any instrument evidencing a promise or an agreement to pay money, * * *." {¶ 30} However, despite the fact that a particular instrument may be included in the list of transactions constituting securities, that inclusion is not conclusive proof that the instrument is a security.Buemi v. The Van Dusen Acceptance Corp. (Feb. 15, 1979), Cuyahoga App. No. 38371, citing United Housing Foundation, Inc. v. Forman (1975),421 U.S. 837, 848-850. Instead, the determination of whether a particular instrument is a security must be made on a case by case basis with the "primary emphasis on the economic realities of the instrument." Id. See, also, State v. Silberberg (1956), 166 Ohio St. 101, 105. {¶ 31} Even though, as noted previously, appellant argues that the agreement in this cause is an investment contract or debt security, it is clearly a "note" or "promissory note." That is, the agreement is an instrument containing the written promise of the RAAA to pay appellant the definite sum of $5 million dollars plus eight percent interest per annum. See Black's Law Dictionary (7th ed. 1990) 1085 and 1030. {¶ 32} Our research reveals an absence of Ohio case law on the question of the standard to be employed in determining whether a promissory note can be considered a "security" for the purposes of R.C. Chapter 1707. The majority of Ohio cases have dealt with the issue of whether various instruments were "investment contracts." See, among others, Silberberg, supra and Roddy v. Alexander (Oct. 5, 2001), Montgomery App. No. 18503 (an interest in real estate); Brannon v.Rinzler (1991), 77 Ohio App.3d 749 (a partnership agreement); State v.George (1975), 50 Ohio App.2d 297 (distributorship agreements); Emery v.So-Soft of Ohio, Inc. (1964) 94 Ohio L. Abs. 357 (referral agreement); and Pride of the Andes v. Soberay (Jan. 10, 2001), Medina App. 3062-M (purchase agreement). {¶ 33} Buemi is closest factually to the instant cause. It involved the determination of whether a participation agreement was a security under R.C. 1707.01(B). The plaintiff-appellant, Joseph Buemi, purchased participation in the *Page 654 amount of advances made by the defendant-appellee, The Van Dusen Acceptance Corporation, to Buckeye Air Service, Inc. Buemi purchased over 21 percent of the advances for $18,000. Pursuant to the agreement, Buemi's advance was secured by security interests in Buckeye and he would receive interest at ten percent per annum. After six months, Van Dusen stopped making interest payments; therefore, Buemi filed suit to recover the remainder owed to him under the participation agreement. {¶ 34} The Cuyahoga County Court of Appeals discussed the "investment contract" tests developed in Silberberg and State v. George, holding that both were similar in that the factor given primary emphasis was the injured party's "reliance on the expectation of profits from the enterprise." Id. Finding that all that Buemi could expect was the return of his initial advance at ten percent interest, the court held that the participation agreement was not a security. Id. {¶ 35} The trial court apparently applied the foregoing test in the case under consideration and held that "by its terms the agreement provides for nothing more than a return of the initial principal with a fixed rate of interest. There is lacking any reliance on an expectation of profit and the agreement must therefore fail to qualify as a security." The court declined to accord any weight to Mayor Zuchowski's characterization of the transaction between appellant, the RAAA and the Port Authority as an "investment." {¶ 36} However, the trial court failed to recognize that, in 1990, the United States Supreme Court specifically addressed the question of when a note constitutes a security within the meaning of federal statutory law and Arkansas state law. Reves v. Ernst and Young (1990),494 U.S. 56. The facts in the Reves case were as follows. {¶ 37} For the purpose of raising money to support its business operations, a farmers cooperative sold uncollaterized and uninsured promissory notes to both cooperative members and non-members. The notes were marketed as an "investment program" and paid a higher variable interest rate than most local financial institutions. When the cooperative filed for bankruptcy, the holders of the notes filed suit against Ernst Young, the firm that audited the cooperative's financial statements, raising claims, among others, that the auditing firm violated both federal and state securities laws. Id. at 59-60. {¶ 38} In the latter part of its decision, the Reves court set forth a four part "economic realities" standard for determining whether a note is a security. See, generally, Branson and Okamoto, The Supreme Court's Literalism and the Definition of "Security" in the State Courts (1993), 50 Wn and Lee L. Rev. 1043, 1065. This standard, commonly called the "family resemblance test" was "uniformly" *Page 655 adopted by state courts considering this issue. Id. Thus, in our de novo review, we shall apply that test to the note in the instant case. {¶ 39} Initially, a note is presumed to be to be a security.Reves v. Ernst Young at 64-65; Bass v. Janney Montgomery Scott (C.A. 6, 2000), 210 F.3d 577, 584; Godair v. Place Vendome Corp. ofAmerica (La.App. 1994), 648 So.2d 440, 444. However, this presumption can be rebutted if the note bears a strong resemblance to enumerated categories of instruments including: (1) a note secured by a home mortgage; (2) a note delivered in consumer financing; (3) a short term note held as a lien on a small business or some of its assets; (4) a note evidencing a character loan to a bank customer; (5) a short term note secured by an assignment of accounts receivable; (6) a note evidencing a loan by a commercial bank; and (7) a note formalizing an open account debt in the ordinary course of business. Reves v. Ernst Young at 65 (citations omitted). This flexible test also permits the addition of new instruments to the list. Id. at 64. {¶ 40} In applying the "family resemblance" test, we must examine four factors in connection with the transaction in this cause to determine whether the agreement between the parties is a security. First, we must ascertain the motivations that would lead a seller or a buyer to enter into it. If the seller's motive is to raise money for the general use of a business enterprise and the buyer is interested solely in the expected profits generated by the note, it is more likely to be a security. Id. at 66. On the other hand, if the note was exchanged to facilitate the purchase of a minor asset or consumer good, to correct the borrower's cash flow difficulties or to advance some other commercial or consumer purpose, the note is "less sensibly described as a security." Id. {¶ 41} Second, we must look at the plan of distribution. If the transaction involves "common trading for speculation or investment," the instrument is more likely to be found a security. Id. {¶ 42} Third, we explore the reasonable expectations of the investing public. Even when an economic analysis of the circumstances of a particular transaction suggests that a note is not a security, a court will consider it to be such based upon public expectations. Id. at 66-67. Fourth, we determine whether some other factor, such as the existence of another regulatory scheme, significantly reduces the risk associated with the note, thus rendering the application of the securities statute unnecessary. Id. at 67. {¶ 43} Pursuant to R.C. 1707.01(B) and Reves, the promissory note in the instant case is presumed to be a security. Therefore, this writing does not in and *Page 656 of itself present an insuperable bar to relief. We therefore turn to the four factors of the family resemblance test. {¶ 44} Taking the allegations in the complaint as true, as well as examining the agreement between the parties, the RAAA and its agent or agents offered the note for the purpose of obtaining capital for general costs of constructing the project as well as related expenses. Thus, it closely resembles a commercial loan transaction, that is, an effort to raise funds to launch a new enterprise. See Bass v. Janney MontgomeryScott, 210 F.3d at 585. Nevertheless, appellant purchased the note to earn interest, a financial benefit which the United States Supreme Court expressly deemed to be a "profit" for the purpose of family resemblance analysis. Id. at 67-68 n. 4. Thus, our consideration of the motivation factor leads to an equally balanced situation in which we cannot definitively state that the note in this case is either likely to be a security or not likely to be a security. {¶ 45} As to the plans for distribution, there is no indication, either in the agreement or allegations in the complaint that the agreement/note is subject to "common trading for speculation or investment." Rather, it is a unique, one-on-one agreement between three entities. Therefore, our contemplation of the second factor militates against this particular agreement being a security under R.C. Chapter 1707. {¶ 46} However, as to the third factor, the focus is whether an objective investing public could reasonably expect the instrument to be protected by securities law. Manns v. Skolnik (Ind.App. 1996), 666 N.E.2d 1236, 1245. The allegations in appellant's amended complaint indicate that during the bargaining process, the $5 million that is the subject of the note was characterized as an "investment" by the RAAA and its agents. As such, one could conclude that the public might have reasonable expectation that this note is a security protected by securities law. Finally, this is an uncollaterized, uninsured note with no factor, in particular, a regulatory scheme, such as banking regulations, to reduce the risk of the transaction. Appellant's ability to file suit against the RAAA cannot be considered such a scheme. SeeManns v. Skolnik, 666 N.E.2d at 1246. {¶ 47} Accordingly, and based upon the foregoing application of the Reves four factor test, we cannot say that the allegations in appellant's complaint show the court to a certainty that the plaintiff can prove no set of facts upon which it might recover under Ohio securities law against the RAAA, or where the writing presents an insuperable bar to such relief. This conclusion does not mean that at some point during the proceedings in the trial court and predicated upon a developed record, this question cannot be raised again. It simply means that the trial court erred in dismissing Counts 1-6 in Action 2 for failing to state a claim *Page 657 upon which relief could be granted. Accordingly, appellant's Assignment of Error No. II in that suit and as it relates to the RAAA only is found well-taken. {¶ 48} Assignments of Error Nos. III in Actions 1 and 2 challenge the trial court's Civ.R. 12(B)(6) dismissal of appellant's negligent misrepresentation claims. The trial court found that these claims were barred by the "economic loss rule." We disagree. {¶ 49} In Floor Craft Floor Covering, Inc. v. Parma CommunityGeneral Hosp. Ass'n. (1990), 54 Ohio St.3d 1, the Ohio Supreme Court decreed that "in the absence of privity of contract between two disputing parties the general rule is `there is no * * * duty to exercise reasonable care to avoid intangible economic loss or losses to others that do not arise from tangible physical harm to persons and tangible things.'" Id. at 3, quoting Prosser Keeton, Law of Torts (5 Ed. 1984) 657, Section 92. Thus, the Ohio Supreme Court precluded recovery by a contractor against an architectural firm or design professional for negligent misrepresentation because no privity of contract and no nexus between the parties existed that could substitute for contractual privity. Id. at 8. {¶ 50} In viewing the facts alleged in the two complaints in the case before us as true, we conclude there was either privity of contract or a sufficient nexus between Mark Zuchowski, the RAAA and the city of Rossford to distinguish this cause from Floor Craft Floor Covering. The RAAA is a party to the contract between the parties and is, therefore, in privity with appellant. Mark Zuchowski, who is the President of the RAAA and the Mayor of the city of Rossford, directly interacted with appellant by participating extensively in the negotiations for the contract as well as signing the contract as the agent of the RAAA. Pursuant to the agreement, the RAAA is not only a nonprofit corporation but also a public agency of the city of Rossford. Further, the arena and amphitheater were to be constructed in the city of Rossford. Therefore, a sufficient nexus to serve as a substitute for privity was alleged against Zuchowski and the city of Rossford. See Foster Wheeler Enviresponse, Inc. v. FranklinCty Convention Facilities Auth. (1993), 88 Ohio App.3d 73; Brocker v.Glitsch Field Serv./NDE, Inc. (June 30, 1999), Mahoning App. Nos. 97-CA-86, 97-CA-216. Therefore, appellant's Assignments of Errors Nos. III in Actions 1 and 2 are found well-taken. {¶ 51} Appellant, in its Assignments of Error Nos. IV in both Actions 1 and 2, contends that the trial court erred in dismissing its claims for unjust enrichment, also known as quantum meruit, for the value of the benefit conferred. National City Bank v. Fleming (1981),2 Ohio App.3d 50, 57. The trial court found that the claims were barred by the written agreement *Page 658 between appellant, the RAAA and the Port Authority. Additionally, in Action 1, the court further held that the city of Rossford was not a party to the agreement and that none of the funds provided by appellant went directly to the city of Rossford. {¶ 52} Civ.R. 8(E)(2) allows a party to set forth two or more statements of a claim alternatively or hypothetically. Under this rule, a party "may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or equitable grounds. * * *." As a result, even the use of inconsistent claims, is permitted. Iacono v. Anderson Concrete Corp. (1975), 42 Ohio St.2d 88,92. We therefore conclude that simply because the complaint against the RAAA states claims sounding both in contract and unjust enrichment, it does not negate the validity of either claim and does not warrant the dismissal of the unjust enrichment claim against this entity on a Civ.R. 12(B)(6) motion. Cf. Sammarco v. Anthem Ins. Cos. (1998),131 Ohio App.3d 544, 557 (alternative claim for unjust enrichment based upon insurer's termination of health care provider contracts dismissed for failure to state a claim upon which relief can be granted). Therefore, appellant's Assignment of Error No. IV in Action 2 is found well-taken. {¶ 53} However, as to the city of Rossford, a "long-standing principle of Ohio law" is that "all governmental liability ex contractu must be express and must be entered into in the prescribed manner." KraftConstruction Co. v. Cuyahoga County Bd. of Commr. (1998),128 Ohio App.3d 33, 44 (Citation omitted.). Therefore, recovery cannot be had against a municipality either upon a theory of implied contract or quantum meruit. Id. See, also, G. R. Osterland Co. v. Cleveland (2000),144 Ohio App.3d 574, 577 (The doctrine of unjust enrichment does not apply to a municipal corporation). Consequently, appellant's Assignment of Error No. IV in Action 1 is found not well-taken. {¶ 54} Assignment of Error No. V in Action 1 asserts that the trial court erred in dismissing its breach of contract action against the city of Rossford for failure to state a claim upon which relief could be granted. In Count 9 of its complaint, appellant alleges that the city of Rossford, through its "authorized agents" entered into the agreement with appellant for $5 million at eight percent interest. Appellant insists that because the allegations in the complaint must be taken as true for the purpose of the city's Civ.R. 12(B)(6) motion, the agents, RAAA and Zuchowski, created the contractual obligation for their principal, the city. We disagree. {¶ 55} First, the allegation is not a factual allegation. It is a legal conclusion. Second, and assuming that the RAAA and/or Zuchowski is an agent of the city of Rossford, the trial court correctly found that when a third party *Page 659 enters into an contract with an agent alone, that party cannot maintain an action on a contract against the principal. See Depositors Savings andLoan Co. v. Gross (1928), 6 Ohio Law Abs. 606 ; Brown v. North AmericanEnergy Programs, Inc. (Nov. 17, 1983), Cuyahoga App. No. 46749. "Even if the principal's agent is disclosed, if the agent does not enter into the contract as an agent, but as the sole contracting party, the principal is not bound." Brown v. North American Energy Programs, Inc., supra. Here, the RAAA was the sole contracting party with Mark Zuchowski named only as its agent. Accordingly, appellant's Assignment of Error V. in Action 1 is found not well-taken. {¶ 56} In its final Assignments of Error Nos. V (Action 2) and VI (Action 1), appellant contends that the trial court erred in dismissing its violations of Ohio securities law counts and negligent misrepresentation claim against ten John Doe defendants without providing appellant with a meaningful opportunity to ascertain the identities of these defendants. {¶ 57} Civ.R. 3(A) states that a civil action is commenced if service is obtained upon, among others, "a defendant identified by a fictitious name whose name is later corrected pursuant to Civ.R. 15(D)." Civ.R. 15(D) provides the means by which a plaintiff can amend his or her complaint once the true name of the defendant is discovered. Hobbs v.Lopez (1994), 96 Ohio App.3d 670, 675. "Implicit in that rule is that a party will have adequate opportunity, through discovery or otherwise, to learn the true identity." Id. {¶ 58} The original complaints in Action 1 and Action 2 were both filed on June 28, 2001 and the first amended complaints were filed on September 27, 2001. The RAAA, Mayor Zuchowski and the city of Rossford did not file answers to the complaints or amended complaints. Rather, appellees filed their Civ.R. 12(B)(6) motions. Appellant proceeded, to little avail, with attempts at discovery, but their complaints were dismissed, in toto, on February 14, 2002. We must therefore conclude, as did the Hobbs court, that trial court erred in dismissing the claims against the ten John Does before the requisite year for service passed. Id. at 675-676. Accordingly, appellant's Assignments of Error No. VI in Action 1 and Assignment of Error No. V in Action 2 are found well-taken.1 {¶ 59} In summary, the trial court erred in dismissing Counts 1-6 (violations of securities law claims) against the RAAA only in Action 2. It also erred in dismissing Count 7 (negligent misrepresentation claims) of the first amended complaints in both Actions 1 and 2. The court further erred in dismissing Count 8 (unjust enrichment claim) in Action 2. Lastly, the common pleas court erred in *Page 660 dismissing Counts 1-6 and Count 7 with regard to the ten John Doe defendants in each case. The trial court did not err in dismissing Counts 1-6 (violations of securities law claims), Count 8 (unjust enrichment) and Count 9 (contract) leveled at the city of Rossford in Action 1. Finally, the trial court did not err in dismissing Counts 1-6 (violations of securities law claims) filed against Mayor Mark Zuchowski.Therefore, the judgments of the Wood County Court of Common Pleas are affirmed, in part, and reversed, in part, and this cause is remanded to that court for further proceedings consistent with this judgment. The RAAA, the city of Rossford, Mark Zuchowski and Perrysburg Township are ordered to pay, in equal shares, the costs of this appeal. {¶ 60} A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. Judgment affirmed in part, reversed in part and cause remanded. JAMES R. SHERCK, and RICHARD W. KNEPPER, JJ., concur. 1 Nevertheless, we decline to adopt appellant's proposal to order the trial court to toll the provisions of Civ.R. 3(A) and Civ.R. 15(D) for one year from the date of this judgment.

2016-07-06 06:36:01.29175+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: _______________________ WHITMORE, Judge. Defendant Leonard Newbern has appealed from an order of the Lorain County Court of Common Pleas that designated him a sexual predator. This Court affirms. I. On August 9, 1994, defendant was indicted by the Lorain County Grand Jury on one count of attempted rape, a violation of Sections 2923.02(A) and 2907.02(A) (1) (b) of the Ohio Revised Code, and two counts of gross sexual imposition, violations of Section 2907.05(A) (4) of the Ohio Revised Code. On September 19, 1994, defendant pled guilty to all three counts as contained in the indictment. The trial court sentenced defendant to a term of five to fifteen years for the offense of attempted rape and to a term of two years for each offense of gross sexual imposition. All sentences were to be served concurrently. On September 4, 1997, the trial court conducted a hearing pursuant to Section 2950.09(C) of the Ohio Revised Code. The trial court found that defendant should be classified as a sexual predator, pursuant to Section 2950.09(C). Defendant has timely appealed and asserted four assignments of error. II. A. The trial court's adjudication of [defendant] as a sexual predator violates [his] rights to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article One Sections Ten and Sixteen of the Ohio Constitution. In his first assignment of error, defendant has made a very broad conclusory assertion that his rights to procedural due process were violated. He has asserted that the application of the registration and notification requirements of Section 2950.09 of the Ohio Revised Code has imposed a sanction on him, "under the guise of public safety", in violation of his right to due process. As far as this Court can tell, he seems to be alleging that Section 2950.09 violates the Double Jeopardy Clauses of either the United States Constitution or the Ohio Constitution. This Court has previously held that Section 2950.09 does not constitute punishment. State v. Nuckols (Aug. 26, 1998), Wayne App. No. 97CA0076, unreported, at 17. Section2950.09, therefore, does not violate the Double Jeopardy Clauses of either the United States Constitution or the Ohio Constitution. State v. Lowe (Mar. 31, 1999), Summit App. No. 18793, unreported, at 3. Additionally, defendant seems to be alleging that the registration and notification provisions of Section 2950.09 of the Ohio Revised Code violate his right to privacy because "any individual may investigate the criminal history of an individual residing in the community[.]" This Court has previously held that those requirements do not violate a defendant's privacy rights. State v. Gropp (Apr. 8, 1998), Lorain App. No. 97CA006744, unreported, at 15-16. Finally, the record reflects that the trial court conducted a hearing, defendant was present and represented by counsel, and he was given the opportunity to present evidence on his behalf. Defendant's right to procedural due process, therefore, was not violated. Accordingly, defendant's first assignment of error is overruled. B. The trial court's adjudication of [defendant] as a sexual predator violates [his] right to a trial by jury guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article One Section Ten of the Ohio Constitution. In his second assignment of error, defendant has argued that he was entitled to have a jury determine the issue of whether he should have been designated a sexual predator. This Court has previously held that an accused person's constitutional right to a jury trial, under the United States Constitution and the Ohio Constitution, has no application to his or her sexual predator designation. State v. Kimble (Feb. 4, 1998), Lorain App. No. 97CA006730, unreported, at 13. Defendant, therefore, was not entitled to have a jury determine whether he should have been designated a sexual predator. Accordingly, defendant's second assignment of error is overruled. C. The trial [court] erred by adjudicating [defendant] a sexual predator without comporting with Rule 11 of the Ohio Rules of Criminal Procedure. In his third assignment of error, defendant has argued that, at the time he entered his guilty plea, he was not aware of the impending changes to Chapter 2950 of the Ohio Revised Code, therefore, his guilty plea was not knowingly, voluntarily, and intelligently made because the registration and notification provisions constitute additional punishment. This Court has previously held that, "because they are collateral consequences and not punishment, Crim.R. 11 does not require a trial court to inform a defendant of the registration and notification requirements accompanying a designation as a sexual predator."State v. DeAngelo (Mar. 10, 1999), Lorain App. No. 97CA006902, unreported, at 3. Accordingly, defendant's third assignment of error is overruled. D. The trial court's adjudication of [defendant] as a sexual predator violates Article One Section Ten of the United States Constitution and Article Two Section Twenty-Eight of the Ohio Constitution which prohibits the enactment of Ex Post Facto Laws. In his fourth assignment of error, defendant has argued that the trial court's adjudication of him as a sexual predator constitutes additional punishment. Defendant, therefore, has argued that the statute violates the Ohio and the United States constitutional provisions against the passage of retroactive and ex post facto laws. This Court has previously held that Section2950.09(C) does not violate the Retroactivity Clause of Section28, Article II of the Ohio Constitution or the Ex PostFacto Clause of Section 10, Article I of the United States Constitution. State v. DeAngelo (Mar. 10, 1999), Lorain App. No. 97CA006902, unreported, at 2. Accordingly, defendant's fourth assignment of error is overruled. III. Defendant's assignments of error are overruled. The judgment of the trial court is affirmed. Judgment Affirmed. KK The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the County of Lorain, Court of Common Pleas, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to appellant. Exceptions. ___________________________ BETH WHITMORE FOR THE COURT BAIRD, P. J. SLABY, J. CONCUR

2016-07-06 06:36:01.512616+00

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] JUDGMENT ENTRY. This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1). Defendant-appellee Christina Royal pleaded guilty to two separate charges of obtaining dangerous drugs by deception.1 Royal had been employed in a dentist's office. On two different occasions within the same month, she phoned separate local pharmacies and, using the name of her employer, ordered a prescription for Vicodin. In both instances, Royal picked up the tablets for her own use. Consequently, she was sentenced for two fifth-degree felonies.2 Prior to sentencing, Royal's sponsor with Narcotics Anonymous asked to be heard by the trial court in mitigation. Apparently unmoved by what Royal's sponsor had to say, the court sentenced Royal to the statutory maximum of one year of incarceration for each offense and ordered that the sentences run consecutively, rather than concurrently. The court supported its sentence by citing that Royal had been in a position of trust. The court also identified Royal as an "expert con," alluding to the fact that she had been previously convicted at least once for employing an identical scam. Further, the court stated that Royal had been on probation for just two months when the present offenses had been committed, and that there had been numerous unsuccessful efforts to rehabilitate her. Royal now raises three assignments of error, all related to her sentence. First, she asserts that the trial court erred in imposing a maximum sentence for each offense. Second, Royal argues that even if the maximum sentence was properly imposed for one of the offenses, the court should not have imposed the maximum sentence of incarceration for the other. Finally, Royal claims that the two prison terms should not have been order to run consecutively. Quite plainly, the record does not support the court's findings concerning Royal's rather significant history. Because that history appears to have been a substantial part of the justification for the sentence that was imposed, we reverse Royal's sentence and remand the case for statutory findings consistent with the record, and for resentencing. First, a court that seeks to impose a prison sentence on an offender who has not previously been incarcerated must impose the shortest authorized term unless it makes specific findings. Based on the record before it, the court must find that the shortest prison term would demean the seriousness of the offender's conduct or would not adequately protect the public.3 The shortest term of incarceration for a felony of the fifth degree is six months.4 In this case, a sentence greater than the minimum term might have been justified if the record had demonstrated what the trial court had alleged regarding Royal's significant history of abuse, convictions, and failed rehabilitation. But there is nothing in the record to substantiate the trial court's findings. Moreover, the court apparently relied upon its independent recollection of Royal's past transgressions in finding that a prison sentence was even appropriate at all,5 but the record must support the sentence. Second, to impose the maximum prison term in this case, the trial court would have been required to find that either Royal had committed the worst form of the offense, or that she posed the greatest likelihood of committing future crimes.6 While the court characterized Royal's deception to obtain drugs as the worst form of the offense, it is difficult to see how Royal's deception was significantly worse than any other deception employed in the same crime. But especially since the court relied on factors not in the record to decide that a prison sentence, as opposed to community control, was appropriate, the record does not justify the imposition of the maximum sentence. Also, the trial court again relied on its own knowledge of Royal's past to decide that Royal posed the greatest likelihood of committing future crimes. If that recollection was true, the court's determination might be correct, but the record does not substantiate that as a basis for the court's decision. Finally, a trial court must make separate findings in order to impose consecutive prison terms for multiple offenses.7 As it had already done, the court again relied on what it believed it knew about Royal, not on the record. We cannot affirm a sentencing decision that is not reflected by the record. To summarize, we would not necessarily be persuaded that the trial court erred if the facts that the court relied upon in making its sentencing decision were true and verifiable upon review. But absent a record that substantiates what the court considered in making its decision, we must reverse the sentence. Therefore, we reverse the sentence imposed by the trial court, and remand the case for resentencing. Further, a certified copy of this Judgment Entry shall constitute the mandate to be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Doan, P.J., Painter and Shannon, JJ. Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment. 1 See R.C. 2925.22(A). 2 See R.C. 2925.22(B)(2). 3 See R.C. 2929.14(B). 4 See R.C. 2929.14(A)(5). 5 See R.C. 2929.12(D) and (E). 6 See R.C. 2929.14(C). 7 See R.C. 2929.14(E)(4).

2016-07-06 06:36:00.030309+00

OPINION {¶ 1} In this accelerated calendar case, appellant, David A. Benson, appeals from the judgment entered by the Ravenna Division of the Portage County Municipal Court. Benson was convicted of driving under the influence. {¶ 2} On January 21, 2001, Officer Smallfield of the Ravenna City Police Department observed a pickup truck turn on to Prospect Street in Ravenna, Ohio. He proceeded to follow the vehicle. He testified that the driver of the vehicle did not use his turn signal while turning right onto Riddle Street and that the vehicle touched the centerline while making the turn. He further testified that the driver failed to signal while turning left on to Chestnut Street. Officer Smallfield then stopped the vehicle. {¶ 3} Officer Smallfield noticed a strong odor of alcohol in the vehicle. There were other people in the truck, who admitted drinking. Officer Smallfield testified that Benson was driving the truck, his eyes were bloodshot, and his speech was slurred. Officer Smallfield had Benson step out of the vehicle. He administered field sobriety tests on Benson including: the horizontal gaze nystagmus test, the walk and turn test, and the one-leg stand test. Benson failed all of these tests and was arrested. {¶ 4} Benson filed a motion to suppress the results of the field sobriety tests and the videotape from the police car. The court denied this motion. Benson filed a motion in limine to exclude the field sobriety tests because they were not conducted on a level surface. The trial court also denied this motion. The case then proceeded to a jury trial, where Benson was found guilty of driving under the influence. {¶ 5} Benson raises four assignments of error. His first assignment of error is: {¶ 6} "The trial court erred, to the prejudice of defendant, by allowing the testimony of the police officer on the one leg stand and the walk and turn test performed by defendant." {¶ 7} The admission of evidence is within the sound discretion of the trial court.1 The decision of the trial court regarding the admission of evidence will not be overturned absent a showing of an abuse of that discretion.2 The term "abuse of discretion" implies that the court's decision was arbitrary, unreasonable, or unconscionable.3 {¶ 8} Benson argues that the field sobriety tests were not conducted in accordance with the National Highway Traffic Safety Administration ("NHTSA") standards. The Supreme Court of Ohio has held that a field sobriety test must be administered in strict compliance with the standardized testing procedures to serve as evidence of probable cause to arrest.4 Benson asserts that this strict compliance standard should also be applied to the admission of evidence at trial. {¶ 9} Although the admission of evidence was not at issue inHoman, Justice Rocco wrote in a concurring opinion that the standard should be extended to the admission of evidence at trial.5 The Second Appellate District has followed this concurring opinion, stating "[a]lthough a case of first impression, we feel confident that the supreme court would find field sobriety test results are not admissible at trial if they are not conducted by the officers in strict compliance with standardized testing procedures."6 We agree. Benson initially asserts that Officer Smallfield's testimony regarding the one-leg stand and the walk and turn tests was not admissible because the tests were not conducted on a level surface. The NHTSA manual calls for the tests to be conducted on a "reasonably dry, hard, level, nonslippery surface." (Emphasis added.) We note that while the Supreme Court of Ohio has mandated strict compliance with standardized testing procedures, the procedures themselves allow for some latitude by using the word "reasonably." These tests are known as field sobriety tests, and they are administered soon after a traffic stop on the side of a roadway. Thus, the conditions will seldom be perfect. {¶ 10} Officer Smallfield testified that the road surface on which Benson performed these tests was paved and had a "slight grade." The trial court did not abuse its discretion by admitting this evidence, because, as Officer Smallfield's testimony indicated, the tests were conducted on a reasonably level surface. {¶ 11} Benson's second argument is that Officer Smallfield did not properly record the results of the one-leg stand and the walk and turn tests. Officer Smallfield did not use the sample form contained in the NHTSA manual. However, he used a similar form that contained the same clues. The NHTSA manual recommends recording the number of times a suspect performs the test incorrectly, while the form Officer Smallfield used merely allowed for the clues to be checked when a suspect does not perform the test correctly. The better practice would be to be as detailed as possible when recording the results of these tests. However, the slight variances in method of recording the results of the tests is not sufficient to make the tests inadmissible. Moreover, the tests themselves were administered in strict compliance with the testing procedures. {¶ 12} Benson's first assignment of error is without merit. {¶ 13} Benson's second assignment of error is: {¶ 14} "The trial court erred, to the prejudice of defendant, by refusing to exclude the videotape recording." {¶ 15} Officer Smallfield testified that a videotape is activated when an officer activates his overhead lights. This videotape of Benson performing the field sobriety tests was admitted into evidence. Benson claims that the poor quality of the videotape, the lack of audio on the videotape, and the fact that the videotape showed an incorrect date all prevent its admission. {¶ 16} The quality of the videotape goes to the weight to be given to the evidence, not to its admissibility. Officer Smallfield properly identified the videotape pursuant to Evid.R. 901(A). He testified that the video was recorded on the night of Benson's arrest, and that the video portrayed the events of the stop. Further, Officer Smallfield explained the discrepancy in the date of the videotape, which was due to the fact that he was not driving his regular patrol car on that night. {¶ 17} The trial court did not abuse its discretion by admitting the videotape. Benson's second assignment of error is without merit. {¶ 18} Benson's third assignment of error is: {¶ 19} "The trial court erred, to the prejudice of defendant, by not allowing defense counsel to ask leading questions of the police officer and on (sic) his knowledge of nystagmus." {¶ 20} At trial, Officer Smallfield testified on behalf of the state. He was then extensively cross-examined by defense counsel. The state rested its case after calling Officer Smallfield as its only witness. The defense then called Officer Smallfield. {¶ 21} The decision to allow leading questions on direct examination is within the sound discretion of the trial court.7 Evid.R. 611(C), addresses leading questions, and states: {¶ 22} "Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness associated with an adverse party, interrogation may be by leading questions." {¶ 23} In this case, the state of Ohio is the adverse party against Benson. As the arresting officer, Officer Smallfield was arguablythe adverse party in this action, as his arrest initiated the case against Benson. Even if Officer Smallfield is not the adverse party in this action, he is clearly identified with the adverse party. {¶ 24} This court has previously addressed a similar issue inState v. Liston.8 In Liston, this court cited the syllabus of the Sixth District Court of Appeals in State v. Warren, for the proposition that a party must show that the witness is hostile or identified with the adverse party to permit leading questions on direct examination.9 We continue to follow this general proposition. However, we hold that when a witness is the adverse party, or it is readily apparent that the witness is identified with the adverse party, this showing is not required. This is especially true in a case like the one before us, where the witness is the arresting officer in a criminal case and has already testified in favor of the adverse party, the state of Ohio. This holding is consistent with the holding in State v. Snyder, where the Twelfth Appellate District stated, "[w]hile the trial court did not declare Trooper Zak a hostile witness, he was clearly identified with the adverse party, the state. Therefore, the trial court erred in sustaining the state's objections to appellant's use of leading questions."10 {¶ 25} The trial court abused its discretion by not allowing Benson's trial counsel to ask leading questions of Officer Smallfield, as Officer Smallfield was clearly identified with the adverse party. However, we consider this error to be harmless. This is because Benson's trial counsel continued to ask Officer Smallfield leading questions after the trial court instructed him not to do so. This same scenario also occurred in Liston, where Benson's trial counsel was also the defense counsel.11 {¶ 26} Benson's trial counsel was attempting to question Officer Smallfield on certain causes for nystagmus. Counsel was attempting to impeach Officer Smallfield by reading an article on nystagmus. Evid. R. 706 provides for impeachment in this manner and states, in relevant part: {¶ 27} "Statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art are admissible for impeachment if the publication is either of the following: {¶ 28} "(A) Relied upon by an expert witness in reaching an opinion; {¶ 29} "(B) Established as reliable authority (1) by the testimony or admission of the witness, (2) by other expert testimony, or (3) by judicial notice." {¶ 30} Officer Smallfield did not rely on the article. He indicated that he had not read any independent literature on the horizontal gaze nystagmus test. In addition, the article was not established as a reliable authority by any witness, and the court did not take judicial notice of its reliability. {¶ 31} Since the article was not properly established as a reliable authority, it was not permitted to be used for impeachment purposes under Evid.R. 706. Thus, the trial court did not err by refusing to allow Benson's trial counsel to use the article for impeachment. {¶ 32} Benson's third assignment of error is without merit. {¶ 33} Benson's fourth assignment of error is: {¶ 34} "The trial court erred, to the prejudice of defendant, by overruling defendant's motion to suppress." {¶ 35} Benson alleges that the trial court erred in its ruling on his motion to suppress. However, Benson has failed to file a transcript of the suppression hearing in accordance with App.R. 9(B). When an appellant fails to provide a complete and proper transcript, a reviewing court will presume the regularity of the proceedings in the trial court.12 Since there is no transcript of the suppression hearing, we are unable to adequately review whether the trial court properly denied the motion to suppress. However, there was detailed testimony regarding Officer Smallfield's stop of Benson presented during the trial. Thus, we will address the merits of Benson's fourth assignment of error based on the evidence presented at the trial. {¶ 36} Benson claims that Officer Smallfield did not have reasonable suspicion to justify the stop. We disagree. An officer may stop a vehicle based on probable cause that a traffic violation has occurred or is occurring, and such a stop does not violate theFourth Amendment of the United States Constitution.13 This court has specifically applied Dayton v. Erickson to a situation where an individual failed to use a turn signal and held that the officer's stop was constitutional.14 {¶ 37} At trial, Officer Smallfield testified that Benson failed to use his turn signal while making two different turns. These traffic violations, standing alone, were sufficient to justify Officer Smallfield's stop of Benson. The trial court did not err by denying Benson's motion to suppress. {¶ 38} Benson's fourth assignment of error is without merit. {¶ 39} The judgment of the trial court is affirmed. DONALD R. FORD, J., ROBERT A. NADER, J., concur. 1 State v. Kinley, 72 Ohio St.3d 491, 497, 1995-Ohio-279. 2 Peters v. Ohio State Lottery Comm. (1992), 63 Ohio St.3d 296,299. 3 State v. Adams (1980), 62 Ohio St.2d 151, 157-158. 4 State v. Homan, 89 Ohio St.3d 421, paragraph one of the syllabus, 2000-Ohio-212. 5 Id. at 429, (Rocco, J. concurring). 6 State v. Brandenburg, 2d Dist. No. 18836, 2002-Ohio-912, at ¶ 17. 7 (Citations omitted.) Ramage v. Central Ohio Emergency Serv., Inc.,64 Ohio St.3d 97, 111, 1992-Ohio-109. 8 State v. Liston (Sept. 24, 1999), 11th Dist. No. 98-P-0039, 1999 WL 778377. 9 Id. at *5, citing State v. Warren (1990), 67 Ohio App.3d 789, syllabus. 10 State v. Snyder (Jan. 9, 1989), 12th Dist. No. CA88-04-054, 1989 Ohio App. LEXIS 33, at *16. 11 State v. Liston, 1999 WL 778377, at *5. 12 (Citation omitted.) State v. Plough (June 8, 2001), 11th Dist. No. 99-P-0029, 2001 Ohio App. LEXIS 2571, at *8-9. 13 Dayton v. Erickson, 76 Ohio St.3d 3, syllabus, 1996-Ohio-431. 14 Mentor v. Johnson (Nov. 9, 2001), 11th Dist. No. 2001-L-002, 2001 Ohio App. LEXIS 5055, at *3-5.

2016-07-06 06:36:00.08957+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: On August 17, 2000, the Summit County Court of Common Pleas sentenced appellant, Debra M. Roberts ("Roberts"), to a maximum sentence of five years in prison for robbery in violation of R.C. 2911.02(A)(1).1 Roberts appeals her sentence. We reverse and remand for resentencing. I. On May 19, 2000, Roberts was indicted on two counts of aggravated robbery in violation of R.C. 2911.01(A)(1). On June 20, 2000, the state amended count one of the indictment to the lesser-included offense of robbery. Roberts pleaded guilty to one count of robbery. The trial court dismissed the second count of aggravated robbery and merged the two counts. The trial court found that Roberts was guilty of robbery and sentenced her to five years in prison. Roberts filed a timely appeal with this court. II. Assignment of Error: THE TRIAL COURT ERRED AND ABUSED [ITS] DISCRETION BY FAILING TO SATISFY THE STATUTORY REQUIREMENTS FOR IMPOSITION OF A MAXIMUM PRISON SENTENCE. In her sole assignment of error, Roberts argues that the trial court failed to satisfy the statutory requirements before imposing the maximum sentence. We agree. When reviewing an appeal of a sentence, an appellate court may modify a sentence or remand the matter to the trial court for resentencing if the court finds that the trial court clearly and convincingly acted contrary to law or the record. R.C. 2953.08(G)(1). Clear and convincing evidence is that "which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established."Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St.3d 121, 122, quoting Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. R.C. 2929.14 is concerned with the imposition of sentences in felony proceedings. Under R.C. 2929.14(C), a trial court may impose a maximum prison term on a defendant who has met one of four criteria: 1) the defendant committed the worst form of the offense; 2) the defendant poses the greatest likelihood of committing future crimes; 3) the defendant is a major drug offender of the type set forth in R.C. 2929.14(D)(3) or 4) the defendant is a repeat violent offender of the type set forth in R.C.2929.14(D)(2). R.C. 2929.19(B)(2)(d) also mandates that if the trial court imposes a maximum prison term allowed for an offense under R.C.2929.14(A), the court must give its reasons for that decision. This court has held that the trial court's findings need not be in the sentencing transcript if the findings are contained in the journal entry. State v. Riggs (Oct. 11, 2000), Summit App. No. 19846, unreported, at 4; see, also, State v. Edmonson (1999), 86 Ohio St.3d 324. In the present case, the trial court's findings regarding the imposition of a maximum sentence were neither in the sentencing transcript nor in the journal entry. At the sentencing hearing, the trial court made the following findings: I will note for the record that factors I am required to consider for purposes of sentencing. The Court will note that the offender committed the offense while under a Community Control sanction while she was on probation to this court and * * * released on probation. I will note the victims of this offense suffered physical, psychological and economic harm as a result of this offense. * * * I note the defendant has not responded favorably to sanctions in this case previously imposed for prior criminal convictions. She was on probation at the time this occurred * * *. The trial court also stated that the robbery was "a terrible incident for these victims." The journal entry dated August 17, 2000, merely stated the factors that the trial court had reviewed at the sentencing hearing. The journal entry did not state that the trial court had found any of four criteria under R.C. 2929.14(C), which would allow the imposition of a maximum prison term. We find that the trial court failed to make the requisite findings in either the sentencing transcript or in the journal entry. Riggs, Summit App. No. 19846, unreported, at 4; see, also, Edmonson, 86 Ohio St.3d 324. Accordingly, the sentence is reversed and the cause remanded to the trial court for resentencing consistent with R.C. 2929.14. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellee. Exceptions. ___________________________ WILLIAM R. BAIRD BATCHELDER, P.J., CARR, J., CONCUR. 1 We note that the August 17, 2000 journal entry contains an error regarding the proper section of R.C. 2911.02. The trial court sentenced Roberts to five years for "the crime of ROBBERY, Ohio Revised Code Section 2911.02(A)(1), a felony in the third degree." We note that robbery is a third degree felony under R.C. 2911.02(A)(3) and a second-degree felony under R.C. 2911.02(A)(1). The record reflects that on June 26, 2000, the trial court amended count one of the indictment to robbery, a third degree felony.

2016-07-06 06:36:00.114144+00

JOURNAL ENTRY AND OPINION {¶ 1} Defendant-appellant, Martin Mondry ("Mondry"), appeals his sentence in three consolidated cases. Finding no merit to this appeal, we affirm. {¶ 2} On February 22, 2002, Mondry pled guilty to the illegal manufacture of drugs, a second degree felony. In the other two cases, he pled guilty to one count of drug possession in each case, fifth degree felonies. {¶ 3} Prior to sentencing, Mondry informed the court that he had been indicted in Franklin County on other charges. As part of a plea agreement with the Franklin County prosecutor, Mondry's counsel specifically requested a five-year sentence. He indicated that the Franklin County prosecutor agreed to a concurrent sentence, on the condition that Mondry receive a minimum sentence of five years from the Cuyahoga County court. {¶ 4} The court sentenced Mondry to a five-year term of imprisonment for the illegal manufacture of drugs and six months on each drug possession charge, and ordered all three sentences to be served concurrently. {¶ 5} Mondry appeals, raising one assignment of error. {¶ 6} In his sole assignment of error, Mondry argues that because he had not previously served a prison term, the trial court erred in sentencing him to more than the minimum sentence without engaging in the analysis required by R.C. 2929.14(B). {¶ 7} Pursuant to R.C. 2929.14(B), a trial court must impose the minimum sentence for a felony offender who has not previously served a prison term unless the court specifies on the record that a minimum sentence would "demean the seriousness of the offender's conduct" or "not adequately protect the public from future crime by the offender or others." State v. Edmonson (1999), 86 Ohio St.3d 324, 326. R.C. 2929.14(B) states: "If the court imposing a sentence upon an offender for a felony electsor is required to impose a prison term on the offender and if theoffender previously has not served a prison term, the court shall imposethe shortest prison term authorized for the offense * * * unless thecourt finds on the record that the shortest prison term will demean theseriousness of the offender's conduct or will not adequately protect thepublic from future crime by the offender or others." {¶ 8} Although the trial court is not required to explain its reasoning for giving more than the minimum sentence, it must be clear from the record that it first considered the minimum sentence and then decided to impose a longer sentence based on one of the two statutorily sanctioned reasons under R.C. 2929.14(B). Edmonson, supra, at 328. See, also, State v. Caesar, Cuyahoga App. No. 82136, 2003-Ohio-6168; State v.Smith, Cuyahoga App. No. 82423, 2003-Ohio-4072. {¶ 9} An offender convicted of a second degree felony may be sentenced to a prison term of two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2). An offender convicted of a fifth degree felony may be sentenced to a prison term of six, seven, eight, nine, ten, eleven, or twelve months. R.C. 2929.14(A)(5). {¶ 10} In the instant case, the trial court imposed more than the minimum sentence for the charge of illegal manufacturing of drugs. However, contrary to Mondry's assertion, the trial court found that the statutorily sanctioned reasons set forth in R.C. 2929.14(B) existed and, therefore, a longer sentence was warranted. In sentencing Mondry to more than the minimum sentence, the trial court stated: "Case 418621, illegal manufacturing of drugs, it sounds like you had ameth lab to the Court, that's the Court's understanding. That's not onlyhighly addictive, but if you make a mistake in manufacturing thesedrugs, people wind up dead. It poses a great danger to the public. It'snot only that you were using this, but you had a huge amount and you'reendangering the people around you. For these reasons, I make the finding, pursuant to 2929.14(B), sinceyou've not been in prison, that the shortest term would demean theseriousness of the offender's conduct and the shortest term would notadequately protect the public from future harm." (Emphasis added.) {¶ 11} Here, we find that the trial court fully complied with R.C.2929.14(B). The trial court first considered the minimum sentence but opted for a longer sentence only after finding that a minimum sentence would demean the seriousness of Mondry's conduct and would not adequately protect the public from future harm. In fact, the trial court also explained its reasoning for imposing more than the minimum sentence. {¶ 12} Because the trial court satisfied the requirements of R.C.2929.14(B) before imposing more than the minimum sentence, Mondry's sentence is affirmed. In contrast to the State's argument, the mere fact that Mondry received a sentence which he requested does not negate a trial court's obligation to comply with the statutory sentencing requirements. {¶ 13} Accordingly, Mondry's sole assignment of error is overruled. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Kenneth A. Rocco, A.J. and James J. Sweeney, J. concur.

2016-07-06 06:36:00.143323+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Amanda Lisle, appeals from the decision of the Wayne County Court of Common Pleas which denied her motion to suppress. This Court affirms. I. {¶ 2} On February 16, 2005, appellant was indicted on three counts of aggravated possession of drugs in violation of R.C.2925.11. On March 9, 2005, appellant was arraigned on each of the charges. The charges against appellant resulted from a traffic stop on January 23, 2005. A Doylestown police officer pulled appellant over for a license plate violation. The officer then utilized a drug dog to perform a sniff of the car. The officer's report noted that the dog alerted on both sides of the vehicle. The officer then searched the vehicle and discovered illegal drugs. {¶ 3} On July 19, 2005, appellant moved to suppress the evidence against her, alleging it was the result of an illegal search. The trial court denied appellant's motion as untimely. Thereafter, appellant pled no contest to two counts of aggravated possession of drugs and the State dismissed the remaining count in the indictment. The trial court accepted appellant's no contest plea, found her guilty, and sentenced her accordingly. Appellant timely appealed the trial court's judgment, raising two assignments of error for review. II. FIRST ASSIGNMENT OF ERROR "TRIAL COUNSEL DENIED APPELLANT THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ART. I, SECTION 10 OF OHIO'S CONSTITUTION, WHEN SHE FAILED TO TIMELY FILE A MOTION TO SUPPRESS." {¶ 4} In her first assignment of error, appellant contends that her trial counsel was ineffective. Specifically, appellant asserts that her trial counsel erred when she failed to timely file a motion to suppress. This Court disagrees. {¶ 5} A criminal defendant is guaranteed a right to the effective assistance of counsel by the Sixth Amendment. SeeMcMann v. Richardson (1970), 397 U.S. 759, 771. This Court employs a two-step process determining whether the right to effective counsel has been violated: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington (1984),466 U.S. 668, 687. These elements need not be addressed in any particular order; if this Court concludes that prejudice to the defendant did not result from defense counsel's actions or omissions, then we need not address whether counsel's actions or omissions were actually deficient. See State v. Bradley (1989), 42 Ohio St.3d 136, 143. {¶ 6} On appeal, appellant has challenged her counsel's failure to timely file a motion to suppress. The "[f]ailure to file a motion to suppress constitutes ineffective assistance of counsel only if, based on the record, the motion would have been granted." Akron v. Buchwald, 9th Dist. No. 21433, 2003-Ohio-5044, at ¶ 12. Upon review of the record, this Court cannot say that appellant's motion to suppress would have been granted. {¶ 7} Initially, we note that the sole "evidence" before this Court and the trial court consists of the factual allegations made in appellant's motion to suppress. Having found in response to appellant's second assignment of error that the trial court did not err in denying the motion as untimely, any deficiencies in the record must be borne by appellant.1 {¶ 8} In his report, the arresting officer indicated that his canine alerted on both sides of appellant's vehicle. "[O]nce a trained drug dog alerts to the odor of drugs from a lawfully detained vehicle, an officer has probable cause to search the vehicle for contraband." State v. Carlson (1995),102 Ohio App.3d 585, 600, citing State v. Shook (June 15, 1994), 9th Dist. No. 93CA005716. In an attempt to avoid the application of this rule, appellant argued in her motion to suppress that the drug dog did not alert and that the drug dog was not reliable. Neither assertion is supported by the record. {¶ 9} Appellant offered no evidence in the trial court to support her conclusion that the drug dog did not alert on her vehicle. Additionally, the record does not demonstrate that the drug dog is unreliable. In support of her claim, appellant asserted that while her stop was not videotaped, an earlier stop was captured on videotape. Appellant argues that the canine did not alert on the vehicle during the earlier stop, but the vehicle was still searched. Appellant concludes that the canine, therefore, must be unreliable. {¶ 10} Appellant's theory, however, encompasses nothing more than speculation. There is no evidence that drugs were recovered during the earlier stop, i.e., there is no evidence that the canine failed to alert on a vehicle that contained drugs. Furthermore, there is no indication that the earlier canine sniff played any role in the officer's decision to search that vehicle. The videotape of the earlier stop, absent other evidence, offers no support for appellant's position that the canine was unreliable. Accordingly, the evidence before the trial court indicated that a canine alerted to drugs in appellant's vehicle. Drugs, in turn, were found in that vehicle. Thus, with respect to the search of appellant's vehicle, the canine proved to be reliable. As appellant offered no evidence to demonstrate that the canine failed to alert or was unreliable, the officer had probable cause to perform his search. Carlson,102 Ohio App.3d at 600. As appellant has not demonstrated that a timely motion to suppress would have been granted, she cannot satisfy the prejudice prong of Strickland. Buchwald at ¶ 12. Appellant's first assignment of error is overruled. SECOND ASSIGNMENT OF ERROR "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT, OR AT LEAST HOLD A HEARING ON, APPELLANT'S MOTION TO SUPPRESS, WHICH WAS FILED TWENTY-TWO DAYS BEFORE TRIAL, AND IT WAS IN THE INTEREST OF JUSTICE TO EXTEND THE FILING OF PRETRAIL (sic) MOTIONS." {¶ 11} In her second assignment of error, appellant asserts that the trial court abused its discretion when it failed to consider on the merits her motion to suppress. This Court disagrees. {¶ 12} A motion to suppress must be filed with the trial court within the earlier of thirty-five days following arraignment or seven days before trial, although the court may extend the period for filing if necessary in the interest of justice. Crim.R. 12(C)-(D). This Court will not reverse a trial court's decision denying leave to file an untimely motion to suppress absent an abuse of discretion. State v. Overholt (Aug. 18, 1999), 9th Dist. No. 2905-M. Abuse of discretion requires more than simply an error in judgment; it implies unreasonable, arbitrary, or unconscionable conduct by the court. Blakemore v.Blakemore (1983), 5 Ohio St.3d 217, 219. {¶ 13} Appellant was arraigned on March 9, 2005. Accordingly, the deadline for filing her motion to suppress was April 13, 2005. Appellant did not file her motion until July 19, 2005, more than ninety days past the deadline established by Crim.R. 12(D). {¶ 14} Initially, we note that appellant did not seek leave to file an untimely motion to suppress. Assuming arguendo, however, that her motion to suppress also served as a request for leave to file the motion itself, appellant's claims must fail. In the trial court, appellant offered no explanation for the delay in filing the motion. The record reflects that appellant demanded discovery from the State and received discovery on March 31, 2005. Accordingly, appellant "had full knowledge of the surrounding facts and circumstances pertaining to [her] case within the time requirements of Crim.R. 12(D)." State v.Hoover, 9th Dist. No. 02CA0056, 2003-Ohio-2344, at ¶ 6, citingOverholt, supra. There is nothing in the record to indicate that appellant was hindered in any manner in preparing the motion to suppress. {¶ 15} Furthermore, on appeal, appellant has not alleged any cause for her delay in filing. In her brief, appellant asserts that "[t]he interest of justice requires that the court have at least a hearing to determine whether there exist circumstances requiring an extension of the filing deadline." Appellant offers no support for her position and this Court has found no authority for the proposition that the trial court is required to sua sponte inquire as to whether or not there exist circumstances to extend the deadline established by Crim.R. 12(D). Rather, this Court has consistently found that it is the defendant who must demonstrate good cause for an untimely filing. See Hoover at ¶ 6; Overholt, supra. Appellant failed to demonstrate or even allege good cause for her untimely filing. The trial court, therefore, did not abuse its discretion in denying appellant's motion as untimely. Appellant's second assignment of error is overruled. III. {¶ 16} Appellant's assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to appellant. Slaby, P.J. Whitmore, J. concur. 1 When the trial court denied appellant's motion, she was not given a hearing. As this Court finds below that the denial of the motion as untimely was proper, the lack of evidence in the record is not the result of trial court error and in no manner alleviates the burden placed on appellant by App.R. 16(A)(7).

2016-07-06 06:36:00.29505+00

OPINION Defendant-appellant Vincent Mark Myers appeals his conviction and sentence from the Stark County Court of Common Pleas on one count of domestic violence in violation of R.C. 2919.25(A). Plaintiff-appellee is the State of Ohio. STATEMENT OF THE FACTS AND CASE On April 16, 2001, the Stark County Grand Jury indicted appellant on one count of domestic violence in violation of R.C. 2919.25(A), a felony of the fifth degree. The indictment specifically alleged that appellant had knowingly caused or attempted to cause physical harm to Laura Nevil. At his arraignment on April 20, 2001, appellant entered a plea of not guilty to the charge contained in the indictment. Subsequently, a jury trial commenced on June 11, 2001. The following evidence was adduced at trial. Since February of 2001, Laura Nevil has lived in an apartment with her two daughters, who were twelve years old and two years old as of the date of trial. The apartment in which Nevil resides is located on the upstairs floor of a house that has been divided into four apartments. At trial, Nevil testified that she had lived "on and off for four years" with appellant, who is the father of her youngest daughter. Trial Transcript at 136. While appellant did not reside with Nevil, Nevil testified that during March of 2001, appellant "would come up there periodically and visit me and the kids. You know, just whenever he would come by. Sometimes he would stay, sometimes he wouldn't". Trial Transcript at 137. On March 15, 2001, appellant, who Nevil testified had been drinking, came over to Nevil's apartment between 5:00 p.m. and 7:00 p.m. and accused her of having an affair with a neighbor from whom she had borrowed some cigarettes. When Nevil told appellant that there was "nothing going on, I just asked him for a cigarette", appellant became angry and started arguing with her. Trial Transcript at 140. Appellant, who was wearing leather type cowboy boots, then followed Nevil into the kitchen and kicked her in the back of her left leg while calling her a "bitch" and "slut". Trial Transcript at 142. As a result of appellant's kick, Nevil lost her balance and started falling forward. Appellant, who was yelling at Nevil, then grabbed Nevil by her knee with his right hand. At trial, Nevil testified that due to appellant's kick, her leg "swelled up for a long time" and that she "still ha[d] problems with it now". Trial Transcript at 142. During the rest of the evening, Nevil tried to"just be quiet and act like everything was okay" in order to get appellant under control. Trial Transcript at 143. After spending the night sleeping on the couch in Nevil's living room, appellant got up and left the next day around 2:00 p.m. or 3:00 p.m. Later the next day, appellant's daughter, Jean Myers, came over to Nevil's apartment with a friend, Regina Bee, and stayed for about half an hour. Nevil testified at trial that she told appellant's daughter "I was upset with her dad because he kicked me in the back of my legs". Trial Transcript at 146. Nevil, however, did not show appellant's daughter any of her bruises. At approximately 7:00 p.m. on March 18, 2001, appellant came over to Nevil's apartment and began arguing with her again since she had asked the upstairs neighbor for some cigarettes. According to Nevil, "this time he was kicking me in my right leg, a couple times he had kicked me; but first he came at me — he come at me and was trying to grab a hold of my hair, but he had scratched my face and I tried to get away from him; and that's when he kicked me twice in my right leg". Trial Transcript at 148. During the attack, which occurred in the kitchen, the couple's two year old daughter was in the living room watching TV. After Nevil began tending to the couple's daughter in an attempt to smooth things over, appellant finally left Nevil's apartment. Although Nevil did not contact the police immediately because she "was afraid", on March 20, 2001, Nevil and her brother went to the Canton Police Department. Trial Transcript at 152. While Nevil was at the police department, photographs were taken of her injuries.1 The Canton Police Detective who took the photographs testified at trial that Nevil had bruising on her face and her legs. When questioned, Nevil denied that her injuries were caused by falling down the stairs. Debra Taylor, who lives downstairs from Nevil, testified at appellant's trial that she was home during both of the above incidents. Taylor testified that the stairs leading upstairs to Nevil's apartment are just outside her apartment and that she could hear everything and everyone using the stairs. During direct examination, Taylor testified that, during the period from March 15, 2001, and March 18, 2001, she did not hear or see anyone fall down the stairs. Taylor further testified that when she saw appellant after March 18, 2001, appellant "was just asking me about the argument and that . . . they had had the day before and wondered if I seen her [Nevil] fall down the steps. He had said that my daughter was out there with her girl friend and they had seen her fall down the steps; and I just kind of shook my head oh, yeah, okay. I already knew her daughter didn't see him, she was out there, she would have told me." Trial Transcript at 195. On cross-examination, Taylor testified that, on March 18, 2001, a neighbor asked to use Taylor's telephone to report a fight between appellant and Nevil. Jean Myers, appellant's daughter, testified at trial on her father's behalf. At trial, Myers testified that when she stopped at Nevil's apartment on March 15, 2001, to see her half-sister, she found Nevil drinking with some neighbors. According to Myers, Nevil who appeared to be "very intoxicated" and was stumbling around, fell down the stairs as Myers was leaving with her half-sister. Trial Transcript at 224-225. Myers testified that when she returned to Nevil's apartment the next day, Nevil "asked if I remembered when she fell down the stairs". Trial Transcript at 227. Nevil then showed Myers the bruise on her leg. When questioned, Myers indicated that Nevil never told her that her [Nevil's] bruises were caused by appellant kicking or assaulting her. While Myers admitted noticing a mark on Nevil's face, she testified that Nevil told her that "the baby had threw a Tonka truck at her". Trial Transcript at 228. Myers also testified that, on March 18, 2001, Nevil was over at her house with appellant and was "sitting on his lap kissing". Trial Transcript at 237. According to Myers, the two slept together that night in Myer's bed. At the conclusion of the testimony and the end of deliberations, the jury, on June 12, 2001, found appellant guilty of domestic violence as charged in the indictment. The jury further found that appellant previously had been convicted of domestic violence.2 Thereafter, as memorialized in a Judgment Entry filed on June 27, 2001, the trial court sentenced appellant to eleven months in prison. It is from his conviction and sentence that appellant now prosecutes his appeal, raising the following assignments of error: APPELLANT'S CONVICTION FOR DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE. THE TRIAL COURT ERRED IN IMPOSING AN ELEVEN MONTH SENTENCE WITHOUT SUFFICIENT EVIDENCE TO SUPPORT THE STATUTORY CRITERIA OR MAKE THE REQUISITE FINDINGS. I Appellant, in his first assignment of error, contends that his conviction for domestic violence in violation of R.C. 2919.25(A) was against the sufficiency and manifest weight of the evidence. We disagree. In State v. Jenks (1981), 61 Ohio St.3d 259, the Ohio Supreme Court set forth the standard of review when a claim of insufficiency of the evidence is made. The Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry 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. Jenks, supra, at paragraph two of the syllabus. On review for manifest weight, a reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine "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 . . . The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction."State v. Thompkins (1997), 78 Ohio St.3d 380, 387, citing State v.Martin (1983), 20 Ohio App.3d 172, 175. Because the trier of fact is in a better position to observe the witnesses' demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967),10 Ohio St.2d 230, syllabus 1. In the case sub judice, appellant was convicted of domestic violence in violation of R.C. 2919.25(A). Such section states as follows: "No person shall knowingly cause or attempt to cause physical harm to a family or household member." While appellant does not dispute that Nevil is a "family or household member", appellant argues that there was insufficient evidence presented at trial that appellant caused or attempted to cause physical harm to Nevil. However, viewing the evidence in a light most favorable to the prosecution, we find that any rational trier of fact could have found beyond a reasonable doubt that appellant knowingly caused physical harm to Nevil on March 15, 2001, and March 18, 2001. As is stated above, at trial, Nevil testified that on March 15, 2001, appellant, after accusing Nevil of cheating on him, kicked her in the leg, causing her leg to swell up "for a long time". Trial Transcript at 142. Nevil further testified that on March 18, 2001, appellant kicked her twice in the right leg and scratched her face. At trial, the Detective who took photographs of appellant's injuries on March 20, 2001, testified that Nevil had bruising on her legs and face and a "reddish mark to her cheek area". Trial Transcript at 202. Photographs of appellant's injuries taken by the Detective and by the Canton City Prosecutor's Office were admitted into evidence. While appellant points out that Nevil did not immediately go to the police station after the two attacks, Nevil testified at trial that she waited until March 20, 2001, to do so because she was "afraid". Trial Transcript at 152. Nevil's brother, Gus George, testified that he had to ask her between four and six times to go to the police department to report the attacks. Furthermore, while appellants' witnesses testified that Nevil told them that she had fallen down the stairs, Debra Taylor, Nevil's neighbor who was home at the time of the two attacks and whose apartment was located near the stairs, testified that she did not hear anything on the dates in question. Taylor also testified that on March 18, 2001, a neighbor had asked to use her telephone to call the police to report a fight between appellant and Nevil. Based on the foregoing, we find that appellant's conviction for domestic violence is not against the sufficiency of the evidence. We further find that appellant's conviction is not against the manifest weight of the evidence. Upon our review of the evidence, we cannot say that the jury lost its way so as to create a manifest miscarriage of justice. While appellant argues that both Myers and Regina Bee, Myers' friend, testified that Nevil told them that she had fallen down the stairs, the jury, as trier of fact, clearly was in the best position to assess the witnesses' credibility. Clearly, the jury found Nevil's version of events more credible. Appellant's first assignment of error is, therefore, overruled. II Appellant, in his second assignment of error, argues that the trial court erred in sentencing appellant to an eleven month prison sentence. Appellant specifically maintains in his assignment of error that the sentence was not supported by sufficient evidence and that the trial court, in sentencing appellant, did not make the requisite findings. However, we concur with appellee that, in support of his assignment, "appellant argues simply that the evidence does not support such a sentence." R.C. 2953.08 governs an appeal of sentence for a felony and establishes our standard of review. Subsection (G)(2) states as follows: The court hearing an appeal of a sentence under division (A) or (B) or (C) of this section . . . may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the trial court for resentencing . . . The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court's findings . . .; (b) That the sentence is otherwise contrary to law. Clear and convincing evidence is evidence "which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. Appellant in the case sub judice was convicted of domestic violence in violation of R.C. 2919.25(A), a felony of the fifth degree. Pursuant to R.C. 2929.14(A)(5), the possible prison sentence for a felony of the fifth degree ranges from six to twelve months. Thus, appellant, who previously served a prison term, was sentenced to one month less than the maximum sentence. In the case sub judice, the trial court, after indicating that it had considered the factors of R.C. 2929.12 concerning seriousness and recidivism factors, made the following findings, in pertinent part: THE COURT: The court has considered the record, the oral statements, the victim impact statement, as well as principles and purposes of sentencing under Revised Code 2929.11 and has balanced the seriousness and recidivism factors under Revised Code 2929.12. Additionally the Court has had the benefit of observing the trial in this matter. With respect to the recidivism factors, [the] Court finds that recidivism is more likely in that the Defendant does have a history of criminal convictions and specifically the Court has — or the Defendant has a history of domestic violence. He was convicted of domestic violence in 1999 involving this same victim. The Court finds that the factors with respect to serious [sic] indicate that this is more serious in that the victim suffered serious physical harm which were illustrated by way of the photographs involved. The Court finds pursuant to Revised Code 2929.13(B) that the Defendant has previously served a prison term and once again that there was physical harm to a person in this case. The Court further finds that the Defendant is not amenable to community control and that prison is consistent with the purposes of Revised Code 2929.11. The Court finds pursuant to Revised Code 2929.14(B) that the shortest prison term possible will demean the seriousness of the offense and will not adequately protect the public, and therefore the Court is going to impose a greater term, that being a term of 11 months in prison. Transcript of Sentencing Hearing at 330-332. Thus, after considering the seriousness and recidivism factors set forth in R.C. 2929.12, and finding R.C. 2929.13(B)(1)(a) and (g) to be applicable, the trial court imposed an eleven month term of imprisonment. We find that the evidence in this case supports the eleven month sentence imposed by the trial court. While appellant argues that Nevil's injuries were minimal, as is set forth in detail above, Nevil's bruises, which occurred as a result of the attacks on March 15th and March 18th, were still visible on March 20, 2001. During the attack on March 18, 2001, appellant scratched Nevil's face while attempting to grab a hold of her hair. Moreover, at trial, Nevil testified that her leg, after the March 15th incident, "swelled up for a long time" and that she still had problems with her leg as of the time of the trial. In addition, during the attacks, one of which occurred while their young daughter was in the apartment, appellant called Nevil a "bitch" and a "slut". Finally, the record reveals that appellant has a prior felony conviction for domestic violence involving the same victim. Upon review, we cannot find, under the clear and convincing standard of R.C. 2953.08, that the record does not support the sentence. Appellant's second assignment of error is, therefore, overruled. Accordingly, the judgment of the Stark County Court of Common Pleas is affirmed. By EDWARDS, J., HOFFMAN, P.J. and GWIN, J. concur JUDGMENT ENTRY For the reasons stated in the Memorandum-Opinion on file, the judgment of the Stark County Common Pleas Court is affirmed. Costs to appellant. 1 Photographs of Nevil's injuries, which were also taken by the Canton City Prosecutor's Office, were admitted into evidence. 2 Appellant was convicted in 1999 for domestic violence in the Stark County Court of Common Pleas (Case No. 1999-CR-0570).

2016-07-06 06:36:00.324386+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Homes of Elegance, Inc. ("Homes of Elegance"), appeals from the judgment of the Akron Municipal Court, which entered judgment in favor of appellee, Steen Electric dba Valley Heating Cooling ("Steen Electric"), in the amount of $5,276.00 arising from a contract in which appellee agreed to perform heating and cooling services for appellant. This Court reverses. I. {¶ 2} On October 29, 2001, appellant, a general contractor, entered into a contract with appellee, a heating and cooling subcontractor, under which appellee would furnish and install all H.V.A.C. work on a residential home known as the North Shores Project. This included furnishing and installing two furnaces and two air conditioning units.1 {¶ 3} Under the terms of the contract, appellant would pay appellee one-half ($7,403.00) of the total contract price of $14,806.00 upon completion of the "rough" work and one-half ($7,403.00) upon completion of the project. There is no dispute that the "rough" work was completed and that appellant made the first payment. The dispute involves whether the project was substantially completed before appellee stopped work such that it was entitled to the second payment. {¶ 4} Appellee ceased work when the parties' relationship deteriorated after appellant changed the project from one containing an unfinished basement to one for a finished basement and included a large room addition. Appellee informed appellant that the existing H.V.A.C. plans contained in the contract were not sufficient for the added square footage in the house. There is a dispute regarding whether appellee timely performed the work and whether appellant requested appellee to cease performing any work or appellee stopped work on its own. {¶ 5} Appellant has not paid any part of the final $7,403.00. Appellee claims that it substantially performed its obligations under the contract and billed appellant $5,958.00 on January 17, 2002. Appellee filed suit against appellant alleging breach of contract. Later, appellee filed an amended complaint and appellant counterclaimed. {¶ 6} The trial court held a hearing and found that appellee had substantially performed the work it had contracted to perform. The court found that ninety percent of the work was completed by the time appellee stopped working. Consequently, the trial court awarded appellee ninety percent of the second billing in the amount of $5,276.70. The court also found that appellee may not have been reasonable in stopping work due to a letter from appellant's counsel inquiring as to its intentions regarding completing the work. Appellee timely appealed from the trial court's judgment, setting forth three assignments of error for review. II. ASSIGNMENT OF ERROR I "The trial court erred by allowing plaintiff [appellee] to recover despite the fact that plaintiff breached the agreement with defendant [appellant]." {¶ 7} This Court's determination on Assignments of Error II and III render this Assignment of Error moot. ASSIGNMENT OF ERROR II "The trial court erred in finding that plaintiff's [appellee] work under the agreement constituted `substantial performance.'" ASSIGNMENT OF ERROR III "The trial court erred by ignoring defendant's actual cost of completing the unfinished work." {¶ 8} This Court will consider these Assignments of Error together. {¶ 9} Whether a party has substantially performed under the terms of a contract is a question of fact. Marinich v. Bush (Dec. 30, 1999), 12th Dist. Nos. CA99-01-011 and CA99-01-018, citing Volak v. Henderson (July 19, 1995), 9th Dist. No. 94CA005815, citing Jacob Youngs v. Kent (1921), 230 N.Y. 239,129 N.E. 889. As noted above, this Court reviews the court's findings of fact under a sufficiency of the evidence standard.Ehrich, 9th Dist No. 17089. {¶ 10} In this case, the trial court found that appellee performed ninety percent of the work required and therefore had substantially performed the contract {¶ 11} Appellant argued that this finding is incorrect. It argued that appellee did not substantially perform its obligations under the contract. Appellant cited the case ofCleveland Neighborhood Health Serv., Inc. v. St. Clair Builders,Inc. (1989), 64 Ohio App.3d 639 in support. In that case, the trial court awarded the builder the amount due under a construction contract. The Eighth District affirmed the trial court's finding that the contractor substantially performed the contract and was due the remainder of the contract amount. The facts showed that the entire contract was for the amount of $218,000.00. The evidence produced at trial showed that $2,000.00 worth of work remained to be done under the contract. The court also found that $7,000.00 worth of work was needed to correct portions of the work not properly performed. The court found that ninety five percent of the work had been completed. It used the $7,000.00 cost to complete, rather than the $2,000.00 contract price, to determine the percentage of the contract performed. {¶ 12} At the hearing, appellant produced evidence from Echols Heating and Air Conditioning ("Echols"), another H.V.A.C. subcontractor hired to complete the unfinished work. Echols testified that it would cost approximately $5,000.00 to finish the work. Echols also testified that completing the work of another contractor was often more expensive than under the original contract. {¶ 13} Appellant's calculations established that appellee had completed only two thirds of the job as measured by the method used in St. Clair Builders. Appellant reached this two thirds figure by taking the amount needed to complete the work ($5,000.00) and dividing it by the total amount of the contract ($14,806.00) [$14,806 (contract amount) divided by $5,000.00 (amount to complete job by Echols) = one third unfinished.] Appellant claimed that two thirds completion of a contract cannot be considered substantial performance. As a result, appellant argued that appellee should not have been awarded anything. {¶ 14} Appellee argued that the trial court properly applied the St. Clair Builders' standard in determining that it had substantially performed the contract. Appellee based its computations on the amounts provided in the contract, and not what it would actually cost appellant to complete the project, to determine what percentage of the contract remained unperformed. Appellee claimed that only approximately $1,500.00 was needed to complete the contract. Under appellee's computation, it had substantially performed by contact by performing ninety percent of its obligations. ($14,806.00 [total contract price] divided by $1,500.00 [cost under contract to complete work] = ninety percent.) {¶ 15} The issue in this case is whether the contract amount or the actual amount to complete the contract should to be used to determine whether a party has substantially performed its obligations under a contract. The trial court applied the contract price. {¶ 16} This Court finds, however, that the proper method to determine damages is the reasonable cost to complete the project; that is, to place the building in the condition contemplated by the parties at the time the parties entered into the contract.Sites v. Moore (1992), 79 Ohio App.3d 694; Barton v. Ellis (1986), 34 Ohio App.3d 251; Jones v. Honchell (1984),14 Ohio App.3d 120; Chaney v. Ramsey (Apr. 7, 1999), 4th Dist. No. 98CA614. {¶ 17} In this case, appellant provided unrefuted evidence that the reasonable cost of placing the residence in the condition contracted for by both parties was $5,000.00. Using this computation, appellee had not substantially performed. "Substantial performance" is defined as to mean that "mere nominal, trifling, or technical departures are not sufficient to breach a contract, and that slight departures, omissions and inadvertencies should be disregarded." St. Clair Builders64 Ohio App.3d at 644 quoting Ashley v. Henaham (1897),56 Ohio St. 559. A party has not substantially performed when the omissions complained of are material to the essential duties promised. CAD CAM, Inc. v. Adept Mfg. Corp. (June 25, 1999), 2nd Dist. No. 17687. In this case, using the method urged by both parties, appellee only performed two thirds of its obligations under the contract. This is not substantial performance. Further, it is undisputed that appellee failed to provide two of the air conditioning units. There is no question that these units were material to the essential duties of the contract. Failure to provide them constitutes a failure to substantially perform the duties under the contract. {¶ 18} We find that the trial court did not have sufficient evidence to conclude that appellee substantially performed its obligations under the contract. When a party fails to substantially perform, it is not entitled to damages. Miller v.Bealer (1992), 80 Ohio App.3d 180. As such, the trial court erred in awarding appellee damages.2 Appellant's second assignment of error is sustained. {¶ 19} In its third assignment of error, appellant argued that the trial court erred in using the contract price, and not the actual cost, in computing damages. This Court addressed the proper measure of damages. III. {¶ 20} This Court finds that the trial court did not have sufficient evidence to conclude that appellee substantially performed its obligations under the contract with appellant. Consequently, appellee is not entitled to an award of damages. The decision of the Akron Municipal Court is reversed and remanded for entry of judgment. Judgment reversed and cause remanded. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Akron Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee. Exceptions. Slaby, P.J., Batchelder, J., Concur. (Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.) 1 There were other projects which were included within the scope of appellee's amended complaint and appellant's counterclaim. These matters have been resolved and are not part of this appeal. 2 It appears that the trial court awarded appellee damages because appellee conferred a substantial benefit on appellant and should in equity recover the cost under the doctrine of quantum meruit. We first note that appellee failed to plead quantum meruit as an alternative theory of recovery to breach of contract and proceeded in the trial court solely on its claim of breach of contract. It cannot, therefore, raise this theory for the first time on appeal. See Spence v. First Fed. Savings Loan Ass'n. (Aug. 21, 1992), 6th Dist. No. 91FU000020.

2016-07-06 06:36:00.376625+00

OPINION Appellants Kevin Hall and Danielle Johnson appeal the decision of the Tuscarawas County Court of Common Pleas that denied their motion to suppress evidence discovered in the search of their apartment. The following facts give rise to this appeal. On February 18, 1999, Police Officer John Murphy stopped Appellant Hall for failure to have a valid driver's license. At the time of the stop, Appellant Hall was driving a vehicle owned by Appellant Johnson. Officer Murphy knew appellant did not have a valid driver's license as a result of contact with Appellant Hall several hours prior to this stop. Officer Murphy placed Appellant Hall under arrest for failure to have a valid driver's license. Officer Murphy proceeded to conduct a standard inventory search of the vehicle prior to towing the vehicle from the scene. During the inventory search, Officer Murphy discovered marihuana and a peculiar pipe used for smoking marihuana. Appellant Hall claimed the contraband discovered in the vehicle did not belong to him. After completion of the inventory search, Officer Murphy transported Appellant Hall to the police department. At the police department, Officer Murphy and Sergeant Brian Hursey asked Appellant Hall for permission to search his apartment. Appellant Johnson rented the apartment, however, Appellant Hall stayed at the apartment with Appellant Johnson. The officers asked to search the apartment because the Newcomerstown Police knew that appellant had a 1995 conviction, in Coshocton County, for trafficking in drugs. Further, during the course of recent drug trafficking investigations, an informant provided information that Appellant Hall was selling drugs. Officer Murphy and Sergeant Hursey transported appellant to the apartment. Appellant entered the apartment, with his key, while the officers waited outside the door. Shortly after Appellant Hall entered the apartment, Appellant Johnson appeared and the officers explained the reason for their presence and asked her for permission to search the apartment. Appellant Johnson initially refused to consent to a search. Sergeant Hursey informed Appellant Johnson that he would contact a judge for a search warrant and began to leave the premises. Appellant Johnson expressed her concern about Appellant Hall's two children that were sleeping in the front room. Officer Murphy indicated that they would not disturb the children. Thereafter, Appellant Johnson consented to the search. Appellant Johnson admitted the two officers into the apartment. The officers proceeded to the kitchen area where Appellant Johnson signed a consent to search form. Thereafter, the officers began their search and discovered marihuana and other paraphernalia on a tray, on a table, in the front room. At one point, one of the officers talked about obtaining a search warrant to bring in a drug dog to do a more thorough search. At that point, Appellant Johnson led the officers to another room where they discovered marihuana, hashish, drug equipment and other paraphernalia. On July 15, 1999, the Tuscarawas County Grand Jury indicted both appellants for one count each of possession of drugs. Appellants both filed motions to suppress the evidence of drugs due to an unconstitutional, warrantless search of their apartment. Following a hearing on the matter, the trial court filed a judgment entry on October 20, 1999, overruling both motions. Appellants subsequently entered pleas of no contest and the trial court sentenced them accordingly. Appellants filed notices of appeal in which they set forth one assignment of error for our consideration: I. THE TRIAL COURT ERRED AS A MATTER OF LAW BY APPLYING THE WRONG STANDARD OF PROOF TO THE DEFENDANT'S MOTION TO SUPPRESS. I In their sole assignment of error, appellants contend the trial court applied the incorrect burden of proof in determining whether Appellant Johnson voluntarily consented to a search of the apartment. We agree. Prior to addressing the merits of appellants' appeal, we first address the applicable standard of appellate review for a motion to suppress. In the case sub judice, appellants argue the trial court failed to apply the appropriate test or correct law to the findings of fact. In this type of a challenge, an appellate court can reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio App.3d 37. It is based on this standard that we review appellants' assignment of error. Appellants maintain the trial court improperly applied a preponderance of the evidence standard in determining whether Appellant Johnson voluntarily consented to the search of the apartment. Appellants contend the trial court should have used a clear and convincing standard of proof in making this determination. Based on our review of the case law, we find appellants are correct and conclude the trial court committed an error of law when it applied a preponderance of the evidence burden of proof. We note that the courts in this state are split on the issue. The following courts have determined that the burden of proof for consent is a preponderance of the evidence standard: State v. Trent (Dec. 23, 1999), Montgomery App. No. 17705, unreported; State v. Boyd (1998),90 Ohio Misc.2d 20; State v. Guiterrez (1996), Medina App. No. 2515-M, unreported; State v. George (June 15, 1993), Clark App. No. 2967, unreported; State v. Mendlik (Sep. 9, 1988), Geauga App. No. 1419, unreported; State v. Moon (Feb. 14, 1986), Montgomery App. No. 9288, unreported; and State v. Elliot (May 6, 1983), Clark App. No. 1741, unreported. This court has previously adopted the clear and convincing standard proposed by appellants. In the case of State v. Gouveia (Oct. 25, 1989), Ashland App. No. CA-925, unreported, we found that the state bears the burden of proving, by clear and convincing evidence, that a defendant voluntarily gave consent to a search. Id. at 2. We explained that: When the subject of a search is not in custody and the state attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Id. The standard of clear and convincing is defined as: * * * that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations [or issues] sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt * * *. Cross v. Ledford (1954), 161 Ohio St. 469, 477. In addressing the issue of voluntariness, the trial court should consider the following six factors: (1) The voluntariness of the defendant's custodial status; (2) The presence of coercive police procedures; (3) The extent and level of the defendant's cooperation with the police; (4) The defendant's awareness of his right to refuse to consent; (5) The defendant's education and intelligence; and (6) The defendant's belief that no incriminating evidence will be found. State v. Webb (Jan. 28, 2000), Montgomery App. No. 17676, unreported. Accordingly, we sustain appellants' sole assignment of error and remand this matter to the trial court for the court to apply the appropriate standard in determining whether consent to search was voluntarily provided by Appellant Johnson. For the foregoing reasons, the judgment of the Court of Common Pleas, Tuscarawas County, Ohio, is hereby reversed and remanded for further proceedings consistent with this opinion. Wise, J. Gwin, P.J., and Edwards, J., concur. JUDGMENT ENTRY CASE NOS. 2000AP030025 and 2000AP030026. For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Tuscarawas County, Ohio, is reversed and remanded for further proceedings consistent with this opinion. Appellee State of Ohio shall be responsible for costs in this matter.

2016-07-06 06:36:01.480378+00

OPINION {¶ 1} The defendant-appellant, John W. Goyman ("Goyman"), appeals two judgments of the Mercer County Common Pleas Court sentencing him to consecutive prison terms for offenses charged under two separate case numbers. These cases have been consolidated for consideration on appeal. {¶ 2} On October 21, 2004, the Mercer County Grand Jury indicted Goyman on four charges, which are before us as appellate case number 10-05-09. Goyman was charged with three counts of pandering obscenity involving a minor, violations of R.C.2907.321(A)(1), felonies of the second degree, and one count of gross sexual imposition, a violation of R.C. 2907.05(A)(4), a felony of the third degree. On January 24, 2005 and while the charges under case number 10-05-09 were pending in the trial court, the State of Ohio ("State") filed a bill of information, which is before us as case number 10-05-10, charging Goyman with one count of pandering obscenity involving a minor, a violation of R.C. 2907.321(A)(1), a felony of the second degree. {¶ 3} The Celina Police Department began an investigation against Goyman on October 20, 2004 after his wife reported finding pornographic pictures on his digital camera. The camera contained pictures of her daughter, who was eleven years old, gripping Goyman's penis with her hand. The indictment filed in case number 10-05-09 resulted from this part of the investigation, and Goyman's step-daughter appears to have been the sole victim. Later that day, law enforcement officers obtained a warrant to search Goyman's computer. In the computer, police found downloaded pornographic files depicting minors involved in sex acts with other minors and with adults. The bill of information in case number 10-05-10 was filed based on this part of the investigation. {¶ 4} On January 26, 2005, the trial court held a joint change of plea hearing, which encompassed both cases. Goyman pled guilty to counts three and four of the indictment in case number 10-05-09; gross sexual imposition and pandering obscenity involving a minor. Goyman also pled guilty to pandering obscenity involving a minor as charged in case number 10-05-10. In exchange for his guilty pleas, the State dismissed counts one and two of the indictment and reserved the right to argue at sentencing. The trial court held a joint sentencing hearing on March 11, 2005 and classified Goyman as a sexually oriented offender in both cases pursuant to R.C. 2950.04. In case number 10-05-09, Goyman was sentenced to serve three years in prison for gross sexual imposition concurrent to six years in prison for pandering obscenity involving a minor. The trial court then sentenced Goyman to serve a four year prison term in case number 10-05-10 consecutive to the term imposed in case number 10-05-09 for an aggregate sentence of ten years in prison. Goyman appeals the trial court's sentencing judgment entries and asserts the following assignments of error: The trial court committed an error of law by imposingconsecutive sentences. The trial court committed an error of law by not imposing theshortest sentence. {¶ 5} In the first assignment of error, Goyman essentially argues that the trial court failed to state its reasons for imposing consecutive sentences. The State contends R.C.2929.14(E) does not apply in this matter because "the two cases were separate cases, and not just allied offenses of similar import that may have required merger at sentencing." In the alternative, the State contends the trial court complied with R.C. 2929.14(E). As to the second assignment of error, Goyman contends the trial court erred by sentencing him to prison terms greater than the statutory minimums for each offense. The basis of this argument is twofold. First, Goyman argues the record does not support the trial court's findings made pursuant to R.C.2929.14(B). Second, Goyman argues without specific findings made by the jury or admissions made by the defendant, imposing a sentence greater than the statutory minimum violates the holding in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531,159 L.Ed.2d 403. {¶ 6} In each of these cases, the trial court imposed sentences greater than the lowest possible sentence under R.C.2929.14(B)(2) and in case number 10-05-10, it imposed consecutive sentences under R.C. 2929.14(E). Recently, the Ohio Supreme Court determined that both R.C. 2929.14(B)(2) and 2929.14(E) are unconstitutional because they require trial courts to make findings based on facts, which have either not been determined by a jury or were not admitted by the defendant. State v. Foster, ___ Ohio St.3d ___, 2006-Ohio-856, at paragraphs 1 and 3 of the syllabus (citing United States v. Booker (2005), 543 U.S. 220,125 S.Ct. 738, 160 L.Ed.2d 621; Blakely, supra; and Apprendiv. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435). Because the statutes under which Powell was sentenced are unconstitutional and because his cases were on direct appeal at the time Foster was released, we must vacate the sentences and remand this matter to the trial court for additional proceedings. Id. at ¶¶ 103-104. {¶ 7} The sentences imposed by the Mercer County Common Pleas Court in case numbers 10-05-09 and 10-05-10 are vacated and this matter is remanded to the trial court for additional proceedings. Case No. 10-05-09: Sentence vacated and cause remanded. CaseNo. 10-05-10: Sentence vacated and cause remanded. Rogers and Cupp, JJ., concurs.

2016-07-06 06:35:59.971387+00

Fain

{¶ 1} BJ Building Company, L.L.C., appeals from a judgment of the Montgomery County Court of Common Pleas, which vacated a certificate of judgment *Page 168 against LBJ Linden Company, L.L.C., despite denying LBJ's motion for relief from judgment. For the reasons that follow, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings. I {¶ 2} In 2002, James Zeller and William Smith, the owners of BJ and LBJ, agreed to sell their interests in LBJ to Larry Smith ("Smith"). In exchange, they received a cognovit note from Smith, Thanh Le, and LBJ (collectively, "LBJ") in the amount of $48,000, payable to BJ. Additionally, LBJ signed a lease wherein it agreed to pay BJ $5,000 per month in rent. In less than a year, LBJ defaulted on the note and lease. {¶ 3} In 2003, BJ sued LBJ for default on the cognovit note, forcible entry and detainer, breach of contract (the lease), and restitution for insurance and other payments that BJ had made on behalf of LBJ. BJ sought $36,533.20 on the note, $35,000 in unpaid rent, and $3,795 for insurance premiums. On October 30, 2003, the trial court rendered judgment in favor of BJ on the cognovit note in the amount of $36,533.33. The other claims remained pending. Later that year, the parties entered into a settlement agreement whereby LBJ agreed to transfer all of its assets to BJ and to vacate the premises in exchange for the cancellation of the lease agreement and the cognovit note. Soon thereafter, BJ sold the transferred assets and the real estate to a third party for $40,000. Although the trial court had scheduled a hearing on the pending claims, the parties did not appear at the hearing, and no judgment entry was filed with respect to the remaining claims. {¶ 4} In 2004, BJ filed another complaint against LBJ to enforce the settlement agreement. {¶ 5} On December 2, 2004, LBJ filed a motion for relief from the 2003 judgment on the cognovit note on the basis that it had been satisfied. On March 22, 2005, the trial court denied LBJ's motion for relief from judgment on the grounds that it was untimely and that LBJ had failed to show any meritorious defenses. The trial court rejected LBJ's argument that the 2003 judgment on the cognovit note was not a final, appealable order because it did not include the language "no just reason for delay." LBJ appealed. While LBJ's appeal was pending, it filed a second motion for relief from judgment in the trial court, which also asked the court to find that the judgment had been satisfied. {¶ 6} In April 2005, BJ's remaining claims in both cases were dismissed. {¶ 7} In December 2005, we affirmed the trial court's denial of LBJ's motion to vacate the 2003 judgment on the cognovit note but on different grounds than those cited by the trial court. BJ Bldg. Co., L.L.C. v. LBJ Linden Co.,L.L.C., *Page 169 Montgomery App. No. 21005, 2005-Ohio-6825, 2005 WL 3501890. We concluded that the judgment on the cognovit note had not become a final, appealable order until April 2005, when BJ's other claims were dismissed. Id. Thus, we rejected the trial court's reasoning but found that the court's order denying the motion to vacate was proper because the cognovit judgment was an interlocutory order when the motion for relief from judgment was filed. {¶ 8} In May 2007, the trial court denied LBJ's second motion for relief from judgment, in which LBJ argued that the judgment had been satisfied by the transfer of LBJ's assets to BJ. The court concluded that LBJ's arguments were barred by the doctrine of res judicata because they could have been raised in its first motion. Nonetheless, the trial court vacated the certificate of judgment on the cognovit note because LBJ had transferred assets to BJ under the parties' 2003 settlement agreement. The court apparently concluded that BJ had been required to apply the $40,000 in proceeds from the sale of returned assets to the cognovit note rather than to the unpaid rent, and that the judgment therefore had been satisfied. Furthermore, it ordered BJ to pay LBJ for the perceived overpayment on the note, i.e., the difference between the $40,000 collected by BJ on the sale of LBJ's assets and the $36,533.20 awarded on the note. II {¶ 9} BJ's first assignment of error is as follows: {¶ 10} "The argument that the defendants were entitled to credit for the surrendered assets of LBJ could have been raised in their 2004 motion for relief from judgment and, therefore, is res judicata." {¶ 11} BJ contends that the doctrine of res judicata precluded LBJ from succeeding on its second motion for relief from judgment because the trial court had previously considered, and rejected, its arguments. {¶ 12} The doctrine of res judicata requires a party to present every ground for relief in the first action or be forever barred from asserting it. Natl. Amusements, Inc.v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178. "It has long been the law of Ohio that an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might havebeen litigated in a first lawsuit." (Emphasis sic.) Id., citing Rogers v. Whitehall (1986), 25 Ohio St.3d 67,69, 25 OBR 89, 494 N.E.2d 1387. {¶ 13} The trial court erred in applying the doctrine of res judicata to the circumstances of this case. In the previous appeal, we concluded that the judgment on the cognovit note had not been final when LBJ filed its first motion to vacate because other claims were still pending. Thus, we affirmed the order of the trial court denying the motion for relief from the "judgment." Under these *Page 170 circumstances, there was no "existing final judgment or decree between the parties" upon which to base a finding of res judicata, even if the arguments presented in LBJ's first and second motions to vacate were similar. Because the trial court based its ruling on its finding of res judicata, it has not fully considered the merits of LBJ's claim that pursuant to the parties' settlement agreement and its subsequent transfer of assets to BJ, the cognovit judgment was satisfied and LBJ was entitled to relief from that judgment. {¶ 14} In its complaint, BJ sought $35,000 in unpaid rent in addition to the $36,533.20 sought on the cognovit note. We will remand this matter for the trial court to determine whether the parties' settlement agreement required BJ. to apply the value of the transferred assets to the cognovit note and, if not, how that value should have been applied. In doing so, the court will determine whether LBJ was entitled to relief from the cognovit judgment. {¶ 15} The first assignment of error is sustained. III {¶ 16} The second assignment of error states: {¶ 17} "The trial court erred in ordering BJ to pay money to the defendants. The only way a defendant can obtain an award of money against a plaintiff is by filing a counterclaim and prevailing upon it, none of which happened here." {¶ 18} BJ claims that LBJ was not entitled to a monetary judgment because it had not filed a counterclaim. BJ asserts that the trial court's award of money to LBJ violated its due process rights because BJ did not have an opportunity to assert setoffs or counterclaims, to plead affirmative defenses, or to require LBJ to prove its claim that BJ had been overpaid. {¶ 19} As noted in our discussion of the first assignment of error, in Part II, above, the total damages sought in BJ's complaint exceeded $75,000. LBJ transferred assets under the settlement agreement that were subsequently sold to a third party for $40,000. The trial court credited LBJ for this entire amount and entered an award to LBJ for the difference between the $36,533.20 owed on the note and the $40,000 sale price. {¶ 20} Even assuming, for the sake of argument, that LBJ was entitled to offset the value of the assets transferred under the settlement agreement against the cognovit judgment, it was not entitled to be awarded a money judgment against BJ in any amount in the absence of a counterclaim against BJ. See Cleveland Constr. Interiors, Inc. v. RuhlinCo. (April 5, 1991), Lake App. No. 90-L-14-060,1991 WL 54150, citing Cauffiel Machinery Co. v. Eastern Steel Metal Co. (1978), 59 Ohio App.2d 1, 6, 13 O.O.3d 41,391 N.E.2d 743 (holding that a defense of recoupment aims to reduce the amount demanded and can be had *Page 171 only to an extent sufficient to satisfy the plaintiff's claim). See also Schafer v. RMS Realty, Montgomery App. No. 21869, 2007-Ohio-7155, 2007 WL 4615948, ¶ 17; SpanoBros. Constr. Co., Inc. v. Adolph Johnson Son Co.,Inc., Summit App. No. 23405, 2007-Ohio-1427,2007 WL 912229, ¶ 26. As such, the trial court erred in ordering BJ to pay LBJ $3,466.80. {¶ 21} The second assignment of error is sustained. IV {¶ 22} The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion. Judgment reversed and cause remanded. WOLFF, P.J., and GRADY, J., concur.

2016-07-06 06:36:00.00277+00

Palmer

Plaintiff-appellant, Gibraltar Mausoleum Corporation, appeals from a judgment of the Court of Common Pleas of Hamilton County affirming the decision of the Cincinnati Fire Prevention Board of Appeals (Board) which had denied appellant's request for a variance from the provisions of Section CFPC-80-03(B) of the Cincinnati Fire Prevention Code, requiring all buildings and structures to be located not more than 400 feet from a fire hydrant. The factual basis for appellant's request for a variance is relatively simple. Appellant, generally engaged in the business of building mausoleums, contracted with the Vine Street Hill Cemetery to construct a mausoleum, and began selling crypts to cover the costs of initial construction. In order to obtain a building permit, plans of the proposed construction had to be submitted to the city of Cincinnati. Since the plans did not show a hydrant within 400 feet of the proposed structure, the building permit was refused. Appellant, anxious to get on with the construction, was advised by the Fire Department that it could either have its plans rejected or it could show a hydrant on the plans, obtain the permit, and appeal the hydrant requirement to the Board. Appellant opted for the latter alternative, began construction, and appealed to the Board. At the subsequent hearing before the Board, a five-member panel, appellant's project manager appeared and presented evidence in support of its contention that the fire hydrant requirement would impose undue financial hardship upon appellant and the public, that use of the structure by the public would be on a very limited basis, and that the structure was almost invulnerable to fire. Further, appellant presented evidence that the additional *Page 108 costs of installing a fire hydrant would exceed $20,000 — a cost which could make the price of the remaining, unsold crypts prohibitive to the general public. In addition, appellant presented evidence concerning the materials to be used in the structure, such as concrete, granite, marble, stone and laminated wood, as well as fire-resistant carpeting and wood paneling, materials which, although not making the building "fireproof," did demonstrate that the mausoleum structure presented neither a likely source nor any fuel for a fire. Finally, appellant presented evidence to the effect that the number of people present in the structure at any given time would be so few in number and for so short a time that the danger to citizens was minimal, especially in light of the structure's several points of egress. Upon questioning by the panel, appellant's representative did admit that a fire hydrant would possibly better protect the crypts, but asserted that the degree of higher protection was slight, given the cemetery's spacious driveways which could easily accommodate emergency vehicles in case of fire. At the conclusion of the hearing, the Board issued findings of fact consistent with those set out above, but nevertheless denied the variance on the grounds that appellant had failed to demonstrate that a valid hardship existed, presumably because appellant failed to factor in the cost of the hydrant to the initial crypt purchasers, thus creating, by its own marketing negligence, the hardship of which it now complained. In the notice of its determination, however, the city incorrectly informed appellant that it had 30 days in which to appeal the decision to the Court of Common Pleas, when in fact it had only 10 days in which to perfect any such appeal under R.C.2505.07(B). In an effort to remedy the error and remove any prejudice created by the misinformation, the Board granted appellant a rehearing, and invited appellant to present, at this time, "* * * any additional information to substantiate your appeal." At this rehearing, appellant was represented, for the first time, by counsel and was prepared to present its case again in a more organized fashion and with additional testimonial and physical evidence from additional witnesses. However, the record clearly reveals that the Board was not interested in receiving supplementary evidence on issues raised in the earlier hearing, but was only interested in receiving evidence on any new issues which appellant wished to present in support of its request for a variance. Shortly after the rehearing began, and during counsel's direct examination of appellant's general manager, the following conversation occurred: "Chairman: As chairman, could I interrupt you just a minute. Not that I want to chop off your presentation or anything, but we went through pretty much the construction the last time and the contents of this and quality of structure and so forth. And the decision of the Board was based on not being a hardship and also enforcing the National Fire Code, and that basically was the reason for the decision. "Counsel: Alright, let me turn to something else that was not testified to, alright? "Member: Could I interrupt for just a minute? "Counsel: Sure. "Member: Unfortunately, some of us are still faced with the job of making a living. I happen to be one. I didn't know it was going to take this long. I heard all of this last time. I came to my conclusion then, and I still feel the same way. I have written out my opinion. I'll give it to anybody that is interested in it. And I have to go." With that, one member removed himself from the rehearing, despite counsel's intention to move on to matters not discussed in the first hearing. Again, throughout the rehearing, appellant was consistently denied the opportunity to *Page 109 present relevant and credible evidence bearing on the issues before the Board. The following excerpts from the transcript of the rehearing are illustrative of this: "Chairman: * * * All we're doing is hearing what your appeal is, now, and that's that. Really, at this point we're kind of going over things. We have brought out some things that wasn't [sic] discussed at the first hearing, but. "Witness: Is the first hearing still a matter of record? "Chairman: A matter of record? "Witness: Well, you've been bringing up that it came up in the last meeting. I might have been under the wrong assumption when I came in here, but I felt that meeting was never really * * * "Chairman: Well, that just can be cancelled out; the last meeting cancelled out as far as I'm concerned as far as the records go. But the only reason I brought that up as far as reference to what was said, you know, whether it would have any bearing on the decision or not. But I, in fact, brought this up. It's true I didn't mention that past hearing. This is, in order to, like we first started, like your legal advisor said, wegranted this rehearing in order to comply with this ten-day bit, you know, because you went over the ten days. And, again, we also stated that if there was any other evidence that you wanted topresent that would possibly sway our minds and change ourdecision, you know, and that's, what in fact we did here today. And after you leave the room, we'll discuss it and if we find any change, we'll give it to you. If not, you'll have the ten days." (Emphasis added.) Shortly thereafter, the Board, including the absent member, rendered its decision adverse to appellant. Upon appeal to the Court of Common Pleas, the decision of the Board was affirmed, and appellant has filed this timely appeal, asserting generally that it was denied due process of law in several respects, the specifics of which we shall consider within each assignment of error. In its first assignment of error, appellant contends that it was denied procedural due process in that the members of the Board had preconceived judgments about the merits of the claim before it and, therefore, appellant was denied an opportunity to a full and fair hearing before an impartial tribunal. The rule of law governing the issue raised by the appellant may be simply stated. Thus, it is axiomatic that a hearing conducted before a biased tribunal does not fulfill a requisite element of fundamental fairness that must predominate in all quasi-judicial proceedings. Ward v. Village of Monroeville (1972), 409 U.S. 57 [61 O.O.2d 292]; Goldberg v. Kelly (1970), 397 U.S. 254; OhioBell Telephone Co. v. Pub. Util. Comm. (1937), 301 U.S. 292;State, ex rel. Wright, v. Morrison (1947), 80 Ohio App. 135 [35 O.O. 479]. See, also, Smith v. Mayfield Heights (1955), 99 Ohio App. 501 [59 O.O. 339]. As the United States Supreme Court noted in Ohio Bell, supra, at pages 304-305: "* * * Indeed, much that they [regulatory commissions] do within the realm of administrative discretion is exempt from supervision if those restraints have been obeyed. All the more insistent is the need, when power has been bestowed so freely, that the `inexorable safeguard' * * * of a fair and open hearing be maintained in its integrity. * * * There can be no compromise on the footing of convenience or expediency, or because of a natural desire to be rid of harassing delay, when that minimal requirement has been neglected or ignored." (Citations omitted.) Thus, courts must remain especially vigilant in insuring that administrative tribunals fairly exercise their expansive grants of discretion. The essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an *Page 110 orderly proceeding. Ward, supra; Goldberg, supra; Morrison,supra. In applying this standard to the proceedings of the Board in the instant case, we conclude that appellant was denied due process of law at the rehearing of its appeal. In the first instance, it is apparent that, in the absence of any rules of procedure or other regulations promulgated by the Board, appellant had no means of knowing, with sufficient certainty, what it was required to do in order to assert its right to a full and fair hearing; and, moreover, the Board itself appeared confused as to its own function as an appellate tribunal, particularly as to whether it would hear new evidence on issues raised at the first hearing or whether it would hear only new evidence on new issues relevant to the ultimate question presented for its review. This is nowhere more evident than in the action taken by one Board member in delivering himself of his opinion and then excusing himself from the balance of the rehearing where, according to the Chairman, a review of the Board's previous action would be undertaken. If the purpose of the rehearing was to reopen the entire matter, then the Board member's prejudgment was error so clearly prejudicial to appellant's cause that it alone deprived appellant of the requisite due process. If, on the other hand, appellant was to be precluded from presenting new evidence at the rehearing on issues discussed at the previous hearing, then the Board, in granting the rehearing due to its own negligence, created in the appellant a right without a remedy, an unhappy circumstance for any individual faced with the task of dissuading members of an administrative tribunal from preconceived conclusions felt to be based upon an insufficient factual base. Where an administrative agency grants to an individual a right to be heard, it must provide a meaningful process for asserting that right. To do otherwise is to perpetrate a sham upon the affected party and the public generally. See Baltimore Ohio RR. Co. v. Pub. Util.Comm. (1968), 16 Ohio St.2d 60 [45 O.O.2d 335]; Randolph v.First Baptist Church (Hamilton C.P. 1954), 68 Ohio Law Abs. 100, 120 N.E.2d 485. The first assignment of error is well taken and accordingly sustained. In its second and fourth assignments of error, appellant argues that it was denied due process because the Board's decision is not supported by reliable, probative and substantial evidence in the record; and, therefore, the hydrant requirement was unconstitutionally applied to it. As noted in our discussion and disposition of the first assignment of error, the procedural errors committed by the Board so affected the quality of evidence adduced at both hearings that any determination of the sufficiency of the evidence, or the applicability of the ordinance to appellant, must, in the interests of justice, await the creation of a proper record on remand.1 We accordingly *Page 111 overrule, as moot, the instant assignments of error. In its third assignment of error, appellant contends that where a quasi-judicial tribunal bases its decision upon unsworn testimony, in contravention of R.C. 2317.30, the evidence so accepted must be disregarded and, as a consequence, the decision of the Board is not supported by reliable, probative and substantial evidence in the record. Arcaro Bros. Builders, Inc., v. Zoning Bd. of Appeals (1966), 7 Ohio St.2d 32 [36 O.O.2d 18]. We disagree. The rule requiring sworn testimony before administrative tribunals exists for the benefit and protection of the individual asserting a right before the tribunal and may be waived, expressly or impliedly. Stores Realty Co. v. Cleveland (1975), 41 Ohio St.2d 41 [70 O.O.2d 123]; Zurow v. Cleveland (1978), 61 Ohio App.2d 14 [15 O.O.3d 21]. At the rehearing before the Board, appellant did not object to the introduction of unsworn testimony, and thus waived its right to object to this procedure on appeal. The third assignment of error is without merit and accordingly overruled. For these reasons, the judgment appealed from is reversed; the decision of the Board is vacated; and the cause remanded to that body for further proceedings consistent with this decision. Judgment reversed and cause remanded. BLACK, P.J., and KLUSMEIER, J., concur. 1 Although we have declined to address the merits of these assignments of error, we feel constrained to clarify a conflict apparent in the respective arguments before this court concerning the burdens of proof imposed upon the parties. It is clear that where the applicant seeks a variance from an order of the Fire Chief, the very nature of the action presupposes that the city has made out a prima facie case that the proposed construction violates a valid regulation of the Fire Code. Thus, in the instant case the applicant bears the burden of persuasion throughout the proceedings as well as the initial burden of producing, by competent evidence, that a variance is justified on the grounds of undue hardship and that granting the variance will not substantially increase the danger to the public. However, while the burden of persuasion remains with the party asserting the cause of action, the burden of production may shift to the Fire Chief to demonstrate the untrustworthiness, inaccuracy or incompleteness of the applicant's evidence. Whether or not this burden of production will ever shift is wholly dependent upon the quantity and quality of the applicant's evidence in support of the variance. In any case, we cannot agree with appellant that simply because the Fire Chief presented no evidence on this point that it was entitled to a variance. Nor can we accept the city's contention that a burden — the burden of production — never shifts to the Fire Chief. It may, depending on the persuasiveness of the applicant's evidence. It is true that the Chief may decline to produce any evidence attacking the persuasiveness of the applicant's case, but he takes his chances that, in doing so, a subsequent refusal by the Board to grant the variance will be held, in view of the applicant's uncontradicted evidence, an abuse of discretion. *Page 112

2016-07-06 06:36:00.17963+00

Kerns

The plaintiffs, Rand and Theresa K. Speer, filed an amended complaint against the defendant, the Ohio Department of Rehabilitation and Correction ("ODRC"), alleging libel and slander, defamation of character, and invasion of privacy. The cause came on for trial in the Ohio Court of Claims on June 8, 1992, and, on *Page 278 October 7, 1992, the trial court rendered a decision in favor of ODRC after finding that the Speers had failed to present sufficient evidence to establish any libel, slander, or defamation of character, and had failed to prove any invasion of privacy by a preponderance of the evidence. According to the evidence, Theresa Speer began working at the Madison Correction Institution ("MCI") in London, Ohio in July 1988. She worked the second shift from August 28, 1988 through July 2, 1989, during most of which time her shift captain was Leroy Payton. Subsequently, Payton was promoted to administrative captain which position involved conducting investigations for the chief of security at the prison. In September 1988, Theresa Speer approached Payton and told him that she was given a warning by another employee that there were rumors floating around that she was involved with two inmates and that she should be careful in her association with inmates. Payton indicated that he had not heard such rumors, but that he had heard from line supervisors that inmates were observed engaging in lengthy conversations with her. Thereafter, Payton received various reports, including reports from other female correction officers, that Speer was being "too friendly" with the inmates. As more specific references to particular conduct of Theresa Speer continued to be reported, Payton launched a formal investigation into her activities. The surveillance and investigation of Speer took a number of turns until February 12, 1989, when Payton positioned himself in the ceiling of a staff restroom for over seven hours for the purpose of spying on her. The restroom was maintained for both male and female staff members, and Payton heard several people come and go, including Theresa Speer, during his lengthy period of surveillance from the crawl space. At the time of this phase of the investigation of Speer, there were no guidelines or any written policy governing the surveillance of employees, but the warden at MCI testified that he was unaware of any other investigation which included spying on employees in the bathroom. In this appeal, the Speers have set forth three assignments of error, the first of which has been stated as follows: "The court below erred in finding that the plaintiff/appellant failed to present sufficient evidence to establish libel, slander and defamation of character." With respect to this alleged error, it is well to remember that in a trial to the court without a jury, a motion for judgment at the conclusion of the plaintiff's case is one for dismissal under Civ.R. 41(B)(2) and not a motion for a directed verdict under Civ.R. 50. Bank One, Dayton, N.A. v. Doughman (1988), 59 Ohio App.3d 60, 62-63, 571 N.E.2d 442, 444. A dismissal of plaintiff's case under *Page 279 Civ.R. 41(B)(2) allows the trial court to weigh the evidence, resolve any conflicts, and render judgment for the defendant. See Janell, Inc. v. Woods (1980), 70 Ohio App.2d 216, 217, 24 O.O.3d 266, 435 N.E.2d 1138, 1139; Altimari v. Campbell (1978),56 Ohio App.2d 253, 255-256, 10 O.O.3d 268, 270,382 N.E.2d 1187, 1190. See, also, Levine v. Beckman (1988),48 Ohio App.3d 24, 27, 548 N.E.2d 267, 270. Here, the plaintiffs were required to prove that defamatory matter was published or spoken of them (R.C. 2739.01). In such context, defamation has been defined as a false representation, either written or spoken, which injures a person's reputation. See Dale v. Ohio Civ. Serv. Emp. Assn. (1991), 57 Ohio St.3d 112, 567 N.E.2d 253. Moreover, the plaintiffs had the burden of proving that such statements were made with malice. See Evely v.Carlon Co. (1983), 4 Ohio St.3d 163, 4 OBR 404, 447 N.E.2d 1290;Stearns v. Ohio Savings Assn. (1984), 15 Ohio App.3d 18, 15 OBR 39, 472 N.E.2d 372. In the present case, the record is voluminous and the evidence is somewhat unwieldy, but our search has failed to disclose anything of substance to support the claims of the appellants that they were unnecessarily defamed by the appellee's employees. In fact, a carelessly misplaced incident report and an uncomplimentary newspaper article, both of which were provided by the appellants themselves, probably turned out to be the most damaging to their reputations. As in most cases, the evidence upon critical issues was conflicting to some extent, but it is fundamental that the opinion of a reviewing court has no force against conflicting evidence and inferences. Moreover, this court is required to give way to the trial court upon the issue of credibility. In other words, the state of the evidence upon the allegations of libel, slander, and defamation of character is such as to preclude any interference from this court, and, accordingly, the first assignment of error is overruled. The second assignment of error has been submitted as follows: "The court below erred in equating the term `search' as it is used in the ODRC employee consent-to-search form to the term `surveillance.'" This alleged error is directed to a consent form, which was signed by Theresa Speer at the time of her employment on July 5, 1988 and which provides specifically as follows: "The undersigned employee hereby consents to be searched at any time or any place while on the property of any institution of the Ohio Department of Rehabilitation and Correction. Such search may be conducted whenever the need for institution security may require it, and shall not be limited to search for *Page 280 cause, but may include random search. The undersigned further acknowledges that refusal to submit to search at any time shall constitute an act of insubordination, which may result in appropriate disciplinary action." In commenting upon the claimed invasion of privacy, the trial court alluded to the executed consent form as follows: "* * * This consent to search document certainly indicates that an employee of defendant has consented, as a condition of employment, to be searched or observed at any time that employee is on the property of the institution." With reference to the consent form, the expanded interpretation of the trial court obviously embraces conduct which was not within the contemplation of any of the parties to this action when the form was signed on July 5, 1988. In fact, the consent form, by its own terms, has little or no relevancy to either the surveillance from the bathroom ceiling or the claimed invasion of privacy. Moreover, a search envisioned by the plain words of the form must be one to which an employee can refuse to submit at the risk of disciplinary action, but unless an employee is aware of a search, she cannot refuse to submit to it. Therefore, the reliance of the trial court upon the signed consent to search constituted error. The third assignment of error has been presented by the appellants as follows: "The court below erred in finding that the invasion of privacy complained of herein is immune from suit for reasons that the ODRC was simply making policy decisions with regard to the activities and administration of the department." This assigned error is apparently responsive to the following observation of the trial court: "* * * In the case of this defendant, security and the proper and efficient operation of the institution are of top priority. When those who are employed by the institution become involved in activities that are not authorized, the general security of the entire institution may be in jeopardy. "While this judge may or may not personally condone some types of surveillance tactics, this court will not intervene in a basic policy decision that relates to the activities and administration of a state department. * * *" In support of this explanation, the court relied upon the case of Reynolds v. State (1984), 14 Ohio St.3d 68, 14 OBR 506,471 N.E.2d 776, but unlike the facts of the Reynolds case, the defendant's conduct in this case was not traceable to any policy-making decision. On the contrary, the investigator, Payton, specifically testified that there was no formal policy regarding investigations of alleged misconduct. Furthermore, the reliance of the trial court upon "basic policy" *Page 281 cannot be reconciled with evidence which reveals that Payton was reprimanded by his supervisors for pursuing the surveillance tactics employed in this particular case. As noted by the trial court, the proper and efficient operation of the institution was of top priority and, unquestionably, reasonable surveillance of employees in an institutional setting is an acceptable investigative tool, but we have been unable to find any evidence that the appellee's admitted conduct in the bathroom was defensible as a policy matter. Hence, the finding of the trial court that the surveillance of Theresa Speer from the restroom ceiling was pursuant to the exercise of basic policy is against the manifest weight of the evidence. In their brief, the appellants also claim that the appellee invaded their privacy by obtaining the toll and billing records for their telephone number, but this court has not been specifically directed to the evidence in the transcript upon which the appellants rely, as required by App.R. 16(D), and this court has been unable to find sufficient evidence to support the claim. In fact, the Speers admit that such records did not identify the caller or the recipient of the calls, but only indicated whether calls were made and the length of each call. Hence, we cannot say that the trial court's disregard of the appellants' argument about the subpoenaed telephone records constituted error. In these proceedings, the appellants also have been favored with an amici curiae brief which challenges the authority of a public employer to surreptitiously surveil its employees for a period of seven hours from the ceiling of a private bathroom maintained for the use of both male and female employees. The amici curiae brief, which reflects the views of a number of organizations, relates solely to the claim of invasion of privacy which arose from the restroom surveillance of Speer on February 12, 1989. These organizations have set forth three assignments of error as follows: "I. The court below erred in holding that the surreptitious surveillance of plaintiff in the employee bathroom by defendant's supervisory employee was a search consented to by plaintiff. "II. The lower court erred in holding that the action of surveilling plaintiff in a private bathroom was pursuant to a broad policy [of] decisionmaking and provided immunity to the defendant from suit for the injuries caused to plaintiff. "III. The lower court erred in holding that under a constitutional analysis, not required in this tort action, the intrusion into plaintiff's privacy was reasonable." The third assignment of error is dependent, in one way or another, upon the validity of the first and second assignments of error, and, as heretofore indicated herein, the finding that Speer consented to the surveillance on February 12, 1989 *Page 282 and the finding that such surveillance was pursuant to basic policy are against the weight of the evidence. Accordingly, appellants' first assignment of error is overruled, but the second and third assignments of error are sustained. The judgment of the Court of Claims is reversed and the cause is remanded to the trial court for further proceedings according to law. Judgment reversedand cause remanded. WHITESIDE and TYACK, JJ., concur. JOSEPH D. KERNS, J., retired, of the Second Appellate District, sitting by assignment.

2016-07-06 06:36:00.411401+00

Per Curiam

These two proceedings have their origin in the same case, and, although they relate to different rulings of the Common Pleas Court, in fact involve the same subject matter. From the meager record before us it appears that the plaintiff had obtained a judgment against the defendant Benguet *Page 548 Consolidated Mining Company, and to complete the satisfaction of the judgment, the defendant deposited with the clerk of courts the sum of $77,453.77. The record before us does not show the nature of the cause of action upon which the judgment was rendered. Thereafter, Gorman, Davis Hengelbrok filed an intervening petition, alleging that they, and their predecessors, Gorman, Silverstein Davis had performed services as attorneys for the plaintiff in the case, which resulted in obtaining the judgment, to satisfy which the deposit had been made with the clerk of courts. They asked that the court determine the reasonable value of their services and charge it against said deposit, and order the amount paid to them. The court made an order fixing the date of the hearing upon the intervening petition, and ordered that the plaintiff be notified of the date of hearing. Notice was duly given, but the plaintiff failed to appear on the date set. After a hearing, the court fixed the reasonable value of the services at $13,500, made it a charge against the fund in the custody of the clerk of courts, and ordered its payment. This order was made on May 16, 1956. The validity and regularity of that judgment is not involved in the present hearing. What is involved is the validity of the appeals from that judgment. It seems that on May 25, 1956, the plaintiff delivered a telegram to Western Union Telegraph Company at Pleasantville, New York, to be transmitted to clerk of court, Ralph A. Parker, and sheriff Clyde Dericks, at Batavia, Ohio. This telegram was delivered to the sheriff on May 26, 1956, and is as follows: "This is formal notice to all interested parties intervening on their petition motion and garnishment before submitting Judge John H. Houston May 16th, 1956 that I am appealing from both signed awards and judgment entry for $13,500 in Case 22185 and the garnishment order in aid of execution No. 6477 for sums $28,922.03 and interest $38.75 in Hamilton County Case A-103968 altogether totaling $42,460.78 prematurely and erroneously awarded to Messrs. Gorman, Davis Hengelbrok, Pfeiffer Barasch, Attorneys, who promises me jury *Page 549 trials on merits of all five cases filed. Mailing copy to all parties. "Idonah Slade Perkins." It will be noted that three proceedings are mentioned in the telegram — two pending in Clermont County and one in Hamilton County. The judge ordered the telegram to be filed in all cases. The telegram bears the stamp of the clerk showing it was filed on the same day but does not indicate the case in which it was filed. However, we are asked to treat this telegram as a notice of appeal from the judgment in favor of the intervenors in case No. 22185, which was one of the cases mentioned in the telegram. Among the papers on file in this case is a document headed "Transcript of the Docket and Journal Entries filed since April 13th, 1956." The caption contains the names of the plaintiff and defendants, but has the number of 22183, and not number 22185. It does not carry the filing stamp of the clerk and has no certificate of the clerk attached. It does contain this endorsement on its face: "Filed August 20, 1956. Ralph A. Parker, Clerk, by Ann Garner, Deputy." We find among the papers an unstamped praecipe for transcript, signed by plaintiff's counsel. It could be inferred that plaintiff filed this document in this court, and that the proceeding then, for the first time, was given a number upon the docket of this court. The record is barren of any action taken by the appellant in this proceeding from May 26th to the present time, to prepare this proceeding for hearing. No assignment of errors or briefs on the merits have been filed, or leave asked for an extension of time for filing, although more than twice the time, fixed by the rules of court, for such filing has expired. On July 12, 1956, the plaintiff filed a motion in the Court of Common Pleas seeking a rehearing and reconsideration of her motion "to set aside judgment of intervenors filed on June 22, 1956, and further moves the court to enter a final order ruling on the motion for a new trial filed on May 26, 1956." Various reasons were set forth as a basis for the request, but we do not deem it necessary to set them forth here. It will be noted that *Page 550 in her motion of July 12, the plaintiff referred to the overruling of her motion of June 22, 1956. That motion was to set aside the judgment of the intervenors, rendered on May 16, 1956, and cannot be regarded as other than a motion for a new trial filed after the expiration of the statutory time. On July 26, 1956, this motion was overruled. On August 20, 1956, plaintiff filed in the Common Pleas Court a notice of appeal from the aforesaid order of July 31, 1956, and this proceeding has been given the number 240 upon the docket of this court. What has been said as to the failure of the plaintiff to file a properly certified transcript, assignment of errors, and briefs in case No. 238, applies equally to case No. 240. By agreement of counsel, these two proceedings (Nos. 238 and 240) were consolidated and presented to the court as though motions to dismiss had been filed in each. We are of the opinion that both should be dismissed. Case No. 238 should be dismissed for the following reasons: (1) The telegram of May 25, 1956, is too vague, ambiguous, and contradictory to constitute a notice of appeal; (2) the plaintiff has failed completely to comply with the rules of this court relating to the filing of assignment of errors and briefs; and (3) no praecipe for a duly authenticated transcript was filed within ten days, and it does not appear that plaintiff has paid the cost thereof. Proceeding No. 240 is dismissed (1) for the reason that it is based on a motion for rehearing of an order upon plaintiff's motion for a new trial filed on June 22, 1956, which, in itself, was a motion for a new trial, and both motions were filed after the expiration of the time allowed by law; (2) for the reason that the plaintiff has failed to comply with the rules of this court relating to the filing of briefs and assignment of errors; and (3) for failure to comply with the law relating to the filing of a transcript. Appeals dismissed. HILDEBRANT and MATTHEWS, JJ., concur.

2016-07-06 06:36:00.448295+00

Dahling

This cause is in this court on appeal from a judgment of the Willoughby Municipal Court on a finding of guilty to the charges of "possession of hallucinogen" and "reckless operation," violations of R. C. 3719.41 and R. C. 4511.20 respectively. On the "possession" charge, the defendant was fined $150 plus costs with $50 of the fine suspended; sentenced to thirty days in jail, with all days suspended but placed on inactive probation for one year; and was required to attend offenders' attitude school. On the "reckless operation" charge, the defendant was fined $50 plus costs. The defendant filed his Notice of Appeal and assigned the following errors: "1. The court's denial of defendant's motion to dismiss was contrary to the laws of the State of Ohio and a denial of the defendant's constitutional right to a speedy trial; "2. The trial court was without jurisdiction to render a final order of conviction and sentence in this case; "3. The overruling of the defendant's motion to dismiss denied the defendant his right not to be deprived of liberty *Page 184 or property without due process of law pursuant to theFourteenth Amendment of the United States Constitution." The defendant was arrested by the Willoughby Hills Police Department on February 5, 1974, charged, and incarcerated until February 8, 1974, when he was released on personal bond. On February 26, 1974, the defendant was incarcerated at the Geauga County jail and was held there on various charges until May 7, 1974. During the period of the defendant's Geauga County incarceration, several unsuccessful attempts were made to release him and bring him before the Willoughby Municipal Court. The defendant was scheduled for a pretrial hearing on March 8, 1974. On April 10, 1974, a notation was made in the record that the case was continued because of the defendant's incarceration. The court appointed counsel for the defendant on June 28, 1974. On July 25, 1974, the defendant's attorney filed a Motion to Dismiss pursuant to R. C. 2945.71 and R. C. 2945.73. A hearing on the defendant's Motion to Dismiss was held on July 25, 1974, at which time it was denied. The defendant then pled no contest to the charges of "possession of hallucinogen" and "reckless operation," and was sentenced by the court. Further, upon his release on May 7, 1974, from the Geauga County jail, the accused was transferred to the Court of Common Pleas of Lake County to answer for charges in that court. He was therein released on personal bond and transferred to the Lyndhurst Municipal Court, where he was released on a surety bond. The defendant made no appearance in the Willoughby Municipal Court after the arraignment until June 28, 1974. At no time, until July 25, 1974, did defendant file for or request an immediate trial. The date that defendant first raised the issue of his right to a speedy trial was the date that his case was heard on its merits. We will consider the three Assignments of Error together as they are in fact a claim of the denial of a speedy trial. *Page 185 R. C. 2945.71(B) provides, in part as follows: "A person against whom a charge of misdemeanor, other than a minor misdemeanor, is pending in a court of record, shall be brought to trial: * * * [2] Within ninety days after his arrest or the service of summons, if the offense charged is a misdemeanor of the first or second degree, or other misdemeanor for which the maximum penalty is imprisonment for more than sixty days." Accordingly, it was mandatory that the defendant be tried within 90 days unless an extension of time was granted as provided in R. C. 2945.72. This section provides, in part: "The time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following: (A) Any period during which the accused is unavailable for hearing or trial, by reason of other criminal proceedings against him, within or outside the state, by reason of his confinement in another state, or by reason of the pendency of extradition proceedings, provided that the prosecution exercises reasonable diligence to secure his availability * * *." The time lapse from defendant's arrest to trial is as follows: 2/5/74 to 2/8/74 (3 days × 3 [incarcerated]) 9 days 2/8/74 to 7/25/74 167 days Total: 176 days Counsel for defendant and the state agree that defendant was incarcerated in Geauga County (a county adjoining Lake County) jail for 70 days and further agree some efforts were made to have defendant at the pretrial without success. However, the record is void with regard to the precise efforts made to have him brought from Geauga County jail to Willoughby Municipal Court. If the 176 day period is reduced by the 70 days defendant was in jail, which we do not think it should be, then the defendant was still denied a trial within the statutory time. In the instant case, the defendant took no action which delayed the proceedings. A defendant is not required *Page 186 to request a trial within the statutory time and is not required to show that he was prejudiced by the delay. It is the duty of the state and the trial judge to bring cases to trial within the time required by R. C. 2945.71. In our opinion, the record does not disclose any exception, as allowed by R. C. 2945.72. A court of appeals cannot pass upon evidentiary matters not appearing in the record (Karun v. State (1959), 162 N.E.2d 625). A court of appeals in an appeal upon questions of law cannot consider, in reaching judgment, facts drawn from the personal knowledge of counsel where such facts are not a part of the record (Allison v. Watkins (1957), 151 N.E.2d 386). A court of appeals is bound by the record as it comes to that court, certified by the trial judge (Buckeye Union Casualty Co. v. Biete (1958), 162 N.E.2d 210). We are of the opinion that defendant, not having been brought to trial within the statutory period, has presented a primafacie case for discharge. The state then had the burden of proving an exception when the defendant filed his Motion to Dismiss on July 25, 1974. This the state failed to do. In conclusion, we are of the opinion that the reasons for delay in the trial of the defendant do not fall under any of the exceptions enumerated in R. C. 2945.72. Therefore, the judgment of the trial court is reversed and final judgment is entered for defendant. Judgment reversed. HOFSTETTER, P. J., and COOK, J., concur. *Page 187

2016-07-06 06:36:00.543246+00

Hildebrandt

We have, sua sponte, removed this case from its original setting on the accelerated calendar. The defendant-appellant, Jennifer L. Chumbley, appeals from her conviction of sale of liquor to an underage person. Chumbley was the bartender at "Oscar's," a bar located in downtown Cincinnati. Oscar's used a hand-stamp system to identify whether its patrons were of legal age to purchase alcohol. A "low" stamp was placed upon the hand of an underage patron, and a "high" stamp was placed upon the hand of a patron of legal age. Upon entering the bar on October 10, 1996, twenty-year-old Kevin Boehmer had his hand marked with a "low" stamp indicating that he was underage. Boehmer then purchased a can of beer from Chumbley without showing any type of identification. At some time after this purchase, Boehmer transferred a "high" stamp onto his hand from another person who was of legal age. Boehmer then purchased a pitcher of beer and two "shots" of alcohol from Chumbley. Again, Boehmer did not present any form of identification. Cincinnati Police Officer Timothy Campbell observed the transactions. After the second transaction, an officer approached Boehmer and ascertained his age while another approached Chumbley. Officer Campbell testified that, at the scene, Chumbley indicated that *Page 325 she did not recall serving Boehmer. Chumbley was charged under R.C. 4301.69 (A) for Boehmer's second purchase of beer. At trial, Chumbley testified on direct examination that Boehmer approached her twice to purchase alcohol. She stated that she "assumed" that Boehmer was of legal age because he initially approached the bar in the company of an employee of the bar. She stated that she did not see a stamp on Boehmer's hand at the time of his first purchase, but that she did see a "high" stamp on his hand at the time of the second purchase. Chumbley stated that Boehmer did not provide any form of identification. She admitted that she had received alcohol management training and was aware of the risk of selling alcohol to an underage person by not checking identification. In her sole assignment of error, Chumbley argues that this court should reverse its previously held position that R.C.4301.69 (A) is a strict-liability offense. See State v. Burke (Dec. 19, 1979), Hamilton App. No. C-790028, unreported; State v.Moran (Nov. 4, 1992), Hamilton App. No. C-920279, unreported, 1992 WL 691953; State v. McCall (Sept. 29, 1995), Hamilton App. No. C-950045, unreported. We are not persuaded and affirm the judgment of the trial court for the following reasons. In addition to the position held by this court, the overwhelming majority of courts that have visited this issue have found that R.C. 4301.69 (A) is a strictliability offense. SeeState v. Jones (1989), 57 Ohio App.3d 155, 567 N.E.2d 313; Statev. Cheraso (1988), 43 Ohio App.3d 221, 540 N.E.2d 326; Markho,Inc. v. Ohio Liquor Control Comm. (Dec. 16, 1997), Franklin App. No. 97APE04-476, unreported, 1997 WL 782001; D. Michael SmithEnterprises Inc. v. Ohio Liquor Control Comm. (Oct. 29, 1997), Summit App. No. 18332, unreported, 1997 WL 775658; State v.Spicer (Mar. 30, 1994), Greene App. No. 93-CA-55, unreported, 1994 WL 102097; Willie's Joint Venture v. Ohio Liquor ControlComm. (Sept. 28, 1998), Franklin App. No. 93AP-497, unreported, 1993 WL 381214; State v. Wilson (June 13, 1991), Delaware App. No. 90-CA-38, unreported, 1991 WL 115985; State v. McConnell (Nov. 2, 1988), Champaign App. No. 88-CA-5, unreported, 1988 WL 120127; State v. Ohl (May 27, 1988), Geauga App. No. 1390, unreported, 1988 WL 57335; State v. Smith (Oct. 14, 1987), Summit App. No. 13094, unreported, 1987 WL 18681; State v. Breiding (Feb. 4, 1987), Summit App. No. 12770, unreported, 1987 WL 6173; State v. Riley (Apr. 15, 1987), Summit App. No. 12733, unreported, 1987 WL 9841; State v. Won (Dec. 31, 1986), Summit App. No. 12658, unreported, 1986 WL 15277. The only contrary authorities in this state are three municipal court cases.1 *Page 326 Although R.C. 4301.69 (A) is a strict-liability offense, R.C.4301.639 provides an affirmative defense to a defendant who is charged with a violation, but who has, in good faith, accepted false identification. R.C. 4301.639 provides that one may not be found guilty if the court finds that all of the following occurred at the time of purchase: (1) the purchaser exhibited a driver's license or identification card that showed him to be of legal age to purchase intoxicating liquor; (2) the seller of the liquor made a bona fide effort to ascertain the true age of the purchaser by checking the identification at the time of purchase; and (3) the seller had reason to believe that the purchaser was of legal age. Even if Chumbley had claimed the affirmative defense, only the third requirement could have been demonstrated. Chumbley argues that since there is no specified culpable mental state in R.C. 4301.69 (A), the state must prove recklessness in order to sustain a conviction. As listed above, this court and all other appellate courts in this state have repeatedly declined to revisit this issue. Additionally, in light of the diligent, affirmative acts that must be demonstrated in order to establish an affirmative defense under R.C. 4301.639, the legislature could not have intended recklessness as the culpable mental state of R.C. 4301.69. Finally, the facts of the case at bar are distinguishable from those upon which the contrary municipal court decisions are based. We, therefore, continue to hold that R.C. 4301.69 (A) is an offense of strict liability and affirm the judgment of the trial court. We note, however, that even if this court were to apply recklessness as the requisite culpable mental state, Chumbley's testimony clearly established that she acted recklessly as defined in R.C. 2901.22 (C) in committing the offense. Judgment affirmed. SHANNON, J., concurs. PAINTER, J., dissents. RAYMOND E. SHANNON, J., retired, of the First Appellate District, sitting by assignment. 1 State v. Sleppy (1992), 62 Ohio Misc.2d 394,599 N.E.2d 441; State v. Parker (1994), 66 Ohio Misc.2d 1, 642 N.E.2d 66;State v. McGhee (1984), 12 Ohio Misc.2d 15, 12 OBR 490,468 N.E.2d 400.

2016-07-06 06:36:00.550471+00

Painter

Making criminals of those who do not have a criminal intent flies in the face of common sense, fundamental fairness, and the purpose of the criminal law. Imposing a standard of "strict liability" for a crime nieans that a person is guilty of a criminal offense even if the act was unintentional. If there were strict *Page 327 liability for shoplifting, a young mother whose child, without the mother's knowledge, slipped candy into her purse at the grocery could go to jail. I must first take issue with the majority's recitation of the facts. Chumbley was charged only with selling a pitcher of beer to Boehmer. During this transaction, Boehmer had a "high" stamp, which Chumbley saw and relied on before pouring the beer. The majority mixes. in facts from an earlier transaction, where Chumbley allegedly served Boehmer a can of beer before he replaced the "low" stamp on his hand with a "high" stamp. But Chumbley was not charged under R.C. 4301.69 (A) for this earlier transaction. The same goes for the two shots of liquor that Boehmer purchased with the pitcher — they had been drunk before the police could confiscate them. Disingenuously, the majority attempts to weave in Chumbley's conceivably reckless actions that are not the subject of this conviction to distinguish this case from the three published municipal court decisions, Parker,2 Sleppy,3 andMcGhee,4 which are directly on point. I believe the law still is that one may not be convicted of a crime unless charged. So I will confine my discussion to the facts of the actual case. The trial court here found that Chumbley had relied on the red stamp on Boehmer's hand "as she was trained to do, and she did it in good faith," and further stated a wish to be free to find the defendant not guilty. The trial judge had the right instinct — that justice requires a not-guilty finding in this case. Meting out criminal records to those acting "in good faith" is repugnant to our system of justice. In Sleppy and Parker, as a municipal court judge, I held that a recklessness standard must be applied to R.C. 4301.69 (A) because the section does not specify the degree of culpability and does not plainly indicate a purpose to impose strict liability.5 The majority ignores this rule and also ignores R.C. 2901.04 (A), which provides that criminal statutes are to be strictly construed against the state and liberally construed in favor of the accused. I stand by my former decisions. More recent case law has further persuaded me that they were rightly decided. Last year, in State v. McGee6 (not to be confused with McGhee), the Ohio Supreme Court determined that recklessness was an essential element of the *Page 328 crime of endangering children under R.C. 2919.22 (A).7 Though the statute begins with the ubiquitous "No person * * * shall" language that many courts, such as those cited by the majority for support, use as evidence that the legislature intended to impose strict liability, the Ohio Supreme Court held that the child-endangering statute does not plainly indicate such an intent. Many courts — and this case provides the perfect example — have grossly overreached by finding that various statutes "plainly" indicate that the legislature intended to impose district liability. As Judge Hoffman has astutely observed, "I am unaware of any crime that does not contain the "No person shall * * *' language."8 Courts strain to find that statutes "plainly" indicate that the legislature intended to impose strict liability. But the more the strain, the less the legislature's intent is plain. If the legislature wishes to impose strict liability, it need only say so. I would not protest as loudly if jail time were not a possible penalty for a violation of R.C. 4301.69 (A). Strict-liability offenses promulgated to mold behavior through the imposition of small fines have been accepted throughout this country.9 But I believe that most offenses that carry the possibility of jail time as punishment should include a mens rea requirement, with a minimum requirement of criminal negligence.10 Certainly, courts should be much more reluctant to subject those of our citizens who do not have a "guilty mind" to jail time than to impose a fine. Because a violator of R.C. 4301.69 (A) can receive jail time, this statute should not be a strict-liability crime. The majority is indeed correct that precedent in this district favors its position. This district has been consistently wrong for many years, with untold hundreds of innocent and hard-working men and women suffering the consequences. While we could never make up for the decades of mistreatment of our citizens, we should now stop this egregious misapplication of the law. The majority decision today means in practice that anyone who works her way through college by working in an establishment that serves alcohol will likely incur a criminal record. This result would be bad enough if the law mandated it, *Page 329 but the law requires exactly the opposite. Criminals enough we have, without creating them wholesale by statutory misinterpretation. 2 State v. Parker (1994), 66 Ohio Misc.2d 1,642 N.E.2d 66. 3 State v. Sleppy (1992), 62 Ohio Misc.2d 394,599 N.E.2d 441. 4 State v. McGhee (1954), 12 Ohio Misc.2d 15, 12 OBR 490,468 N.E.2d 400. 5 See R.C. 2901.21 (B). 6 State v. McGee (1997), 79 Ohio St.3d 193, 680 N.E.2d 975, syllabus. 7 See, also, State v. Adams (1950), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, paragraph one of the syllabus (holding recklessness an essential element of endangering children under R.C. 2919.22[B][2]). 8 State v. Wilson (June 13, 1991), Delaware App. No. 90-CA-35, unreported, 1991 WL 115955 (Hoffman, J., dissenting). 9 Sayre, Public Welfare Offenses (1933), 33 Colum.L.Rev. 55 (noting that society's interests outweigh the interests of an individual subjected to a light penalty for violating a strict.liability statute). 10 See State v. Hazelwood (Alaska 1997), 946 P.2d 875, 890 (Compton, C.J., dissenting), citing State v. Rice (Alaska 1981),626 P.2d 1-04 (Matthews, 3., concurring).

2016-07-06 06:36:00.583434+00

Troop

This appeal is taken from a judgment entered in the Columbus Municipal Court, following the return of a verdict of guilty by a jury. Defendant, appellant herein, was charged with operating a motor vehicle while under the influence of alcohol on August 12, 1962. He was arrested following a collision with a parked automobile. At the trial of the case, the prosecution rested, following which the defense rested and then made a motion to dismiss the action upon the ground there was a failure to establish that the defendant was under the influence of alcohol. Amplifying their contention counsel argued as follows: "There has been no testimony whatsoever, no opinion testimony that any officer or any witness that has appeared that gave an opinion that this man was under the influence of alcohol." The motion was overruled, the court charged the jury, a verdict of guilty was returned, and the court sentenced the defendant. Defendant lists five assignments of error. Number two is mistakenly included since the case was actually tried to a jury. The fifth is perfunctory. For their first assignment of error counsel urge that the trial court erred in failing to sustain defendant's motion to dismiss made at the conclusion of all the evidence. In oral argument and written brief counsel make essentially two points in support of the claimed first error. First, nobody testifying expressed the opinion that the defendant's condition was due to his being under the influence of alcohol, and second, the prosecution did not show that his condition was not caused by the apparent blow on the nose about which there was some testimony. Those testifying in the instant matter were laymen and not experts respecting any phase of the case. They reported *Page 74 what they saw and heard directly, which testimony was before the jury and submitted to it under an appropriate charge by the trial court. Any opinion that might have been expressed by police officers or citizens was neither required nor necessary. In the case of Reinheimer v. City of Greenville (1930), 9 Ohio Law Abs., 573, we find a rule announced at page 574. It reads as follows: "When it appears that an individual in all probability has sufficient experience to express an opinion as to whether or not a man is drunk or sober and opportunity to observe him he may do so without further explanation." Opinion evidence of nonexperts is admissible when it is shown that it is supported by experience, which may have been done with propriety in this case. The rule says that it may be admitted. Whether or not this defendant was driving an automobile while under the influence of alcohol is the precise question the jury in the case was required to decide. Paragraph one of the syllabus in Fowler v. Delaplain (1909), 79 Ohio St. 279, reads as follows: "A question to a witness which calls for his opinion on the precise issue of fact which the jury is sworn to determine from the evidence, is incompetent." This rigid rule appears somewhat at variance with the more liberal view expressed in the Reinheimer case, supra, but it makes perfectly clear that the lack of opinion evidence concerning facts a jury can and should decide is in no sense fatal to the prosecution's case. The suggestion that opinion evidence, particularly that of nonexperts, can well be excluded is found in 21 Ohio Jurisprudence (2d), 405, Section 400, and following. At page 408, Section 401, the reason for the exclusion appears as follows: "Jurors are supposed to be competent in everything pertaining to the ordinary and common knowledge of mankind, and to be peculiarly qualified to determine the connection between cause and effect established by common experience, and to draw the proper conclusions from the facts before them." Further at page 410, Section 402, the text reads as follows: "But the opinion of a witness is not desirable in any case *Page 75 where the jury can get along without it; it should be admitted only from necessity, and when it is likely to be of some value." There is further discussion about opinion evidence in the pages following, but enough has been said to make it clear that the omission of an expressed opinion by a nonexpert concerning the condition of the defendant in the trial of this case was in no sense a fatal omission. The case of Masterson v. George F. Alger Co. (1957), 78 Ohio Law Abs., 89, upon which defendant relies to support his point that opinion was necessary in the instant case, offers but feeble help. It is a civil case. Paragraph three of the headnotes says that there was "no testimony" concerning the intoxication of the plaintiff, to support the defendant's requested instruction. Nowhere is there the faintest suggestion that it was the lack of an expressed opinion that determined the refusal of the special instruction. We turn to defendant's fourth assignment of error, that the verdict of the jury is against the manifest weight of the evidence. A review of the record reveals ample direct evidence concrning the physical condition, attitude, speech, mode of walking and standing, state of eyes, and pollution of breath of the defendant to enable the jury, using their general knowledge and experience, to reach a conclusion that the defendant was under the influence of alcohol. Attention is called to the case of State v. Steele (1952), 95 Ohio App. 107, for assistance in analyzing evidence as to the offense of operating a motor vehicle while under the influence of alcohol. In determining whether a judgment in a criminal matter is manifestly against the weight of the evidence the record must be reviewed in the light of the criminal rule of proof beyond a reasonable doubt. Even so, the commonly emphasized requirement is that the verdict is "manifestly" contrary to the weight of the evidence. In the case of State v. Johnson (1950), 57 Ohio Law Abs., 524, the Court of Appeals of the Second Appellate District quoted and followed Bresse v. State, 12 Ohio St. 146. At page 532, the appellate court quotes the fourth paragraph of the syllabus of the Bresse case, as follows: "A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing *Page 76 court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony." It can hardly be said that a conflict of any kind is present in the instant case since no defense of any kind was offered. If a reviewing court should be reluctant to reverse where there is conflict in oral testimony, that reluctance should increase where the defense offers nothing to controvert the facts adduced by the prosecution. Counsel for defendant urge that the prosecution failed to establish that defendant's condition was due to the presence of alcohol in his system rather than to a blow he presumably received in the accident. The witness Smith testified that the defendant said he was not hurt when he, Smith, inquired as to the wound and blood on defendant's nose. No objection was made to this testimony. The possible effect of a blow on the nose on the general physical condition of a person is best established by medical experts. Defense, however, elected not to produce any evidence to contest the evidence adduced by the prosecution respecting the presence of alcohol in the defendant's system or to show that the objective symptoms then in evidence were due to a blow on the nose. Finally, defendant claims as the third error that the trial court was wrong in failing to charge the jury on circumstantial evidence. There is no further reference to this assignment of error to be found in defendant's brief. The evidence contained in the record is direct and not circumstantial. Surmising that counsel had in mind that the evidence putting the defendant behind the wheel was circumstantial justifies the observation that what we have is merely a necessary inference to be drawn from direct facts. Witness Smith testified: "I saw him get out of the car." The police officer testified, "He admitted that he was driving the automobile eastbound and had struck this car." This court has already determined that the driving of the automobile may be established by reasonable inference. In the decision in the case of City of Columbus v. Bailey (1962),115 Ohio App. 19, we find this language in the opinion at page 20: "When a collision occurs and one of the cars involved contains two passengers, and almost immediately after the accident one of those passengers gets out of the left-hand or driver's side, we believe it is a logical and reasonable inference not just *Page 77 that the one who got out on the left-hand side was merely a passenger but that such person was the driver of the car." The inference is even stronger in the instant case. There was no other passenger and a witness saw the defendant get out of the car. Such direct evidence is supported by defendant's admission, made to the arresting officer, that he was driving. There was substantial evidence before the jury, which it evidently accepted, to prove the essential elements of the offense. The judgment of the trial court is, therefore, affirmed. Judgment affirmed. BRYANT and DUFFEY, JJ., concur.

2016-07-06 06:36:00.614581+00

Hildebrant

This appeal on law and fact is presented to this court on the second amended petition, the answer of defendant corporation, the amended answer of defendant partnership, the record, the exhibits introduced in evidence here, and the arguments and briefs of counsel. *Page 325 The defendant partnership consists of Charles E. Deye, his wife and son, who also own all the stock of defendant corporation. Both forms of enterprise are operated as one, under the same roof, with the partnership engaged in doing the manufacturing, and the corporation engaged in selling electrotype units, with the defendant Charles E. Deye in the actual management and control of both. Plaintiff, a brother of defendant Charles E. Deye, was for many years employed in the enterprise, and for a number of years prior to his leaving that employment in January 1946, was plant superintendent at a salary of $12,000 per year. Plaintiff's claims are based upon an alleged contract negotiated with defendant Charles E. Deye for the payment of "royalties" of 10 cents per unit on units assembled into composite metal molds known as "step and repeat" units, made by the method invented by plaintiff and, finally, on the third application therefor, patented in the name of plaintiff, although in the application therefor the patent rights were assigned to the corporation, which has always been sole owner thereof. The burden of proving such a contract rests upon the plaintiff. Defendant denies that the agreement, made and acted upon for approximately two years, even contemplated any payment of royalties as such, but claims it amounted only to an increase in compensation to satisfy the demands of plaintiff made under a threat by plaintiff of leaving his employment with the defendant, and that the agreement took the form it did in order to obviate the salary freeze in effect at the time by federal law. It therefore appears that decision of this case depends upon the legal effect of what was said and done *Page 326 between the plaintiff and Charles E. Deye over a period of years. As to the invention itself, it appears from the record that the idea for a composite metal mold originated with plaintiff who, although not employed to invent, spent much time both during regular hours at the plant and outside in its development, in which endeavor he was joined and assisted by defendant Charles E. Deye and other employees, with all expenses being borne by the corporation, including that of successive patent applications which always bore the assignment by plaintiff of all patents and rights thereunder to the defendant corporation. However, the balance appears to justify crediting plaintiff with the invention sufficiently to make the application in his name, and definite benefits to the business appear to have followed. It, therefore, appears that a reasonable basis of a claim for compensation on part of plaintiff for development of the invention has been established. Plaintiff testified that at the time of the original patent application about 1939, his brother, Charles E. Deye, said to him: "If this proves out I will take care of you"; and that again, in 1941: "He said, `listen, if this thing works out, I will take care of you.'" While denying any such statement, defendant contends that the consideration for the patent assignment is to be found in the continued payment to plaintiff of the $12,000 salary after his duties as superintendent had been halved by reason of the sale and discontinuance on the part of defendants of the engraving portion of their business. It appears from the record that during the five-year period from 1939 until May 1944, plaintiff was intermittently pressing defendant for an increase in compensation based on his expectation of receiving something for his work on the patent and his desire to provide security for his wife in the future in the event *Page 327 of his own or his brother's death. He testified that he and his brother Charles consulted an attorney in 1941 "for the purpose of stating the compensation — stating the position of the company after a period of time and for — well, extra compensation." As plaintiff expressed it, "well, I had been at him for an agreement for this patent to revert back to me in case something happened to me or in case something happened to him that my wife would be taken care of." Plaintiff also suggested that he be allowed to acquire some stock and that an offer of $2,400 the first of each year with which to buy insurance for his wife was never carried into effect. This offer came in 1943, after plaintiff told his brother: "I wanted something for security for the wife in case something happened to me." "Q. Why? A. Because I felt I had something coming and I wanted her protected." With the foregoing background of events, discussions between the parties, and their conduct thereon prior to May of 1944, plaintiff testified as to the contract relied upon: "A. We were at lunch together at the Metropole Hotel and as usual lunch was spoiled for me with conversation. I asked him again to do something for me and the answer was no. I asked him to sell me stock in the company, and he said, `no.' I said, `well, I can see the handwriting on the wall, I will leave the first of June.' "Q. What did you mean by that? A. Quit. "Q. The handwriting business? A. I was promised, and promised, and promised something for the step and repeat and never got it. "Q. Go ahead. A. So then I went back to the office and he came back in the office. "Q. Were you in the same office? A. I had a desk in the outer office and he was in the private office, on the same floor, same building. He called me in his *Page 328 office and he says, `can't sell you no stock, I can't give you no written agreement.' He said, `I will tell you what I will do,' he said, `I will give you seven per cent commission on all the sales that you are responsible for.' I says, `O. K., how about step and repeat?' He said, `we will work out something on that.' I said, `you haven't got a lot of time to work it out because I am not sold on staying later than June 1st, so he called me in' — "Q. On the same day? A. On the same day, later that afternoon, and he said to me, `I will tell you what I will do, I will give you ten cents per unit on step and repeat.' "Q. From when? A. And he says `I will date it back to January 1, 1944.' "Q. What did you say? A. I says, `I will take it.' "Q. Did anything else happen in connection with this that your brother Joseph was involved in? A. A few days later my brother Joseph was all hot and bothered because he didn't know how to put that on the books, he said, `What am I going to mark it.' "Q. Were you present? A. He said, `You know we can't show this as an increase.' "Q. Who said that? A. Joe Deye said it, and Charles Deye said to Joseph Deye, `That is simple, it is royalty.' "Q. What did Joe say? A. There was nothing further in Joe's conversation. He turned around and went out. "Q. Prior to this time did Charley ever say he was going to give you royalty? A. Not using that term. "Q. Did he ever say he was going to compensate you for your invention? A. Yes, he did do that." Both parties testified that nothing was said as to the length of time the above payments were to continue, stating that no time limit was placed upon it. Defendant Charles E. Deye denies the statement attributed *Page 329 to him by plaintiff, "that is simple, it is royalty," and the bookkeeper testified that he did not remember the statement being made and corroborated the defendant by testifying that Charles E. Deye criticized his records for showing the unit payments as royalty and directed him to change them. The bookkeeper takes upon himself the responsibility for the nomenclature, as his solution for getting around the government salary freeze regulations and for the erasure from certain of his records of the word, royalty, with the substitution of the word, allowance, stating that he was under pressure from Charles E. Deye who was criticizing the use of the word, royalty, as wrong. This court fails to find in this record proof of a contract to pay plaintiff royalties as such. Webster's New International Dictionary (2 Ed.) defines royalty: "A duty or compensation paid to the owner of a patent or a copyright for the use of it or the right to act under it, usually at a certain rate for each article manufactured, used, sold, or the like." At the time this contract was made plaintiff was not the owner of the patent. The corporation was the sole owner thereof, so that the essential basis for a contract for royalties, as such, was not present, and defendant Charles E. Deye testified that a contract for royalties was never within the contemplation of the defendants for the very reason that they already owned the patent. While it is true that the corporation became the owner of the patent by reason of its assignment to the corporation by the plaintiff, in whose name it was obtained, the record shows that over a five-year period defendants refused to agree with plaintiff that any further compensation was due him in consideration of the patent assignment, and it was only when plaintiff threatened to quit the employ of defendant on the 1st of June that his dual claim of being entitled to an increase in compensation for work *Page 330 done on the patent and for the purpose of protecting the future security of his wife resulted in the offer to which he has testified he accepted. It, therefore, appears that the offer of increased compensation by way of commission and payment of 10 cents per unit on "step and repeat," was made by defendant in consideration of plaintiff remaining on the job, which offer the plaintiff accepted. Negativing the claim of a contract for royalties as such is, also, the fact shown by the record that payment was made on articles labeled "step and repeat" and advertised and sold to the trade in that manner, which were actually manufactured by the old "patch" method, rather than only those made by the patented process; and there is testimony that had the 10 cent per unit payments been confined to those made solely by the patented process, the returns to plaintiff would have been so negligible as to be unsatisfactory. Obviously, units manufactured by other than the patented process could not be a proper subject for the payment of royalties. Since this court does not find proof of a contract to pay royalties as such, it can not imply a contract to make payments for the life of the patent, or beyond the time the plaintiff left his employment. Nor can this court, from the record, sever that part of the contract, agreeing to pay 10 cents per unit on "step and repeat," from that part agreeing to payment of a commission on certain accounts, which surely could not extend beyond the duration of the employment. Taking this view of the record, the court is not called upon to consider the application of the statute of frauds herein. The court, therefore, finds the issues joined in favor of the defendants. Judgment for defendants. HILDEBRANT, P. J., MATTHEWS and ROSS, JJ., concur. *Page 331

2016-07-06 06:36:01.582538+00

Strausbaugh

Here there has been an arrest of a violently disturbed man on the charge of intoxication. The individual was handcuffed and placed into the police wagon where the evidence was that he continued in his wild behavior. The evidence further indicates that a large crowd of people congregated in the immediate area upon the sidewalk, and a large congestion of motor vehicles clogged a main downtown street. In an attempt to restore order, a sergeant gave instructions to one of the police officers to attempt to clear the area and restore order. It was at this time that the arresting officer issued a request to those on the sidewalk, including the defendant, to move on and clear the area. When the defendant refused to depart after several requests, he was placed under arrest for the violation of Columbus Code 2355.02, which reads in part: "* * * No person shall in any way hinder, obstruct, resist or otherwise interfere with any duly authorized officer or member in the discharge of his official duties * * *." *Page 106 In my opinion, the sergeant, who issued the original order, and his subordinate officer, acted in a proper manner. In other words, there is no question that the arresting officer was duly authorized and was in the discharge of his official duties. It would also appear there was ample evidence to support a finding that the defendant did hinder and obstruct the officer in the discharge of his duty, of attempting to restore order, during and following the incident for which the officers had been summoned. The fact that the defendant was an attorney would have no bearing on the case. Were these the only facts and circumstances, I would have no hesitancy in affirming the judgment of the trial court. However, there is an additional factor here which was not covered by the instructions of the trial court to the jury. The defendant testified: "* * * I saw a man being beaten, and it was by two officers, not by one. Now, I can't say for sure that it was Officer Kirby or who it was. But I know there were two officers in there, and they were hitting this man. "Now, before I had seen them go over to hit him, I had seen him, of course. He was handcuffed with his hands behind his back. He was just sitting there rocking. He was crying, he was mumbling incoherently. Of course, I was farther away and he was inside the wagon, so I especially couldn't hear what he said. And he was bleeding at the mouth." Although the fact that the defendant was an attorney would not otherwise make any difference in this case, it would have had a bearing had the jury believed the testimony above set forth. As an officer of the court, the defendant had a duty to have witnessed any violations of the defendant's civil rights. Although it may be argued that the jury, by its finding, did not believe the defendant and did not find these facts to be true, the jury was not instructed with respect to these matters, which were clearly in evidence. There was a duty on the part of the trial court to so charge in the interest of substantial justice and, for this reason, I would reverse and remand this matter for retrial. *Page 107

2016-07-06 06:36:01.686886+00

Sweeney

Plaintiff-appellant Beacon Insurance Company of America ("Beacon") appeals the trial court's decision granting the motion for partial summary judgment of the defendants-appellees L.M. Lignos Enterprises, Louis Lignos Sons, Inc., and M.L. Lignos, Inc. ("Lignos"). Lignos cross-appealed the court's order, as it failed to specifically dispose of the counterclaim filed by Lignos. Although Christine Kleoudis ("Kleoudis"), Administrator of the Estate of Emmanuel Kleoudis, is named as a defendant in the complaint and filed a brief in opposition to the appellant's motion for summary judgment, she is not a party to this appeal. Emmanuel Kleoudis ("decedent") died as a result of injuries he sustained as an employee of Lignos. Lignos contracted with American Bridge to perform sandblasting operations on the Center Road Bridge. American Bridge placed a barge in the Cuyahoga River, and on or about November 22, 1991, decedent was sandblasting the bridge while on a scaffolding located on the barge. Decedent fell from the scaffolding and died on December 28, 1991. On November 20, 1992, Christine Kleoudis, as the Administrator of the Estate of Emmanuel Kleoudis, filed case No. 242929 in the Cuyahoga County Court of Common Pleas. This action sought damages for the death of Emmanuel Kleoudis and alleged that Lignos intentionally and/or with substantial certainty failed to provide safety equipment, including safety belts, lifelines, safety nets, lanyards, guard rails, tow boards and/or platforms, failed to provide safety training, and intentionally and/or with substantial certainty allowed the decedent to use equipment which was in improper functioning condition. The action sought recovery on behalf of the family for wrongful death, and the estate sought damages for the physical pain, mental anguish and distress, and medical expenses sustained by Emmanuel Kleoudis, and his lost earnings from November 22, 1991 to December 27, 1991. This action was voluntarily dismissed by Kleoudis on April 27, 1994. On April 27, 1993, Beacon filed a declaratory judgment action seeking an adjudication that it was not required to either defend or indemnify Lignos. Beacon also requested that Kleoudis be restrained from initiating an action to recover under the policy. Beacon filed a motion for summary judgment, and Lignos filed a motion for partial summary judgment. Beacon, Lignos, and Kleoudis filed briefs in opposition, and Lignos filed a reply brief. *Page 82 On December 1, 1993, the trial court determined that Beacon had a duty to defend Lignos in the underlying tort action filed by Kleoudis. Beacon asserts one assignment of error, and Lignos asserts one cross-assignment of error. Beacon's assignment of error: "The trial court erred in denying plaintiff-appellant Beacon Insurance Company of America's motion for summary judgment and in granting defendants-appellees' motion for partial summary judgment." Beacon argues that the trial court erred in finding that it had a duty to defend Lignos in the action brought by Kleoudis. Lignos contends that the complaint is arguably or potentially within the policy coverage. In Sanderson v. Ohio Edison Co. (1994), 69 Ohio St.3d 582,635 N.E.2d 19, the Supreme Court cited its holding inWilloughby Hills v. Cincinnati Ins. Co. (1984), 9 Ohio St.3d 177, 9 OBR 463, 459 N.E.2d 555. In Willoughby Hills, the court held that where the insurer's duty to defend is not apparent from the pleadings, but the allegations state a claim which is potentially or arguably within the policy coverage, or there is some doubt as to whether a theory of recovery within the policy coverage has been pled, the insurer must accept the defense of the claim. In Sanderson, the court stated that an insurer has an absolute duty to defend under certain conditions: "An insurance policy which states that the insurer is obligated to defend in any action seeking damages payable under the policy against the insured, even where the allegations are groundless, false or fraudulent, imposes an absolute duty upon the insurer to assume the defense of the action where the complaint states a claim which is partially or arguably within policy coverage." Id. at paragraph one of the syllabus. Beacon issued to Lignos two separate policies of insurance, the primary policy is entitled "Commercial General Liability Coverage" ("General Liability"); this policy includes stop-gap employers' liability insurance. The excess policy is entitled "Commercial Catastrophe Liability Policy Coverage" ("Catastrophe"). Lignos has not sought coverage from Beacon under the General Liability policy for the wrongful death claim and has not sought coverage under the Catastrophe policy for the survivorship claims. Therefore, this court will only consider whether or not there is coverage for the wrongful death action under the Catastrophe policy and for the survivorship claims under the General Liability policy. Beacon asserts that the General Liability policy provides no coverage for the survivorship claim because under the stop-gap liability endorsement it provides: *Page 83 "COVERAGE E. STOP GAP EMPLOYERS' LIABILITY "1. Insuring Agreement "We will pay those sums you become legally obligated to pay as damages because of `bodily injury' to which this insurance applies. The `bodily injury' must be caused by an `occurence' [sic] to any of your employees whose remuneration has been reported and declared under the Workers' Compensation Law of The State of Ohio, and who has been injured in the course of his employment by you. We will not pay if the injured employee is entitled to receive the benefits provided by The Workers' Compensation Law. "* * * "We have the right and duty to defend any `suit' against you seeking these damages, even if the allegations of the `suit' are groundless, false or fraudulent. We may investigate and settle any claim or `suit' at our discretion. Our right and duty to defend end when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverage E." The appellant argues that two exclusions preclude coverage under this portion of the policy: "2. Exclusions "* * * "i. To `bodily injury' by accident or disease (including death) sustained by a master or crew member of any vessel, or to any of your employees subject to the United States Longshoremen's and Harbor Worker's Compensation Act, the Federal Employers' Liability Act or the Federal Coal Mine Health and Safety Act. "* * * "k. To any injury sustained because of an act committed intentionally by or at the direction of you or any of your executive officers, directors, stockholders or partners." It is important to note here that under the General Liability policy, Beacon has both the right and the duty to defend a suit against Lignos even where the allegations are groundless, false, or fraudulent. Where a theory of recovery is even arguably within the terms of the policy, the insurer must defend the insured, see Sanderson, supra. Under exclusion (i), Beacon contends that decedent was subject to the United States Longshoremen's and Harbor Worker's Compensation Act ("LHWCA"), as amended, Section 901 et seq. Title 33, U.S.Code. Beacon argues *Page 84 that the operative words are "subject to," and that decedent is not required to apply for or receive benefits under the LHWCA, but merely be eligible to do so. In Herb's Welding, Inc. v. Gray (1985), 470 U.S. 414,105 S.Ct. 1421, 84 L.Ed.2d 406, the United States Supreme Court held that a welder injured on an off-shore oil platform was not covered under the LHWCA. The court held that the LHWCA "provides compensation for the death or disability of any person engaged in `maritime employment,' § 902(3), if the disability or death results from an injury incurred upon the navigable waters of the United States or any adjoining pier or other area customarily used by an employer in loading, unloading, repairing, or building a vessel, § 903(a). Thus, a worker claiming under the Act must satisfy both a `status' and a `situs' test." (Footnote omitted.) Id. at 415-416, 105 S.Ct. at 1423, 84 L.Ed.2d at 409. The Supreme Court noted that the Act does not define "maritime employment," and that Congress did not seek to cover all those who breathe salt air. The purpose of the Act was to cover workers on the situs who are involved in the essential elements of loading and unloading. The court, in determining that Gray was not covered under the LHWCA held: "* * * While `maritime employment' is not limited to the occupations specifically mentioned in § 2(3), neither can it be read to eliminate any requirement of a connection with the loading or construction of ships. As we have said, the `maritime employment' requirement is `an occupational test that focuses on loading and unloading.' P.C. Pfeiffer Co. v. Ford, 444 U.S. 69,80 [100 S.Ct. 328, 336, 62 L.Ed.2d 225, 235] (1979). The Amendments were not meant `to cover employees who are not engaged in loading, unloading, repairing, or building a vessel, just because they are injured in an area adjoining navigable waters used for such activity.' H.R. Rep. No. 92-1441, p. 11 (1972) [S.Rep. No. 92-1125, p. 13 (1972), U.S. Code Cong. Admin.News 1972, p. 4708]. We have never read `maritime employment' to extend so far beyond those actually involved in moving cargo between ship and land transportation. Both [Northeast Marine Terminal Co. v.] Caputo [432 U.S. 249,97 S.Ct. 2348, 53 L.Ed.2d 320] [(1977)] and P.C. Pfeiffer Co. make this clear and lead us to the conclusion that Gray was not engaged in maritime employment for purposes of the LHWCA." (Footnotes omitted.) Based upon the test set forth in Gray, it is clear that although the "situs" test was satisfied in the case sub judice, the "status" test was not. Although decedent was performing his job while located on a barge on the Cuyahoga River, the services he was rendering to his employer did not constitute "maritime activity." Decedent was not subject to the LHWCA, and exclusion (i) is not applicable. *Page 85 Beacon next briefly argues that exclusion (k), supra, under the stop-gap employers' liability, precludes coverage for any injury sustained because of an act committed intentionally or by the direction of Lignos. Lignos cites Harasyn v. NormandyMetals, Inc. (1990), 49 Ohio St.3d 173, 551 N.E.2d 962, and notes that the Supreme Court held that an intentional tort is one where the actor desired to cause the consequences of his act or he believed that the consequences were substantially certain to occur. The court found two levels of intent. The first is direct intent, where the actor does something which brings about the exact result intended, and the second, inferred intent, where the actor does something which he believes is substantially certain to cause a particular result, even if the actor does not desire that result. The court found that most employer intentional torts fall within the second category. Lignos essentially argues that the exclusion as written by Beacon does not specify which type of intent is not covered, and is therefore ambiguous. While this argument is persuasive, the Supreme Court in the syllabus of Physicians Ins. Co. of Ohio v. Swanson (1991),58 Ohio St.3d 189, 569 N.E.2d 906, recently stated: "In order to avoid coverage on the basis of an exclusion for expected or intentional injuries, the insurer must demonstrate that the injury itself was expected or intended." Although Swanson does not interpret a commercial policy of insurance, the underlying issue is no different. In Swanson, the court determined that while a BB gun was intentionally fired in the direction of the injured person, the resulting injury was neither intended nor substantially certain to occur. In that case, the finder of fact conclusively found that the injury was accidental. Here, it is possible that a finder of fact could determine that although Lignos may have directed decedent to work in an unsafe environment without proper safety training or equipment, the resulting injuries were accidental. Beacon has not demonstrated that the injuries suffered by decedent were expected or intended. Given the standard in Sanderson, supra, that the claims must only be arguably within the policy coverage, the trial court did not err in finding that Beacon must defend Lignos on the survivorship claims. Turning next to the assertion by Beacon that no coverage was provided to Lignos under the Catastrophe policy for wrongful death, it is equally clear that the trial court committed no error. The pertinent sections of the Catastrophe policy state as follows: "PART I — COVERAGE "1. Limit of Liability *Page 86 "We will pay loss in excess of the primary limit as listed in Schedule A or the retained limit (if not covered by primary but otherwise covered by this policy) because of "Coverage A — Bodily Injury, "Coverage B — Property Damage, "Coverage C — Personal Injury, or "Coverage D — Advertising Injury "caused by an occurrence to which this policy applies, and such injury or damage happens anywhere during the policy period. "* * * "4. Defense and Supplementary Payments "* * * "C. Losses Not Covered by Primary Policies: "If you have a loss which is covered by this policy but not covered by any of your primary policies, we will defend you at our expense. We may investigate and settle any claim at our discretion. If we make any payment which falls within your retained limit, you agree to reimburse us. "Our right and/or duty to defend under paragraphs A., B., C., above ends when we have used up the applicable limit of liability in the payment of loss(es). "* * * "PART II — DEFINITIONS "* * * "9. Occurrence "A. With respect to Coverage A Bodily Injury and Coverage B Property Damage, occurrence means an accident including continuous or repeated exposure to substantially the same general harmful conditions neither expected nor intended from the standpoint of the Insured unless injury or damage results from use of reasonable force to protect persons or property. "B. With respect to Coverage C Personal Injury or Coverage D Advertising Injury, occurrence means an accident, happening, or event described as injury in the definitions of those terms in this policy. "10. Personal injury means injury, other than `bodily injury', arising out of one or more of the following offenses committed during the policy period: "A. False arrest, detention or imprisonment; "B. Malicious prosecution; *Page 87 "C. Wrongful entry into, or eviction of a person from, a room, dwelling or premises that the person occupies; "D. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services; or "E. Oral or written publication of material that violates a person's right of privacy; "F. Mental anguish, mental injury, including fright, shock, and humiliation; "G. Discrimination because of Race, Religion, Age, Sex or Physical Disability, but excluding[:] "(1) Discrimination committed by or at the direction of the Insured, "(2) Judgment or final adjudication adverse to the Insured which establishes that such discrimination by the Insured occurred as the cause of action, "(3) Insurance therefor which is prohibited by law, or "(4) Punitive or exemplary damages, fines or penalties "PART III — EXCLUSIONS "* * * "3. This policy does not apply to: "A. Any obligation an Insured may have under a workers' compensation, disability benefits or unemployment compensation law, or any similar law; "B. Bodily injury to: "(1)(a) An employee of the insured arising out of and in the course of employment by the insured; or "(b) The spouse, child, parent, brother or sister of that employee as a consequence of (a) above." Beacon argues that pursuant to the definition of "personal injury," the claims must have arisen from one of the enumerated offenses listed under definitions in Section 10. Beacon contends that the claims in the complaint filed by Kleoudis do not fall within these offenses. Specifically, Beacon argues that Section 10(F) does not apply, as the mental anguish and mental injury of the surviving spouse and children is a derivative claim for bodily injury, for which there is no applicable coverage under the Catastrophe policy. Lignos counters that the definition of "wrongful death" was established by the legislature in R.C. 2125.02, and that included as an element of damages is the mental anguish incurred by the surviving spouse, minor children, parents, or *Page 88 next-of-kin. Lignos asserts that this is sufficient to require coverage under the Catastrophe policy. The Catastrophe policy provides coverage for both bodily injury and for personal injury. Under the plain language of the policy, drafted by Beacon, the Catastrophe policy provides coverage for personal injury arising out of mental anguish, mental injury, fright, shock, and humiliation. Once a complaint is filed which alleges such damages as fall within the policy coverage, Beacon has undertaken an obligation to defend and indemnify. Here, the complaint filed by Kleoudis specifically stated that the claim was brought under R.C. Chapter 2125 for the benefit of the surviving spouse and children. Since the statute provides for damages due to mental anguish, the complaint as pled was sufficient to require Beacon to represent and indemnify Lignos. Beacon also argues that the bodily injury exclusion set forth in 3(B), supra, clearly excludes from coverage a claim for wrongful death. However, this court has held that a claim for wrongful death, although derivative of a claim for bodily injury, is a separate claim for personal injury. See McGowan v.State Auto. Mut. Ins. Co. (Feb. 4, 1993), Cuyahoga App. No. 61517, unreported, 1993 WL 27575. Beacon may have intended that any claims for wrongful death be omitted from coverage, but it failed to place the exclusion in the proper category. The insurer, being the one who selects the language in the contract, must be specific in its use, and an exclusion from liability must be clear and exact in order to be given effect. Lane v. Grange Mut. Cos. (1989), 45 Ohio St.3d 63,65, 543 N.E.2d 488, 490, citing Am. Fin. Corp. v. Fireman'sFund Ins. Co. (1968), 15 Ohio St.2d 171, 44 O.O.2d 147,239 N.E.2d 33. Thus, the bodily injury exclusion does not apply to the wrongful death claim of Kleoudis. The trial court correctly determined that Beacon had a duty to defend and indemnify Lignos against the claims set forth in the complaint filed by Kleoudis for the Estate of Emmanuel Kleoudis. Beacon's assignment of error is overruled. Lignos' assignment of error is: "A trial court, in granting a motion for partial summary judgment, errs in dismissing the entire action with prejudice where a pending counterclaim has neither been addressed by the parties nor discussed by the court in its purported final appealable order." *Page 89 This court previously remanded this case to the court of common pleas for a resolution of Lignos' cross-claim. Subsequently, Lignos voluntarily dismissed the cross-claim, and the assignment of error set forth above has been rendered moot. The judgment of the trial court is affirmed. Judgment affirmed. HARPER and NAHRA, JJ., concur. *Page 90

2016-07-06 06:36:03.076327+00

Baird

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 588 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 589 This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: Appellant, Daniel Olah ("Olah"), appeals his conviction from the Lorain County Court of Common Pleas. We affirm. I. On August 25, 1999, Olah was indicted for two counts of rape, in violation of R.C. 2907.02(A)(1)(b); attempted rape, in violation of R.C.2923.02(A) and gross sexual imposition, in violation of R.C. 2907.05(A)(4). Olah waived his right to a jury trial, and the case proceeded to a bench trial. The state presented testimony from the alleged victim, her mother and grandmother, a clinical counselor, a pediatric nurse practitioner, a caseworker from Lorain County Children Services ("LCCS"), and a polygraph examiner. The defense presented testimony from Olah and his brother, a detective, two caseworkers from LCCS, a psychologist, a family divorce services worker, and the victim's foster mother. On April 3, 2001, the trial court convicted Olah on all four counts, found that Olah was a habitual sexual offender and sentenced him to concurrent terms of 8 years for each rape, 8 years for attempted rape and 4 years for gross sexual imposition. This appeal followed. The assignments of error will be discussed out of order for ease of discussion. II. Assignment of Error No. 1: THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN VIOLATION OF APPELLANT'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION IN RULING THE MINOR CHILD COMPETENT TO TESTIFY[.] *Page 590 The trial Court Abused its Discretion to Appellant's Prejudice by Failing to Provide a Pre-trial Taint Hearing to Determine the Reliability of the Complaining Witness' Testimony[.] The Trial Court Erred to Appellant's Prejudice in Violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article [I] Sections 10 and 16 of the Ohio Constitution by the Admission of Unreliable Testimony Tainted by Prior Interrogation, Multiple Interviews, Prompting, and Manipulation by the Witness' Adult Care Givers[.] In his first assignment of error, Olah argues that his six-year old daughter, G.V., was not competent to testify at his trial. Olah asserts that the trial court erred in: 1) finding G.V. competent to testify, 2) failing to conduct a pretrial taint hearing and 3) allowing unreliable testimony from G.V.1 We disagree. The trial judge has the duty to conduct preliminary determinations as to the competency of all witnesses. State v. Clark (1994),71 Ohio St.3d 466, 469. We are mindful that a trial judge is in a far better position than a reviewing court to gauge the competency of a child witness under the age of ten. The trial court's finding as to competency will not be disturbed absent an abuse of discretion. See State v.Frazier (1991), 61 Ohio St.3d 247, 252. An abuse of discretion connotes more than an error of law or judgment, but implies that the judgment can be characterized as unreasonable, arbitrary or unconscionable. Blakemorev. Blakemore (1983), 5 Ohio St.3d 217, 219. Pursuant to Evid.R. 601 "[e]very person is competent to be a witness except: (A) * * * children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." In determining whether a child under ten is competent to testify, the trial court must take into consideration: (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify, (2) the child's ability to recollect those impressions or observations, (3) the child's ability to communicate what was observed, (4) the child's understanding of truth and falsity and (5) the child's appreciation of his or her responsibility to be truthful. Frazier, 61 Ohio St.3d at 251. *Page 591 In the present case, the trial court conducted a voir dire examination of G.V. to determine her competency. In response to the court's questions, G.V. was able to state her name, address, family members, age, birthday, type of school, favorite subject and teacher's name. G.V. knew that she would be telling a lie if she said that her teacher brought her to court. She also stated that lying was a bad thing and that she might get spanked for lying. Olah argues that G.V.'s response to the question regarding her last birthday demonstrates that G.V. did not have an independent recollection of events. When asked about her last birthday, G.V. responded that she had a party at her Dad's house with her friends. Olah argues that he has not had contact with G.V. since August 1998. Therefore, her last birthday party could not have occurred at her father's house. The record reflects that G.V. was staying with a foster family on the date of her last birthday. Having observed and questioned the six-year old child, the trial court found her competent to testify. We cannot say that the trial court abused its discretion in finding G.V. competent to testify. In support of his argument requiring the trial court to conduct a pretrial taint hearing, Olah relies on State v. Kutzli (1995), Stark App. No. 1994CA00379, unreported. Olah asserts that the 5th District Court of Appeals required "a voir dire hearing to consider the circumstances surrounding the children's statements and whether they were inappropriately influenced." We find that Olah's reliance on Kutzli is misplaced. In Kutzli, the trial court conducted a hearing outside of the presence of the jury to determine a child witness's competency. The trial court determined that the child was competent to testify. However, after the jury was brought into the courtroom the child refused to take the oath, left the stand and fled to the back of the courtroom. The trial court then determined that the child was not competent to testify. Later in the proceedings, the trial court permitted testimony from a clinical psychologist regarding whether she believed that the child had been sexually abused. On appeal, the court held that the trial court should have conducted a voir dire hearing to consider the circumstances surrounding the child's out of court statements that were made to the psychologist. Id. Accordingly, Kutzli does not stand for the proposition that a trial court is required to conduct a pretrial hearing to determine the circumstances surrounding a child witness who actually testifies at trial. Olah also relies on several cases from other jurisdictions, includingNew Jersey v. Michaels (1994), 136 N.J. 299. In Michaels the Supreme Court of New Jersey required a trial court to hold a pretrial hearing concerning the reliability of a child's testimony. No Ohio appellate court has either followed *Page 592 Michaels or independently determined that a pretrial taint hearing is required if a child witness is potentially contaminated. See App.R. 16(A)(7). Therefore, we find that the trial court did not err in failing to conduct a pretrial taint hearing. We find that the trial court did not abuse its discretion in finding G.V. competent to testify and we find that the trial court was not required to hold a pretrial taint hearing. Accordingly, Olah's first assignment of error is overruled. III. Assignment of Error No. 2: THE TRIAL COURT ERRED TO APPELLANT'S PREJUDICE IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION BY THE ADMISSION OF REFERENCES TO APPELLANT'S POLYGRAPH EXAMINATION[.] In his second assignment of error, Olah argues that the trial court erred in allowing testimony that included references to his polygraph examination.2 We disagree. At trial, the state presented testimony from William Evans ("Evans"), a polygraph examiner. The record reflects that Evans' direct testimony did not contain any reference to the polygraph examination. Evans testified LCCS hired him to look into the matter pertaining to Olah and G.V.'s relationship. Evans stated that he met and interviewed Olah. Brian King, a LCCS caseworker, was also present at the interview. Over defense counsel's objection, the state asked Evans "[w]ill you tell the Court what the defendant said to you?" and he responded "[t]here were a variety of things that were told to me during — during the interview, both relative to the medical condition that Mr. Olah had regarding genital warts and also sexual contact with G.V." Evans' testimony contained several admissions that Olah made during their conversation including that "Mr. Olah also told me that G.V. sat on his lap while he was wearing a robe with no underwear, and he said that his bare penis touched her privates on basically a daily basis" and that "Mr. Olah also admitted to me that there could have been sexual contact while he was *Page 593 wearing boxer shorts, in the event that his penis came out of that boxer short fly and contacted G.V.'s bare vaginal sexual privates." On cross-examination, Evans stated that he was a polygraph examiner. He also testified that LCCS hired him to conduct polygraph examinations on Olah and two of G.V.'s uncles. Later in the proceedings, another witness referred to the polygraph examination. This witness was presented in the defense's case in chief and on cross-examination stated that "as part of a case plan, we asked Mr. Olah to take a polygraph test." Olah waived his right to a trial by jury and his case was tried to the bench. A trial judge in a bench trial is presumed to know the law and to consider only the relevant, material and competent evidence in arriving at a decision. City of E. Cleveland v. Odetellah (1993),91 Ohio App.3d 787, 794; State v. Davis (1992), 63 Ohio St.3d 44, 48. There is nothing in the record that would overcome this presumption. Finding no merit in Appellant's second assignment of error, it is hereby overruled. IV. Assignment of Error No. 4: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT ENTERED JUDGMENT OF CONVICTION, WHERE SUCH JUDGMENT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. In his fourth assignment of error, Olah argues that his conviction was against the manifest weight of the evidence. We disagree. When a defendant asserts that his conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten (1986), 33 Ohio App.3d 339, 340. This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id. R.C. 2907.02(A)(1)(b) states that "[n]o person shall engage in sexual conduct with another who is not the spouse of the offender * * * when * * * [t]he other person is less than thirteen years of age, whether or not the offender knows the age of the other person." Sexual conduct is defined as: vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus *Page 594 between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse. R.C. 2907.01(A). R.C. 2907.05(A)(4) states that "[n]o person shall have sexual contact with another * * *" when the other person is less than thirteen years old. Sexual contact is defined as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). R.C. 2923.02(A) provides that "[n]o person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense." In the present case, the state presented testimony from six witnesses. G.V.'s mother, Kim Dove ("Kim"), testified that her daughter was born on January 14, 1995. Kim, G.V. and Olah lived together after G.V.'s birth. In May 1996, Kim and G.V. moved out of Olah's apartment. Olah had no contact with G.V. until July 1996, when the court ordered Kim and Olah to participate in a shared parenting agreement. In September or October of 1996, Kim and G.V. returned to Olah's apartment. The three lived together until May 1997, when Kim and G.V. again moved out of the apartment. Kim stated that she returned to Olah's apartment out of concern for her daughter. There was no physical relationship between Kim and Olah after she returned. While Kim worked during the day, Olah was responsible for caring for G.V. Kim noticed a change in Olah's health in October 1996. While recovering from a surgery for a deviated septum, Olah became very ill and lost a significant amount of weight. In April 1997, Olah called Kim home from work and informed her that he had tested positive for the HIV virus. A month later Kim and G.V. moved out. Kim testified that she observed unusual behavior from G.V. These behaviors included: licking people, kissing with an open mouth, grinding her hips in a sexual way, and rubbing against the family's dog's behind. Kim also noticed that G.V. played with only her Ken doll and baby girl doll. G.V.'s grandmother, Mrs. Dove, testified that she observed G.V. exhibiting several of these same unusual behaviors. Mrs. Dove and her husband contacted the police regarding their suspicion that Olah was sexually abusing G.V. *Page 595 G.V. testified that Olah touched her privates and licked between her legs. However, on cross-examination G.V. stated that her mother had told her what to say because sometimes she forgets. G.V. also testified that her mother told her that Olah did bad things to her. Lynn Skunta, a clinical counselor, testified that she had counseled G.V. (age 3) in 1997 and again in 2000. During one of the counseling sessions, G.V. blurted out that her dad "poked her butt with a knife." Skunta testified that G.V. exhibited ritualized play and regressed behaviors. Skunta opined that G.V. was the victim of sexual abuse because G.V. exhibited several behaviors that were consistent with sexual abuse. On cross-examination, Skunta stated that Kim and Mrs. Dove provided G.V.'s personal history, including the fact that Olah had tested positive for the HIV virus. She also testified that testimony from a child who is repeatedly interviewed by several professionals might be tainted. Marsha Thompson, a pediatric nurse practitioner, testified that she examined G.V. on three separate occasions. Thompson diagnosed G.V. as having genital warts located around her anal area. After ruling out non-sexual transmission, Thompson opined that the genital warts were sexually transmitted. On cross-examination Thompson stated that she did not biopsy the warts. The state also presented evidence from William Evans, a polygraph examiner. Evans testified that he was hired by LCCS to meet and interview Olah. Evans stated that Olah made the following admissions: 1) that he had contracted genital warts 20 years ago, 2) that G.V. may have contracted genital warts from him, 3) that G.V. and him bathed together 2 to 4 times a month, and 4) that on a daily basis his penis touched G.V.'s genital area while she sat on his lap. Brian King, a LCCS caseworker, was present for two thirds of Evans and Olah's interview. King testified that Olah explained two different opportunities where his penis would come into contact with G.V.'s genital area: 1) G.V. sitting on his lap while he was wearing only a robe and 2) G.V. sitting on his lap while he was wearing boxer shorts. Olah was at a loss to explain how he allowed these occasions to repeatedly occur. The defense presented evidence from eight witnesses. Detective Gallion conducted the initial investigation into the alleged sexual abuse in May 1997. Detective Gallion testified that G.V. was unresponsive during the interview at the police station. A couple weeks after the interview, Mr. Dove called Detective Gallion and placed G.V. on the phone. Detective Gallion described the phone conversation as abrupt statements from G.V. followed by long pauses. He believed that G.V.'s statements were coached. The investigation was eventually closed for lack of evidence. *Page 596 Two LCCS caseworkers testified that G.V. was unable to provide any statements that clearly indicated sexual abuse by a particular person. Donna Freeman, a family divorce services worker, testified that she supervised 30 to 40 visits with Olah and G.V. She did not observe anything out of the ordinary regarding the father daughter relationship. Freeman testified that Kim influenced G.V.'s behavior around Olah. G.V. clung to her mother and cried until Freeman, Olah and G.V. were in a room without Kim. Mary Ann Teitelbaum, a psychologist, opined that the evidence was inconclusive regarding whether G.V. had been sexually abused. Teitelbaum testified that she met with G.V. 5 to 7 times for 50-minute sessions. Kim and Mrs. Dove were present for these sessions because G.V. was experiencing difficulty with separation. Teitelbaum believed that G.V.'s mother, grandparents and other family members were too focused on G.V.'s sexual behaviors. Teitelbaum feared that G.V. was suffering from suggestibility created by the adults in her life. Teitelbaum explained that a guiding question; such as, "did daddy do that" can contaminate a child's memory of events. Teitelbaum testified that Mrs. Dove made inappropriate guiding comments during G.V.'s sessions. Once contaminated, Teitelbaum stated that a child no longer has an independent recollection of events. Therefore, a child's memory of events is unreliable after contamination. Olah took the stand in his defense. Olah denied making any admissions to Willams regarding transmitting genital warts to G.V., bathing with G.V. or having daily physical contact with G.V.'s genital area. Olah testified that after his surgery for the deviated septum he became very ill and was unable to care for G.V. He stated that his mother and other family members helped him care for G.V. while Kim was at work. Olah admitted that on one occasion he and G.V. were in the shower together and G.V. accidentally poked his penis. He immediately called for Kim and informed her that G.V. was old enough to know better. Olah testified that was the first and last time the two showered together. After a careful review of the record, we cannot say that the trial court clearly lost its way and committed a manifest miscarriage of justice in convicting Olah of two counts of rape, attempted rape and gross sexual imposition. Olah's fourth assignment of error is overruled. V. Assignment of Error No. 3: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN VIOLATION OF CRIMINAL RULE 29 ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION AND THE DUE *Page 597 PROCESS CLAUSE OF THE CONSTITUTION OF THE UNITED STATES WHEN IT DENIED [APPELLANT'S] MOTION FOR ACQUITTAL. In his third assignment of error, Olah argues that his conviction was not supported by sufficient evidence. Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt.State v. Wolfe (1988), 51 Ohio App.3d 215, 216. In making this determination, all evidence must be construed in a light most favorable to the State. Id. This court has held that "a finding that a conviction is supported by the weight of the evidence must necessarily include a finding of sufficiency." (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), Lorain App. No. 96CA006462, unreported, at 4. Because we have determined that Olah's conviction was not against the manifest weight of the evidence, his arguments regarding the sufficiency of the evidence must also fail. Olah's third assignment of error is overruled. VI. Having overruled Olah's four assignments of error, the judgment of the trial court is affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). Costs taxed to Appellant. Exceptions. CARR, J., WHITMORE, J. CONCUR. 1 On appeal, Olah argues that G.V.'s testimony regarding their relationship is unreliable. Issues relating to G.V.'s credibility and the weight to be given to G.V.'s evidence will be incorporated into Olah's fourth assignment of error, challenging the manifest weight of the evidence. 2 We note that Olah filed a motion in limine seeking a general prohibition for the state's witness "from making any references to polygraph examinations." The record reflects that the trial court did not rule on this motion before the trial. When a trial court fails to rule on a motion, the motion will be considered denied. Georgeoff v. O'Brien (1995), 105 Ohio App.3d 373, 378; Solon v. Solon Baptist Temple, Inc. (1982), 8 Ohio App.3d 347, 351-52. This presumption has been applied to outstanding motions in criminal cases at the time a judgment of conviction is entered. State v. Mollick (Aug. 23, 2000), Lorain App. No. 99CA007381, unreported, at 3. *Page 598

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OPINION {¶ 1} David L. Welch, Jr., ("appellant") appeals the Dec. 20, 2001 judgment entry of the Mentor Municipal Court. On Dec. 20, 2001, a jury found appellant guilty of drug abuse, in violation of Mentor City Ordinance 139.01. The trial court sentenced appellant to thirty days in the Lake County Jail, placed him on probation, and assessed a maximum fine of $250. For the following reasons, we affirm the decision of the trial court in this matter. {¶ 2} On July 23, 2001, appellant was a front seat passenger in a car owned and driven by John Williams ("Williams"). On that day, the vehicle containing Williams, appellant, and at least one other back seat passenger, was stopped by the Mentor Police for having an unusually loud muffler, a violation of the Mentor Noise Ordinance. While running Williams' license plate number, the officer became aware of an outstanding warrant for Williams' arrest issued by the Kirtland Police Department. After verifying the warrant was still valid, the officer took Williams into custody. {¶ 3} Subsequently, the officer decided to tow Williams' car. Prior to towing the vehicle, and in accordance with routine police procedure, the officer conducted an inventory search of the vehicle. See,State v. Mesa, 87 Ohio St.3d 105, 1999-Ohio-253; State v. Peagler,76 Ohio St.3d 496, 1996-Ohio-73. As he commenced his search, the officer asked appellant to exit the vehicle via the passenger door. As appellant opened the passenger door, the officer noticed two plastic bags of green plant material wedged between the passenger's seat and the door. The green plant material was later proven to be marijuana. As he continued his inventory search, the officer discovered a third bag of marijuana shoved under the front passenger seat. Subsequently, appellant was placed under arrest and charged with drug abuse, a violation of Mentor City Ordinance139.01. A jury convicted appellant of drug abuse on Dec. 20, 2001. This timely appeal followed, and appellant asserts two assignments of error for our review. {¶ 4} "[1]. The trial court erred to the prejudice of the defendant-appellant in denying the motion for acquittal made pursuant to Crim.R. 29(A). {¶ 5} "[2.] The trial court erred to the prejudice of defendant-appellant when it returned a verdict of guilty against the manifest weight of the evidence." {¶ 6} In his first assignment of error, appellant argues that the City failed to provide sufficient evidence proving he was conscious of the presence of marijuana located under and beside the passenger's seat of the vehicle. {¶ 7} To determine if there is sufficient evidence, "the relevant inquiry 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." Statev. Jenks (1991), 61 Ohio St.3d 271, paragraph two of the syllabus. {¶ 8} 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. Hankerson (1982), 70 Ohio St.2d 87. The State may prove dominion and control solely through circumstantial evidence. State v. Trembly (2000),137 Ohio App.3d 134, 141. "Circumstantial evidence that the defendant was located in very close proximity to readily usable drugs may showconstructive possession." Id. The definition of knowingly is contained in R.C. 2901.22(B), which provides that "a person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature." A defendant, therefore, acts knowingly, when, although not intending the result, he or she is nevertheless aware that the result will probably occur. State v.Edwards (1992), 83 Ohio App.3d 357, 361. {¶ 9} Mentor City Ordinance 139.01 states in pertinent part: "No person shall knowingly obtain, possess, or use a controlled substance." Appellant argues that the City failed to show appellant "knowingly" possessed marijuana in violation of the City ordinance. At trial, the trial court gave the following jury instruction with regards to the definition of the word "knowingly": "A person acts knowingly regardless of his purpose when he is aware that his conduct or knowledge will be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist. Hence, you cannot look into the mind of another. Knowledge is to be determined from all the facts and circumstances in evidence. You will determine from these facts and circumstances whether or not there existed at the time in the mind of the Defendant aware (sic) of the probability that he was in possession of marijuana." Transcript, pg. 43-44. We hold that the trial court's instruction was properly derived from the Ohio Jury Instructions on Specific Criminal Cases. See, 4 OJI 409.11. {¶ 10} At trial, the arresting officer testified that as appellant opened the passenger door, the officer immediately observed two plastic bags of green plant material. The officer then conducted a field test on the material and found it to be marijuana. Appellant does not dispute the fact that the plant material found was marijuana. The officer further testified that the bags were "between the front passenger's seat and the door wedged down there in such a way that only the front passenger would have access to sliding them under there." Transcript, pgs. 15-16. As he continued his inventory search, the officer looked under the passenger's seat where appellant had been sitting and discovered a third bag of marijuana "within easy access of" appellant. The record indicates appellant presented no evidence at trial to rebut the officer's testimony. {¶ 11} Based upon the testimony of the officer, and the accuracy of the jury instruction given by the trial court, we hold that reasonable minds could have found the essential elements of the crime proven beyond a reasonable doubt. Therefore, appellant's first assignment of error is not well taken and without merit. {¶ 12} Appellant argues in his second assignment of error that the guilty verdict was against the manifest weight of the evidence presented by appellee. {¶ 13} "In reviewing a manifest weight of the evidence claim, the appellate court reviews 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.Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52; State v. Swank (Dec. 21, 2001), 11th Dist. No. 98-L-049, 2001 Ohio App. LEXIS 5846. The discretionary power to grant a new trial "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." Id. {¶ 14} Appellant again argues that appellee failed to present evidence proving he was conscious of the marijuana in the vehicle. As previously discussed, appellant does not dispute the fact that the plant material was marijuana; nor does appellant contest the fact that he had the ability to exert dominion and control over the marijuana. We have already held that the evidence presented was sufficient to convict appellant of drug abuse. Appellant also failed to offer any evidence to rebut the testimony of the arresting officer. Furthermore, beyond recycling his sufficiency arguments, appellant fails to contest the believability of the evidence in this case. The evidence in this case does not weigh heavily against appellant's conviction. Based upon the testimony of the arresting officer and the trial court's well-defined jury instructions, we cannot say that the jury clearly lost its way in convicting appellant of knowingly possessing marijuana. Appellant's second assignment of error is not well taken and without merit. {¶ 15} For the foregoing reasons, we find appellant's first and second assignments of error not well taken and without merit. The judgment of the Mentor Municipal Court is hereby affirmed. WILLIAM M. O'NEILL, P.J., DONALD R. FORD., J., concur.

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JUDGMENT ENTRY. This appeal is considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, and this Judgment Entry shall not be considered an Opinion of the Court pursuant to S.Ct.R.Rep.Op. 3. Defendant-appellant Kenneth Foster appeals from his conviction for trafficking in cocaine in violation of R.C. 2925.03(A)(1). In three assignments of error, Foster argues that his conviction was based upon insufficient evidence and was against the manifest weight of the evidence, and that the trial court erred by allowing his statement to be used for impeachment when the state had not disclosed the statement in discovery. In reviewing a sufficiency-of-the-evidence claim, an appellate court must examine the evidence presented at trial and determine whether the evidence, viewed in a light most favorable to the state, could have convinced any rational trier of fact that the defendant was guilty beyond a reasonable doubt.1 When reviewing a weight-of-the-evidence question, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created a manifest miscarriage of justice.2 R.C. 2925.03(A)(1) provides that no person shall knowingly sell or offer to sell a controlled substance, including cocaine. After reviewing the evidence, we conclude that the state presented adequate evidence that Foster had trafficked in cocaine. Moreover, we cannot say that the jury lost its way in finding Foster guilty. Accordingly, we overrule the first two assignments of error. In his third assignment of error, Foster argues that the trial court erred by allowing his statement to be used for impeachment, when the state had failed to disclose the entire statement in discovery. The trial court sanctioned the state for its failure to provide the statement by not allowing the state to use Foster's statement in its case-in-chief. But Foster claims that the court's decision to allow the state to use his statement for impeachment affected his decision not to testify. Because Foster did not testify, the jury did not hear Foster's statement. A trial court does not abuse its discretion in admitting evidence undisclosed in discovery, unless the record shows that the prosecutor's discovery violation was willful, that foreknowledge would have benefited the accused in preparing his defense, or that the accused was unfairly prejudiced.3 The Ohio Supreme Court, in dealing with the second prong of this test, has made it clear that a bald assertion that foreknowledge would have benefited the defendant in the preparation of a defense is insufficient to demonstrate that the trial court committed reversible error.4 In this case, trial counsel for the defendant agreed that the prosecutor's discovery violation was not willful. Moreover, Foster did not show how foreknowledge of this particular statement would have benefited his defense. Accordingly, we overrule Foster's third assignment of error and affirm the judgment of the trial court. Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. Winkler, P.J., Hildebrandt and Gorman, JJ. 1 See State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492, paragraph two of the syllabus. 2 See State v. Martin (1983), 20 Ohio App.3d 172, 175,485 N.E.2d 717. 3 See State v. Otte, 74 Ohio St.3d 555, 1996-Ohio-108,660 N.E.2d 711, citing State v. Scudder (1994), 71 Ohio St.3d 263,643 N.E.2d 524. 4 See State v. Lewis (Apr. 30, 1997), 1st Dist. No. C-960095, citing State v. Wiles (1991), 59 Ohio St.3d 71,571 N.E.2d 97.

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OPINION {¶ 1} Plaintiff-appellant, the State of Ohio, appeals from a judgment entered by the Franklin County Court of Common Pleas that granted a motion to suppress filed by defendant-appellee, Charles A. Groce. For the following reasons, we vacate that judgment and remand the matter for further proceedings consistent with this opinion. {¶ 2} On May 15, 2005, two Columbus Police Officers stopped defendant for illegally riding his bicycle on a sidewalk near the intersection of North Fifth Street and East Ninth Avenue in Columbus, Ohio. During defendant's detention, one of the officers checked to see if there were any outstanding warrants for defendant's arrest. After *Page 2 issuing defendant a citation for riding his bicycle on the sidewalk, the officers learned that defendant had an outstanding arrest warrant for theft. The officers searched defendant and discovered a small, blue plastic container on a key chain that the officers suspected contained crack cocaine. Defendant admitted to the officers that the container held crack cocaine. Field tests performed by the officers confirmed that the substance was crack cocaine. The record does not reflect whether the officers searched defendant before or after they arrested him on the outstanding warrant. {¶ 3} Defendant was charged with one count of possession of crack cocaine in violation of R.C. 2925.11. Defendant entered a not guilty plea to the charge. Before trial, defendant moved to suppress the crack cocaine discovered during the officers' search of his person. He claimed that the officers violated his Fourth Amendment right to be free from unreasonable searches. At a hearing on the motion, one of the officers testified that after he learned of the outstanding arrest warrant, he arrested defendant and then searched him and found the container that held the crack cocaine. Defendant testified for purposes of the hearing and stated that the officer searched him after the citation was issued but before he was arrested on the warrant. {¶ 4} The trial court granted defendant's motion and suppressed the crack cocaine. In its oral decision, the trial court noted that an officer has a right to perform a Terry search1 and a search incident to an arrest2 to protect the officer from weapons. The *Page 3 trial court did not expressly determine whether the search was aTerry search or a search incident to an arrest. Nor did the trial court determine whether the search occurred before or after the arrest. The trial court reasoned, however, that because the container was so small,3 the officer could not have had a reasonable suspicion that the defendant was armed and dangerous. The trial court concluded, therefore, that the search was unreasonable and that the crack cocaine discovered pursuant to that search had to be suppressed. Without that evidence, the State could not proceed on the charge and the trial court dismissed the charge. {¶ 5} The State, pursuant to R.C. 2945.67(A) and Crim.R. 12(K), appeals the trial court's ruling and presents the following assignment of error: THE TRIAL COURT ERRED IN HOLDING THAT AN ARRESTING OFFICER IS RESTRICTED IN HIS SEARCH OF AN ARRESTEE TO A PAT DOWN FOR WEAPONS. {¶ 6} The State appeals from the trial court's decision to grant defendant's motion to suppress. An appellate court's review of a ruling on a motion to suppress presents a mixed question of law and fact.State v. Long (1998), 127 Ohio App.3d 328, 332. When considering a motion to suppress, the trial court assumes the role of the trier of fact and, is therefore, in the best position to resolve factual questions and evaluate witness credibility. State v. Curry (1994),95 Ohio App.3d 93, 96. As such, we accept the trial court's findings of fact so long as they are supported by competent, credible evidence.State v. Guysinger (1993), 86 Ohio App.3d 592, 594. However, an appellate court independently reviews the trial court's legal conclusions based on those facts and *Page 4 determines, without deference to the trial court's decision, "whether as a matter of law, the facts meet the appropriate legal standard."Curry, at 96. {¶ 7} The State contends that the trial court erroneously granted defendant's motion to suppress when it applied the limitations of aTerry search to a search conducted pursuant to a lawful arrest. While not contesting the inapplicability of the Terry analysis, the defendant claims that the evidence was properly suppressed because his continued detention after issuance of the citation was unreasonable. He also claims that the search was not incident to the arrest because it occurred before he was arrested. We will first address defendant's contention that he was unreasonably detained. {¶ 8} The validity of defendant's initial stop is not contested. The officer testified that he witnessed defendant riding his bicycle on a sidewalk. Pursuant to Columbus City Code Section 2173.10, riding a bicycle on a sidewalk is a minor-misdemeanor traffic offense. Thus, the officers were entitled to stop defendant for that violation. State v.Cox (July 13, 2000), Franklin App. No. 99AP-1009. {¶ 9} When a police officer stops someone for a traffic offense, the officer may detain the individual for a time period sufficient to issue a ticket or warning. State v. Carlson (1995), 102 Ohio App.3d 585, 598;State v. Howard, Preble App. No. CA-2006-02-002, 2006-Ohio-5656, at ¶ 15, citing State v. Keathley (1988), 55 Ohio App.3d 130, 131. That time period may also include sufficient time to perform routine procedures such as a computer check on the individual's identification to check for, among other things, outstanding warrants. Cox; State v.Johnson, Montgomery App. No. 20624, 2005-Ohio-1367, at ¶ 20;Howard, at ¶ 15; Smith, supra, at ¶ 38. In determining whether an officer conducted these tasks within a reasonable time, the court must evaluate the duration of *Page 5 the stop in light of the circumstances and consider whether the officer diligently conducted the investigation. Id. {¶ 10} The testimony from the officer involved and the defendant does not indicate that the investigation was unreasonable in scope or duration. Although it is not clear exactly when the warrant check came back or how long the stop lasted, it does not appear that the stop took very long. In fact, one officer conducted the record check while the other officer issued the citation to defendant, indicating the diligent actions of the police officers. No violation of defendant's Fourth Amendment rights has been demonstrated by this detention.Johnson, supra. See, also, State v. Mootoosammy (July 25, 2001), Medina App. No. 3150-M (25-minute traffic stop not unreasonably long). {¶ 11} We next address the State's argument that the trial court erroneously applied the limitations of a Terry search in this case because the search occurred after the arrest of the defendant. As noted, a Terry search may be conducted without probable cause to arrest and is limited to a search for weapons based upon the officer's reasonable suspicion that the suspect is armed and dangerous. State v. Walker (July 28, 1998), Franklin App. No. 97APA09-1219; State v. Richardson (Dec. 7, 1999), Franklin App. No. 98AP-1500 (police officer who stops individual to issue citation may perform Terry search for weapons). In contrast, a search incident to an arrest allows an officer to conduct a full search that is not limited to the discovery of weapons but may include evidence of crimes as well. Walker; Smith, at ¶ 41. {¶ 12} The trial court suppressed the crack cocaine because, given the size of the container, the officer could not have reasonably believed that the defendant was armed and dangerous. This language implies that the trial court believed the search was a Terry search that occurred before the arrest. The State's argument, however, presumes that *Page 6 the officers searched defendant after they arrested him. The trial court did not make a factual finding indicating when the search occurred. In fact, the evidence on this issue was conflicting. The arresting officer testified that he searched defendant after he arrested him. On the other hand, the defendant testified that he was searched before he was arrested. {¶ 13} This court will not speculate about what factual assumptions the trial court may have made to support its decision. Crim.R. 12(E) requires a trial court to state its essential findings on the record where factual issues are involved. Factual findings are necessary for effective appellate review of trial court decisions. State v.Marinacci (Nov. 3, 1999), Fairfield App. No. 99-CA-37, citing City ofBryan v. Knapp (1986), 21 Ohio St.3d 64, 65; State v. Schwartz (Feb. 7, 2002), Perry App. No. 01-CA-9. A trial court reviews the credibility of the witnesses and determines facts. A trial court's failure to make necessary factual findings inhibits an appellate court's ability to review the decision of the trial court. Id. While this court is bound to accept the trial court's factual findings if they are supported by competent and credible evidence, our role "does not normally extend to a determination of the existence of those facts." State v. Hall (Feb. 17, 1993), Gallia App. No. 92 CA 2. {¶ 14} The determinative factual issue in this appeal is whether the search occurred before or after the officers arrested defendant. Conflicting evidence was presented on this issue and the record does not reflect a clear factual finding by the trial court. Without this factual finding, we cannot properly review the trial court's suppression order.Marinacci, supra. Accordingly, we sustain the State's assignment of error only to the extent it seeks to vacate the trial court's suppression order. The judgment of the Franklin County Court of Common Pleas is vacated, and this case is remanded to the trial *Page 7 court with instructions to factually determine when the search occurred. The trial court shall then proceed to decide whether suppression is appropriate based on whether the search occurred before or after the arrest. Judgment vacated and cause remanded with instructions. PETREE and WHITESIDE, JJ., concur. WHITESIDE, J., retired, of the Tenth Appellant District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Constitution. 1 Pursuant to Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, a law enforcement officer may stop an individual based on a reasonable suspicion that criminal activity may be afoot. Id. at 30; see, also,State v. Smith, Franklin App. No. 04AP-859, 2005-Ohio-2560, at ¶ 23. During the stop, a police officer may conduct a pat down of the suspect for weapons if the officer has a reasonable suspicion that the suspect might be armed and dangerous. Terry, at 27; see, also, State v.Heard, Montgomery App. No. 19322, 2003-Ohio-906, at ¶ 22. 2 Pursuant to Chimel v. California (1969), 395 U.S. 752,89 S.Ct. 2034, a law enforcement officer may conduct a warrantless search of both the arrestee and the area within the individual's immediate control whenever the search is incident to a lawful arrest. Id. at 763. This search allows law enforcement officers to discover and remove weapons, as well as seize evidence to prevent its destruction or concealment. Id.; see, also, State v. Mathews (1976), 46 Ohio St.2d 72. 3 The trial court stated that the container was 1 inch by about a 1/4 inch. *Page 1

2016-07-06 06:36:01.80263+00

Walters

OPINION {¶ 1} Appellant, Kenneth Wilson ("Wilson") appeals a Marion County Common Pleas Court decision granting summary judgment in favor of and dismissing claims for wrongful retaliatory discharge against his former employer, Appellee, Semco, Inc ("Semco"). On appeal, Wilson argues that the trial court *Page 77 erred in applying the doctrines of exhaustion of administrative remedies and res judicata to dismiss his action. We hold that neither the filing of an unlawful discriminatory practice charge with the Ohio Civil Rights Commission under R.C. 4112.05(B)(1) nor the failure to pursue judicial or administrative review of a corresponding order will preclude a person, alleging handicap discrimination, from instituting an independent civil action under R.C. 4123.90. We further find that under the facts herein, the principles of issue or claim preclusion will not operate to preclude Wilson's retaliatory discharge claim. {¶ 2} Wilson was employed by Semco from 1990 until December 1997, when he was terminated. During the seven years of his employment, Wilson was injured on several occasions, filing ten separate claims for workers' compensation benefits. At the time of his termination, Wilson was apparently pursuing claim No. 97-322052. {¶ 3} On February 12, 1998, Wilson submitted an affidavit with the Ohio Civil Rights Commission ("OCRC"), alleging that he had been discharged as a result of his disability, i.e., fused joints of the thumb. After investigating the charge, the OCRC concluded that evidence did not substantiate that he had been terminated due to the disability but had instead been "terminated due to excessive absenteeism and because of his attitude which caused morale problems among other employees." Wilson did not request reconsideration of the determination or petition for judicial review of the order. {¶ 4} In addition, on February 11, 1998, Wilson sent Semco a letter declaring his intention to sue under R.C 4123.90, and on June 15, 1998, filed suit asserting that he had been wrongfully discharged because he was pursuing his rights under the Workers' Compensation Act of Ohio. In both his letter of intent and complaint, Wilson mentioned only one workers' compensation claim, No. 97-322052. However, when deposed, Wilson indicated that he had stopped pursuing claim number 97-322052 but was continuing to pursue other claims. {¶ 5} Wilson subsequently dismissed his complaint without prejudice pursuant to Civ.R. 41(A)(1). On January 10, 2000, Wilson refiled the wrongful discharge action pursuant to R.C. 2305.19, the savings statute. However, in his new complaint Wilson included the nine workers' compensation claims that were not included among the allegations in his letter of intent or initial complaint. {¶ 6} Semco moved for summary judgment, arguing that Wilson "has actually pled nine new causes of action[,] since his first case involved a claim under one injury, while this case involves [claims regarding] ten separate incidents." In June 2000, the trial court granted summary judgment to Semco, stating: "[Semco] has correctly pointed out that it was not given timely notice of the plaintiff's pursuit of nine of these workers' compensation claims. [Wilson] is, therefore, *Page 78 statutorily barred from bringing any claim related to those injuries and to those workers' compensation claims." {¶ 7} Wilson appealed, and upon review, we held that the initial written notice to Semco was effective notice as to claimant's refiled complaint for retaliatory discharge, which referred to the nine additional workers' compensation claims the claimant had filed before his discharge.1 Accordingly, the matter was remanded to the trial court for further proceedings. {¶ 8} In November 2001, Semco filed a second motion for summary judgment, arguing that excessive absenteeism is a legitimate basis for termination, that the doctrine of failure to exhaust administrative remedies barred the instant action because Wilson had failed to seek administrative or judicial review of the OCRC order, and that the OCRC determination operated to preclude re-litigation of issues surrounding the basis for Wilson's discharge under principles of res judicata. The trial court granted Semco's motion on February 14, 2001, concluding that "[t]his court will not be put in the position of re-litigating the same issues which * * * [Wilson] pursued before the Ohio Civil Rights Commission. Res judicata is a legitimate defense in the circumstances where a party has failed to exhaust administrative remedies when non-constitutional issues are at stake." {¶ 9} Wilson now appeals, and presents the following single assignment of error for our review: "The trial court erred in granting summary judgment pursuant to Ohio Civil Procedure Rule 56 when there are clearly genuine issues as to material facts, and the ruling that the issue before the court was `res judicata' is a violation of plaintiff's due process rights, as the plaintiff is entitled to have his case heard by the trier of fact." Summary Judgment Standard {¶ 10} It is well-established under Ohio law that a court may not grant a motion for summary judgment unless the record demonstrates: (1) that no genuine issue of material fact remains to be litigated; (2) that the moving party is entitled to judgment as a matter of law; and (3) that, after construing the evidence most strongly in the nonmovant's favor, reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made.2 In ruling on a summary judgment motion, the trial court is not permitted to weigh evidence or choose among reasonable inferences; rather, the court must evaluate evidence, taking all permissible inferences and resolving questions of credibility in favor of the *Page 79 nonmovant.3 Even the inferences to be drawn from the underlying facts contained in the evidentiary materials, such as affidavits and depositions, must be construed in a light most favorable to the adverse party.4 Appellate review of summary judgment determinations is conducted on a de novo basis;5 therefore, this Court considers the motion independently and without deference to the trial court's findings.6 Accordingly, the appellate standard for summary judgment is the same as that of the trial court.7 Exhaustion of Administrative Remedies {¶ 11} As mentioned previously, Semco maintains that the doctrine of exhaustion of administrative remedies operates to preclude the instant action because Wilson failed to seek reconsideration or judicial review of the OCRC determination prior to initiating his wrongful discharge claim. Exhaustion of remedies is an affirmative defense that is waived if not timely asserted and maintained.8 In this instance, Semco did not plead exhaustion as an affirmative defense and failed to raise the issue in its first summary judgment motion, waiting until after the matter had been remanded upon appeal to raise the issue in its second summary judgment motion. By failing to timely plead or raise the defense, Semco has waived the defense. {¶ 12} Additionally, in Smith v. Friendship Village of Dublin,Ohio, Inc.,9 the Ohio Supreme Court held that "in light of our obligation to liberally construe R.C. Chapter 4112, R.C. Chapter 4112's goal of providing `a variety of remedies,' and in the absence of an express legislative expression imposing an election requirement, we hold that the filing of an unlawful discriminatory practice charge with the Ohio Civil Rights Commission under R.C. 4112.05(B)(1) does not preclude a person alleging handicap discrimination from instituting an independent civil *Page 80 action under R.C. 4112.99."10 In doing so, the Court abrogatedHultberg v. Ohio Edison Company,11 wherein an appellate court held that a party's abandonment of an administrative appeal from an OCRC order forever barred the party from raising an independent civil handicap discrimination claim. {¶ 13} In determining the General Assembly's intent, the starting point in the construction of a legislative enactment is the text of the statute itself.12 "By its terms, R.C. 4123.90 does not make the remedy provided therein an exclusive remedy."13 The plain language of neither R.C. 4112.05 nor R.C. 4123.90 requires a plaintiff alleging handicap discrimination or retaliatory discharge to elect between remedies. Nor are there other statutory provisions requiring such an election. Therefore, considering Chapter 4112's goal of providing a variety of remedies, we hold that neither the filing of an unlawful discriminatory practice charge with the Ohio Civil Rights Commission under R.C. 4112.05(B)(1) nor the failure to pursue judicial or administrative review of a corresponding order will preclude a person alleging handicap discrimination from instituting an independent civil action for retaliatory discharge under R.C. 4123.90.14 {¶ 14} Accordingly, we must proceed to determine whether principles of res judicata or collateral estoppel operate to preclude Wilson's retaliatory discharge claim herein. Issue and Claim Preclusion {¶ 15} The term "res judicata" has several different meanings, depending on the context in which the term is used. Res judicata has been used in a broad way to include both major aspects of former adjudication, encompassing claim preclusion and issue preclusion. In order to give more consistency to the use of terms in this area of the law, the accepted current usage of res judicata falls within this broad sense. Authorities now generally prefer the use of the term "claim preclusion" to refer to what in the past has been the narrow use of res judicata, and also prefer the use of the term "issue preclusion" to refer to what in the past has been called collateral estoppel.15 In this instance, although *Page 81 the trial court employed the term "res judicata," it stated that it "[would] not be put in the position of re-litigating the sameissues which [Wilson] pursued before the Ohio Civil Rights Commission." We, therefore, need to proceed to address the individual application of the separate concepts of claim and issue preclusion in turn. {¶ 16} We begin our analysis by discussing the general application of principles of res judicata and collateral estoppel to administrative proceedings. The principles of res judicata and collateral estoppel are applicable to such proceedings where the proceedings were judicial in nature, factual disputes resolved were clearly relevant to issues properly before it, and both parties had a full and fair opportunity to argue their version of the facts and an opportunity to seek out review of any adverse findings.16 The weight of authority in Ohio indicates that proceedings before the OCRC are generally held to be of such a judicial nature as to provide sufficient opportunity to litigate the issues presented therein.17 As discussed above, however, the filing of a complaint with the OCRC does not preclude the institution of a subsequent independent civil handicap discrimination claim: a claim predicated upon identical parties, issues, and facts. Therefore, an OCRC complaint cannot operate as res judicata upon Wilson's retaliatory discharge claim. Accordingly, we turn our attention to application of issue preclusion. {¶ 17} In order to successfully assert collateral estoppel, a party must establish: "(1) The party against whom estoppel is sought was a party or in privity with a party to the prior action; (2) There was a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) The issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and (4) The issue must have been identical to the issue involved in the prior suit."18 {¶ 18} Upon review and consideration of the OCRC proceedings and determination, we conclude that collateral estoppel cannot operate to preclude litigation *Page 82 of the issue of whether Wilson was discharged for pursuing his rights under the Workers' Compensation Act of Ohio. The focus and nature of the inquiries and issues involved in an unlawful discriminatory practice charge before the OCRC and a civil complaint for retaliatory discharge due to the pursuit of workers' compensation rights are different. While the OCRC is given statutory authority to determine whether an employment action constituted handicap or other forms of discrimination,19 in order to decide that Wilson was not discharged by Semco due to his disability, it was not necessary for the OCRC to conclude that Wilson was discharged for excessive absenteeism or because his attitude caused morale problems with other workers.20 Wilson's success in the matter was dependent upon a factual determination of whether he was discharged as a result of his alleged fused thumb joints disability. Therefore, because the OCRC determination did not collaterally estop Wilson from proceeding on a retaliatory discharge claim under R.C. 4123.90, the trial court erred in when it rendered summary judgment in favor of Semco. Accordingly, Wilson's assignment of error is sustained. {¶ 19} Having found error prejudicial to the appellant herein, in the particulars assigned and argued, the judgment of the Marion County Common Pleas court is hereby reversed and the cause is remanded for further proceedings in accordance with this opinion. Judgment reversed. BRYANT and HADLEY, JJ., concur. 1 Wilson v. Semco, Inc. (2000), 140 Ohio App.3d 488, 492-494. 2 Civ.R. 56(C); Horton v. Harwick Chemical Corp. (1995),73 Ohio St.3d 679, 686-687. 3 Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7. 4 Hannah v. Dayton Power Light Co. (1998), 82 Ohio St.3d 482,485. 5 Griner v. Minster Bd. of Education (1998), 128 Ohio App.3d 425,430. 6 J.A. Industries, Inc. v. All American Plastics, Inc. (1999),133 Ohio App.3d 76, 82. 7 See Midwest Specialties, Inc. v. Firestone Tire Rubber Co. (1988), 42 Ohio App.3d 6, 8. 8 Jones v. Chagrin Falls (1997), 77 Ohio St.3d 456, 462. 9 Smith v. Friendship Village of Dublin, Ohio, Inc. (2001),92 Ohio St.3d 503. 10 Id. at 507. 11 Hultberg v. Ohio Edison Company (1996), 116 Ohio App.3d 130,134. 12 Smith, 92 Ohio St.3d at 506. 13 Balyint v. Arkansas Best Freight System, Inc. (1985),18 Ohio St.3d 126, 130. 14 Cf. Smith, supra. 15 See Holzemer v. Urbanski (1999), 86 Ohio St.3d 129, 133, citing 18 Wright, Miller Cooper, Federal Practice Procedure (1981 Supp. 1999), Chapter 13, Section 4402, at 6-11. 16 Consumers' Counsel v. Pub. Utl. Comm. (1985), 16 Ohio St.3d 9,10. 17 See, e.g. Merkel v. Compass Steel, Inc. (Jan. 16, 1991), Hamilton App. No. C-890566, 1991 WL 3231, citing State ex rel. Republic SteelCorp. v. Ohio Civ. Rights Comm. (1975), 44 Ohio St.2d 178. Compare, Doanv. Ohio Adm. Dist. Council, Internatl. Union of Bricklayers AlliedCraftworkers (2001), 145 Ohio App.3d 482, 486-487. 18 Monahan v. Eagle Picher Industries, Inc. (1984), 21 Ohio App.3d 179,180-181. 19 Whitehall ex rel. Wolfe v. Ohio Civ. Rights Comm. (1995),74 Ohio St.3d 120, 122. 20 Stevenson v. Pace Engineering, Inc. (Nov. 4, 1994), Lake App. No. 93-L-165, 1994 WL 642471; Cf. Whitehall, supra. *Page 83

2016-07-06 06:36:04.369887+00

DECISION AND JOURNAL ENTRY {¶ 1} Appellant, Gregory Chavers ("Chavers"), appeals from the decision of the Wayne County Common Pleas Court. This Court affirms. I. {¶ 2} On September 8, 2006, in case number 06-CR-0392, Chavers was indicted on two counts of trafficking in drugs in the vicinity of a minor, in violation of R.C. 2925.03. Chavers pled not guilty to the charges. On April 9, 2007, a bill of information was filed on one count of permitting drug use, in violation of R.C. 2925.13, and one count of possession of cocaine, in violation of R.C. 2925.11. On April 9, 2007, Chavers pled guilty to the charges in the bill of information and the State dismissed the indictment. In its April 10, 2007 judgment entry, the trial court entered a finding of guilty on the bill of information charges and referred Chavers to the Adult Probation Department for a presentence investigation and report. On April 16, 2007, *Page 2 Chavers filed a written waiver of indictment and requested that the trial court proceed under the bill of information filed on April 9, 2007 instead of an indictment. {¶ 3} On February 16, 2007, in case number 07-CR-0104, Chavers was indicted on one count of possession of cocaine in violation of R.C.2925.11, and one count of possession of drug paraphernalia in violation of R.C. 2925.14. On February 28, 2007, Chavers pled not guilty to the charges. On April 18, 2007, Chavers changed his plea to guilty of possession of cocaine. The State dismissed the possession of drug paraphernalia charge. {¶ 4} On May 23, 2007, a sentencing hearing was held. This hearing combined case numbers 06-CR-0392 and 07-CR-0104. Chavers was sentenced to 18 months of community control. On May 29, 2007, Chavers filed a notice of appeal. We dismissed his appeal, finding that the trial court had not issued a final, appealable order. On August 28, 2007, the trial court issued a nunc pro tunc order, satisfying the requirements of a final, appealable order. On August 31, 2007, Chavers filed his notice of appeal. He has raised four assignments of error for our review. We have combined some assignments of error for ease of review. II. ASSIGNMENT OF ERROR I "THE TRIAL COURT ERRED WHEN IT LET THE PROBATION DEPT. GIVE CONDITION(S) THAT WAS NOT PART OF [CHAVERS'] CRIME OR RAISED IN ANY OF THE SENTENCING PHASE[.]" {¶ 5} In his first assignment of error, Chavers contends that the trial court erred when it let the probation department give conditions that were not part of his crime nor raised at the sentencing phase. We do not agree. {¶ 6} We first note that Chavers argues that his conviction was against the manifest weight of the evidence. However, Chavers pled guilty to the charges below. "A guilty plea *Page 3 waives a defendant's right to challenge sufficiency or manifest weight of the evidence." State v. Jamison, 2d Dist. No. 21165, 2006-Ohio-4933, at ¶ 38. Accordingly, we will disregard any reference to manifest weight in Chavers' argument here as well as in his assigned errors below. {¶ 7} It appears that Chavers is challenging the reasonableness of his community control conditions. He argues that because he was convicted of drug related charges, the requirements that he obtain drug/alcohol counseling and submit to "periodic, random drug/alcohol testing" is unreasonable. Specifically, he states that "there is no relationship btween (sic) [his] conviction and the non-comsumption (sic) of alcohol, there is nothing at all in the record that alcohol was involved in the crime." {¶ 8} A trial court has broad discretion in imposing conditions of community control. Lakewood v. Hartman (1999), 86 Ohio St.3d 275, 277. As such, the imposition of these conditions is reviewed under an abuse of discretion standard. State v. Talty, 103 Ohio St.3d 177,2004-Ohio-4888, at ¶ 10. Abuse of discretion requires more than simply an error in judgment; it implies unreasonable, arbitrary, or unconscionable conduct by the court. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. {¶ 9} The reasonableness of community control conditions must be evaluated using the three-prong test set forth in State v. Jones (1990),49 Ohio St.3d 51, 53. As such, this Court should "consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation." Id. {¶ 10} In its sentencing entry, the trial court noted that "[t]he court has considered the pre-sentence report, the victim impact statement and the oral statements made during the sentencing hearing[.]" While the record before us does contain a transcript of the sentencing *Page 4 hearing, it does not contain the presentence report to which the sentencing entry refers. At the sentencing hearing, Chavers' counsel stated that he "does have a prior record[.]" Further, we note that in his reply brief to this Court, Chavers conceded two prior DUI convictions. As the trial court stated that it considered a presentence report, there is some indication that the trial court was informed of these prior convictions, as well as any other facts surrounding the instant case. {¶ 11} We have stated that when a presentence investigation was completed there is a presumption that the trial court utilized it in imposing its sentence. State v. O'Neal (Sept. 29, 1999), 9th Dist. No. 19255, at *2, citing State v. Koons (1984), 14 Ohio App.3d 289, 291. As Chavers has failed to include the presentence report in the record, we cannot properly review the underlying facts of this case. State v.Meyers, 9th Dist. No. 06CA0003, 2006-Ohio-5958, at ¶ 13. Accordingly, we have no choice but to presume the validity of the trial court's sentence. Id., citing State v. Cox (Apr. 12, 2000), 9th Dist. No. 19773, at *2. Accordingly, Chavers' first assignment of error is overruled. ASSIGNMENT OF ERROR II "THE TRIAL COURT ERRED WHEN IT LET THE PROBATION OFFICER SIGN [CHAVERS'] NAME TO A[N] OFFICIAL DOCUMENT INWHICH (SIC) WAS NOT [CHAVERS'] SIGNATURE BUT, THAT OF THE PROBATION OFFICER'S SIGNATURE." ASSIGNMENT OF ERROR III "THE TRIAL COURT ERRED WHEN THE PROBATION OFFICER CALLED [CHAVERS'] DOCTOR AND ORDERED HIM TO STOP GIVING ANY TYPE OF MEDICATION(S) THAT WAS PERSCRIBED (SIC) TO [CHAVERS]." ASSIGNMENT OF ERROR VI "THE TRIAL COURT ERRED WHEN IT LET THE PROBATION OFFICER TESTIFY ABOUT THE 1ST AND 2ND URINE TESTS HAD IN THE PROBATION HEARING." *Page 5 {¶ 12} In his second, third, and fourth assignments of error, Chavers contests various actions that occurred during the terms of his community control. {¶ 13} At the outset, we note that Chavers was sentenced on May 24, 2007. He filed his initial notice of appeal with this Court on May 29, 2007. In his notice, Chavers stated that he was appealing from the judgment of the trial court in case numbers 06-CR-0392 and 07-CR-0104. Similarly, in his August 31, 2007 notice of appeal, Chavers stated that he was appealing from the judgment/conviction entered in case numbers 06-CR-0392 and 07-CR-0104. {¶ 14} Throughout these three assignments of error, Chavers refers to community control violations that we deduce occurred after his sentence was imposed on May 24, 2007. Specifically, his second of assignment of error pertains to his "Departmental Reprimand for the wanton of a first violation" of his probation. His fourth assignment of error requests this Court to review actions that occurred at the June 12, 2007 community control violation hearing.1 According to App.R. 3(D), a notice of appeal "shall designate the judgment, order or part thereof appealed from[.]" "An appellate court "is without jurisdiction to review a judgment or order that is not designated in the appellant's notice of appeal. This promotes the purpose of App.R. 3(D): to notify potential appellees of an appeal and advise them as to what orders the appellant is appealing from." (Internal citations and quotations omitted.) State v. Dixon, 9th Dist. No. 21463, 2004-Ohio-1593, at ¶ 7. {¶ 15} As Chavers has not appealed from any orders relating to the community control violations referenced in his second, third, and fourth assignment of error, we find that we are *Page 6 without jurisdiction to review these assigned errors. Accordingly, we decline to address Chavers' second, third, and fourth assignments of error. III. {¶ 16} Chavers' first assignment of error is overruled. We decline to address his second, third, and fourth assignments of error. The judgment of the Wayne County Court of Common Pleas is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. *Page 7 CARR, P. J., SLABY, J., CONCUR. 1 In his third assignment of error, Chavers contends that his probation officer called his doctor and ordered him to stop giving Chavers prescribed medication. However, Chavers does not substantiate this claim with any references to the record. App.R. 12. Accordingly, we do not know when this alleged conversation occurred. Regardless, we deduce that this incident would have necessarily occurred subsequent to his notice of appeal. *Page 1

2016-07-06 06:36:04.396178+00

DECISION AND JOURNAL ENTRY This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, April R. ("Mother"), appeals from a judgment of the Summit County Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her minor child in the permanent custody of Summit County Children Services Board ("CSB"). This Court affirms. {¶ 2} Mother is the natural mother of M.R., who was born November 2, 2004, while Mother was still a juvenile.1 Because Mother had a history of juvenile delinquency including domestic violence, failing to comply with the conditions of her probation, and repeatedly running away, Mother had been placed in a secure juvenile detention facility prior to M.R.'s birth. M.R. was placed in the custody of CSB shortly after her birth. {¶ 3} When Mother had entered the detention facility, as with all other detainees, she had no security clearance to leave the facility or have visitors. By the time M.R. was born, however, Mother had been at the facility for several months and, by complying with the rules, had worked her way up to a security level that allowed her to leave the facility for visits. Beginning November 18, 2004, Mother was transported from the facility to have supervised visits with M.R. Mother was released from the detention facility on December 30, 2004 and was placed in a therapeutic foster home. {¶ 4} On January 27, 2005, Mother ran away from the foster home. Mother was "on the run" until May, and she ran away two more times during the pendency of her case planning period. Mother apparently ran away each time because she was dissatisfied with her own custodial situation. She expressed little concern about what was happening with her child. {¶ 5} On July 14, 2005, CSB moved for permanent custody of M.R. Following an evidentiary hearing, the trial court found that Mother had abandoned M.R., that she had failed to substantially remedy the conditions that led to M.R.'s removal, and that permanent custody was in the best interest of M.R. Mother appeals and raises two assignments of error, that will be addressed together because Mother argued them jointly. ASSIGNMENT OF ERROR I "THE DECISION OF THE TRIAL COURT TO GRANT PERMANENT CUSTODY OF THE CHILDREN TO [CSB] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND IS NOT IN THE CHILD'S BEST INTEREST." ASSIGNMENT OF ERROR II "CSB FAILED TO USE REASONABLE EFFORTS TO REUNITE THE FAMILY." {¶ 6} Mother contends that the trial court erred in granting CSB's motion for permanent custody. Before a juvenile court can terminate parental rights and award to a proper moving agency permanent custody of a child, it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is abandoned, orphaned, has been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see, also, In re WilliamS. (1996), 75 Ohio St.3d 95, 99. {¶ 7} When reviewing the weight of the evidence, this Court applies the same test in civil cases as it does in criminal cases. Tewarson v. Simon (2001), 141 Ohio App.3d 103, 115. "`The [reviewing] court * * * weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.'" (Alterations sic). Id., quoting State v.Thompkins (1997), 78 Ohio St. 3d 380, 387, quoting State v.Martin (1983), 20 Ohio App. 3d 172, 175. {¶ 8} The trial court found that the first prong of the permanent custody test was met for two reasons: (1) the parents had abandoned M.R. and (2) Mother failed to substantially remedy the conditions that led to M.R.'s removal. The trial court also found that permanent custody was in the best interest of M.R. Consequently, it terminated parental rights and placed M.R. in the permanent custody of CSB. Mother challenges the trial court's findings on both prongs of the permanent custody test. {¶ 9} In addition to challenging both prongs of the permanent custody test, Mother contends that CSB failed to use reasonable case planning efforts to reunify this family. A lack of reasonable case planning effort will be reversible error, however, only if the trial court's order of permanent custody had been based on R.C. 2151.414(E)(1), which requires the trial court to find that the child cannot or should not be returned to either parent because the parent failed to substantially remedy the conditions causing the child to be placed outside the home "notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents[.]" See In the Matter of Ward (Aug. 2, 2000), 4th Dist. No. 99CA2677, citing with approval Inre Scott (Sept. 17, 1999), 6th Dist. No. L-99-1012 ("`Absent any evidence of agency efforts [toward] reunification after the children's removal from the home, an R.C. 2151.414(E)(1) predicate finding cannot be sustained.'") "If an agency chooses to argue that the parent did not rectify the cause(s) for removal, then the parent must have an opportunity to do so."Ward, supra. {¶ 10} Although the trial court did base its permanent custody order, in part, on a finding that Mother had failed to substantially remedy the conditions that led to M.R.'s removal, it also found that the first prong of the permanent custody test had been satisfied for another reason: that Mother had abandoned M.R. Consequently, so long as the finding of abandonment was supported by the evidence, Mother cannot establish reversible error based on a lack of reasonable case planning efforts. {¶ 11} The trial court found that Mother had abandoned M.R. during the period from January 27, 2005 to May 13, 2005 when she ran from the foster home and failed to have any contact with M.R.R.C. 2151.011 (C) provides: "For the purposes of this chapter, a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days." {¶ 12} The trial court found that Mother had abandoned M.R., and that finding is supported by the record. The evidence was undisputed that, on January 27, 2005, Mother ran away from her foster home. She was not apprehended until May 7, but ran away again six hours later and was apprehended again on May 13. Mother was gone for more than 90 days and, during that time, had no contact with M.R. In fact, she did not even ask about the child when she spoke to the caseworker two times. Although Mother asserts that her lack of contact was "not completely voluntary," there is no evidence that her decisions to run from the foster home and to have no contact were not voluntary. Therefore, the trial court's finding of abandonment satisfies the first prong of the permanent custody test, so its alternate finding under R.C.2151.414(E)(1) was not necessary. {¶ 13} Mother also challenges the trial court's finding that permanent custody was in the best interest of M.R. When determining whether a grant of permanent custody is in the child's best interest, the juvenile court must consider the following factors: "(1) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child; "(2) The wishes of the child, as expressed directly by the child or through the child's guardian ad litem, with due regard for the maturity of the child; "(3) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999; "(4) The child's need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; [and] "(5) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child." R.C.2151.414(D)(1)-(5). {¶ 14} R.C. 2151.414(E)(10) is relevant here because it applies if the trial court finds that "[t]he parent has abandoned the child." Because the trial court's finding that Mother abandoned M.R. is intertwined with her interaction and interrelationship with M.R., those two best interest factors will be discussed together. {¶ 15} Mother had very little interaction with M.R. during the first year of the child's life. In fact, Mother had a total of nine one-hour visits with M.R. and, as a result, had no real bond with the child. Mother's first eight visits with M.R. took place during the first two months of M.R.'s life. On January 27, 2005, Mother ran away from the foster home. Mother lived "on the run" for the next three and a half months and had no contact with M.R. during that time, nor did she inquire about her. {¶ 16} Mother testified that while she was on the run, she did not get a job to support herself but instead lived with different friends and frequently drank alcohol or smoked marijuana. Mother called her caseworker two times during this period, but she did not ask about M.R. during either call. Instead, she asked about what would happen to her, apparently suspecting that she would be facing additional disciplinary consequences. During each call, the caseworker tried to persuade Mother to surrender herself to the authorities, but she did not. {¶ 17} Mother was apprehended by Akron Police on May 7, 2005 and, because the police were not aware that Mother was a flight risk, they placed her in an unsecured emergency shelter for teens. Within seven hours, Mother ran away again, but was again apprehended by the police six days later. {¶ 18} Mother was returned to the detention facility and again had to work her way up to a security level that allowed visits outside the facility. After Mother had worked her way back up to such a security level, Mother was transported from the facility for a visit with M.R. Probably because M.R. was much older and had not seen Mother for months, the visit did no go very smoothly. After the visit, Mother fled from CSB workers. She escaped out into traffic on a busy street and was able to get away. Mother was apprehended by police more than two weeks later and was returned to the detention facility, and again entered at a much lower security level because she had run away. {¶ 19} The CSB caseworker had assumed that Mother ran away after the visit because she was upset that the visit with her daughter did not go well. When Mother testified, however, she indicated that her motivation to run from the CSB workers that time was that she did not want to return to the detention facility, not that she was upset about her daughter. {¶ 20} Because M.R. was only one year old at the time of the permanent custody hearing, the guardian ad litem testified on her behalf. The guardian ad litem opined that permanent custody was in the best interest of M.R. She emphasized that Mother had been given time to work on the goals of her case plan but that she repeatedly ran away without considering the consequences of those actions. In a controlled environment such as the detention facility, she complied with some of the goals of the case plan, but in an uncontrolled environment, she continued to make bad choices and inevitably had to keep returning to the detention facility to start over again. {¶ 21} At the time of the permanent custody hearing, M.R. had spent her entire short life outside of her mother's custody. In the foster home, M.R. was developing a close bond with the foster family and the foster parents had indicated that they wished to adopt her. The caseworker stressed that these foster parents had gone above and beyond what she would expect of foster parents in caring for a child. M.R. was also developmentally on target, despite early concerns by CSB that M.R. might have developmental delays because Mother has an I.Q. of 56. {¶ 22} Mother, on the other hand, had made minimal progress during the first year of her daughter's life to improve her ability to parent her child. Mother had taken some parenting classes and anger management classes while in the detention facility, but she had demonstrated that she was not implementing what she should have learned. While she testified, Mother recited facts about child development and child care that she had learned in her parenting classes. Through other direct testimony and on cross-examination, however, Mother demonstrated a lack of basic knowledge about child care and development, such as what to feed children at certain ages, how often to feed or bathe a child, and basic developmental milestones for certain ages. The caseworker also testified that Mother's visits with M.R. had been strained because she did not seem to know how to handle or interact with a young child. While Mother's response was that she had not been given much of a chance to visit with M.R., Mother's lack of visitation with M.R. had been the result of her own behavior of running away and committing rule violations while in the detention center. {¶ 23} Mother completed anger management classes, but again was not implementing what she had learned. She continued to have verbal and physical altercations with her caseworker and with others in the detention center. {¶ 24} More significantly, Mother repeatedly ran away from authority, demonstrating not only that she did not accept responsibility for or consider the consequences her own actions, but also that she was placing her own wants and needs ahead of those of her child. When she called her caseworker two times, she asked about herself, not her child. While she was on the run, she admitted that she hung out with friends and drank alcohol and smoked marijuana, rather than trying to become self-sufficient. {¶ 25} Finally, the evidence demonstrated that M.R. was in need of a legally secure permanent placement and that Mother was not able to care for her, nor were there any relatives willing and able to care for her. Consequently, the trial court reasonably concluded that a legally secure placement could only be achieved through a grant of permanent custody to CSB. {¶ 26} Given the evidence on each of the best interest factors, the trial court did not lose its way in concluding that permanent custody was in the best interest of M.R. As explained above, the trial court had also been justified in finding that Mother abandoned M.R. Consequently, the trial court did not err in terminating mother's parental rights and placing M.R. in the permanent custody of CSB. The first and second assignments of error are overruled. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to appellant. Slaby, P.J. Moore, J. concur. 1 According to Mother's testimony, her 18th birthday was May 5, 2006.

2016-07-06 06:36:01.920527+00

OPINION Defendant-appellant/cross-appellee, Kenneth J. Golick ("Kenneth"), appeals a Clermont County Court of Common Pleas, Domestic Relations Division, property division in a divorce action with plaintiff-appellee/cross-appellant, Carleen D. Golick ("Carleen").1 The parties were married in October 1982 and have two daughters (born in 1983 and 1986). Carleen is a licensed cosmetologist. While for most of the parties' marriage, she was a homemaker, she occasionally worked as a secretary for K. J. Golick Co., Inc. ("K. J. Golick Co."), a company Kenneth started in 1984. Kenneth is a self-employed manufacturer's representative selling equipment for water plants. Although the company was successful for several years, it experienced several cash flow problems in the 1990s. As a result, Kenneth loaned money to his company ($10,000 in 1993 and 1997, $15,000 in 1994, and $35,000 in 1995). Kenneth testified that in lieu of receiving wages from the company, he was "taking repayment of loan instead." In 1998, the company lost its principal manufacturer when BIF terminated its sales representation agreement with K. J. Golick Co. In February 1997, Kenneth's mother, Jennie Golick, and his aunt, Mary Pozelnick, came to live with the parties. Until her death in September 1997, Kenneth's mother contributed her income to the household expenses. Kenneth's aunt, who is disabled and legally blind, also contributes her income to the household expenses. Kenneth has access to, and control over, his aunt's bank account. Kenneth started managing the financial affairs of his mother and aunt in 1988. During the parties' marriage, Kenneth was in charge of managing the parties' bank accounts and the company's business account. In 1990, the parties purchased a vacation house in Lafollette, Tennessee (the "Tennessee property"), for $89,000 with a down payment of $23,000. That same year, the parties also purchased an office building on Ohio Pike, in Amelia, Ohio (the "Ohio Pike property") for $100,000 with a down payment of $26,422.80. The office building was used for Kenneth's company. Until the Ohio Pike property sold sometime between August 1998 and January 1999, K. J. Golick Co. was paying Kenneth $1,500 a month in rent. In 1991, the parties purchased their current marital residence on Trevino Court in Cincinnati (the "Trevino property") for $230,000 with a down payment of $130,714.59. All three properties are in both parties' names. Carleen filed a divorce complaint in the trial court in June 1997. By order filed August 31, 1998, the magistrate granted exclusive occupancy of the marital residence to Carleen during the divorce proceedings, and ordered Kenneth, "[u]pon vacating the marital residence, * * * [to] continue to pay all of the expenses, * * * and in addition [to] pay to [Carleen] the sum of $400.00 per month to pay for groceries and other incidental household expenses." Despite the magistrate's order, the parties continued to reside in the marital residence until Carleen moved out of the residence in January 1999. A hearing was held before the trial court in October 1998. During the hearing, Kenneth claimed that monies used for down payments on the parties' three properties were gifted to him alone, by either his mother or his aunt. As a result, Kenneth claimed that the down payments should be awarded to him as his separate property. Carleen claimed that the monies used for the down payments were instead loaned by Kenneth's mother and/or his aunt to both parties during their marriage. As a result, Carleen claimed that the down payments were marital property. By decision filed March 4, 1999, the trial court found that Kenneth received a cash gift of $46,000 from his mother in May 1990 and that as a result, $46,000 of the Trevino property down payment came from Kenneth's separate property. With regard to the Ohio Pike property, the trial court found that Kenneth received a gift of $20,000 from his aunt in September 1990 and that as a result, $20,000 of the Ohio Pike property down payment came from Kenneth's separate property. The trial court found that any appreciation in the value of either the Trevino property or the Ohio Pike property "was due to the parties' efforts in maintaining and caring for the [properties]." As a result, "any increased value in [both properties] [was] marital property." With regard to the Tennessee property, the trial court found that the entire down payment for the property "was given as a gift to both parties" by Kenneth's aunt and that as a result, the $23,000 down payment was marital property. The trial court ordered that the Trevino and Tennessee properties be sold. The trial court also ordered Kenneth to pay both properties' mortgage, insurance, and taxes pending sale. With regard to K. J. Golick Co., the trial court found that the fair market value of the business, upon liquidation, was $10,000, and ordered Kenneth to pay Carleen $5,000, "her one half interest in the company[.]" The trial court also ordered Kenneth to pay Carleen a lump sum of $15,000 for spousal support, and $5,000 in attorney fees. The parties were divorced by divorce decree filed April 13, 1999. Both parties appealed the divorce decree in May 1999.2 In September 1999, Kenneth filed a Civ.R. 60(B) motion, asking the trial court to,inter alia, set aside "the judgment in the Decree of Divorce ordering [him] to be solely responsible for all expenses to maintain and service the debts for the Tennessee * * * property." In November 1999, Carleen, in turn, filed a Civ.R. 60(B) motion. An agreed entry filed November 8, 1999 provided that The parties are in agreement on all issues set forth below. * * * 1. Both parties' Motions for Relief Pursuant to Rule 60(B) are granted. The issues to be presented to the Court, for the purpose of amending the Decree of Divorce journalized on April 13, 1999, are as follows: (1) whether the Court should retain jurisdiction over the proceeds from the sale of the [Trevino property] and the [Tennessee property]; (2) whether [Kenneth] should receive a credit for the sum of $120,000.00 paid to [Carleen], as set forth in the Agreed Entry journalized January 22, 1999; (3) whether the [Tennessee property] should be listed for sale as "furnished" or "unfurnished;" (4) whether [Carleen] is to return the items she removed from the [Tennessee property] during the pendency of the divorce proceeding; (5) whether [Kenneth] should have the option of "buying out" [Carleen's] interest in the [Trevino property]; and (6) the terms of sale for listing and selling the [Trevino property] and the [Tennessee property]. Because the parties had filed Civ.R. 60(B) motions while this case was on appeal, this court, by entry filed February 28, 2000, remanded the case to the trial court "for the purpose of ruling on Civ.R. 60(B) motions to be filed by the parties." By decision filed March 6, 2000, the magistrate found, inter alia, that Credit for Sums Advanced [Kenneth] requests that he receive a credit in the amount of $120,000.00 for monies advanced to [Carleen] during the pendency of the divorce. [Carleen] agrees that [Kenneth] is entitled to a property division credit in the sum of $120,000.00 for monies advanced to [Carleen]. Therefore, [Kenneth] shall receive a credit in the amount of $120,000.00 in the property division. Real Estate-900 Trevino Court * * * Three real estate agents testified regarding the value of the home. * * * Based upon the testimony presented, the Court finds the real estate located at 900 Trevino has a value of $275,000.00 [Kenneth] may buy out [Carleen's] interest in the Trevino [property] by paying [Carleen] one-half of the equity of the real estate. The value of $275,000.00, reduced by the balance of the mortgage owed as of February 1, 1999 ([Carleen] moved out of the residence in January 1999), reduced by $46,000.00 for [Kenneth's] separate property, reduced by $120,000.00 for the credit to which [Kenneth] is entitled for sums advanced, results in the equity of the marital residence. * * * If [Kenneth] does not pay [Carleen] one-half the equity within 60 days from the date of this Decision, then the real estate shall be sold. * * * Real Estate-Lafollette, Tennessee * * * [Kenneth] requests that he be reimbursed from the net proceeds for the payment he made for the mortgage, taxes, and insurance until the real estate is sold. [Carleen] argues that the allocation of expenses for the Lafollette property was not one of the issues identified in the Agreed Entry journalized November 8, 1999, as an issue to be litigated and, therefore, the Court does not have authority to rule on this issue. [Carleen's] argument is not well taken. [Kenneth's] Motion * * * specifically identifies the allocation of expenses for the Lafollette property as part of the 60(B) motion. * * * Therefore, in order for the proceeds from Lafollette to be divided equally, [Kenneth] should be reimbursed for the expenses he pays, less any rental income received, until the Lafollette real estate is sold. * * * Recommendations * * * 3. * * * At the closing on the sale of the [Trevino property], and following payment of all expenses incident to sale, including but not limited to, the first mortgage * * *, real estate taxes, prorations, liens, real estate commissions, and other approved expenses incident to sale, [Kenneth] shall first receive from the net proceeds $166,000.00 [$120,000 + $46,000]. The remaining net proceeds, if any, shall be divided equally. * * * 5. * * * At the closing on the sale of the [Tennessee] real estate, and following payment of all expenses incident to sale, including but not limited to, the first mortgage, real estate taxes, prorations, liens, real estate commissions, * * * [Kenneth] shall first receive from the net proceeds any remaining balance from the credit of $166,000.00 for which he was not compensated from the equity in the Trevino * * * real estate. [Kenneth] shall then be reimbursed for the amount by which he reduced the mortgage principal balance beginning February 1, 1999, and for the real estate taxes and insurance paid from February 1, 1999, less any rent he received. The remaining net proceeds shall be divided equally. Carleen filed objections to the magistrate's decision. In particular, she objected to the magistrate's decision requiring her to share equally in the Tennessee property expenses. By decision and entry filed May 8, 2000, the trial court sustained that objection as follows: Pursuant to the Decree of Divorce * * *, it was ordered that [Kenneth] was to be solely responsible for "the mortgage, insurance and taxes." [Kenneth] requested relief from this order [by a Civ.R. 60(B) motion]. An agreed entry was journalized on November 8, 1999. Pursuant to the entry, "[b]oth parties' Motions for Relief pursuant to Rule 60(B) are granted." * * * It appears * * * that the parties merely intended for the Court to address limited issues. The entry states which issues are to be heard by the Court for purposes of amending the decree of divorce. The issue of the expenses related to the Tennessee property is not included in the entry. Assuming, however, that the Court did have jurisdiction to address the issues of the Tennessee property expenses, the question is whether [Kenneth] is entitled to relief pursuant to Civ.R. 60(B). * * * Upon review of the evidence presented, the Court finds that [Kenneth] has failed to establish that he is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)-(5). In April 2001, the parties filed a joint motion to remand the case to the trial court for the purpose of establishing jurisdiction with the trial court to journalize several decisions. The case was remanded and by entry filed April 18, 2001, the parties' November 8, 1999 agreed entry, the magistrate's March 6, 2000 decision, and the trial court's May 8, 2000 decision and entry were all re-journalized effective April 18, 2001. This appeal follows. On appeal, Kenneth raises five assignments of error. On cross-appeal, Carleen raises five assignments of error. Kenneth's first assignment of error and Carleen's first cross-assignment of error both deal with the same issue, and therefore will be discussed together. Kenneth's fourth assignment of error and Carleen's fifth cross-assignment of error will be similarly discussed together. Each of the other assigned errors will be discussed separately. In his first assignment of error, Kenneth argues that the trial court erred by failing to award him "the full extent of his nonmarital gifts used as down payments for real estate purchased during the marriage." Kenneth asserts that most of the monies used for the down payments on the parties' three properties were gifted to him alone, by either his mother or his aunt, and that as a result, those monies should be awarded to him as his separate property. In her first cross-assignment of error, Carleen argues that the trial court erred by not finding that "all down payment funds were marital property." In a divorce proceeding, the trial court must first determine what constitutes marital property and what constitutes separate property. R.C. 3105.171(B). Once the trial court has determined the status of the parties' property, the court must generally disburse a spouse's separate property to that spouse and equitably distribute the marital property. R.C. 3105.171(B) and (D). We review the classification of property as marital or separate under a manifest weight of the evidence standard.Johnson v. Johnson (Sept. 27, 1999), Warren App. No. CA99-01-001, unreported, at 7. Under such standard, the trial court's factual findings regarding the classification of property as marital or separate "are reviewed to determine whether they are supported by competent, credible evidence." Id. The trial court's property award, in turn, will not be reversed absent an abuse of discretion. Barkley v. Barkley (1997),119 Ohio App.3d 155, 159. "Marital property" is defined in R.C. 3105.171(A)(3)(a)(i) and (ii) to include "[a]ll real and personal property that currently is owned by either or both of the spouses * * * and that was acquired by either or both of the spouses during the marriage[,]" and "[a]ll interest that either or both of the spouses currently has in any real or personal property * * * and that was acquired by either or both of the spouses during the marriage[.]" Marital property does not include any separate property. R.C. 3105.171(A)(3)(b). "Separate property" in turn is defined in R.C. 3105.171(A)(6)(a)(vii) to include "[a]ny gift of any real or personal property or of an interest in real or personal property that is made after the date of the marriage and that is proven by clear and convincing evidence to have been given to only one spouse." "Clear and convincing evidence" means that degree of proof that will provide in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. Barkley, 119 Ohio App.3d at 168-169. The commingling of separate and marital property does not destroy the character of separate property unless its identity as separate property is not traceable. R.C. 3105.171(A)(6)(b). The party seeking to have a particular asset classified as separate property has the burden of proof, by a preponderance of the evidence, to trace the asset to separate property. Peck v. Peck (1994), 96 Ohio App.3d 731, 734. In the case at bar, it is undisputed that all three properties were purchased by the parties during the marriage, and that they are held in both parties' names. For purposes of clarity, we will consider each property separately. 1. The Trevino Property (aka the marital residence) The Trevino property was purchased in February 1991 for $230,000 with a down payment of $130,714.59. The trial court found that Kenneth received a cash gift of $46,000 from his mother in May 1990 and that as a result, only $46,000 of the Trevino property down payment was his separate property. On appeal, Kenneth argues that had the trial court properly considered the totality of the exhibits before it, the court would have found that $105,000 of the down payment was traceable to his separate property. Carleen essentially contends that because all monies used for the down payment were previously deposited in the parties' joint bank account, the Trevino property down payment is marital property. We note at the outset that Kenneth consistently testified that any money given by either his mother or his aunt during the parties' marriage was given to him only, and that it was never paid back. Kenneth denied borrowing money from his aunt or mother during the parties' marriage. Kenneth testified that any transfers of money from his mother's and aunt's accounts to him were at their discretion. Kenneth also testified that because he managed the financial affairs of his mother and aunt, he was frequently asked by them to withdraw money from their accounts. Kenneth admitted, however, that those requests were only oral. Carleen, in turn, consistently testified that any monies received from Kenneth's mother or aunt during the parties' marriage were loans. Because Carleen was not privy of many of the transfers of money between the parties' accounts and Kenneth's mother's and aunt's accounts, her testimony was peppered with "I don't know" statements and her belief that everything received during the parties' marriage was marital property. Kenneth argues that $105,000 of the Trevino property down payment was traceable to his separate property as follows: (1) a $46,000 cash gift from his mother in May 1990, and subsequently deposited in the parties' joint account, (2) a $7,000 withdrawal from his aunt's Discover Savers' account on February 7, 1991, (3) a $10,000 withdrawal from his mother's Ohio Savings Bank account on January 19, 1990, and subsequently deposited in the parties' joint account, (4) a $10,000 withdrawal from his aunt's Ohio Savings Bank account on October 10, 1989, and subsequently deposited in the parties' joint account, and (5) $32,000 from cashing a $40,000 money market certificate given to him by his aunt, and subsequently deposited in the parties' joint account. After thoroughly reviewing the totality of Kenneth's exhibits and the parties' testimony, we agree with the trial court that only $46,000 of the Trevino property down payment is traceable to Kenneth's separate property. Kenneth's exhibit 13, a gift tax return, clearly shows that in May 1990, his mother gave him $46,000. The gift tax return lists Kenneth as the sole recipient of the money. As a result, the $46,000 was Kenneth's separate property, R.C. 3105.171(A)(6)(a)(vii), which he used to pay part of the Trevino property down payment, and which was properly awarded to him as his separate property. Carleen argues that because the $46,000 had been deposited in the parties' joint account, it was marital property. However, as already noted, the commingling of separate and marital property does not destroy the character of the separate property as long as its identity as separate property is traceable. R.C. 3105.171(A)(6)(b). The $46,000 used for the down payment was clearly traceable to Kenneth's mother's cash gift and therefore had retained its identity as separate property. Carleen also succinctly argues that Kenneth transferred a present possessory interest in his $46,000 separate property to her as evidenced by his titling the real estate jointly, treating the funds as jointly owned with her, and depositing the funds into joint accounts. "Spouses can change separate property to marital property based on actions during the marriage." Moore v. Moore (1992), 83 Ohio App.3d 75, 77. The most commonly recognized method for effecting this change is through an intervivos gift of the property from the donor spouse to the donee spouse. The essential elements of an inter vivos gift are (1) intent of the donor to make an immediate gift, (2) delivery of the property to the donee, and (3) acceptance of the gift by the donee. Bolles v. Toledo Trust Co. (1936), 132 Ohio St. 21, paragraph one of the syllabus. Because the holding of title to property by both spouses does not, by itself, determine whether the property is marital or separate, R.C.3105.171(H), our inquiry focuses on whether Kenneth had the requisite donative intent to transfer a present possessory interest in his separate property to Carleen. It is well-established that the donor is not required to introduce evidence that he did not intend for his separate property to be commingled into marital property. See Yeary v. Yeary (May 22, 2000), Brown App. No. CA99-07-023, unreported. Rather, the donee has the burden of showing by clear and convincing evidence that the donor intended an inter vivos gift. In re Fife's Estate (1956),164 Ohio St. 449, 456. We find that Carleen has failed to meet her burden of proof. Carleen's foregoing argument meets neither the required burden of proof nor the essential elements of an inter vivos gift. With regard to the other alleged gifts of money from his mother and aunt (totaling $59,000), we find that Kenneth has failed to prove by clear and convincing evidence that those gifts were gifts to him only. In seeking to establish that the $59,000 was given to him only, Kenneth introduced evidence in the form of his own testimony, bank statements from the parties' joint account, bank statements from his mother's and aunt's accounts, and check registrars. While those documents show that money was withdrawn several times from his mother's and aunt's accounts and subsequently deposited in the parties' joint account, they do not show that the money was intended as a gift to him alone. The only evidence Kenneth introduced to show that the $59,000 from his mother and aunt had been intended as gifts to him alone was his own testimony. Given the lack of evidence introduced by Kenneth to trace the $59,000 to him as his separate property, we find that the trial court properly awarded to him as his separate property only $46,000 of the Trevino property $130,714.59 down payment. See Herrmann v. Herrmann (Nov. 6, 2000), Butler App. No. CA99-01-011, unreported. 2. The Ohio Pike Property The Ohio Pike property was purchased in September 1990 for $100,000 with a down payment of $26,422.80. The property, an office building, was used for Kenneth's company. The trial court found that Kenneth's aunt made a gift to him alone of $20,000 for the purchase of the Ohio Pike property and that as a result, only $20,000 of the Ohio Pike property down payment was his separate property. On appeal, Kenneth argues that $25,000 of the down payment is traceable to his separate property as follows: (1) a $20,000 check from his mother's Ohio Savings Bank account from September 1990 made out to him only, and subsequently deposited in the parties' joint account, (2) a $5,000 withdrawal from his mother's Ohio Savings Bank account on September 18, 1990, and (3) a $4,270.42 withdrawal from his aunt's Ohio Savings Bank account on September 26, 1990. Kenneth explained that the difference between the down payment and the foregoing three numbers was used to pay other expenses associated with the purchase of the property. Kenneth also introduced evidence of a $5,000 withdrawal in September 1990 from a Discover Savers account held jointly by Kenneth, his aunt, and Carleen. We note at the outset that the trial court mistakenly found that Kenneth received a $20,000 gift from his aunt rather than from his mother. Exhibits submitted by Kenneth clearly show that a money market certificate owned by his mother at the Ohio Savings Association was closed on September 13, 1990, and that the proceeds of the certificate were given to Kenneth in the form of a $20,000 check from Ohio Savings Bank. The $20,000 check is made out solely to Kenneth. As a result, the $20,000 was Kenneth's separate property, R.C. 3105.171(A)(6)(a)(vii), which he used to pay part of the Ohio Pike property's down payment, and which was properly awarded to him as his separate property. With regard to the $20,000, Carleen reiterates the same two arguments she asserted regarding the $46,000 of the Trevino property down payment. For purposes of brevity, we incorporate our treatment of Carleen's arguments regarding the Trevino property here, and find that the $20,000 used for the Ohio Pike property down payment was clearly traceable to Kenneth's mother's certificate and therefore had retained its identity as separate property. We further find that Carleen has failed to prove that Kenneth intended an inter vivos gift to her of the $20,000. With regard to the other alleged gifts of money from his mother and aunt (totaling $9,270.42), we find that Kenneth has failed to prove by clear and convincing evidence that those gifts were gifts to him only. While the exhibits submitted by Kenneth show that $5,000 was withdrawn from his mother's account and $4,270.42 was withdrawn from his aunt's account, they do not show that both withdrawals were intended as gifts to him alone. Again, the only evidence introduced to show that both withdrawals from his mother and aunt had been intended as gifts to him alone was his own testimony. Given the lack of evidence introduced by Kenneth to trace both withdrawals to him as his separate property, we find that the trial court properly awarded to him as his separate property only $20,000 of the Ohio Pike property $26,422.80 down payment. 3. The Tennessee Property The Tennessee property was purchased in April 1990 for $89,000 with a down payment of $23,000. The trial court found that [Kenneth's] Exhibit 26A clearly shows that $23,000 was withdrawn from an account held by Aunt Mary, and deposited into an account held jointly by the parties. This money was used as a down payment on the home, deeded in both parties' names. In [Carleen's] Exhibit 6, a letter to the lending institution, [Kenneth] references "our down payment," referring to [Carleen] and himself. The vacation home was used for the benefit and enjoyment of the entire family. The Court finds that [Kenneth] presented insufficient evidence which would establish that the $23,000 received from Aunt Mary was intended as a gift to [Kenneth] solely. Rather, the Court finds that the money was given as a gift to both parties of the marriage. On appeal, Kenneth asserts with much force that the $23,000 used for the Tennessee property down payment was given by his aunt to him only and that therefore, it is his separate property. We disagree. Kenneth's exhibits 26A and 28 (and not exhibit 23 as stated in his brief) show nothing more than $23,000 was withdrawn from his aunt's account and subsequently deposited in the parties' joint account. The exhibits do not show that the $23,000 was intended as a gift to him alone. Again, the only evidence offered by Kenneth that the $23,000 from his aunt had been intended as a gift to him alone was his own testimony. Given the lack of evidence introduced by Kenneth to trace the $23,000 to him as his separate property, we find that the trial court properly found that the $23,000 was marital property. In light of all of the foregoing, we find the evidence submitted by both parties clearly establishes that $46,000 of the Trevino property down payment and $20,000 of the Ohio Pike property down payment are Kenneth's separate property. We further find that the trial court did not err in awarding both amounts to Kenneth as his separate property, and in awarding the balance of the down payments of the parties' three properties to the parties as marital property. Kenneth's first assignment of error and Carleen's first cross-assignment of error are overruled. In his second assignment of error, Kenneth argues that the trial court erred by "failing to award [him] the passive appreciation of his non-marital gifts as separate property." Specifically, Kenneth asserts that the appreciation in value of the Trevino, Ohio Pike, and Tennessee properties was passive, and that therefore, the trial court erred by failing to award him the passive appreciation attributable towards his contribution of separate property, which was used for the down payments of the properties. In light of our foregoing ruling that the Tennessee property down payment was entirely marital property, we will address Kenneth's argument under this assignment of error only with regard to the Trevino and Ohio Pike properties. The trial court found that any appreciation in the value of both properties was marital property. "Marital property" includes "all income and appreciation on separate property, due to the labor, monetary, or in-kind contribution of either or both of the spouses that occurred during the marriage[.]" R.C.3105.171(A)(3)(a)(iii). "Separate property" in turn includes "[p]assive income and appreciation acquired from separate property by one spouse during the marriage[.]" R.C. 3105.171(A)(6)(a)(iii). Passive income is "income acquired other than as a result of the labor, monetary, or in-kind contribution of either spouse." R.C. 3105.171(A)(4). It follows that when either spouse makes a labor, monetary, or in-kind contribution that causes an increase in the value of separate property, the increase in the value is deemed marital. Middendorf v. Middendorf (1998), 82 Ohio St.3d 397, 400. On the other hand, appreciation, as a result of an increase in the fair market value of separate property due to its location or inflation, is considered passive income. Munroe v.Munroe (1997), 119 Ohio App.3d 530, 536. Because Kenneth sought to have the appreciation of the Trevino and Ohio Pike properties characterized as separate property, he had the burden of proof on this issue by a preponderance of the evidence. Peck, 96 Ohio App.3d at 734. The Ohio Pike property was purchased in 1990 for $100,000 and sold sometime between August 1998 and January 1999. There is absolutely no evidence in the record as to the sale price of the property. As a result, there is no evidence as to the alleged passive appreciation of the property, and Kenneth has failed to meet his burden of proof. With regard to the Trevino property, the record shows that it was purchased in 1991 for $230,000. By magistrate's decision filed March 6, 2000 and adopted by the trial court, the trial court found the property had a value of $275,000. While there was an increase of $45,000 in the value of the property (which was also the marital residence), the record does not contain evidence attributing the cause for this increase. There was no evidence that either party made any labor, monetary, or in-kind contribution. Likewise, Kenneth did not provide any evidence that the $45,000 increase was solely attributable to market conditions or the mere passage of time. Kenneth has therefore failed to meet his burden of proof. Given the lack of evidence to trace the passive appreciation of the Trevino and Ohio Pike properties to him as separate property, we find that the trial court did not err by failing to award him "the passive appreciation of his non-marital gifts as separate property." See Maticv. Matic (July 27, 2001), Geauga App. No. 2000-G-2266, unreported. Kenneth's second assignment of error is overruled. In his third assignment of error, Kenneth argues the trial court erred by ordering him to pay Carleen a lump sum of $15,000 for spousal support. Kenneth asserts that the trial court failed to indicate the basis for its spousal support order. The trial court is given broad discretion in determining whether an award of spousal support is appropriate. Holcomb v. Holcomb (1989),44 Ohio St.3d 128, 130-131. A trial court's decision to award spousal support will be reversed only if found to be an abuse of that discretion. Blakemore v. Blakemore (1993), 5 Ohio St.3d 217, 218-219. Likewise, the trial court is given wide latitude in determining the amount of spousal support to be awarded, as long as the trial court properly considers the statutory factors of R.C. 3105.18. Schneider v.Schneider (1996), 110 Ohio App.3d 487, 494. In setting forth its decision, the trial court must indicate its basis for the award in sufficient detail to enable the appellate court to properly review the award. Id. We note at the outset that in challenging the spousal support award, Kenneth argues about the $120,000 Carleen received "as an advance on any potential awards by the Trial Court." The record clearly shows, and Kenneth's attorney so stated, that the money was "an advance on her property distribution" to allow her to find her own residence and vacate the marital residence. Both parties were cognizant that the $120,000 represented payment for property division only and in no way related to a potential award of spousal support. Indeed, the March 6, 2000 magistrate's decision as adopted by the trial court gives Kenneth "a credit in the amount of $120,000.00 in the property division" and ensures that he receive such credit from the proceeds of the sale of the real estate. Kenneth also emphasizes the fact that Carleen received her IRA, a vehicle, a percentage of his 401(k) (the parties stipulated that seven percent of the 401[k] was marital), household furnishings, and that she is to receive "substantial cash distributions from the proceeds of Ohio Pike * * * and from future sales of Trevino and the Tennessee resort property." We note that Kenneth received his IRA, two vehicles, and household furnishings. We further note that in addition to a house his mother gave him (valued at $70,000) and the portions of the down payments found to be his separate property ($66,000), he, too, will receive substantial cash distributions from the sale proceeds of the three properties. See Johnson, Warren App. No. CA99-01-001, unreported (holding that separate property distributed under R.C. 3105.171 must be considered for purposes of spousal support). The trial court based its spousal support award as follows: The parties were married for slightly more than sixteen years. Both parties enjoy good health. [Kenneth] is 56 years old and worked throughout the parties' marriage. [Kenneth] at times made a large salary. However [Kenneth] testified that his business income has declined in the past few years as he lost his major client. In his final written argument, [Kenneth] states that his gross income from his business was $13,500. [Kenneth] also received rental income from the Ohio Pike property in the amount of $18,000. [Kenneth] states that this income will obviously cease, as the property has been sold. However, [Kenneth's] rental income was received from his own company. Therefore, as the company's rental expense has been eliminated, [Kenneth's] income will accordingly rise. [Kenneth] therefore has a yearly income of approximately $31,500. The Court finds that [Kenneth] has excess income beyond his stated expenses. [Carleen] is 45 years old and worked only sporadically during the marriage. At one time she performed casual labor for [Kenneth's] company for a number of years. [Carleen] also has a managing beautician's license which she kept in good standing, although she has not worked as a cosmetologist. [Carleen] presently works * * * 24 hours per week [at $9.50/hour]. The Court finds no reason why [Carleen] could not be working full time. Imputing minimum wage to [Carleen] for sixteen hours per week, the Court finds that [Carleen] has an annual income of approximately $16,000. The Court finds that [Carleen] has expenses of approximately $2200 per month. As [Carleen's] expenses exceed her income, [Carleen] has a need for spousal support. Each party will be receiving significant cash assets from the sale of the parties' three properties. As well, each party will retain some retirement savings. However, [Carleen], during the marriage, was removed from the workforce for a significant period of time while [Kenneth] was able to establish a successful business. As a result, the Court finds that [Carleen] has a need for spousal support in order to re-establish herself in the workforce. In making the spousal support award, the Court has considered that [Carleen] is ten years younger than [Kenneth], will receive significant sums of cash from the real estate sales, and has little work experience. The Court finds that a lump sum is most appropriate in this case due to the often erratic nature of [Kenneth's] income, and the current liquidation of assets which will result in the availability of large amount of cash to the parties. We find that the trial court's foregoing decision sets forth more than sufficient facts upon which to review the spousal support award and the amount of that award. The trial court's decision shows that the court properly considered the factors set forth in R.C. 3105.18(C)(1), and provided sufficient findings to support its ruling. We therefore find that the trial court did not abuse its discretion in awarding Carleen spousal support or in determining that the amount of spousal support to be awarded should be a lump sum of $15,000. Kenneth's third assignment of error is overruled. In his fourth assignment of error, Kenneth argues the trial court erred by ordering him to pay Carleen $5,000 in attorney fees. Kenneth asserts he should not have been ordered to pay any fees at all since Carleen received $120,000 during the divorce proceedings. In her fifth cross-assignment of error, Carleen argues the trial court erred by awarding her only $5,000 of the $19,000 attorney fees she incurred. It is well-established that an award of attorney fees is within the discretion of the trial court. Rand v. Rand (1985), 18 Ohio St.3d 356,359. The party seeking an award of attorney fees must demonstrate (1) some financial need for the award, and (2) that the demand for attorney fees is reasonable under the circumstances. Sargent v. Sargent (Dec. 19, 1988), Clermont App. Nos. CA88-01-002 and CA88-01-004, unreported, at 8. The trial court must further find that the other party has the ability to pay the attorney fees awarded by the court. R.C. 3105.18(H). Once again, Kenneth argues about the $120,000 Carleen received during the divorce proceedings. We reiterate that the money was "an advance on her property distribution" to allow her to find her own residence and vacate the marital residence, and did not relate to a potential award of attorney fees. Again, the record shows that Kenneth was given credit in the overall property division for the $120,000 received by Carleen. The magistrate's March 6, 2000 decision ensures that Kenneth will be reimbursed for the $120,000 out of the proceeds from the sale of the real estate. In awarding the attorney fees, the trial court stated that Based upon the totality of the evidence presented, the Court finds that [Carleen] has established a need for attorney fees. [Carleen] has incurred attorney fees of approximately $19,000 in this matter. Specifically, the Court finds that requiring [Carleen] to pay her own attorney fees would cause a depletion of [her] assets. The Court finds that [Carleen] has established the reasonableness of the attorney's fees incurred on her behalf in this matter. Further, the Court finds that [Kenneth] has the ability to pay a portion of [Carleen's] fees. Upon reviewing the record and the property division in its entirety, we cannot say that the trial court abused its discretion in awarding $5,000 in attorney fees to Carleen. Each party should bear primary responsibility for their own attorney fees, particularly when the party requesting the fees has some ability to pay. See Gourash v. Gourash (Sept. 2, 1999), Cuyahoga App. Nos. 71882 and 73971, unreported. Carleen incurred $19,000 in attorney fees, and Kenneth was ordered to pay $5,000 of her attorney fees. Carleen therefore bears the majority of the fees. We find that the trial court did not err, to either side, in determining that attorney fees should be awarded and in what amount. Kenneth's fourth assignment of error and Carleen's fifth cross-assignment of error are therefore overruled. In his fifth assignment of error, Kenneth argues that the trial court erred by "failing to reimburse [him] for monies expended post decree for maintaining the real estate pending sale." We disagree. The April 13, 1999 divorce decree ordered that the Trevino and Tennessee properties be listed for sale. The decree further stated that "[p]ending the sale [of both properties], [Kenneth] shall be responsible for the mortgage, insurance and taxes." Upon the sale of the Trevino property, Kenneth is to receive $46,000 of the net proceeds as his separate property. The remaining net proceeds are to be divided equally between the parties. With regard to the Tennessee property, the net proceeds from the sale are to be divided equally between the parties. It is well-established that a trial court has broad discretion to determine what division of assets and liabilities is equitable in a divorce proceeding. Kaechele v. Kaechele (1988), 35 Ohio St.3d 93, 95. In addition, a trial court has discretion to issue an order requiring the sale of any real property, with the proceeds from the sale to be applied as determined by the court. R.C. 3105.171(J)(2). With the exception of the $46,000 of the Trevino property down payment which was awarded to Kenneth as his separate property, the Trevino and Tennessee properties were implicitly found to be marital assets by the trial court. It follows that the properties' mortgages, insurance, and taxes are marital liabilities, even though incurred post divorce decree, until such time the properties are sold. Looking at the property division in its entirety, we find no abuse of discretion in the trial court's decision ordering Kenneth to pay the properties' mortgage, insurance, and taxes pending the properties' sale. In addition, with regard to the Trevino property, it is undisputed that Kenneth resides there (and has been since the parties purchased it). The trial court's order is thus a quid pro quo for Kenneth's right of occupancy. See Lynnv. Lynn (Feb. 23, 1982), Fairfield App. No. 40-CA-81, unreported. We therefore hold that the trial court did not err by failing to reimburse Kenneth for monies he expended to maintain the Trevino and Tennessee properties pending their sale. Kenneth's fifth assignment of error is overruled. In her second cross-assignment of error, Carleen argues that the trial court abused its discretion by failing to award her one-half of K. J. Golick Co.'s value, more specifically, by failing to award her one-half of K. J. Golick Co.'s $5,000 accounts receivable and one-half of a $18,520 loan from Kenneth to his company. We disagree. The trial court found that K. J. Golick Co.'s fair market value upon liquidation was $10,000, and ordered Kenneth to pay Carleen $5,000, "her one half interest in the company[.]" Kenneth's exhibit 29, the company's valuation report, clearly shows that the $5,000 accounts receivable were included as assets in the evaluation of the company's fair market value. Being so included, Carleen necessarily received one-half of such accounts receivable when she was awarded one-half of the company's fair market value. Similarly, the exhibit clearly shows that Kenneth's $18,520 loan to the company was included as a liability in the evaluation of the company's fair market value. Being so included, the trial court necessarily considered the loan when it found the company's fair market value to be $10,000. Carleen argues, however, that the loan is a marital asset. Unfortunately, there is no evidence in the record as to the source of monies used by Kenneth to loan money to his company. Nor has Carleen provided us with such evidence. In light of all of the foregoing, we therefore find that the trial court properly awarded Carleen one-half of the company's $10,000 fair market value. Carleen's second cross-assignment of error is overruled. In her third cross-assignment of error, Carleen argues that the trial court abused its discretion by "failing to award her expenses incurred during the pendency of the divorce." In 1998, Carleen incurred expenses of $525 for dental treatment, $74.15 for sewing machine repair, and $1,200 to repair damage to her vehicle caused by Kenneth. By magistrate's order filed August 31, 1998, Carleen was granted exclusive occupancy of the marital residence during the divorce proceedings, and Kenneth was ordered to vacate the residence. The order further stated that "[u]pon vacating the marital residence, [Kenneth] shall continue to pay all of the expenses set forth on his 509-2 affidavit, with the exception of groceries, and, in addition shall pay to [Carleen] the sum of $400.00 per month to pay for groceries and other incidental household expenses." Kenneth's objections to the magistrate's order were overruled by the trial court. The trial court's March 1999 decision on divorce and April 1999 divorce decree did not require Kenneth to pay for household expenses or to reimburse Carleen for the foregoing expenses. Upon reviewing the record, we find that the trial court did not abuse its discretion "by failing to award her [the foregoing] expenses." The magistrate's order clearly conditioned Kenneth's obligation to pay household expenses upon his vacating the marital residence. Carleen's attorney admitted it during an August 26, 1998 hearing when he stated "`Upon vacating the marital residence, [Kenneth] shall continue to do all these other things.' I suppose those have not come into play due to [Kenneth's] failure to comply with the court order and vacate the residence. * * * His vacation of the residence, if he had followed the court order, would have triggered those financial obligations." The record shows that despite the magistrate's order, the parties continued to reside in the marital residence until Carleen moved out of the residence in January 1999. Carleen's third cross-assignment of error is therefore overruled. In her fourth cross-assignment of error, Carleen argues that the trial court erred "in failing to permit [her] to introduce evidence of [Kenneth's] past loans from his family, in failing to admit evidence of [Kenneth's] verbal statements relating to the sources of funds used for down payments, and in admitting heresay [sic]." We first address Carleen's argument that the trial court erred by excluding relevant evidence. Evid.R. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The admission of evidence under Evid.R. 401 is a matter within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. A trial court's decision to exclude evidence under Evid.R. 401 will not be disturbed on appeal absent an abuse of discretion. State v. Blankenship (1995), 102 Ohio App.3d 534, 549. During Kenneth's cross-examination, his attorney objected to Carleen's attorney's attempt to introduce her exhibits 14A, 16, 17, and 18. Exhibit 14A is a copy of two handwritten notes from Kenneth's aunt loaning money to Kenneth and Rose Golick (his first wife). One note is dated 1966, the other 1971. The other three exhibits are court documents from Cuyahoga County involving Kenneth's divorce from his first wife, as follows: (1) exhibit 16 is a 1982 referee's report finding that alleged loans extended to Kenneth as part of a down payment for the marital residence were gifts to Kenneth and Rose; (2) exhibit 17 is a 1984 referee's report modifying Kenneth's child support obligation regarding his children from his first marriage; and (3) exhibit 18 is a 1982 court of common pleas' entry granting a divorce to Kenneth and his first wife. The trial court sustained the objection and excluded the exhibits on the grounds that they were neither relevant to the divorce proceedings between Kenneth and Carleen, nor relevant to the parties' three properties. The exhibits were later proffered. During Carleen's direct examination on rebuttal, Kenneth's attorney also objected to Carleen's testimony regarding comments made by Kenneth to the effect that the parties' neighbors "didn't earn the money to buy [their] house, as we did; it was given to them, it wasn't earned by them[.]" The trial court sustained the objection and excluded Kenneth's comments from the evidence. The comments were later proffered. On appeal, Carleen argues that had the exhibits and comments been admitted into evidence, they would have established a twenty-year pattern of Kenneth borrowing funds from his aunt and mother dating back to his first marriage. Carleen asserts that the exhibits and comments were probative as to whether the monies received during the parties' marriage from Kenneth's mother and aunt were gifts or loans. Upon reviewing the record, we find that the trial court properly excluded the exhibits and comments from the evidence. We fail to see how the exhibits or the comments are even remotely relevant to whether the monies received during the parties' marriage from Kenneth's mother and aunt were gifts or loans. Certainly, the fact that his aunt and mother loaned him money during his first marriage (and possibly at the beginning of his second marriage) does not necessarily mean that monies received and used to purchase the parties' three properties were loans as well. Indeed, while Kenneth denied borrowing money from his mother and aunt during the parties' marriage, he admitted borrowing money from them during his first marriage. Kenneth testified that some loans were forgiven while others were paid back. Kenneth also testified that while he had paid back loans from his father, "when he died, it just changed." With regard to the comments, the record shows that Kenneth was asked about them on cross-examination. Kenneth testified, however, that he did not remember making such comments. In light of the foregoing, we find that the trial court's decision to exclude the exhibits and comments was not an abuse of discretion. We next address Carleen's argument that the trial court improperly admitted hearsay. Carleen's argument refers to Kenneth's exhibit 17, a compilation of accounts from Ohio Savings Bank. The exhibit lists several accounts and the names of their owners, as well as the dates and amounts of withdrawals from three specific accounts (an account held by Kenneth's mother, one held jointly by his mother and him, and one held by his aunt). Carleen's attorney objected to the admission of the exhibit on the ground that it was hearsay. Kenneth's attorney replied that Well, your Honor, I believe both of the parties testified extensively from this exhibit. And, frankly, all of these exhibits could be hearsay if you really pressed on it. But this is a summary of the Ohio Savings received from the bank. * * * I'm sure we could get something from Ohio Savings Bank. All the bank statements are hearsay if we look at it that way. The trial court admitted the exhibit on the ground that "[t]here certainly was a lot of testimony. And in the strict sense, they're hearsay. I think both sides seem to be almost dependent on that both ways." On appeal, Carleen argues that "without this exhibit, [Kenneth] lacked sufficient, substantive and credible proof to establish by clear and convincing evidence his claim that the funds were traceable gifts and, therefore, separate property." Hearsay evidence is an out-of-court statement made by someone other than the declarant offered to prove the truth of the matter asserted. Evid.R. 801. The decision whether to admit evidence rests within the sound discretion of the trial court. Brashear v. Brashear (Apr. 8, 1991), Butler App. No. CA90-08-166, unreported, at 7. In determining whether the trial court abused its discretion, our analysis focuses not merely upon whether the court committed an error of law or judgment, but rather whether the trial court's attitude was unreasonable, arbitrary or unconscionable. Id. at 7-8. We agree with Carleen that Kenneth's exhibit 17 is hearsay. Moreover, since Kenneth failed to comply with the business records exception to the hearsay rule set forth in Evid.R. 803(6), the exhibit does not fall under an exception to the hearsay rule. Id. at 7.3 We find, however, that the admission of the exhibit was not an abuse of discretion. Unlike other exhibits, this exhibit was not objected to when it was first introduced. Rather, its admission was objected to after the divorce case had been fully litigated. The record shows that the exhibit was relied upon by both parties during Kenneth's direct and cross-examinations. Contrary to Carleen's assertion, the exhibit was not solely relied upon by Kenneth to claim that the majority of the monies used for the down payments were his separate property. Rather, the exhibit was relied upon to trace one sixth of the Trevino property down payment and one fifth of the Ohio Pike property down payment. Independently of the exhibit, Kenneth testified about some of the monies highlighted in the exhibit. Under those circumstances, we cannot say that the admission of the exhibit was so unreasonable, arbitrary or unconscionable as to connote an abuse of discretion. Carleen's fourth cross-assignment of error is overruled. Judgment affirmed. YOUNG, P.J., and POWELL, J., concur. 1 We note that the brief filed on behalf of Carleen violates App.R. 19(A) which requires "double spacing between each line of text except quoted matter[.]" The brief is instead "one and a half-spaced." This not only violates the rule, it makes it more difficult to read and "diminishes the persuasive value of the finished product." Barnett v.Carr (Sept. 17, 2001), Butler App. No. CA00-11-219, unreported, at 2, fn. 1, quoting Gillum v. Malishenko (Aug. 2, 1995), Greene App. No. 95 CA 1, unreported. 2 The two appeals were sua sponte consolidated by this court by entry filed May 27, 1999. 3 Interestingly, we note that many exhibits from Kenneth and Carleen were hearsay as well and did not fall under the business records exception pursuant to Evid.R. 803(6). Yet, they were relied upon by both parties and not objected to.

2016-07-06 06:36:02.02143+00

OPINION {¶ 1} Defendant-appellant Jason McCarthy appeals from the decision of the Belmont County Common Pleas Court which sentenced him to ten years in prison after he pled guilty to rape and which designated him a sexual predator after he stipulated to this classification. We are presented with issues of deviation from the minimum sentence, imposition of the maximum sentence, and ineffective assistance of counsel regarding sentencing and waiver of the sexual predator hearing. For the following reasons, the judgment of the trial court is affirmed. STATEMENT OF THE CASE {¶ 2} In April 2001, appellant was charged with rape in violation of R.C. 2907.02(A)(1)(b), a first degree felony. The elements of this offense include engaging in sexual conduct with a person under the age of thirteen. Apparently, appellant engaged his male cousin in sexual conduct sometime between February 1, 2000 and June 10, 2000 (the day before the victim's thirteenth birthday). {¶ 3} On June 11, 2001, appellant pled guilty as charged. He also stipulated to being a sexual predator. The guilty plea and sexual predator classification were journalized the next day. A sentencing hearing was held on June 25, 2001. The victim's therapist testified that the trauma to the victim resulted in behavioral and mood-related problems which caused the victim to enter a youth center where he has been residing for the past ten months. Appellant apologized to all involved. Thereafter, the trial court sentenced appellant to a ten-year maximum sentence. Appellant then filed timely notice of appeal. ASSIGNMENT OF ERROR NUMBER ONE {¶ 4} Appellant's first assignment of error contends that he was deprived of due process of law because: {¶ 5} "THE TRIAL COURT ERRED WHEN IT SENTENCED MR. MCCARTHY, A FIRST TIME OFFENDER, TO A GREATER-THAN-MINIMUM TERM OF IMPRISONMENT WITHOUT ENGAGING IN THE ANALYSIS REQUIRED BY R.C. 2929.14(B)." {¶ 6} Pursuant to R.C. 2929.14(B), where an offender has not previously served time in prison, the court shall impose the minimum sentence unless the court finds on the record that the minimum sentence would demean the seriousness of the offender's conduct or would not adequately protect the public. Here, appellant concedes that the court's sentencing entry sets forth both of the alternative findings for deviating from the minimum sentence. However, appellant urges that the trial court must orally state all required findings in support of deviation from the minimum at the sentencing hearing. He states that we may not review the sentencing entry to find compliance. {¶ 7} Although at one point the Supreme Court mentioned "the sentencing hearing record," in State v. Edmonson (1999), 86 Ohio St.3d 324,1999-Ohio-110, the Court itself evaluated both the transcript and the judgment entry to determine whether a proper finding for deviating from the minimum was made. Id. at 326-328. We have recently held that the appellate court may view the sentencing transcript and the sentencing entry to determine if the court properly made its findings on the record. State v. Rogers, 7th Dist. No. 01CO5, 2002-Ohio-1150, at ¶ 16. Other districts have also held that the reviewing court can view both the sentencing entry and the transcript. See, e.g., State v. Pruiett, 9th Dist. No. 20518, 2001-Ohio-7016; State v. Jackson (Apr. 20, 2001), 11th Dist. No. 991-134; State v. Wilson (Nov. 13, 2000), 12th Dist. No. CA99-08-024; State v. Akers (June 2, 2000), 6th Dist. No. S-99-0356. Some courts have even opined that the sentencing entry is the preferable place to make the findings. State v. Williams, 7th Dist. No. 00CA206, 2001-Ohio-3488, ¶ 11. See, also, State v. Rich, 4th Dist. Nos. 00CA46 and 00CA47, 2001-Ohio-2613; State v. Monroe (May 8, 2001), 10th Dist. No. 00AP752. We note that the Third Appellate District disagrees with the above-cited districts and believes that the record means only the sentencing transcript. State v. Williams (2000), 136 Ohio App.3d 570,572-573. Following the precedent of this court and the trend in most other courts, we find appellant's argument (that the findings must be apparent in the sentencing transcript) to be without merit. We do note, however, that the issue is currently pending before the Ohio Supreme Court after certification of conflict between State v. Comer (Jan. 25, 2002), 6th Dist. No. L-9901296 and Williams, 136 Ohio App.3d 570. {¶ 8} While we ordinarily would refrain from deciding an issue which is pending before this state's Supreme Court, we do not do so in this instance because this assignment of error can be overruled on an alternative ground. Specifically, findings for deviation from the minimum are not required when the maximum sentence is properly imposed. Prior to announcing the required findings available for deviating from the minimum, R.C. 2929.14(B) is prefaced with the phrase, "[e]xcept as provided in division (C) [which is the maximum sentence division] * * *." This quote is an explicit statutory exception to the requirement of findings for deviating from the minimum. Hence, if the court properly imposes the maximum sentence, then it need not concern itself with making a finding for deviating from the minimum. State v. Palmer, 7th Dist. No. 99CA6, 2001-Ohio-3445, at ¶ 13. See, also, State v. Scott (Sept. 21, 2001), 7th Dist. No. 98CA124; State v. Moore (Sept. 10, 2001), 12th Dist. No. CA2001-01-001; State v. Jackson (Aug. 20, 1999), 1st Dist. No. C-980512. Cf. State v. Halmi (Aug. 16, 2001), 8th Dist. No. 78485 withState v. Berry (June 14, 2001), 8th Dist. No. 78187 (and notice that the Eighth District switches depending on the panel of judges). The fact that the Edmonson Court did not address this issue is irrelevant as the maximum sentence was not properly imposed in that case. Moreover, contrary to appellant's suggestion, State v. Jones (2001),93 Ohio St.3d 391 is not on point as the maximum sentence was not imposed by the trial court in that case. As such, if the trial court properly imposed the maximum sentence (analyzed infra), then, pursuant to the plain language of the minimum sentencing statutory division, the trial court was not even required to make any findings regarding the minimum sentence. This leads into the next assignment of error. ASSIGNMENT OF ERROR NUMBER TWO {¶ 9} Appellant's second assignment of error alleges that he was deprived of due process of law because: {¶ 10} "THE TRIAL COURT ERRED WHEN IT SENTENCED MR. MCCARTHY TO A MAXIMUM TERM OF IMPRISONMENT UPON A RECORD INADEQUATE TO SUPPORT SUCH A FINDING UNDER R.C. 2929.14(C) AND R.C. 2929.19(B)(2)(d)." {¶ 11} Pursuant to R.C. 2929.14(C), a trial court may only impose the maximum sentence if it finds that the defendant falls into one of the following four categories: he committed one of the worst forms of the offense; he poses the greatest likelihood of committing future crimes; he is a major drug offender; or he is a repeat violent offender. The court must not only state its finding of which category fits the offender's behavior but must also state its reasons supporting imposition of the maximum sentence. R.C. 2929.19(B)(2)(d). {¶ 12} The court found that appellant "poses a great likelihood of committing future crimes of this nature." (Tr. 6). Although magic or talismanic words are not required, it is prudent for a trial court to mimic the statute's language to avoid issues such as these presented in the matter before this court. We hold that "a great" and "the greatest" are not synonymous. We note that a court could substitute "recidivism" for "likely to commit future crimes." It could substitute "risk" for "likelihood." It could substitute "highest" for "greatest." However, it cannot state "a great" in place of "the greatest." See, e.g., Edmonson,86 Ohio St.3d at 328-329 (holding that "recidivism is likely" is an insufficient finding). Thus, we cannot rely on this finding to support a maximum sentence. {¶ 13} Nonetheless, the trial court made an alternative finding for imposing the maximum sentence. At the sentencing hearing, the court opined that appellant committed the worst form of the offense. (Tr. 6). Appellant concedes the court complied with R.C. 2929.14(C) but disputes that the court sufficiently supported this finding with reasons as required by R.C. 2929.19(B)(2)(d) and argues that the record does not support the conclusion that he committed one of the worst forms of the offense of rape. We disagree with this contention. {¶ 14} After making its finding that appellant committed the worst form of the offense, the trial court listed the following supporting reasons: appellant took advantage of his relationship with the victim since he was the victim's cousin; the offense caused very serious psychological harm to the victim, depriving him of his mental health and depriving him of his freedom as he was required to live at a special facility for the past ten months due to his mood-related problems being exacerbated by appellant's offense; appellant has prior delinquencies; appellant has demonstrated a pattern of drug or alcohol abuse as appellant claimed to be high on marijuana and cocaine at the time of the offense. The court noted that, although appellant has no prior criminal conviction, the severity of the psychological harm to the victim and the fact that appellant took advantage of the victim, tips the scale toward the maximum sentence. (Tr. 6). {¶ 15} Appellant complains that prior delinquencies would be a reason falling under a recidivism finding, not a worst form of offense finding. Regardless, the court set forth other reasons. Appellant points out that he did not cause physical injury and posits that the victim's age does not support a finding of the worst form of the offense in this case because: the age, under thirteen, is an element of the relevant rape charge; all victims of this offense are this victim's age or younger; and the victim's age was at the highest end of the spectrum. He proposes that the worst form of this offense finding should be reserved for the rape of a toddler or infant. It is true that the mere age of almost thirteen would not support a worst form of the offense finding for one convicted of rape of a child under thirteen as the victim was one of the oldest possible victims for this offense. Yet, contrary to appellant's contention, the trial court did not rely on the victim's age as one of its supporting reasons for its finding under R.C. 2929.14(C). (Any mention of the victim's young age occurred in the judgment entry when the court checked a box asking if the age of the victim worsened the victims' injury; this fell under a heading for R.C. 2929.12 dealing with seriousness and recidivism factors.) {¶ 16} We cannot say that the trial court improperly characterized this offense as one of the worst forms of the offense. It was within the court's discretion to opine that very severe psychological harm, taking advantage of a relationship with a cousin, and being high on cocaine and marijuana during the rape support a finding that this was one of the worst forms of the offense. We note that the trial court's focus on the relationship of cousin supports the finding that the offense is the worst form because it also constituted incest. Hence, this assignment of error is overruled. ASSIGNMENT OF ERROR NUMBER THREE {¶ 17} Appellant's third assignment of error argues: {¶ 18} "MR. MCCARTHY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN DEFENSE COUNSEL FAILED TO OBJECT TO THE TRIAL COURT'S FAILURE TO COMPLY WITH R.C. 2929.14(B) AND (C), AND 2929.19(B)(2)(d)." {¶ 19} Appellant argues that his counsel was ineffective for failing to inform the court that it was required to make findings for deviating from the minimum and findings and reasons for imposing the maximum. However, these sentencing issues as presented under the first and second assignments of error and are appealable regardless of objection below. This assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER FOUR {¶ 20} Appellant's fourth and final assignment of error contends: {¶ 21} "MR. MCCARTHY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN DEFENSE COUNSEL WAIVED THE SEXUAL PREDATOR CLASSIFICATION HEARING AND STIPULATED TO A DESIGNATION OF MR. MCCARTHY AS A SEXUAL PREDATOR WHEN THERE WAS NO REASONABLE BASIS TO DO SO." {¶ 22} Pursuant to R.C. 2950.01(E), a sexual predator is a person who is found guilty of a sexually oriented offense and is likely to engage in one or more sexually oriented offenses in the future. This status must be proven by clear and convincing evidence after a hearing is held. R.C. 2950.09(B). However, a defendant can waive his right to a hearing and stipulate that he should be classified as a sexual predator.Rogers, 7th Dist. No. 01CO5, at ¶ 23 (citing cases from the Second, Eighth, and Ninth Appellate Districts). {¶ 23} In order to prevail on a claim of ineffective assistance of counsel, the defendant has the burden of proving (1) that counsel's performance was deficient, in that it fell below an objective standard of reasonableness, and (2) that counsel's deficiency prejudiced the defense, in that there is a reasonable probability that the outcome would have been different were it not for serious errors made. State v.Reynolds (1998), 80 Ohio St.3d 670, 674, citing Strickland v. Washington (1984), 466 U.S. 668, 687. Appellant argues that his attorney rendered deficient performance which prejudiced appellant when he allowed appellant to waive the hearing and stipulate to the classification. {¶ 24} As for prejudice, appellant believes that he had a good chance of prevailing on the sexual predator classification because he is a first-time sexual offender who showed remorse. The state argues that appellant was not prejudiced because it still would have proved his sexual predator status by clear and convincing evidence if the hearing had proceeded, and thus, there is no reasonable probability that the outcome would have been different. {¶ 25} However, prejudice is not analyzed unless a deficiency is first proven. Appellant claims that the attorney's advice was not a reasonable tactical decision because appellant gained nothing by stipulating to his status as a sexual predator. However, a plea and/or stipulation does not become voidable merely because the state gave nothing in return; some defendants plead and stipulate because they agree with the state's allegations. Nonetheless, in this case, the state agreed to stand silent as to the term of incarceration; hence, appellant did receive something. {¶ 26} In conclusion, if the decision to enter a sexual predator stipulation was made knowingly and voluntarily by appellant, then counsel did not render deficient performance. See Rogers, 7th Dist. No. 01CO5. The court inquired of appellant on the record as to his decision and advised him of the ramifications. More importantly, there is no allegation that appellant's stipulation was not voluntary or knowing. In accordance, this assignment of error is overruled. {¶ 27} For the foregoing reasons, the judgment of the trial court is hereby affirmed. Donofrio, J., concurs. Waite, J., concurs.

2016-07-06 06:36:02.058517+00

OPINION {¶ 1} Defendant-appellant, Richard D. Wiseman, appeals his conviction in the Warren County Court of Common Pleas for felonious assault in violation of R.C. 2903.11(A)(2). We affirm. {¶ 2} On the evening of January 11, 2004, appellant was involved in a domestic dispute in his Springboro, Ohio home where he lived with his father, Richard F. Wiseman. His father was siting and watching television that evening in the living room when appellant and his girlfriend, Tina Watkins, arrived at the residence. {¶ 3} Appellant and Watkins were having a heated argument. Appellant entered the kitchen while Watkins stayed in the living room with appellant's father. The father attempted to intercede. Appellant then exited the kitchen with an 8-10 inch butcher knife. The father testified that appellant's eyes appeared "glazed over" and full of "pure anger" as appellant approached, knife raised above his head with its blade pointing forward. Appellant said, "I'm going to kill you." The father quickly arose from his chair and stood in front of Watkins. {¶ 4} Appellant repeated, "I'm going to kill you," pushed his father to the wall, and locked the front door of the house. There was conflicting testimony about whether the father made an attempt to disarm appellant. Appellant tapped the knife on his chest and told his father someone was going to get hurt. Appellant's father moved towards the telephone, but appellant had unplugged it. Appellant threatened his father, "If you pick up that phone, I'll kill you." The father was able to move away and exited the house through the back door. Outside, he sought help from his neighbor, but his neighbor was not home. When the father re-entered the house, appellant and Watkins continued to argue because appellant would not return Watkins' keys. The father asked appellant to give her the keys. Appellant responded by throwing the keys out the front door into the street and leaving the house. Watkins and the father went out to find the keys. After finding them, she drove home. The two called the police separately, and appellant was later apprehended at an apartment located two blocks away. {¶ 5} On February 9, 2004, appellant was indicted on one count of felonious assault, a second-degree felony, in violation of R.C.2903.11(A)(2), and domestic violence, a first-degree misdemeanor, in violation of R.C. 2919.25(A). Appellant moved to suppress his statements given to police after his arrest. The trial court denied the motion, and a jury trial was held on June 7 and 8, 2004. Appellant was found guilty on both counts. The court dismissed the domestic violence count pursuant to R.C. 2941.25(A) and imposed a two-year prison term for the felonious assault offense. Appellant now appeals his conviction raising three assignments of error. {¶ 6} Assignment of Error No. 1: {¶ 7} "The trial court erred in overruling the appellant's motion to suppress." {¶ 8} In appellant's first assignment of error, he argues that his statement to police that he retrieved a knife and held it to himself should have been suppressed because he was not advised of his rights as described by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602. We disagree. {¶ 9} Appellate review of a ruling on a motion to suppress presents mixed questions of law and fact. State v. Long (1998),127 Ohio App.3d 328, 332. When considering a motion to suppress, the trial court assumes the role of the trier of fact and therefore is in the best position to resolve factual questions and evaluate the credibility of witnesses. An appellate court must defer to the trial court's factual findings if they are supported by competent, credible evidence. State v.Retherford (1994), 93 Ohio App.3d 586, 592. Accepting the trial court's factual findings, the appellate court determines "without deference to the trial court, whether the court has applied the appropriate legal standard." State v. Anderson (1995),100 Ohio App.3d 688, 691. {¶ 10} Appellant contends that Miranda requires four bright-line warnings must be provided to a criminal suspect prior to custodial interrogation: the right to remain silent; that anything he says can be used against him in a court of law; that he has the right to the presence of an attorney; and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. See Miranda,384 U.S. at 479. However, the Supreme Court has never required the talismanic incantation of the precise language contained in the Miranda decision. See California v. Prysock (1981), 453 U.S. 355, 359,101 S.Ct. 2806; Duckworth v. Eagan (1989), 492 U.S. 195, 202-203,109 S.Ct. 2875. The warnings are simply required to convey to a suspect his rights and are not themselves rights protected by the Constitution.Duckworth at 203. They are measures to protect one's right against compulsory self-incrimination. Id. at 202. {¶ 11} During appellant's motion to suppress hearing, Officer Anderkin provided the following testimony detailing the circumstances of appellant's arrest: {¶ 12} "I advised him he had the right to remain silent, anything he said could be used against him in a court of law, you have the right to have a [sic] attorney present and he advised that he did." {¶ 13} Even though appellant was not told that he could have an appointed attorney, the warnings given did not violate appellant's right against compulsory self-incrimination to warrant suppression of his statements. The underlying purpose of Miranda is not the form of the recitation but rather the substance for which such recitation is necessary. The import of explaining that an indigent has the right to have an attorney appointed is that without such warning, "the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one." Miranda, 384 U.S. at 473. {¶ 14} The Court, in explaining the preferred simplicity of the warning relative to ex post facto inquiries into financial ability, stated "a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one * * *." Id. at fn. 43. Thus, when appellant responded that he had an attorney, the warning that he had a right to have counsel appointed became unnecessary in this scenario. The trial court did not err when it found that appellant received theMiranda warnings to which he was entitled and subsequently denied his motion to suppress. Appellant's first assignment of error is overruled. {¶ 15} Assignment of Error No. 2: {¶ 16} "The trial court erred in not instructing the jury on the full law of `attempts.'" {¶ 17} Appellant's second assignment of error alleges the trial court erred when it did not give his proposed jury instructions. Any party may propose jury instructions. Crim.R. 30. If the proposed instruction for the jury is correct, pertinent and timely presented, the trial court must include it, at least in substance, in the general charge. State v.Guster (1981), 66 Ohio St.2d 266, 269, citing Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, paragraph one of the syllabus. However, the trial court is not required to give a proposed jury instruction verbatim. The court may use its own language to communicate the same legal principles. State v. Sneed (1992), 63 Ohio St.3d 3, 9. {¶ 18} When reviewing a trial court's jury instructions, the proper standard of review for an appellate court is whether the instruction constituted an abuse of discretion under the facts and circumstances of the case. State v. Wolons (1989), 44 Ohio St.3d 64, 68. An abuse of discretion connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable.State v. Adams (1980), 62 Ohio St.2d 151, 157. {¶ 19} In the case at bar, the trial court gave appellant's jury instruction that "the act of pointing a deadly weapon at another without additional evidence regarding the actor's intention is insufficient to convict a defendant of the offense of felonious assault." This instruction is derived from the syllabus of State v. Brooks (1989),44 Ohio St.3d 185. The court provided further instruction, explaining that "the act of pointing a deadly weapon at another, coupled with a threat which indicates an intent to the use the weapon, is sufficient evidence to convict a defendant of the offense of felonious assault." This explanation comes from the Ohio Supreme Court's decision in Statev. Green (1991), 58 Ohio St.3d 239, syllabus. The trial court also provided the definition of "criminal attempt" from 4 Ohio Jury Instructions (2003) 627, Section 523.03(3), and State v. Woods (1976),48 Ohio St.2d 127, paragraph one of the syllabus, as follows: {¶ 20} "A `criminal attempt' is when one purposely does or fails to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of a crime. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose." {¶ 21} Appellant argues, however, that he was entitled to further instructions that the display of a knife, coupled with a verbal threat and nothing other than what appellant alleged to be mere preparation, does not constitute felonious assault.1 In submitting the proposed instructions, appellant cited the Ninth District's decision in State v.Smith (Jan. 26, 2000), Lorain App. No. 98CA007168, where a majority of the appellate court held that what constitutes a substantial step in the commission of felonious assault with a knife differs from what constitutes a substantial step in the commission of felonious assault with a gun. The court found that the act of pointing a knife alone, or even when accompanied by verbal threats, was insufficient evidence to convict the defendant of felonious assault. {¶ 22} Without expressing approval of the Ninth District's decision inSmith, we find that the trial court did not err when it gave the aforementioned jury instructions because the court's language communicated the same legal principles of appellant's proposed instructions. Appellant's proposed language regarding an overt act that makes his intention to commit physical harm unequivocal is similar to the trial court's instruction defining substantial step, specifically that "the conduct must be strongly corroborative of the actor's criminal purpose." {¶ 23} Furthermore, the evidence showed appellant's conduct consisted of several acts beyond the mere display of the knife and verbal threats. In Smith, the court found there was insufficient evidence to support a felonious assault conviction when the defendant was "flailing" a Swiss army pocket knife around and did nothing more than continue a verbal tirade towards the alleged victim. The court found that the defendant "was not holding the knife in a manner that would permit him to carry out his stated intentions." In the case at bar, appellant raised the butcher knife above his head and directly pointed it toward his father. Appellant threatened to kill him multiple times, pushed him aside, and locked the front door, controlling his father's movements. Accordingly, we find the trial court's jury instructions were proper. Appellant's second assignment of error is overruled. {¶ 24} Assignment of Error No. 3: {¶ 25} "The trial court erred in convicting the defendant of felonious assault." {¶ 26} Appellant's final assignment of error argues that there was insufficient evidence to support his conviction. He also contends that the conviction was against the manifest weight of the evidence. We disagree with both arguments. {¶ 27} The test by which an appellate court reviews a sufficiency of the evidence claim is "to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry 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." Statev. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. {¶ 28} R.C. 2903.11(A)(2) defines felonious assault, in pertinent part, as follows: {¶ 29} "No person shall knowingly * * * [c]ause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance." {¶ 30} "Attempt" for purposes of R.C. 2903.11 is defined in R.C.2923.02(A) as follows: {¶ 31} "No person, purposely or knowingly, and when purpose of knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense." {¶ 32} As mentioned earlier, the Ohio Supreme Court construed 2923.02(A) in State v. Woods, 48 Ohio St.2d at paragraph one of the syllabus, stating a "criminal attempt" is where one "purposely does or omits to do anything which is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. To constitute a substantial step, the conduct must be strongly corroborative of the actor's criminal purpose." {¶ 33} Appellant specifically challenges whether the state demonstrated that he "attempted to cause" physical harm. Again citingState v. Smith from the Ninth District, appellant maintains that the act of pointing the knife at his father does not constitute a substantial step in furtherance of the assault because there was allegedly no intent to carry out his threat. However, Smith is not binding precedent upon this court. {¶ 34} As discussed earlier, the supreme court held in State v.Brooks that the act of pointing a deadly weapon at another, without additional evidence regarding the actor's intention, was insufficient to convict a defendant of the offense of felonious assault. Brooks, 44 Ohio St.3d at syllabus. In Brooks, the defendant was involved in a volatile argument with a barmaid. The defendant suddenly drew a revolver, threatened to kill her, and left the premises only after hearing that the bar's manager had called the police. The defendant's acts beyond the pointing of the deadly weapon were strongly corroborative of his intent to cause physical harm with such weapon. The court found that such conduct constituted a substantial step and was sufficient evidence upon which the jury could conclude the defendant had committed the offense of felonious assault. Id. at 192. {¶ 35} In State v. Green, the supreme court further expounded uponBrooks stating that "the additional evidence needed to uphold a felonious assault charge could include verbal threats as perceived by a reasonable person under the circumstances." State v. Green, 58 Ohio St.3d at 241. InGreen, the defendant held a loaded, fully functional rifle with its hammer cocked at a patrolman's head and threatened him. The supreme court found that this conduct was strongly corroborative of his intent to cause physical harm to the officers and thus sufficient evidence to convict the defendant of felonious assault. {¶ 36} In the case at bar, there was sufficient evidence that appellant's conduct constituted a substantial step in furtherance of the assault. While in a heated discussion with Watkins, appellant went into the kitchen and obtained the butcher's knife. Appellant exited the kitchen with the knife raised over his head with the blade pointing forward, a preparatory striking position. Several times he threatened to kill his father. Appellant disconnected the telephone, pushed his father against the wall, and locked the front door of the house. This conduct is strongly corroborative of appellant's criminal intent to cause physical harm by means of a deadly weapon. We find there was sufficient evidence to support appellant's felonious assault conviction. {¶ 37} In determining whether appellant's conviction was against the manifest weight of the evidence, an appellate court must weigh the evidence and all reasonable inferences from it, consider the credibility of the witnesses and determine whether in resolving conflicts, 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. See Statev. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. This discretionary power should be exercised only in the exceptional case where the evidence weighs heavily against conviction. Id. {¶ 38} An appellate court will not reverse a judgment as being against the manifest weight of the evidence in a jury trial unless it unanimously disagrees with the jury's resolution of any conflicting testimony.Thompkins at 389. When reviewing the evidence, an appellate court must be mindful that the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the syllabus. {¶ 39} After reviewing the record and for the reasons described above, we cannot say that the jury lost its way when it found appellant was guilty of felonious assault. The conviction was not against the manifest weight of the evidence. Appellant's third assignment of error is overruled. {¶ 40} Judgment affirmed. Young and Bressler, JJ., concur. 1 {¶ a} Appellant's proposed jury instructions consist of the following: {¶ b} "Pointing a knife at an individual is different from pointing a gun, even though both may be deadly weapons. Pointing a knife at someone can be only one of several steps preparatory to using it to injure another, rather than the penultimate one. That act alone, or even when accompanied by verbal threats, is equivocal as to whether the Richard D. Wiseman was trying to harm his father, Richard F. Wiseman, or merely intending to frighten him. {¶ c} "In order to find Richard D. Wiseman guilty of felonious assault, his father, Richard F. Wiseman must have actually been harmed, or Richard D. Wiseman must have overtly acted in a manner that made his intention to carry out his expressed threat to harm Richard F. Wiseman unequivocal. Absent either of the foregoing, Richard D. Wiseman's actions were merely preparatory and not felonious assault. {¶ d} "In order to establish a knowing attempt to cause physical harm, the State is required to demonstrate that Richard D. Wiseman had the criminal intent to harm Richard F. Wiseman, and that the conduct of Richard D. Wiseman represented a substantial step in carrying out that intent. There must have been some overt act directed toward physical harm which was beyond behavior that merely causes another to believe physical harm is imminent."

2016-07-06 06:36:02.164844+00

OPINION Plaintiff-appellant Evelyn Schwab appeals from the October 23, 1998, Judgment Entry of the Family Court Division of the Stark County Court of Common Pleas. STATEMENT OF THE FACTS AND CASE On June 29, 1995, appellant Evelyn Schwab, who had signed an antenuptial agreement prior to her marriage, filed a Complaint for Legal Separation against appellee Earl Schwab. The two had been married since 1981, when appellant was 70 years old and appellee was 73 years old, and had no children. Appellee, on August 2, 1995, filed a counterclaim for divorce. Appellant and appellee were granted an uncontested divorce on March 19, 1997, when appellant was 86 years of age and appellee was 89 years of age. Pursuant to the Agreed Judgment Entry (Divorce) filed on such date, the trial court ordered that, during appellee's lifetime, appellant would not have any property right or interest in appellee's State Teacher Retirement System (STRS) benefits. As of July 31, 1996, appellee received a monthly STRS benefit of $1,180.06 and, in addition, also received STRS benefits from his deceased wife's account. The Decree stated: "[I]t is hereby ordered that during Defendant's lifetime, Plaintiff shall not have any property right or interest in Defendant's State Teachers Retirement System monthly benefits. However, with respect to Defendant's State Teachers Retirement System Pension, it is further ORDERED that Plaintiff shall be deemed the "surviving spouse" and/or primary beneficiary of Defendant for the purpose of a Joint and Survivor Annuity and shall be entitled to receive all benefits available to said surviving spouse and/or primary beneficiary . . ." The divorce decree also listed sixteen different annuities of which the appellee was the owner. Appellant was a joint annuitant on three of those accounts and, with that limited exception, the annuities "shall be Defendant's (appellee's) sole individual property free and clear of any claims on the part of Plaintiff." Income from the annuities was over $1,000.00 per month. (This is based on appellee's 1996 income tax form after subtracting $1,180.00 per month for STRS from $26,960.00 in yearly income from pensions and annuities.) With respect to the issue of spousal support, the Agreed Entry stated as follows: "The Court specifically finds that the Prenuptial Agreement executed by the parties on November 24, 1981, does not prevent or prohibit the payment of spousal support from Defendant to Plaintiff. Gross v. Gross (1984), 11 Ohio St.3d 99. It is therefore ORDERED that Defendant shall pay to Plaintiff the sum of Five Thousand Dollars ($5,000.00) as and for spousal support and said amount shall be paid by Defendant to Plaintiff in one lump sum payment upon the filing of this Decree of Divorce. Defendant's obligation to pay said lump sum amount shall not terminate upon the death of Defendant or the death of Plaintiff and shall become an asset of Plaintiff's estate. The Court shall retain jurisdiction to modify the term and amount of future spousal support upon a change in circumstances and either party may file a motion to modify spousal support on or after February 1, 1998. Pursuant to the terms of the agreed entry, $5,000.00 was paid by appellee to appellant. At the time of the divorce, appellant, who lived alone, received $804.00 per month in Social Security benefits and $100.00 per month from two annuities, for a total monthly income of $904.00. Her monthly living expenses totaled $959.00. Appellee was residing in the Canton Christian Home at the time of the divorce. In 1996, appellee's total unadjusted income as listed on his 1996 federal income tax return totaled $38,016.00, of which $11,056.00 was from Social Security benefits and $26,960.00 was from pensions and annuities. Whereas both the Social Security benefits and appellee's STRS benefits have cost of living adjustments, there is no cost of living adjustment in the payments under the annuities. Rather, the payments under the annuities are fixed. Out of his 1996 income, appellee donated $7,755.00 to charitable organizations and paid $1,600.00 a month to Canton Christian Home. On February 4, 1998, appellant filed a Motion to Modify Spousal Support stating that appellant's financial needs had increased since the March 19, 1997, Agreed Judgment Entry due to health problems, and appellee's income had increased. A hearing on appellant's motion was held on June 16, 1998, before a Domestic Relations Magistrate. Counsel agreed to submit the matter to the court on arguments of counsel, documents submitted by agreement, and the court file, which included a transcript of the appellant's July 16, 1996, deposition. Due to illness, appellee was not present at the June 16, 1998, hearing. At the hearing, appellant's counsel submitted a February 9, 1998, letter to the court from a psychologist indicating that appellant was in the "midst of a dementia of the senile onset variety" and that, based on a reasonable psychological certainty, appellant was "currently unable to function independently without a significant degree of extramural assistance." Appellant's counsel argued that, because of appellant's health problems and her accompanying need for a health care worker, her living expenses had increased by approximately $1,000.00 per month whereas her monthly income had increased to only $973.00 from $904.00. To substantiate appellee's corresponding increase in income, appellant's counsel proffered appellee's 1997 federal income tax return into evidence. The return reveals that in 1997, appellee received a total of $32,998.00 in pensions and annuities and $11,062.00 in Social Security benefits, for a total unadjusted income of $44,060.00, a $5,984.00 increase since 1996. Appellee made $8,743.00 in charitable contributions in 1997. Appellee's counsel, in turn, argued that any increase in appellee's income was due to cost of living increases in his pension and Social Security benefits and that appellee had no new source of income. A Magistrate Decision was filed on June 24, 1998. The Magistrate, in her decision, found that appellant suffers from senile dementia, that she needs assistance, and that her condition constituted a change of circumstances since it occurred after the parties' divorce. For these reasons, the Magistrate recommended that appellee be ordered to pay appellant monthly spousal support in the amount of $1,000.00 "until the death of either party or the remarriage of [appellant]." The Magistrate further recommended in her decision as follows: "These payments may be accomplished by assigning the monthly benefit of the following annuities to the Plaintiff, or in any other manner that is economical and convenient to the Defendant. However, if the parties through counsel cannot agree to a different form of payment, the court orders the following annuities' monthly benefits to be paid to the Plaintiff: Monthly Name Policy Benefit Canada Life B401847 $100.49 Canada Life B402276 50.00 Canada Life B454013 312.48 Canada Life B454132 185.57 Midland Annuity (?) (Ex. L in 156.94 Plt's Trial Brief dated 8/19/96) Midland Annuity X65117 200.00 ________ Total $1,005.48 On July 6, 1998, appellee filed a Motion to Set Aside Order of Magistrate. After no hearing was set, appellant, on September 11, 1998, filed a Motion for Interim Orders. Pursuant to a Judgment Entry (Interim Orders) filed on September 15, 1998, the trial court ordered that appellee pay appellant monthly spousal support of $1,000.00 until the death of either party or appellant's remarriage. The same language regarding the manner of payment is contained in the trial court's September 15, 1998, Judgment Entry as in the Magistrate's Decision. A hearing before Judge David Stucki was held on October 5, 1998. Pursuant to a Judgment Entry filed on October 23, 1998, the trial court granted appellee's Motion to Set Aside and vacated the Magistrate's June 24, 1998, Decision and the interim orders filed on September 15, 1998. The trial court also dismissed appellant's February 4, 1998, Motion to Modify and adopted as its reasoning appellee's July 6, 1998, "Memorandum in Support of Motion to Set Aside Order of Magistrate." It is from the October 23, 1998, Judgment Entry that appellant prosecutes this appeal, rasing the following assignment of error: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S MOTION TO MODIFY SPOUSAL SUPPORT AND IN NOT AWARDING APPELLANT MONTHLY SPOUSAL SUPPORT. I Appellant, in her sole assignment of error, challenges the trial court's denial of her Motion to Modify Spousal Support. The Agreed Judgment Entry (Divorce) signed by the parties, reserved jurisdiction in the trial court to modify the award of spousal support. The trial court, therefore, had the authority to do so. Kunkle v. Kunkle (1990), 51 Ohio St.3d 64. See also R.C. 3105.18. Appellant specifically contends that the trial court's failure to modify spousal support constitutes an abuse of discretion. Modifications of spousal support are reviewable under an abuse of discretion standard. Booth v. Booth (1989), 44 Ohio St.3d 142. In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. "Modification of a spousal support award is appropriate only when there has been a substantial change in the circumstances of either party that was not contemplated at the time the existing award was made." Moore v. Moore (1997), 120 Ohio App.3d 488, 491, citing Leighner v. Leighner (1986), 33 Ohio App.3d 214, 215. See R.C.3105.18(E). To justify a modification of spousal support, there must be a drastic change in the economic situation of either party. Wolfe v. Wolfe (1976), 46 Ohio St.2d 399. Once a change in circumstances is found, the court must consider what amount of spousal support is reasonable. Appellant, in support of her motion for modification, presented evidence of a substantial change in her economic circumstances since the time of the parties' 1997 divorce decree. Evidence was presented establishing that since the divorce, appellant has been diagnosed with senility dementia, that she needs health care assistance costing $1,000.00 per month, and that her condition is not expected to improve significantly. In short, appellant presented evidence demonstrating that "infirmity arising from advanced age and ill health significantly reduced her individual income to a level substantially below her pre-divorce standard of living." Lenick v. Lenick (Dec. 16, 1994), Richland App. No. 94-CA-22, unreported at 2. Since there was a substantial change in appellant's financial circumstances, the court must next determine whether there has been a substantial change in appellee's ability to pay. Norris v. Norris (1982), 13 Ohio App.3d 248. From 1996 to 1997, appellee's unadjusted federal income increased from $38,016.00 to $44,060.00, for a total increase of $5,984.00. Both parties conceded at the June 16, 1998, hearing that appellee had no new source of income and that appellee's income increased due to cost of living adjustments in his Social Security and STRS pensions. A comparison of appellee's 1996 and 1997 federal tax returns evidences that appellee received only an increase of $6.00 from 1996 to 1997 in his Social Security benefits. The remaining increase in his income from 1996 to 1997 is, therefore, clearly attributable to a cost of living adjustment in his STRS pension benefits. The Agreed Judgment Entry (Divorce) which was filed on March 19, 1997, stated as follows: `It is HEREBY ORDERED that during [appellee's] lifetime, [appellant] shall not have any property right or interest in [appellee's] State Teachers Retirement System monthly benefits." As demonstrated by the above language, appellant has no property right or interest in appellee's STRS monthly benefits or, correspondingly, in any cost of living adjustment in the same. The only other increase in appellee's income from 1996 to 1997 was the minimal increase in appellee's Social Security. The appellee also had the income from his annuities. This amount had not increased since the divorce decree. The divorce decree granted the annuities to the appellee (with minor exceptions). It is clear from the language of the divorce decree, and the particular circumstances of this case, including, but not limited to the ages of the parties when they married, that each party was to receive his or her separate property free and clear of any claims of the other party any time in the future. For the foregoing reasons, this court finds that the trial court's decision vacating the Magistrate's June 24, 1998, decision and dismissing appellant's Motion to Modify was not arbitrary, unreasonable or unconscionable. Appellant's sole assignment of error is denied. The Judgment of the Stark County Court of Common Pleas, Domestic Relations Division, is affirmed. By Edwards, J. Gwin, P.J. and Farmer, J. concur

2016-07-06 06:36:02.237974+00

DECISION AND JOURNAL ENTRY {¶ 1} Defendant-Appellant Sherry L. Rodriguez has appealed the decision of the Lorain County Court of Common Pleas that granted summary judgment to Plaintiff-Appellee Countrywide Home Loans, Inc., and found her in default. This Court affirms. I {¶ 2} This consolidated appeal arose from a complaint for a money judgment, foreclosure and relief filed by Plaintiff-Appellee Countrywide Home Loans, Inc. ("Countrywide") against Defendant-Appellant Sherry L. Rodriguez ("Rodriguez"). In its complaint, filed on October 21, 2002, Countrywide claimed that it was the holder of a promissory note and mortgage secured by real property owned by Rodriguez and located in Lorain County, Ohio. Countrywide further asserted that Rodriguez was in default on the promissory note and mortgage and, as a result, declared the entire debt of $37, 168.31 due and owing pursuant to the acceleration clause of the promissory note. {¶ 3} Rodriguez answered Countrywide's complaint on June 13, 2003, wherein she admitted that Countrywide owned a promissory note and mortgage secured by her real property, and denied all other substantive claims in the complaint. On August 1, 2003, Countrywide filed a motion for summary judgment. Attached to its motion for summary judgment was an affidavit from Brandi Olchak ("Olchak"), an agent and "Fcl Specialist" for Countrywide.1 In her affidavit, Olchak asserted that Rodriguez was in default on her promissory note and mortgage, and that $37,168.31 was due and owing on Rodriguez' account. {¶ 4} Rodriguez responded to Countrywide's complaint on August 18, 2003. In her response, Rodriguez argued that she did not owe Countrywide $37,168.31. She also argued that summary judgment was precluded because Countrywide "failed to establish the amount claimed to be due and owing by evidence that comports with the Ohio Rules of Civil Procedure and the Ohio Rules of Evidence." {¶ 5} The trial court granted Countrywide's motion for summary judgment on August 22, 2003 and entered a default judgment against Rodriguez on that same date. Later, on September 22, 2003, the trial court entered judgment for Countrywide on its complaint for foreclosure. The September 22, 2003 judgment entry further stated that "Rodriguez [was] in default of [a]nswer or other pleading and thereby confess[ed] the allegations of the [c]omplaint to be true[.]" {¶ 6} Rodriguez has timely appealed the trial court's decision of August 22, 2003 wherein it granted summary judgment for Countrywide, asserting one assignment of error. In a second appeal filed to this Court, Rodriguez timely appealed the September 22, 2003 decision finding Rodriguez in default for failing to answer Countrywide's complaint, asserting one assignment of error.2 II Assignment of Error Number One "The trial court erred when it granted summary judgment to [countrywide] in this foreclosure action, despite the absence of any admissible evidence establishing the balance owed to [countrywide]." {¶ 7} In her first assignment of error, Rodriguez has argued that the trial court erred when it granted summary judgment to Countrywide because Countrywide failed to establish the amount that was due and owing on the promissory note held by Countrywide. Specifically, Rodriguez has argued that Olchak's affidavit wherein she asserted that $37,168.31 was due and owing on the promissory note was not supported by personal knowledge and admissible evidence pursuant Civ.R. 56(E). We disagree. {¶ 8} Appellate courts review the grant of summary judgment de novo, applying the same standard used by the trial court.Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,1996-Ohio-336. Accordingly, an appellate court "review[s] the same evidentiary materials that were properly before the trial court at the time it ruled on the summary judgment motion." Am.Energy Serv., Inc. v. Lekan (1992), 75 Ohio App.3d 205, 208. Under Civ.R. 56(C), summary judgment is proper if: "(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc. (1977),50 Ohio St.2d 317, 327. The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying portions of the record demonstrating an absence of genuine issues of material fact as to the essential elements of the nonmoving party's claims. Dresher v. Burt (1996),75 Ohio St.3d 280, 293, 1996-Ohio-107. Any doubt is to be resolved in favor of the non-moving party. Viock v. Stowe-Woodward Co. (1983), 13 Ohio App.3d 7, 12. Specifically, the moving party must support the motion by pointing to some evidence in the record of the type listed in Civ.R. 56(C). Dresher, 75 Ohio St.3d at 293. Once this burden is satisfied, the nonmoving party bears the burden of offering specific facts to show a genuine issue for trial. Id. The nonmoving party may not rest upon the mere allegations and denials in the pleadings but instead must point to or submit some evidentiary material that demonstrates a genuine dispute over a material fact. Henkle v. Henkle (1991),75 Ohio App.3d 732, 735. {¶ 9} Pursuant to Civ.R. 56(C), only certain evidence and stipulations, as set forth in that section, may be considered by the court when deciding a motion for summary judgment. Specifically, the court is only to consider "the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence and written stipulations of fact." Civ.R. 56(C). However, the trial court may consider a type of document not expressly mentioned in Civ.R. 56(C) if such document is "accompanied by a personal certification that [it is] genuine or [is] incorporated by reference in a properly framed affidavit pursuant to Civ.R. 56(E)." Modon v. Cleveland (Dec. 22, 1999), 9th Dist. No. 2945-M, at 5, citing Bowmer v.Dettelbach (1996), 109 Ohio App.3d 680, 684. {¶ 10} Civ.R. 56(E) provides that such an affidavit must "be made on personal knowledge, [and] set forth such facts as would be admissible in evidence." Civ.R. 56(E). The rule further provides that a sworn or certified copy of the document referred to in the affidavit must be attached to or served with the affidavit. Id. "`Personal knowledge' has been defined as `knowledge of factual truth which does not depend on outside information or hearsay.'" Modon, supra, at 5, quoting Wall v.Firelands Radiology, Inc. (1995), 106 Ohio App.3d 313, 335. The requirement that the papers be sworn or certified is satisfied by a certification contained within the paper itself. Wall,106 Ohio App.3d at 334, citing Olverson v. Butler (1975),45 Ohio App.2d 9, 12. {¶ 11} Rodriguez first has argued that Olchak's affidavit did not comport with Civ.R. 56(E) because Olchak's assertion that Rodriguez owed Countrywide $37,168.31 on the promissory note was based on inadmissible hearsay evidence rather than personal knowledge. Countrywide has argued that Olchak's affidavit was based on both personal knowledge and business records that were admissible pursuant to Evid.R. 803(6). {¶ 12} Evid.R. 803(6) governs the admissibility of business records as an exception to the hearsay rule. Specifically: "Evid.R. 803(6) excepts from the hearsay rule records kept in the course of a regularly conducted business activity if it was the regular practice of that business to make such records and those records were made by or from information transmitted by a person with knowledge." Charter One Mortgage Corp. v. Keselica, 9th Dist. No. 04CA008426, 2004-Ohio-4333, at ¶ 19. {¶ 13} In the instant matter, the affidavit attached to Countrywide's motion for summary judgment stated the following: 1) Olchak was an officer of Countrywide; 2) the promissory note and mortgage deed attached to Countrywide's complaint were true and accurate copies of the original instruments held by Countrywide; 3) Rodriguez' loan was under Olchak's supervision; 4) Olchak had examined Rodriguez' account and had personal knowledge of the account; 5) Countrywide had exercised the acceleration clause of the loan; and 6) Rodriguez' loan had a balance due and owing of $37,168.31 plus interest and other expenses. In the affidavit, Olchak also stated that "[a] true record of the payments on [Rodriguez'] account" was attached to her affidavit. The attached document, entitled "Payment/Escrow Detail," chronicled the payment history of Rodriguez account. {¶ 14} Our review of the affidavit and "Payment/Escrow Detail" document convinces us that the statements in Olchak's affidavit refer to business records kept in Countrywide's ordinary course of Countrywide's regularly conducted business activity. It was clearly the regular practice of Countrywide to generate and maintain records relating to mortgages and promissory notes it held. As a result, the statements in Olchak's affidavit were based on admissible evidence, namely Countrywide's business records. See Evid.R. 803(6). {¶ 15} As for Rodriguez' argument that Olchak's affidavit was not based on personal knowledge, this Court has previously held that an affiant's mere assertion that he has personal knowledge of the facts asserted in an affidavit can satisfy the personal knowledge requirement of Civ.R. 56(E). See Bank One v. Swartz, 9th Dist. No. 03CA008308, 2004-Ohio-1986, at ¶ 14. A mere assertion of personal knowledge satisfies Civ.R. 56(E) if the nature of the facts in the affidavit combined with the identity of the affiant creates a reasonable inference that the affiant has personal knowledge of the facts in the affidavit. Id. {¶ 16} In the instant matter, the affiant, Olchak, stated that she was an officer of Countrywide and a supervisor of Rodriguez' account. Rodriguez presented no evidence to refute this claim. In her affidavit, Olchak also stated the amount that was due and owing on Rodriguez' account, as well as the annual rate of interest and other details of the account. Her statements also referenced the promissory note and mortgage deed attached to Countrywide's complaint. We find that the identity of Olchak as the affiant, combined with the nature of the facts asserted in her affidavit created a reasonable inference that Olchak did in fact have personal knowledge of the amount of money that was due and owing on Rodriguez' account. As such, Olchak's affidavit satisfied the personal knowledge requirement of Civ.R. 56(E). {¶ 17} Based on the foregoing, this Court concludes that Olchak's affidavit complied with Civ.R. 56(E) and was properly relied upon by the trial court when it granted summary judgment to Countrywide. Furthermore, as Rodriguez failed to refute Countrywide's assertion that Rodriguez owed Countrywide $37,168.31 pursuant to the promissory note, Olchak's affidavit served to establish the amount that was due and owing on Rodriguez' account with Countrywide. See Dresher,75 Ohio St.3d at 293. As a result, we conclude that reasonable minds could come to but one conclusion, namely that Countrywide was entitled to judgment as a matter of law on its complaint for money judgment, foreclosure and relief. Appellant's first assignment of error lacks merit. Assignment of Error Number Two "The trial court erred when it found that [Rodriguez] was `in default of answer or other pleading' and that she thereby confessed the allegations of the complaint to be true." {¶ 18} In her second assignment of error, Rodriguez has argued that the trial court erred when it found that she had failed to answer Countrywide's complaint. Specifically, she has argued that the docketing statement in the instant matter clearly reveals that she answered Countrywide's complaint on June 13, 2003, and that her answer was still valid because it had never been stricken from the record. She has further argued that the trial court's error was not harmless. We disagree. {¶ 19} Conclusions of law, such as a determination of default, are afforded no deference and reviewed de novo. SeeSchiesswohl v. Schiesswohl, 9th Dist. No. 21629, 2004-Ohio-1615, ¶ 36. Furthermore, Civ.R. 61 provides: "* * * [N]o error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice." See, also, Siuda v.Howard, 1st Dist. Nos. C-000656, C-000687, 2002-Ohio-2292, at ¶ 21, citing Meyers v. Hot Bagels Factory, Inc. (1999),131 Ohio App.3d 82, 100-101 (stating that harmless error is an error that does not affect the substantial rights of the parties.). {¶ 20} "`In determining whether a substantial right of a party has been affected, the reviewing court must decide whether the trier of fact would have reached the same decision, had the error not occurred.'" Prakash v. Copley Twp., 9th Dist. No. 21057, 2003-Ohio-642, at 16, quoting Moore v. Univ. of Akron (Aug. 1, 2001), 9th Dist. No. 20320, at 3. {¶ 21} In the instant case, Rodriguez has argued that the trial court's statement that she was in default was not harmless error because such a finding would preclude her from appealing the trial court's decision granting summary judgment for Countrywide. Countrywide has argued that the trial court's statement that Rodriguez was in default was undeniably "in error" but essentially had no effect on the disposition of her case. {¶ 22} Our review of the record reveals that the trial court entered a judgment of foreclosure for Countrywide on September 22, 2003. In that judgment entry, the trial court stated that Rodriguez was in default "of [a]nswer or other pleading and thereby confess[es] the allegations of the complaint to be true." It is undisputed between the parties that this finding of "default" was in error; we agree with the parties on this issue. We must, however, determine if the error was harmless pursuant to Civ.R. 61. {¶ 23} Our further review of the record reveals that the trial court found Rodriguez in "default" after it had considered her response to Countrywide's motion for summary judgment. Thus it is obvious that her response was given full affect by the trial court and she was fully able to defend herself against Countrywide's claims. The finding of "default" had no effect on the disposition of Rodriguez' case as summary judgment had already been granted. Furthermore, the judgment of foreclosure had also already been entered on behalf of Countrywide. All that remained was for Countrywide to provide a legible description of the subject real property to the trial court for purposes of the foreclosure decree.3 {¶ 24} Based on the foregoing, we find that the portion of the September 22, 2003 journal entry stating that Rodriguez was in default "of [a]nswer or other pleading and thereby confess[es] the allegations of the complaint to be true" did not affect a substantial right of Rodriguez and constituted harmless error.Prakash, 2003-Ohio-642, Moore, supra; see, also, Civ.R. 61. Rodriguez' second assignment of error lacks merit. III {¶ 25} Rodriguez' two assignments of error are overruled. The judgment of the trial court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. Exceptions. Carr, P.J., Boyle, J., concur. 1 Countrywide never provided a definition of an "Fcl Specialist." However, it appears from the record and the briefs that Olchak was a foreclosure specialist. 2 Rodriguez' two appeals were consolidated by this Court on February 5, 2004. Rodriguez first appealed the trial court's decision granting summary judgment to Countrywide. In that appeal, Case No. 03CA008345, she asserted one assignment of error which we will hereinafter refer to as "Assignment of Error Number One." In her second appeal, Rodriguez appealed the trial court's decision finding her in default. In that appeal, Case No. 03CA008417, she asserted one assignment of error which we will hereinafter refer to as "Assignment of Error Number Two." 3 The foreclosure judgment was entered on August 22, 2003, at which time the trial court stated that the document describing the subject real property was not legible. In its journal entry, the trial court stated that it had entered judgment for Countrywide on its complaint of foreclosure, but it would not sign the decree of foreclosure until a legible description of the subject real property was provided to the trial court. A legible description was provided to the trial court and attached to the trial court's September 22, 2003 journal entry.

2016-07-06 06:36:02.268013+00

OPINION {¶ 1} Defendant-appellant Lovill Lofton appeals from an order of the trial court denying his January, 2005 request for copies of court records. Because Lofton did not identify any pending proceeding with respect to which the copies would be material, we conclude that the trial court did not err in denying Lofton's request. Accordingly, the order of the trial court is Affirmed. I {¶ 2} In 2003, following a jury trial, Lofton was convicted of Rape, and was sentenced to imprisonment for eight years. He was subsequently classified as a sexual predator. Lofton's conviction and sentence were affirmed by this court on direct appeal. State v. Lofton (January 16, 2004), Montgomery App. 19852. In 2004, Lofton applied to re-open his appeal, pursuant to App.R. 26(B). We denied his application. Lofton appealed from our denial of his application to re-open his appeal. The Ohio Supreme Court dismissed his appeal in September, 2004. {¶ 3} In September, 2003, Lofton moved for the production of the trial transcript, and the trial court overruled his motion. This order is not the subject of the current appeal. In January, 2005, Lofton filed a Request for Copies of Court Records. The trial court overruled his January 2005 request. From the order of the trial court overruling his January, 2005 request, Lofton appeals. II {¶ 4} Lofton's sole assignment of error is as follows: {¶ 5} "THE TRIAL COURT ERRED IN DENYING THE DEFENDANT THE RIGHT TO HAVE A COPY OF HIS TRIAL TRANSCRIPTS FOR THE PURPOSES OF POST APPEAL REMEDIES." {¶ 6} In his 2005 Request for Copies of Court Records, Lofton recites that he made a request upon the Clerk of Courts for copies of certain documents, including the transcripts of his trial, and was informed by the Clerk, by letter, that pursuant to R.C. 149.43(B)(4), part of the Ohio Public Records statute, Lofton would first need permission from the trial judge. That subdivision of the statute provides as follows: {¶ 7} "A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction or a juvenile adjudication to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution or concerning what would be a criminal investigation or prosecution if the subject of the investigation or prosecution were an adult, unless the request to inspect or to obtain a copy of the record is for the purpose of acquiring information that is subject to release as a public record under this section and the judge who imposed the sentence or made the adjudication with respect to the person, or the judge's successor in office, finds that the information sought in the public record is necessary to support what appears to be a justiciable claim of the person." {¶ 8} In its decision denying Lofton's request, the trial court notes, correctly, that: "The Defendant has failed to demonstrate that the information sought in the public record is necessary to support what appears to be a justiciable claim of the Defendant." Although Lofton, in his Request, includes a conclusory allegation that: "These transcripts are essential to the further prosecution of his case"; and "in order to bolster and prove his claims in Federal Court, it is essential that copies of documents contained in the court file be attached to his petitions," he never informs the trial court of the nature of the claim or case that he intends to, or perhaps is, pursuing in federal court, much less that it is a justiciable claim. Accordingly, we find no error in the trial court's finding that Lofton failed to establish that the information sought in the public record is necessary to support what appears to be a justiciable claim by Lofton. {¶ 9} Lofton argues that he is entitled to a complete transcript of his trial under federal constitutional principles, citing Burns v. Ohio (1959), 372 U.S. 477, 484-485,83 S.Ct. 1164, 1168, for the proposition that: {¶ 10} "Once the State chooses to establish review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty. * * * This principle is no less applicable where the State has afforded an indigent defendant access to the first phase of its appellate procedure but has effectively foreclosed access to the second phase of that procedure solely because of his indigency." {¶ 11} Lofton cannot rely upon the holding in Burns v.Ohio, supra, that he cites, because he has not identified any phase of Ohio's procedure presently available to him, appellate or otherwise, to which the transcript of his trial would be material. Similarly, Greene v. Brigano (6th Cir., 1997),123 F.3d 917, which Lofton cites, is distinguishable. In that case, the criminal defendant had an appellate proceeding pending in the form of an application for reconsideration of the judgment of the Franklin County Court of Appeals dismissing his original appeal, when he sought a copy of the trial transcript. He was representing himself, pro se, at that time. Thus, the criminal defendant in that case, unlike Lofton, had a pending phase of his appellate proceedings, to which a copy of his trial transcript would be material, when he requested, and was refused, that copy. {¶ 12} R.C. 149.43(B)(4) not unreasonably requires an incarcerated criminal defendant to establish that the information he is seeking at public expense is necessary to support what appears to be a justiciable claim. Lofton failed to identify any claim, justiciable or otherwise, that would require for support the copies of transcripts and court records he was seeking. Accordingly, the trial court did not err in denying his request. {¶ 13} Lofton's sole assignment of error is overruled. III {¶ 14} Lofton's sole assignment of error having been overruled, the order of the trial court from which this appeal is taken is Affirmed. Brogan and Wolff, JJ., concur.

2016-07-06 06:36:02.594108+00

OPINION {¶ 1} Respondent-appellant, Richard Glisson, appeals a decision of the Clermont County Court of Common Pleas overruling his objections to a magistrate's decision finding him in contempt of court. For the reasons outlined below, we affirm the decision of the trial court. {¶ 2} Petitioner-appellee, Debra Henneke, filed a petition for a civil stalking protection order ("CSPO") against appellant on June 1, 2007. The trial court denied appellee's request *Page 2 for an ex parte CSPO. The matter proceeded to a full hearing on July 31, 2007. The parties filed a written agreement with the court on August 7, 2007 ("the Settlement Agreement"). The Settlement Agreement, executed on July 31, 2007, was signed by both parties as well as the magistrate and the trial court. Under the terms, the parties agreed to the following: {¶ 3} "1. Not interfere with the peaceable enjoyment of one another's real estate; {¶ 4} "2. Refrain from using what is commonly known as foul, abusive or cursing language toward one another; {¶ 5} "3. Refrain from threatening or annoying conduct one to the other; and {¶ 6} "4. Refrain from entering the real estate or otherwise trespassing on the property or personalty of one another except by specific invitation." {¶ 7} The Settlement Agreement also contained the following provision: "The parties understand and consent to the Court maintaining continuing jurisdiction over this matter for the specific purpose of entertaining motions for contempt or violation of this Agreement." {¶ 8} Seven minutes after the Settlement Agreement was filed and made part of the record, the magistrate's order dismissing the CSPO was filed and made part of the record. The preprinted form used for the dismissal order contained a section for findings of fact, under which the magistrate wrote "By agreement, case dismissed. (See entry)." A line was drawn through the box entitled "Notice of Final Appealable Order." The order was signed by both the magistrate and the trial court. {¶ 9} On October 22, 2007, appellee requested that the trial court find appellant in contempt of the Settlement Agreement for trapping her cat and transporting it to an animal shelter. Appellee reclaimed the cat after locating it at the shelter and paying a recovery fee. Following a hearing, the magistrate issued a decision on November 27, 2007 finding appellant in contempt for violating the Settlement Agreement and sentencing him to 10 days in jail. The jail term was suspended pending the payment of $550.25 to appellee. *Page 3 {¶ 10} Appellant filed objections to the magistrate's decision. In an opinion rendered on February 29, 2008, the trial court overruled appellant's objections and upheld the magistrate's decision. Appellant timely appeals, raising three assignments of error. {¶ 11} Assignment of Error No. 1: {¶ 12} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY OVERRULING THE DEFENDANT-APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION AS THE TRIAL COURT LACKED JURISDICTION TO ISSUE A CONTEMPT ORDER IN THE WITHIN CAUSE OF ACTION AS THE COURT NEVER ISSUED A PROTECTION ORDER AND DISMISSED THE PLAINTIFF-APPELLEE'S PETITION FOR CIVIL STALKING [SIC]." {¶ 13} Assignment of Error No. 2: {¶ 14} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY OVERRULING THE DEFENDANT-APPELLANT'S OBJECTIONS TO THE MAGISTRATE'S DECISION AS THE TRIAL COURT LACKED JURISDICTION TO ISSUE A CONTEMPT ORDER IN THE WITHIN CAUSE OF ACTION AS THE COURT NEVER ISSUED A PROTECTION ORDER AND DISMISSED THE PLAINTIFF-APPELLEE'S PETITION FOR CIVIL STALKING [SIC]." {¶ 15} Because appellant's first and second assignments of error are worded exactly the same and the arguments thereunder are interrelated, we shall address them together. Appellant's central contention is that the trial court lacked authority to issue the contempt order because it lost jurisdiction over the case when it dismissed appellee's CSPO petition. {¶ 16} A trial court is authorized to enforce a settlement agreement voluntarily entered into by the parties to a lawsuit. Mack v.Polson (1984), 14 Ohio St.3d 34, 36. However, a trial court loses the authority to proceed when it unconditionally dismisses an action because, under such circumstances, the court no longer possesses jurisdiction to act. State ex rel. *Page 4 Rice v. McGrath (1991), 62 Ohio St.3d 70, 71. This includes attempts by the court to enforce a settlement agreement arising out of an action that is unconditionally dismissed. Nova Info Sys., Inc. v. CurrentDirections, Inc., Lake App. No. 2006-L-214, 2007-Ohio-4373, ¶ 14. {¶ 17} A trial court may retain limited jurisdiction over a matter following dismissal pursuant to an express condition in the underlying order. Id. at ¶ 15. For example, "[w]here the parties have entered into a voluntary settlement, a court may condition a dismissal order upon the existence of a settlement agreement thereby retaining the limited jurisdiction to enforce the same." Id. {¶ 18} In order to determine whether the dismissal of appellee's CSPO petition was conditional or unconditional, we must examine the terms of the dismissal order. Showcase Homes, Inc. v. Ravenna Savings Bank (1998), 126 Ohio App.3d 328, 331. As stated, the dismissal was comprised of a preprinted form, which included the handwritten statement "By agreement, case dismissed. (See entry)." This handwritten statement evinced the court's intent to condition the dismissal upon the Settlement Agreement, which was filed and made part of the record immediately prior to the filing of the dismissal order. "Where a court wishes to reserve limited jurisdiction, the language of the reservation need not be highly detailed or precise. Rather, the entry of dismissalneed merely allude to the existence of a settlement upon which thedismissal is premised." (Emphasis added.) Nova Info Sys. at ¶ 15. The trial court's intent to retain jurisdiction is further supported by the fact that a line was drawn through the box entitled "Notice of Final Appealable Order" in the dismissal order. {¶ 19} Pursuant to the terms of the Settlement Agreement, the parties unambiguously and expressly consented to the trial court retaining jurisdiction over the matter for purposes of enforcing the Settlement Agreement. The Settlement Agreement constituted a binding contract.Spercel v. Sterling Industries, Inc. (1972), 31 Ohio St.2d 36, 39. The effect of this binding contract under such circumstances was aptly described by one court as follows: *Page 5 {¶ 20} "In exchange for appellant's binding promise, the litigation was terminated, and the claims against appellant were dismissed. This latter portion of the contract between the parties, dismissing the claims against appellant, must be read in concert with the other mutually dependent obligations created by the settlement agreement[.] * * * [I]n exchange for dismissing the claims against appellant as set forth in the plaintiff's complaint, the decree simultaneously created a new obligation, which, by the agreement of the parties, was to be enforceable by the court." Miller-Finocchioli v. Mentor Landscapes Supply Co., Inc. (1993), 90 Ohio App.3d 815, 819. (Citations omitted.) {¶ 21} In the case at bar, the parties entered into a binding agreement that was filed. See, e.g., Le-Air Molded Plastics, Inc. v.Goforth (Feb. 24, 2000), Cuyahoga App. No. 74543, 2000 WL 218385, at *4. The trial court's dismissal order incorporated the Settlement Agreement by reference. The Settlement Agreement specifically stated that the parties consented to the continuing jurisdiction of the trial court for the purpose of entertaining motions for contempt or violation of the Settlement Agreement. Accordingly, we hold that the trial court possessed jurisdiction to entertain appellee's motion for contempt. {¶ 22} Appellant's first and second assignments of error are overruled. {¶ 23} Assignment of Error No. 3: {¶ 24} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-APPELLANT BY OVERRULING THE DEFENDANT-APPELLANT'S OBJECTIONS THE DEFENDANT-APPELLANT'S ACTIONS CONSTITUTED A VIOLATION OF ANY SETTLEMENT AGREEMENT AS AN OWNER OF PROPERTY HAS A RIGHT TO PROTECT HIS PROPERTY FROM TRESPASSING ANIMALS [SIC]." {¶ 25} Appellant's third assignment of error challenges the finding that he was in contempt of the Settlement Agreement on the basis that he was entitled by statute to protect *Page 6 his property from the intrusion of appellee's cat. See R.C. 959.04.1 Appellant emphasizes that he did not take any action to interfere with appellee's peaceful enjoyment of her land. {¶ 26} A person who disobeys an order or command of judicial authority may be punished for contempt. R.C. 2705.02(A). See, also, Zakany v.Zakany (1984), 9 Ohio St.3d 192, 194. Contempt may be categorized as civil or criminal. Underwood v. O'Hara (Mar. 27, 2000), Butler App. No. CA99-03-057, at 3. Civil contempt is distinguished by punishment that is remedial or used to coerce compliance with a court order for the benefit of the complainant. Brown v. Executive 200, Inc. (1980),64 Ohio St.2d 250, 253. Prison sentences imposed as punishment for civil contempt are conditional, and the contemnor is said to "carry the keys of his prison in his own pocket" due to the fact that his compliance with the court order secures his freedom. Id. {¶ 27} The trial court's contempt order, which included a 10-day sentence suspended upon condition of appellant's payment of a fine, imposed a sanction for civil contempt. We review both discretionary and factual determinations in a civil contempt appeal for an abuse of discretion. Williamson v. Cooke, Franklin App. No. 05AP-936,2007-Ohio-493, ¶ 11. {¶ 28} At the hearing on the contempt motion, there was a factual dispute as to whether appellant knew that the cat he trapped belonged to appellee. Appellant admitted to seeing the cat in question around the neighborhood and to observing several cats in appellee's yard. He testified that there was a cat that had been hanging around his house for about one year and sitting on his window sills. He admitted to setting out a cage with tuna to trap this cat and that his wife transported it to the animal shelter. According to testimony by appellee's live-in boyfriend, the cat had resided at appellee's residence since June 2006. *Page 7 Appellee testified that the cat would often be outside with her, followed her around, and would come when called by name. There was also some disputed testimony as to who provided the shelter with the cat's name, which had been written on the form appellee received from the shelter when she retrieved her cat. {¶ 29} The magistrate determined that appellant knew that the cat he trapped belonged to appellee. The magistrate found it incredulous that appellant, who lived directly across the street from appellee, did not know the cat belonged to appellee. The trial court found this determination to be supported by competent, credible evidence. We note that the trier of fact is in the best position to weigh the testimony and observe the witnesses' demeanor in order to gauge their credibility.In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138. The magistrate was thus in the best position to reconcile any factual disputes, and we do not find that the trial court abused its discretion in upholding the magistrate's findings. {¶ 30} Appellant is correct in asserting that he was legally entitled to remove a trespassing animal from his property. However, we note that parties can and do restrict or relinquish their legal rights as part of a contractual, bargained-for exchange and such agreements will be upheld so long as they are not illegal or violative of public policy. Cf.Lamont Bldg. Co. v. Court (1946), 147 Ohio St. 183, 184, citing 12 American Jurisprudence, 641, Section 149. In exchange for the dismissal of the CSPO petition, both parties agreed to be bound by the obligations created by the Settlement Agreement. Miller-Finocchioli,90 Ohio App.3d at 819. Pursuant to the Settlement Agreement, the parties agreed to "[r]efrain from * * * trespassing on the property or personalty of one another except by specific invitation." {¶ 31} Under Ohio property law, a pet is considered to be the personal property of its owner. Strawser v. Wright (1992), 80 Ohio App.3d 751,754. In intentionally trapping and dispossessing appellee of her cat, appellant trespassed upon the personal property of *Page 8 appellee. Conley v. Caudill, Pike App. No. 02CA697, 2003-Ohio-2854, ¶ 7. In addition, the Settle Agreement prohibited the parties from engaging in "annoying conduct" toward one another. The act of trapping a pet known to belong to one's neighbor and taking the animal to a shelter without the owner's knowledge could arguably qualify as "annoying conduct." {¶ 32} In view of appellant's actions, the trial court's decision that appellant violated the Settlement Agreement, a contract to which he bound himself, was not an abuse of discretion. Accordingly, we hold that the trial court did not err in finding appellant in contempt for violating the Settlement Agreement. {¶ 33} Appellant's third assignment of error is overruled. {¶ 34} Judgment affirmed. YOUNG and POWELL, JJ., concur. 1 In pertinent part, R.C. 959.04 provides that R.C. 959.02, which prohibits killing or injuring domestic animals, "[does] not extend to a person killing or injuring an animal or attempting to do so while endeavoring to prevent it from trespassing upon his enclosure, or while it is so trespassing, or while driving it away from his premises[.]" *Page 1

2016-07-06 06:36:02.660867+00

OPINION Joseph Harmon appeals from an order entered by the Montgomery County Court of Common Pleas, which affirmed an order of the Civil Service Board of the City of Dayton. The order of the Board had affirmed Harmon's discharge from employment with the City of Dayton. Upon consideration of Harmon's assignments of error and the record, we will affirm the order of the trial court. Harmon has advanced three assignments of error. The first states: THE LOWER COURT ERRED AS A MATTER OF LAW BY MISINTERPRETING AND MISAPPLYING THE MEANING OF THE CITY'S EMPLOYEE RESIDENCY REQUIREMENT IN SUCH A MANNER AS TO REQUIRE THAT ONE'S RESIDENCE IN THE CITY OF DAYTON BE THE SOLE AND EXCLUSIVE RESIDENCE OF THE EMPLOYEE OR THE PRIMARY RESIDENCE OF THE EMPLOYEE. Harmon was employed as an attorney by the City of Dayton from February 1988 until November 1, 1991, when he was discharged for violating the City's residency rule. He appealed to the Board which twice affirmed his discharge. After both adverse Board rulings, he appealed to the Court of Common Pleas, which reversed and remanded to the Board for further proceedings. After the second reversal and remand by the trial court, Harmon appealed from the trial court's determination that Harmon had to be a domiciliary of the City of Dayton to satisfy its residency rule. The City appealed from the order remanding the matter to the Board for a de novo hearing. In that appeal, we sustained Harmon's assignment of error and interpreted the City's residency rule. We overruled the City's assignment directed to the order of remand for a de novo hearing. Harmon v. City of Dayton (July 26, 1996), Montgomery App. No. 15555, unreported, referred to by the parties and us as Harmon II. Upon remand, the Board again affirmed Harmon's termination, the trial court again affirmed the Board's action, and Harmon again appealed to this court. The issue in this case is whether Harmon satisfied the City's residency rule while he was a City employee. In Harmon II, we stated that it was not necessary that Harmon be a domiciliary of the City to satisfy its residency rule, which reads as follows: All employees in the Civil Service of the City of Dayton, appointed after the effective date of this Charter Section, must and shall be actual residents of and physically live in the City of Dayton at the time of their appointment, and shall continue to be actual residents and physically live in the City of Dayton during the term of their employment. (Emphasis ours). In interpreting the City's residency rule, we adopted — at Harmon's suggestion — a 1977 City residence policy that stated in part: "`[a]ctual residence' and `physically live' as used herein requires being physically present and having a particular location as a householder or member of a household for significant parts of each day for important purposes consistent with residence." We further observed: Additionally, the 1977 policy statement identifies "important purposes consistent with residence" as including "where a person eats, where he sleeps, where his family eats and sleeps, where he bathes, where he has telephone service, where he receives mail, or other similar activities." A review of this standard reveals that it stops short of requiring employees to establish their "domicile," or true, fixed, and permanent home, within the city. It includes no mention of domiciliary intent. However, it requires much more from an employee than simply renting an apartment in the city while regularly living elsewhere. Specifically, the standard requires a city employee to spend significant parts of each day at the location for purposes consistent with residence. This standard demands that civil service workers live day-to-day within the city without requiring them to prove subjective domiciliary intent, i.e., the intent to make the location a permanent home and to remain there indefinitely. We believe the foregoing standard adequately reflects the city's professed interest in promoting employee loyalty, identity, and community interest. It also reflects the city's stated interest in promoting mutual respect and trust between employees and the residents they serve, and it provides for efficient employee service. Additionally, the standard furthers the city's goal of encouraging employees to maintain a sensitive and courteous attitude toward the public, and it enables employees to participate in various neighborhood and community-wide affairs. Finally, we are confident that the foregoing standard is definite enough to enable the civil service board and the trial court to apply it fairly. The evidence established that Harmon leased an apartment in Dayton throughout his employment by the City, but that he also spent a substantial amount of his non-working time at his mother's home in Centerville. Because we determined in Harmon II that Harmon could be a resident of the City without being a domiciliary, and because one can have but one domicile but more than one residence, Harmon contends that the Board and trial court erred in determining that he was a Centerville resident and thereby necessarily violated the Dayton residency rule. (Although neither the Board nor the trial court found that Harmon was a Centerville resident, [the trial court characterized Harmon's activities as "consistent" with Centerville residence], Harmon conceded as much during the Board hearing — Tr. 649 — and bases this assignment on the concept of dual residency). We do not find that the Board or the trial court misapplied what we said in Harmon II to guide their respective decisional processes. As noted above, the City's residency rule contains two requirements: (1) being an actual resident of AND (2) physically living in the City of Dayton. In our judgment, Harmon places too much emphasis on the first requirement and too little on the second. Both the Board and the trial court focused on whether Harmon was "physically liv(ing) in" the City of Dayton during his employment, as required by the residency rule as construed in Harmon II. Whether Harmon was properly determined not to be physically living in the City is the topic of Harmon's third assignment. We are, however, satisfied that neither the Board nor the trial court misapplied what we said in Harmon II to Harmon's prejudice. The first assignment is overruled. THE LOWER COURT ERRED AS A MATTER OF LAW BY APPLYING THE WRONG STANDARD OF REVIEW. Harmon contends that the trial court applied the wrong standard of appellate review to the Board's order. The trial court must affirm the order of an administrative agency if it is supported by a preponderance of substantial, reliable and probative evidence on the whole record. R.C. 2506.04. Dudukovich v. Housing Authority (1979), 58 Ohio St.2d 202, 207. The trial court cited the statute and Dudukovich in its order affirming the Board. Harmon contends the trial court applied a "substantial evidence" rather than "preponderance of the evidence" standard because it stated that the Board's order "was supported by the evidence" and "was reasonable and substantiated by the evidence." Neither of these phrases is inconsistent with the preponderance requirement of R.C. 2506.04. Having cited the statute and Dudukovich, we are not persuaded that the trial court utilized an improper standard simply because it failed to incant the magic words of R.C. 2506.04. The second assignment is overruled. THE LOWER COURT ERRED, AS A MATTER OF LAW, IN CONCLUDING THAT THE APPELLANT FAILED TO ACTUALLY RESIDE IN THE CITY OF DAYTON DURING THE COURSE OF HIS EMPLOYMENT, AS THAT CONCLUSION IS UNSUPPORTED BY SUBSTANTIAL EVIDENCE. The issue presented under this assignment is whether, as a matter of law, there was a preponderance of substantial, reliable, and probative evidence to support the Board's determination that Harmon violated the City's residency rule. R.C. 2506.04; Dudukovich; Kisil v. Sandusky (1984), 12 Ohio St.3d 30. The Board made the following "findings of fact," which are more in the nature of a summary of the evidence: Joseph P. Harmon, Appellant herein, is an attorney at law and was an employee of the City of Dayton Department of Law from February 1988 until he was discharged on November 1, 1991, for violation of the City's residence requirements. The matter of the Appellant's residence was first brought to the City's attention by letters mailed to the City advising that Appellant listed an address of 531 Willowhurst Street, Centerville, Ohio, with the Ohio Planning Conference, and that he had also registered for an OPC conference using the Centerville address as his residence. 531 Willowhurst Street is outside the city limits of Dayton, Ohio. The City then hired "Professional Security Associates," a private investigation company, in an attempt to determine the actual residence of the Appellant. For five evenings, the investigator conducted a surveillance of the Appellant. The dates of these surveillances were randomly chosen and were Thursday/Friday, August 15/16; Wednesday/Thursday, August 21/22; Tuesday/Wednesday, August 27, 28; Monday/Tuesday, September 16/17; and Thursday/Friday, September 26/27, all in 1991. This surveillance consisted of dusk-to-dawn observations, and on all five occasions, Appellant spent the night at 531 Willowhurst Street, in Centerville, Ohio, leaving the next morning. In fact, Appellant spent the first night back from a vacation at the Centerville residence. When Appellant moved to Dayton from Wisconsin in February, 1988, he leased an apartment at 608 Hampshire Road, which is located inside the City of Dayton limits, and he has maintained this apartment ever since. At this address, Appellant had a telephone, with this address listed in the telephone directory. He also received mail, registered with the Supreme Court of Ohio as an attorney, entertained friends, received medical billings, registered to vote, registered his automobile and driver's license, ate meals, maintained furniture and clothing, used this address on the mailing list of several environmental organizations, and slept there when he was not in Centerville. A neighbor of the Appellant testified that Appellant infrequently used his apartment. However, another neighbor testified that she frequently saw him there. A number of Appellant's friends and co-workers testified that they frequently saw Appellant in the neighborhood, and that they visited him at this apartment. A close friend of Appellant stated that she had visited him there on many occasions, and it appeared to her that he actually resided at this apartment. When asked by a friend how many days or nights a week he spend (sic) at the Hampshire Road address, Appellant responded, "two, three or four." Appellant was observed by a co-worker leaving a bus in Centerville, and walking toward his mother's house following work one evening. On numerous occasions, Appellant also stated on written documents that he resided at the Centerville address. He used that address as a mailing address for several organizations to which he belonged, and he used the Centerville address as a return address on letters which he mailed. On repeated occasions, Appellant adopted the Centerville address at meetings which he attended., Appellant, on the other hand, testified that he used the Centerville address simply to divert mail away from the small mailbox at his Dayton apartment. In support of this testimony, Appellant enumerated several significant purposes for which he used the Dayton address — such as voter registration, driver's license, car title/registration, medical providers, and professional registration with the Ohio Supreme Court. However, Appellant listed the Centerville address and phone number on his personal business card. The Centerville address was the house in which Appellant grew up, which was still owned and occupied by his mother. The Appellant was concerned for his mother's physical and mental health, and spent a considerable time at the Centerville address. He ate meals there, did gardening, did repairs about the house, kept his clothes there and slept there. His mother prepared the meals and did his laundry. Appellant admitted in his testimony that he spent as much time at his mother's house as he did at his apartment. Appellant admitted to spending 50% of his time at his apartment, and 50% of his time at his mother's. Appellant testified that he slept at the Willowhurst address from three (3) to five (5) nights per week, and asserted that he had a dual residency in Dayton and in Centerville. Appellant stated that at some time during his employment with the City, he was residing both in Centerville and in Dayton. The Board further stated: In making its decision, the Board considers the following to be most persuasive: 1. The five dusk-to-dawn observations conducted over a six-week period, revealed that the Appellant spent a majority of his after-work time at the Centerville residence; 2. The Appellant admitted that he spent a substantial amount of his time at 531 Willowhurst Street, Centerville, Ohio, outside of the City of Dayton; 3. On numerous occasions, the Appellant admitted on written documents and oral statements that he resided at the Centerville address. The trial court summarized the Board's findings of fact and what facts the Board had found of particular significance. We have reviewed the findings of the Board, and we are satisfied that they are, for the most part, rooted in the testimony and other evidence presented at the hearing before the Board. Although we have not located Harmon's testimony that he slept at his mother's home 3 — 5 nights per week, that fact could have been reasonably inferred from the testimony of Marcus and Gina Mabilitine. Harmon does not so much attack the findings of the Board as he contends that even if taken at face value, they fail to establish a violation of the City's residency requirement. The essence of Harmon's argument is capsulized at p. 29 of his brief: The overall import is that the average number of overnights at one place or the other, in Centerville and in Dayton, were essentially equally divided. In circumstances such as these, with a proper understanding of the applicable law of residence, the only reasonable common sense application of the law to such evidence would be to consider Harmon a resident of Dayton. What Harmon's brief ignores is the "physically liv(ing) in the City of Dayton" requirement of the residency rule. Conceding that Harmon established himself as a resident of the City of Dayton, he was also required to live in Dayton. If the Dayton residency rule means anything, it means that a City employee must have his or her principal place of abode within the City of Dayton. We thought we had made this clear to Harmon in Harmon II. Although the evidence as to how Harmon divided his non-working time between his Dayton apartment and his mother's Centerville home was not free of conflict, it was up to the Board and trial court to resolve those conflicts. Id. We believe the Board and the trial court reasonably determined that a preponderance of the substantial, reliable, and probative evidence established that Harmon was not physically living in the City of Dayton as we have construed that requirement in Harmon II. The third assignment is overruled. The order appealed from will be affirmed. YOUNG, J., concurs.

2016-07-06 06:36:02.777657+00

OPINION {¶ 1} The instant action in mandamus is presently before this court for consideration of the separate summary judgment motions of both respondents, the Hubbard Township Board of Trustees and the Public Employees Retirement Commission of Ohio. As the primary basis for each of their respective motions, both respondents assert that they are entitled to judgment in their favor on the entire petition of relator, Patrick J. Donlin, Sr., because they have already performed the specific acts which he has sought to compel by bringing this case. For the following reasons, we hold that both summary judgment motions have merit. {¶ 2} The subject matter of this action concerns the extent to which relator is entitled to participate in the retirement program for public employees of the state of Ohio. As part of his mandamus petition, relator asserted that, during the period from December 1979 until February 2002, he was qualified to participate in the Public Employees Retirement System because he was employed as a member of the Hubbard Township Planning and Zoning Commissions. Relator further asserted that, even though he never signed a written request to be exempted from the retirement program, the Hubbard Township Board of Trustees ("Board") did not withhold any funds from his earnings and did not make any contributions to the program in his behalf during that time period. Finally, he alleged in the instant petition that, although he had recently asked the Public Employees Retirement Commission of Ohio ("PERS") to determine the amount he would have to pay in order to "purchase back" the funds he had withdrawn from the program in 1984, PERS had never responded to his inquiry. {¶ 3} Based upon the foregoing basic allegations, relator requested this court to issue a writ of mandamus against both the Board and PERS, as the respondents in this matter. In regard to the Board, relator asked that it be compelled to: (1) provide documentation to PERS showing that he had been employed continuously during the entire twenty-two years; and (2) pay to PERS the amount of funds which would be equal to the amount of contributions it should have made since 1979. As to PERS, he asked that it be ordered to: (1) amend its records to indicate that he has been participating in the program since 1979; (2) take all necessary to obtain the past contributions owed by the Board; and (3) notify him of the amount he must pay to offset the 1984 withdrawal. {¶ 4} In answering the mandamus petition, the Board essentially denied that it had ever refused to make contributions to the retirement program for relator. In its answer, PERS stated that, after making the necessary calculations, it had recently informed relator of the amount of funds he would need to pay to "buy back" the service credit he had lost as a result of the 1984 withdrawal. PERS further stated that it had sent a statement to the Board indicating the amount which the Board owed for the unpaid contributions from 1984 to 2000. In relation to period of 1979 through 1984, PERS asserted that it could not ask the Board to make contributions for that period until relator had paid the amount covering the 1984 withdrawal. {¶ 5} After the instant action had been pending for approximately six months, the Board and PERS filed their separate motion for summary judgment on the mandamus petition. In its motion, the Board essentially admits that relator had been a public employee for the Hubbard Township and that it had been obligated to make contributions to the state retirement program from 1984 to 2000. The Board also contends that the merits of this case are now moot because, subsequent to the filing of its answer to the petition, it has paid to PERS the sum of $839.46 to cover the unpaid contributions for the disputed time period. {¶ 6} In support of this contention, the Board has attached to its motion the affidavit of the Hubbard Township Clerk, Sue A. Goterba. In this affidavit, Goterba states that the Township has recently made a "full accounting" to PERS the extent of relator's service as a Township employee. Goterba further avers that the Township has fully satisfied its obligation regarding relator's retirement by paying the sum of $839.46 into his account, consistent with the statement provided by PERS. {¶ 7} In its separate motion for summary judgment, PERS maintains that it is entitled to prevail on the mandamus claim because it has met all of its legal obligations concerning relator's retirement account. In support of its position, PERS has submitted the affidavit of its Director-Finance, Karen Carraher. In this document, Carraher states that: (1) as the custodian of the records for PERS, she has had the opportunity to review relator's file; (2) his file now indicates that he was a public employee for Hubbard Township from December 1979 to February 2002; (3) after the filing of the instant action, PERS mailed to Hubbard Township an Employer Billing Statement for the time period of August 1984 through July 2000; (4) PERS then received a payment from Hubbard Township covering the unpaid contributions for the period; and (5) Hubbard Township had previously made the necessary contributions to relator's account for the time period from July 2000 to February 2002. {¶ 8} As to the time period from December 1979 through August 1984, PERS contends that relator is not entitled to receive contributions from Hubbard Township because he had received in 1984 a refund from his retirement account which was predicated on his separate public employment with the Trumbull County Prosecutor's Office. Citing Ohio Adm. Code 145-1-31(E)(1), PERS argues that Hubbard Township cannot be "billed" for that period until relator has repaid the refund. As part of her affidavit, Carraher avers that, even though PERS sent relator a statement of the amount he must pay to have the service credit reinstated, he has not made the necessary payment. {¶ 9} Even though both motions for summary judgments contained certificates of service indicating that relator had been mailed copies of both motions, he did not file a response to either motion. As a result, the assertions in the Goterba and Carraher affidavits have not been contradicted. {¶ 10} In order to prevail on a motion for summary judgment, the moving party is required to establish that: (1) there are no genuine issues of material fact remaining to be tried in the matter; (2) the nature of the parties' evidentiary materials are such that a reasonable person could only reach a conclusion adverse to the nonmoving party, even when those materials are construed in a manner most favorable to him; and (3) the moving party is entitled to judgment as a matter of law. WelcoIndustries Inc. v. Applied Cos. (1993), 67 Ohio St.3d 344, 346. In relation to the first prong of this test, this court has consistently emphasized that, once the moving party has satisfied his initial burden of identifying the evidentiary materials which establish the lack of a factual dispute, the nonmoving party cannot merely rely upon his prior allegations; instead, that party has the burden to set forth new materials showing that a dispute still exists. See, e.g., Ryncarz v. Aurora, 11th Dist. No. 2001-P-0139, 2003-Ohio-6696. {¶ 11} In the instant action, the Board and PERS submit that they are entitled to summary judgment on relator's claim because they have already completed all acts they could be required to do in regard to his retirement account. In prior mandamus actions, we have stated that the writ will not be issued to compel a party to perform an act it has already performed. State ex rel.Hamilton v. Warden of Trumbull Correctional Inst., (Dec. 13, 2002), 11th Dist. No. 2002-T-0142, 2002 Ohio App. LEXIS 6684. When this has taken place, the merits of the mandamus claim have become moot, and summary judgment can be rendered for the respondent. Id. {¶ 12} As was noted previously, relator stated in his petition that he sought to compel the Board to inform PERS of the extent of his employment with the Township and make any payment needed to satisfy the unpaid retirement contributions for the preceding years. The undisputed assertions in the Goterba and Carraher affidavits prove that the Board has already performed both of the acts. That is, not only do the PERS records properly reflect the length of relator's service to the Township, but the Board has submitted the necessary payment in accordance with the statement provided by PERS. {¶ 13} Similarly, relator's petition requested that PERS be compelled to amend its records concerning the extent of his service, inform Hubbard Township as to the amount owed for the unpaid contributions, and inform him as to the amount he needed to repay into his retirement account to cover his 1984 withdrawal. Again, the statements in the two affidavits before us verify that PERS has completed each of these three acts. {¶ 14} As an aside, this court would note that, even though relator sought contributions for 1979 through 2002, the Board's evidentiary materials indicate that its recent payment to PERS only covered contributions for 1984 through 2000. However, as to the period of 2000 to 2002, the affidavits show that the Board had previously made contributions for these years. As to the period of 1979 to 1984, Ohio Adm. Code 145-1-31(E)(1) states that an employer cannot be required to make contributions covering a period in regard to which the employee has obtained a refund of his own separate contributions for that period, unless the employee chooses to repay the refund. Because it is undisputed that relator obtained a refund of his own contributions for this five-year period and he has not repaid the funds to PERS, the evidentiary materials before us support the conclusion that the Board has no legal obligation to pay contributions for this period. {¶ 15} Pursuant to the foregoing analysis, this court holds that both respondents in this case, the Hubbard Township Board of Trustees and the Public Employees Retirement Commission of Ohio, have established that there is no dispute that they have already performed any act requested by relator which they have a legal duty to do. As a result, they are entitled as a matter of law to prevail in this case because the merits of relator's mandamus claim are now moot. Accordingly, respondents have met each of the three requirements for summary judgment. {¶ 16} The motions for summary judgment of both respondents are hereby granted. It is the order of this court that judgment is entered in favor of respondents as to relator's entire mandamus petition. Ford, P.J., Christley and Westcott Rice, JJ., concur.

2016-07-06 06:36:02.800146+00

OPINION {¶ 1} This matter is before the court on the Notice of Appeal of Veterans Security Patrol ("Veterans"), filed June 24, 2004. Appellee, TAG 333, Dayton, LLC ("TAG 333"), leased Suite 150 at 333 West First Street in Dayton, Ohio, to Veterans for a term commencing on February 1, 2003, and terminating on July 31, 2006. TAG 333 is owned by The Andalex Group, in New York, New York. Under the terms of the lease, Veterans received the first six months rent free. In August of 2003, monthly rent of $335.00, along with a monthly payment of $13.95 for electric service, became due. Veterans failed to pay TAG 333, and it vacated the premises on or about March, 2004, with a balance due of $3,070.80, including late fees. TAG 333 filed a Complaint against Veterans on February 4, 2004, and Veterans filed an Answer and Counterclaim on March 2, 2004, alleging fraud and breach of contract. {¶ 1} According to Veterans, it entered into the lease with TAG 333 solely because TAG 333 promised that it would retain Veterans' security services for the West First Street address and two other properties owned by The Andalex Group. In its Counterclaim, it argued that "Plaintiff's representation it would hire Defendant as its security company was false and made in order to trick Defendant into leasing the premises at issue and it was never Plaintiff's intent to hire Defendant to serve as its security company, or Plaintiff's representation was made for some other improper reason when the intent was never to hire Defendant as Plaintiff's security company." When TAG 333 ultimately failed to retain Veterans' services, Veterans informed TAG 333 that it would not pay rent on the basis that the lease was void. {¶ 2} Following a May 26, 2004 bench trial, the trial court found that the lease embodied the entire agreement of the parties, and that Veterans breached the lease by failing to pay rent and the other fees as agreed. The trial court granted judgment against Veterans in the amount of $3,070.80. On December 3, 2004, the trial court issued its Findings of Fact and Conclusions of Law. {¶ 3} Veterans' sole assignment of error is as follows: {¶ 4} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO MAKE A FACTUAL FINDING THAT IS ESTABLISHED BY THE MANIFEST WEIGHT OF THE EVIDENCE." {¶ 5} "The standard traditionally applied to manifest weight of the evidence questions is that `judgments supported by competent, credible evidence going to all the material elements of the case must not be reversed as being against the manifest weight of the evidence.' (Internal citations omitted). Weight of the evidence has been defined as `the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, it depends on its effect in inducing belief. (Internal citations omitted). The supreme court has emphasized that the ability to weigh the evidence is a limited one, since `the trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page.'"East Co. v. Trammell (Feb. 5, 1999), Montgomery App. No. 17188. "This standard allows us to `judge the credibility of opposing opinion testimony, but not of fact testimony, unless it is so incredible that it defies belief." City of Kettering v.Loughran (Oct. 13, 2000), Montgomery App. No. 18107. {¶ 6} At the bench trial in this matter, the court heard testimony from Marsha Tolliver, TAG 333's accountant, Chris Wagers, TAG 333's former director of operations, and Terry Hatton, president of Veterans. The trial court admitted into evidence a copy of the lease for suite 150 at 333 West First Street, an invoice from TAG Management, to Veterans, showing a balance due of $3,070.80, and three service contracts prepared by Veterans for three Andalex Group addresses in Dayton, including the 333 West First Street address, signed only by Joe Halpin, Veterans' general manager. {¶ 7} Having reviewed the entire record, and having weighed the evidence and all reasonable inferences consistent withTrammel, supra, we determine that the trial court's Findings of Fact and Conclusions of Law are supported by competent, credible evidence. Giving deference to the trial court's decision as to which testimony to credit, and to what extent to do so, we agree that there was no meeting of the minds between TAG 333 and Veterans regarding TAG 333's alleged commitment to retain Veterans' security services as a condition of the lease. The trial court correctly found that "there were no elements proven to show that a binding contract was created for Defendant to provide security service * * *." Further, the trial court's decision that Veterans owes TAG 333 a balance of $3,070.80 is not against the manifest weight of the evidence but rather is supported by the preponderance of the evidence. Veterans' sole assignment of error is overruled, and the judgment of the trial court is affirmed. Wolff, J. and Fain, J., concur.

2016-07-06 06:36:02.893845+00

JOURNAL ENTRY AND OPINION {¶ 1} Plaintiff-appellant, the state of Ohio, appeals the decision of the Cuyahoga County Court of Common Pleas that granted, in part, defendant-appellee Jennetta Hall's motion to suppress. Finding error in the proceedings below, we reverse and remand. {¶ 2} Hall was indicted, along with her co-defendant Muhammad Dye, for one count of drug trafficking with a juvenile specification, a felony of the third *Page 3 degree; one count of possession of crack cocaine, a felony of the fourth degree; and one count of receiving stolen property, a felony of the fourth degree. Hall filed a motion to suppress, and a hearing was held. {¶ 3} At the hearing the testimony revealed that on the morning of June 15, 2006, at 6:00 a.m., members of the FBI and the Cleveland Police Department went to 10011 Anderson Avenue in Cleveland to execute an arrest warrant for Dye, who was considered armed and dangerous. Ten members of the FBI SWAT team approached the front door, knocked, and announced their presence. After no response, the SWAT team members breached the door and entered the house. Agents cleared the first floor rooms and then entered the master bedroom and arrested Dye without incident. After Dye was removed, agents continued to check the bedroom for possible attackers. Underneath the bed, Agent Platt discovered a bulletproof vest issued by the Cleveland Police Department. {¶ 4} Agents checked the entire house, and once the house was cleared by the agents, they took Dye, Hall, and their three children to the living room; then Cleveland Police Detective Follmer and Agent Scott Wilson entered the house. Because they found the bulletproof vest, police secured the house until a search warrant could be obtained. Dye was taken into federal custody. The children were picked up by their grandmother, and Hall was permitted to stay at the house with the officers and agents until a search warrant was secured. After a search warrant was obtained in federal court, Detective Follmer and the FBI *Page 4 search team searched the premises. During the search, a plastic bag containing crack cocaine was located behind a stereo speaker on top of a dresser located in the master bedroom. Also, 47 boxes of ammunition, two electronic scales, photographs of suspected gang members, and $2,339 were discovered. {¶ 5} The trial court found that the officers lawfully entered the home and arrested Dye and that pursuant to a lawful protective sweep, they discovered the bulletproof vest. The court further found that the officers obtained a valid search warrant. Nevertheless, the trial court found "that none of the State's witnesses controverted or refuted Ms. Hall's testimony that the search was ongoing from the early morning hours until the arrival of the search warrant." The trial court then granted, in part, Hall's motion to suppress. The court suppressed everything except the bulletproof vest. The state appeals, advancing two assignments of error for our review. The state's first assignment of error states the following: {¶ 6} "The trial court erred when it relied on evidence that was not presented when it suppressed the crack cocaine seized pursuant to a federal search warrant." {¶ 7} The state takes issue with the trial court's finding of fact regarding the ongoing search which Hall had alleged occurred prior to the officers obtaining a warrant. *Page 5 {¶ 8} Appellate review of a suppression ruling involves mixed questions of law and fact. See State v. Burnside, 100 Ohio St.3d 152,2003-Ohio-5372. When ruling on a motion to suppress, the trial court serves as the trier of fact and is the primary judge of the credibility of the witnesses and the weight of the evidence. See State v.Fanning (1982), 1 Ohio St.3d 19, 20. An appellate court must accept the trial court's findings of fact as true if they are supported by competent and credible evidence. Burnside, supra, at ¶ 8. But the appellate court must then determine, without any deference to the trial court, whether the facts satisfy the applicable legal standard. Id. {¶ 9} In this case the trial court found that Hall's testimony regarding the ongoing search of her residence was uncontroverted and therefore required suppression of any evidence recovered. We find merit to the state's assertion that the trial court erred when making this factual finding. {¶ 10} Hall alleged that the officers searched the entire time that they were in the house waiting for the warrant. However, Hall testified that she did not see the officers searching her room or the basement. Hall was free to walk around, but did not observe anyone searching her house. Hall testified that she was on the couch watching television while waiting for the search warrant. {¶ 11} Detective Follmer testified several times that the search was not conducted until the warrant was obtained. Further, in Hall's affidavit that was filed with her motion to suppress, Hall stated that at 2:00 p.m., eight to ten officers starting searching the house but that they did not have a warrant. However, she was *Page 6 told that the warrant had been signed and that they had been given the "go ahead." Hall admitted that she was shown the search warrant at 2:30 p.m. {¶ 12} We find that the trial court's finding that Hall's testimony regarding the ongoing search of her residence was uncontroverted is not supported by the evidence. Accordingly, the state's first assignment of error is sustained. The state's second assignment of error states the following: {¶ 13} "The trial court erred when it failed to apply the inevitable discovery rule and instead suppressed the crack cocaine and ammunition seized." {¶ 14} The state argues that even if the trial court believed the officers unlawfully searched the house prior to obtaining the warrant, the evidence was still admissible under the inevitable discovery rule. Under the inevitable discovery exception, "illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation." State v. Logan, Cuyahoga App. No. 88472, 2007-Ohio-2636, quoting State v. Perkins (1985),18 Ohio St.3d 193. {¶ 15} First, we note that the trial court specifically found that the search warrant obtained by the agents was valid. Therefore, we find that even if the officers searched the residence prior to obtaining the search warrant, the contraband still would have been discovered after a valid search warrant was obtained. As a result, the motion to suppress should not have been granted. Accordingly, the state's second assignment of error is sustained. *Page 7 Judgment reversed. This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is ordered that appellant recover from appellee costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. COLLEEN CONWAY COONEY, P.J., and ANTHONY O. CALABRESE, JR., J., CONCUR *Page 1

2016-07-06 06:36:02.961406+00

DECISION AND JOURNAL ENTRY INTRODUCTION {¶ 1} Andy Vanderpool, a correctional officer at the Lorain County Correctional Institution, accepted $500 to deliver $350 to an inmate, keeping the other $150 for himself. The trial court convicted him of illegally conveying a prohibited item onto the grounds of a detention facility and bribery. Mr. Vanderpool has appealed, arguing that the court incorrectly concluded that it could convict him of both crimes. This Court affirms because the two offenses are not of similar import. ALLIED OFFENSES {¶ 2} Mr. Vanderpool's assignment of error is that the trial court incorrectly found him guilty of both a specific statutory provision and a general statutory provision, in violation of Section 1.51 of the Ohio Revised Code. "Well-established principles of statutory construction require that specific statutory provisions prevail over conflicting general statutes." State v. *Page 2 Volpe, 38 Ohio St. 3d 191, 193 (1988). "In recognition of this principle, the General Assembly enacted R.C. 1.51, which deals with the proper application of general and special or local provisions."State v. Chippendale, 52 Ohio St. 3d 118, 120 (1990). Section 1.51 provides that, "[i]f a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail." {¶ 3} If one statute is general and the other is specific, and they involve the same or similar offenses, this Court must "ask whether the offenses constitute allied offenses of similar import."Chippendale, 52 Ohio St. 3d at 120. "In determining whether offenses are allied offenses of similar import[,] . . . [this Court is] required to compare the elements of offenses in the abstract without considering the evidence in the case, but [is] not required to find an exact alignment of the elements." State v. Cabrales, 118 Ohio St. 3d 54, 2008-Ohio-1625, at paragraph one of the syllabus. "Instead, if, in comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import."Id. {¶ 4} Mr. Vanderpool has argued that bribery is a general provision while conveying a prohibited item onto the ground of a detention facility is a specific provision. Even if Mr. Vanderpool is correct, he has not established that the commission of conveying a prohibited item onto the grounds of a detention facility necessarily results in the commission of bribery. {¶ 5} The trial court convicted Mr. Vanderpool of violating Section 2921.02(B) and Section 2921.36(D) of the Ohio Revised Code. Section 2921.02(B) provides that "[n]o person, either before or after he is . . . employed . . . as a public servant or party official, shall knowingly *Page 3 . . . accept for himself . . . any valuable thing or valuable benefit to corrupt or improperly influence him . . . with respect to the discharge of his . . . duty." Section 2921.36(D) provides that "[n]o person shall knowingly deliver, or attempt to deliver, cash to any person who is confined in a detention facility." Aligning the elements of those offenses, this Court concludes that they are not allied offenses of similar import. A person could be bribed to do something other than deliver cash to a person who is confined in a detention facility. A person could also deliver cash to someone who is confined in a detention facility without being a "public servant or party official" or without "accept[ing] for himself . . . any valuable thing or valuable benefit." R.C. 2921.02(B). Section 2921.02(B) and Section 2921.36(D), therefore, are not allied offenses of similar import. Mr. Vanderpool's assignment of error is overruled. CONCLUSION {¶ 6} The trial court correctly concluded that it could convict Mr. Vanderpool of both bribery and conveying a prohibited item onto the grounds of a detention facility. The judgment of the Lorain County Common Pleas Court is affirmed. Judgment affirmed. The Court finds that there were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the *Page 4 period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30. Costs taxed to appellant. WHITMORE, J. BELFANCE, J. CONCUR

2016-07-06 06:36:03.037945+00

{¶ 81} For the following reasons, I respectfully dissent from the majority opinion overruling Sopko's fifth assignment of error as I believe that the trial court erred in admitting the social worker's testimony that David Sopko was the perpetrator. {¶ 82} The Supreme Court of Ohio acknowledged that "an expert's opinion testimony on whether there was sexual abuse would aid jurors in making their decision and is, therefore, admissible pursuant to Evid. R. 702 and 704." Boston at 128. However, the Boston court held that "[a]n expert may not testify as to *Page 29 the expert's opinion of the veracity of the statements of a child declarant." Id. at syllabus. {¶ 83} Therein lies the distinction noted by the Supreme Court of Ohio "between expert testimony that a child witness is telling the truth and evidence which bolsters a child's credibility." State v. Stowers (1998),81 Ohio St.3d 260. "The former is inadmissible, while the latter is perfectly permissible." State v. Jordan, 7th Dist. No. 06 HA 586, 2007-Ohio-3333. {¶ 84} Furthermore, Evid. R. 403(A) reads, in part: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury." The Supreme Court of Ohio held that "[u]nfair prejudice is that quality of evidence which might result in an improper basis for a jury decision." State v. Crotts (2004),104 Ohio St.3d 432. {¶ 85} In the case sub judice, the social worker testified as follows: {¶ 86} "Q. Did you make a disposition in this case? {¶ 87} "A. I did. {¶ 88} "Q. What was that disposition? {¶ 89} "A. I substantiated sexual abuse of T.C. with David Sopko as the perpetrator." (Tr. 142-43.) {¶ 90} I agree with the majority that in the Smelcer matter, as here, the term "substantiated" is an "inter-departmental determination." However, we *Page 30 have held that: "Permitting the introduction of an expert's opinion, which relies solely on the child's statements, is tantamount to permitting the expert to testify as to the child's veracity." State v.Winterich, Cuyahoga App. No. 89581, 2008-Ohio-1813; State v.Knight, Cuyahoga App. No. 87737, 2006-Ohio-6437. The Supreme Court of Ohio in Boston noted that "the admission of [such] testimony was not only improper — it was egregious, prejudicial and constitutes reversible error." Boston at 128. {¶ 91} I would find that this rationale extends to the social worker's testimony naming Sopko as the perpetrator. In a similar vein, the Sixth Appellate District reversed a case in which two expert doctors both testified that the appellant-mother poisoned her son, finding the testimony to be highly prejudicial. State v. Weaver, Sixth Dist. No. L-07-1219, 2008-Ohio-5022, citing Burens v. Industrial Comm. ofOhio (1955), 162 Ohio St. 549, "An expert witness must confine his opinion to matters within his specialty or scientific field of inquiry and may not express an opinion upon matters as to which the jury is capable of forming a competent conclusion." {¶ 92} Thus, I would find that the social worker's testimony identifying Sopko as the perpetrator is inadmissible because it is highly prejudicial. It is evidence that, upon admission, may result in an improper basis for a jury decision pursuant to Crotts. *Page 31 {¶ 93} I would sustain Sopko's fifth assignment of error and reverse the judgment of the trial court based upon plain error. *Page 1

2016-07-06 06:36:03.104521+00

OPINION. Defendant-appellant Lee M. Julious was convicted on nine separate counts of breaking and entering, theft, and vandalism. In this appeal, the principal issue raised by his three assignments of error is the admissibility of the most incriminating evidence against him: his own confessions. Because we hold, for the reasons that follow, that the confessions were not unconstitutionally tainted, and that all of his confessions were supported by sufficient evidence that a crime had been committed, we affirm. Julious witnessed a homicide in Lockland, Ohio. The commission of the offense convinced him to flee from that city altogether, and he proceeded to walk to the neighboring community of Glendale. A Glendale police officer recognized Julious, knew that he was wanted on several outstanding warrants, and decided to engage him in conversation. The officer eventually arrested Julious and notified the Lockland police, who also wanted to speak with Julious about outstanding warrants from that city. A Lockland police officer appeared to transport Julious to the Lockland police station for interrogation. There is conflicting testimony as to what occurred next. According to Julious, specific promises of leniency were made in return for his cooperation in other cases. But multiple officers testified at a suppression hearing that the statements that they had made to Julious were vague promises of general assistance in return for his cooperation with the homicide that he had witnessed, and in resolving the three crimes in which they suspected his culpability. According to the officers' testimony, they originally had intended to charge Julious with only three crimes, even though they suspected that he had committed several others in the same area. Apparently in order to give Julious an opportunity to confirm their suspicions, they drove Julious around Glendale, Evendale and Springdale, in the course of which he pointed out several locations where he had previously committed crimes. These confessions were the basis for the convictions that Julious now appeals. We address Julious's second assignment of error first. He argues that because he was not asked to sign Miranda waiver forms by every police officer who interrogated him, the state failed to prove that his confessions were voluntary. But those forms, while helpful in proving that Julious had knowingly waived his rights under Miranda, were not required to establish that his confessions were given voluntarily. Whether Julious was actually read his rights and intelligently waived them was an issue of fact that the trial court decided after having had the opportunity to hear the testimony and to view the demeanor of the witnesses. There is nothing in the record that would indicate that the court failed to appropriately resolve the conflicting testimony on this issue. Further, there is no suggestion of coercive conduct on the part of the police that might have rendered the confessions involuntary. Julious's second assignment of error is overruled. Julious's first assignment of error presents an alternative argument that his confessions were involuntary. He claims that, during four separate conversations, the officers made specific promises of leniency in return for his confessions. First, an officer told Julious that he would try to help him by having him admitted into a drug-treatment program. Second, while in the car pointing out the locations of other crimes that he had committed, Julious asked, "What do I get out of this?" An officer replied, "Well, what if I don't charge you? I'm just trying to close cases." In the third conversation, an officer told Julious that he occasionally reported to prosecutors and judges that a defendant had helped in other cases, and that he might receive more leniency than would otherwise be warranted. Finally, according to an officer's testimony, he told Julious that if he cooperated in the homicide investigation and in resolving Julious's original three charges, then there probably would not be any additional charges brought. Julious was originally charged with only three offenses, but he pleaded not guilty. The court then recommended that he be charged with all the offenses for which he had admitted culpability. Suggestions of leniency by the police are not enough to invalidate a confession.1 Also, promises that a defendant's cooperation will be considered in the disposition of charges do not invalidate a confession.2 In State v. Chase, the majority made the determination that a police offer of assistance did not make the defendant's confession involuntary.3 In this case, the first three conversations between Julious and the police involved only suggestions of leniency or offers of help in exchange for the confessions. Thus, the trial court correctly ruled that the confessions attributable to those conversations were admissible. But the testimony of the officer who admitted that he "probably" would not have charged Julious with additional crimes if he cooperated is more problematic. To evaluate these circumstances, we do not look to the bare language of the alleged promise, but rather to the nature of the benefit to be derived by Julious if he confessed.4 The trial court, by admitting the confessions, implicitly decided that the representation made by the officer did not promise a benefit to Julious that would have made his confessions involuntary. The officer testified that he "probably" would not have charged Julious with additional crimes. While it is a close call, we are not persuaded that the officer's choice of words denoted a clear promise of leniency for his cooperation. Also, Julious pleaded not guilty to the three original charges. It would seem likely that had a firm commitment for leniency been made, then Julious would have pleaded no contest or guilty. Since Julious chose to dispute the original charges, as was his right, it was an indication to the trial court that no understanding between Julious and the officers had existed. Thus, from the record, we cannot conclude that the court's denial of Julious's motion to suppress was in error. In his final assignment of error, Julious contends that, because his confessions should have been suppressed, the remaining evidence against him was insufficient to support his convictions, and that trial court thus erred in denying his Crim.R. 29 motion for acquittal. Having held that Julious's confessions were properly admitted, we overrule this assignment of error. But Julious has injected an additional argument into his final assignment of error. He argues, without focusing on any particular offense, that there was insufficient evidence beyond his confessions for them to have been admitted. It is true that, in order for a confession to be admissible, there must be "some evidence outside of the confession that tends to prove some material element of the crime charged."5 In several of the offenses, Julious's confessions were bolstered by physical evidence of fingerprints, footprints, or blood that was discovered at the crime scenes and clearly implicated him. But, on one charge, the only evidence implicating Julious outside of his confession was a police report, admitted without objection. While there may have been no other evidence in this instance specifically implicating Julious beyond his own confession, a police report written before Julious confessed and later placed into evidence clearly demonstrated that a crime had been reported to the police. Further, particular types of items, a microwave and cameras, that were alleged in the report to have been stolen, were also mentioned by Julious in his confession. We hold that the police report was sufficient evidence tending to prove that a crime had been committed, and that since the confession corroborated specific information contained in the report, the confession was admissible. We overrule Julious's final argument. Thus the trial court properly admitted Julious's confessions and properly denied his Crim.R. 29 motion. The first, second and third assignments of error are, accordingly, not well taken, and we affirm the trial court's judgment. Winkler and Shannon, JJ., concur. Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment. 1 State v. Wilson (1996), 117 Ohio App.3d 290, 294, 690 N.E.2d 574,577. 2 Id.; State v. Loza (1994), 71 Ohio St.3d 61, 641 N.E.2d 1082. 3 55 Ohio St.2d 237, 378 N.E.2d 1064. 4 See Wilson, 117 Ohio App.3d at 294, 690 N.E.2d at 577. 5 See State v. Maranda (1916), 94 Ohio St. 364, 114 N.E. 1038, paragraph two of the syllabus.

2016-07-06 06:36:03.26066+00

OPINION {¶ 1} Defendant-appellant, Thomas J. Barton, appeals a decision of the Warren County Court of Common Pleas denying his petition for postconviction relief. We affirm the decision of the trial court. {¶ 2} On April 9, 2004, appellant was indicted on two counts of involuntary manslaughter, two counts of aggravated burglary, and one count of burglary. The charges stemmed from allegations that appellant acted with complicity to commit these offenses when *Page 2 he hired two men to stage a burglary at his residence in April 1995. {¶ 3} In February 2005, appellant was tried by jury on the offenses in the indictment and found guilty of one count of complicity to involuntary manslaughter and two counts of complicity to aggravated burglary. Appellant moved for a new trial, which the trial court denied following a hearing. The court sentenced appellant to five to 25 years for manslaughter and, after merging the two burglary charges, ten to 25 years for burglary, to be served consecutively. {¶ 4} On April 20, 2006, with his direct appeal pending, appellant filed a petition for postconviction relief in the trial court. The trial court denied the petition in a decision issued on October 6, 2006. Thereafter, this court affirmed appellant's conviction and sentence on direct appeal in a decision rendered on March 12, 2007. See State v.Barton, Warren App. No. CA2005-03-036, 2007-Ohio-1099. Appellant timely appeals the denial of his petition for postconviction relief, raising one assignment of error. {¶ 5} Assignment of Error No. 1: {¶ 6} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT WHEN IT OVERRULED HIS PETITION FOR POST-CONVICTION RELIEF WITHOUT A HEARING." {¶ 7} Appellant contends that the trial court erred in denying his petition for postconviction relief without holding a hearing, raising two issues for our review. {¶ 8} First, appellant argues that the trial court should have granted a hearing on his petition in order for him to have the opportunity to litigate the issue of ineffective assistance of counsel. Appellant maintains that defense counsel was ineffective for failing to address the issue of hypnotically refreshed testimony at the trial level. {¶ 9} At trial, Gary Henson, one of the state's principal witnesses, testified that his half brother, William Phelps, told him that appellant solicited Phelps to stage a robbery at *Page 3 appellant's residence in order to frighten appellant's wife into moving from their farm to the city of Springboro.1 This move would have made appellant eligible for the position of chief of police in Springboro. During discovery, the state provided a document entitled "Exculpatory Evidence" to the defense indicating that Henson "submitted to interviews using investigative hypnosis." Defense counsel did not file any motions pertaining to this evidence, request a pretrial hearing on the admissibility thereof, nor cross-examine Henson about the hypnosis at trial. {¶ 10} In March 2006, while appellant's direct appeal was pending, John H. Rion, one of appellant's two defense attorneys, filed an affidavit indicating that he "[had] no recollection of receiving information that Gary Henson's testimony may have been influenced by hypnosis." Such a disclosure, appellant insists, undercuts the supposition that defense counsel's failure to address the hypnosis issue was the product of trial strategy. Appellant concludes that defense counsel was ineffective for neglecting to address the issue, thus warranting an evidentiary hearing on his postconviction relief petition. {¶ 11} In reviewing an appeal of postconviction relief proceedings, this court applies an abuse of discretion standard in determining whether the trial court erred in denying the petitioner's motion without a hearing. State v. Watson (1998), 126 Ohio App.3d 316, 324. An abuse of discretion implies that the court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983),5 Ohio St.3d 217, 219. {¶ 12} A petitioner seeking postconviction relief is not automatically entitled to an evidentiary hearing on the petition. State v.Calhoun, 86 Ohio St.3d 279, 282, 1999-Ohio-102. In order to obtain such a hearing, the petitioner must show that there are substantive grounds for relief that would warrant a hearing based upon the petition, supporting affidavits, *Page 4 and files and records in the case. See R.C. 2953.21(C); State v.Jackson (1980), 64 Ohio St.2d 107, 110. Substantive grounds for relief exist where there was such a denial or infringement of the petitioner's constitutional rights so as to render the judgment void or voidable. See R.C. 2953.21(A)(1); Calhoun at 282-83. The burden is on the petitioner to show that the claimed errors resulted in prejudice before a hearing on a postconviction relief petition is warranted. Calhoun at 283. {¶ 13} After reviewing the record, we find that the trial court did not abuse its discretion in overruling appellant's postconviction relief petition without a hearing because appellant did not demonstrate substantive grounds for relief. There is nothing in the record to support the assertion that the defense was unaware of Henson's hypnosis. Appellant concedes that the state provided defense counsel with the discovery document informing them of the hypnosis. John P. Rion, the defense attorney responsible for cross-examining Henson, did not submit an affidavit alleging that he was unaware of Henson's hypnosis. The absence of an affidavit from John P. Rion does not establish that the defense was unaware of Henson's hypnosis. {¶ 14} Furthermore, the statement in John H. Rion's affidavit that he "[had] no recollection of receiving information that Gary Henson's testimony may have been influenced by hypnosis" was ambiguous in two respects. First, John H. Rion's statement did not signify that the defense never received word that Henson had been subjected to investigative hypnosis. Rather, he contended that he "had no recollection" of receiving the information. This is clearly different from making the affirmative assertion that he never received the information. Second, John H. Rion's statement that he did not recall being informed that Henson's testimony "may have beeninfluenced by hypnosis" (emphasis added) was vague. In utilizing such wording, John H. Rion was not asserting that he believed Henson's testimony was in fact altered by hypnosis. Instead, his statement offered tenuous conjecture about the effect of Henson's hypnosis in lieu of making an affirmative statement that Henson's *Page 5 testimony was altered by the hypnosis. {¶ 15} Although appellant's attorneys failed to address the hypnosis issue at trial, appellant was not prejudiced as a result. See id. See, also, Strickland v. Washington (1984), 466 U.S. 668, 687-88, 693,104 S.Ct. 2052 (providing that, in order to prove ineffective assistance of counsel, a defendant must show that counsel's actions fell below an objective standard of reasonableness and that the defendant was prejudiced as a result). In fact, John H. Rion's affidavit actually accords with the state's position that the hypnosis did not significantly alter Henson's testimony. {¶ 16} The state maintains that Henson's testimony was not notably altered by the hypnosis, therefore no hearing on its admissibility was required. See State v. Johnston (1988), 39 Ohio St.3d 48, 50-51;State v. Doan, Clinton App. No. CA2001-09-030, 2002-Ohio-3351, ¶ 31. Major John Newsome of the Warren County Sheriff's Office, an investigator working on the cold case murder of appellant's wife, testified in his affidavit that "Henson's testimony at trial concerned only matters recalled prior to hypnosis. Henson's testimony was substantially in conformance with his pre-hypnosis memory." Newsome's testimony, viewed in conjunction with other evidence in the record substantiating appellant's guilt,2 supports the conclusion that defense counsel's failure to address the hypnosis issue did not prejudice appellant. Therefore, appellant has failed to show that there was a denial or infringement of his constitutional right to counsel so as to warrant an evidentiary hearing on his petition for postconviction relief. {¶ 17} Appellant's second argument in this appeal is that the state failed to disclose exculpatory information concerning Henson's suspected burglary of a Lebanon residence in *Page 6 1993. See Brady v. Maryland (1963), 373 U.S. 83, 87, 83 S.Ct. 1194 (holding that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution"). At appellant's trial, Henson testified that he had previously committed staged burglaries for hire. The state maintained that the burglary of appellant's residence appeared to have been staged as well. During pretrial discovery, the state provided defense counsel with a police report documenting a burglary committed at the Lebanon residence of James and Ann Kelly in 1993. The Kelly burglary was suspected to have been staged due to the fact that items of personal property were placed on the floor and the house was not ransacked. {¶ 18} In the present matter, appellant argues that the state was under a duty to inform him that the Kelly case was re-investigated by the Cold Case Squad in 2004 following the burglary of appellant's residence. Nothing in the police report provided to appellant connected Henson to the Kelly burglary. Therefore, appellant contends that he was unable to use that information to perhaps impeach Henson or the officers who investigated the burglary of his residence. If such information had been disclosed, appellant argues, there is a reasonable probability that the outcome of his case would have been different. {¶ 19} We note that appellant did not raise any Brady issues on direct appeal. "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or an appeal from that judgment."State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Consequently, appellant is barred from raising anyBrady issues in this postconviction relief proceeding. *Page 7 {¶ 20} We conclude that the trial court did not err in denying appellant's petition for postconviction relief without a hearing. Appellant's sole assignment of error is overruled. {¶ 21} Judgment affirmed. WALSH and POWELL, JJ., concur. 1 William Phelps was unavailable to be called as a witness at appellant's trial because he committed suicide in August 1995. 2 As this court observed in affirming appellant's conviction on direct appeal: "* * * Henson's trial testimony was corroborated by other evidence that strongly pointed to appellant's guilt, including the 911 tape, in which appellant can be heard saying `I gotta call Phelp, man,' and the testimony of several police officers who testified that the burglary that took place at appellant's and Vickie's residence on the day Vickie was killed appeared to have been staged." State v.Barton, Warren App. No. CA2005-03-036, 2007-Ohio-1099, ¶ 35.

2016-07-06 06:36:03.342331+00

OPINION {¶ 1} Appellant, Farrell G. Belknap, Jr. ("Belknap"), appeals from a judgment entry of the Trumbull County Court of Common Pleas, granting summary judgment in favor of appellee, Philip M. Vigorito ("Vigorito"), in Belknap's suit for legal malpractice. For the following reasons, we affirm the decision of the trial court. {¶ 2} In September 2001, Belknap retained Vigorito to represent him in four allegedly unrelated criminal matters pending in the Ravenna Municipal Court. Belknap paid Vigorito $2,000 to secure his legal services. In October 2001, Belknap alleges that Vigorito, for his personal convenience, combined the four pending cases without Belknap's consent. On October 30, 2001, Vigorito filed a motion to suppress and dismiss on Belknap's behalf. Although the motion was captioned correctly, the defendant named in the motion was not Belknap. Belknap also claims that the substance of the motion did not relate to the charges pending against him. Belknap further alleges that, on the day of the suppression hearing, Vigorito withdrew the faulty motion and never filed a corrected motion with the court. {¶ 3} On December 21, 2001, Vigorito filed a motion entitled, "Motion to Withdraw and Judgment Entry." In this motion, Vigorito stated that "[Belknap] has fired counsel because of various disagreements over the merits and trial strategies as well as his inability to try the aforementioned cases immediately and separately as [Belknap] feels they should be done." {¶ 4} Belknap retained new counsel for the trial of the four cases. Belknap alleges that his new counsel was unable to bifurcate the cases, that his new counsel had less than thirty days to prepare for trial, and that his new counsel was unsuccessful in preventing the admission of the evidence that was the subject of the suppression hearing.1 Ultimately, Belknap was convicted of at least one of the charges. {¶ 5} On December 18, 2002, Belknap filed a complaint against Vigorito alleging attorney malpractice. Belknap alleged that Vigorito was negligent in the following ways: (1) by combining the cases without Belknap's consent; (2) by refusing to interview witnesses and subpoena records for the defense; (3) by failing to file a proper motion to suppress; (4) by pressuring Belknap to accept the plea negotiated by Vigorito; and (5) by not returning the unused portion of the retainer. {¶ 6} Vigorito subsequently moved the court for summary judgment, which the court granted. This appeal timely follows. {¶ 7} Belknap raises the following assignments of error: {¶ 8} "[1.] Appellant was denied [a] fair trial and substantial justice due to the trial Court wrongfully finding that there were no genuine issues of material fact and thereby granting the Summary Judgment and further by not viewing the evidence in the light most favorable to the non-moving party. {¶ 9} "[2.] Appellant was denied [a] fair trial and substantial justice due to the trial Court abusing it's discretion in granting Appellee's Motion for Summary Judgment and absolving Appellee of any wrongdoing while Appellant still has an Appeal before the Eleventh District Court of Appeals. At issue in that Appeal is Appellee's negligence and ineffective assistance of counsel. {¶ 10} "[3.] Appellant was denied [a] fair trial and substantial justice due to the Court not applying the accepted standards for a legal malpractice claim. {¶ 11} "[4.] Appellant was denied [a] fair trial and substantial justice due to the Court's finding that there were no material issues of fact because as a layman, Appellant was incapable of determining that Appellant did anything wrong and is required to hire an attorney and an expert witness before bringing an action against Appellant." {¶ 12} Because all of Belknap's assignments of error challenge the propriety of the trial court's grant of summary judgment, we will address his arguments in a consolidated fashion. {¶ 13} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) no genuine issue of material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence, viewed in a light most favorable to the nonmoving party, that reasonable minds can come to but one conclusion, which is adverse to the nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,369-370, 1998-Ohio-389. "[A] party seeking summary judgment * * * bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. * * * If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden * * * to set forth specific facts showing that there is a genuine issue for trial * * *."Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107. {¶ 14} A trial court's decision to grant summary judgment is reviewed by an appellate court under a de novo standard of review. Grafton v. OhioEdison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336. A de novo review requires the appellate court to conduct an independent review of the evidence before the trial court without deference to the trial court's decision. Brown v. Cty. Commrs. of Scioto County (1993),87 Ohio App.3d 704, 711. {¶ 15} The Ohio Supreme Court has held that "[t]o establish a cause of action for legal malpractice based on negligent representation, a plaintiff must show (1) that the attorney owed a duty or obligation to the plaintiff, (2) that there was a breach of that duty or obligation and that the attorney failed to conform to the standard required by law, and (3) that there is a causal connection between the conduct complained of and the resulting damage or loss." Vahila v. Hall, 77 Ohio St.3d 421,1997-Ohio-259, at syllabus. See, also, Krahn v. Kinney (1989),43 Ohio St.3d 103. "Failure to prove any one of these elements entitles a defendant to summary judgment on a legal malpractice claim." Brunstetterv. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, at ¶ 13. This court has held that "[s]ummary judgment in favor of the attorney is appropriate when a plaintiff fails to supply expert testimony on alleged negligence that is `neither within the ordinary knowledge of the layman nor so clear as to constitute negligence as a matter of law.'" Id. at ¶ 16, quoting Bloom v. Dieckmann (1983), 11 Ohio App.3d 202, 203. {¶ 16} Vigorito argues that, without expert testimony on the standard of care applicable to criminal defense work, Belknap cannot prove, as a matter of law, that Vigorito was negligent in his representation of Belknap. Belknap responds that expert testimony is not necessary because Vigorito's negligence is within the ordinary knowledge and understanding of a lay juror. {¶ 17} We note, as an initial matter, that several of Belknap's allegations do not provide grounds on which claims of legal malpractice can be based. The allegation that Vigorito pressured Belknap to accept a plea bargain simply does not constitute negligence. Belknap did not accept the plea bargain and, ultimately, was able to exercise his right to trial. Moreover, Vigorito had the duty to advise Belknap of the course of conduct that Vigorito, in his professional opinion, believed was in Belknap's best interest. EC 7-7, ("[a] defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable"); EC 7-3, (recognizing a lawyer's role as advocate and advisor); State v. Lavender, 11th Dist. No. 2000-L-049, 2001-Ohio-8790, 2001 Ohio App. LEXIS 5858, at 5-6. The allegation that Vigorito failed to interview witnesses or subpoena records in preparation for trial is insufficient, as there was no evidentiary material offered as to the exculpatory nature of the testimony of these witnesses and records. Finally, the claim that Vigorito did not return the unused portion of the retainer is not the proper subject of a malpractice action. {¶ 18} Belknap further alleges that Vigorito's decision to combine the four cases fell below the accepted standard of care for an attorney, but he fails to explain why this conduct fell below the acceptable standard. Cf. State v. Torres (1981), 66 Ohio St.2d 340, at syllabus, (Defendant bears the burden of proving that he was prejudiced by the joinder.). We fail to see how this action fell below the standard of care for reasonable representation. The Rules of Criminal Procedure provide for the joinder of offenses in certain circumstances. Crim.R. (8)(A). Joining offenses is also in the interest of judicial economy when it can be done without prejudicing a defendant's ability to defend himself. {¶ 19} In this case, there is no way to discern if expert testimony on the issue of joinder was necessary because we have no evidence as to the nature of the criminal charges or the circumstances surrounding the criminal charges. Hence, there is no issue of material fact created on this point. {¶ 20} Belknap's final claim is that Vigorito was negligent in handling the motion to suppress. We note that the decision whether to file or withdraw a suppression motion is normally a tactical decision left to the discretion of defense counsel. State v. Nields,93 Ohio St.3d 6, 34, 2001-Ohio-1291. In the present case, appellant failed to provide any appropriate submission in the summary judgment proceeding which demonstrated the factual substance of a proper motion for summary judgment. In fact, we have no idea what evidence should have been suppressed. {¶ 21} Even if we presume that Belknap is correct that Vigorito negligently filed an inappropriate motion, Belknap must also show the prejudicial effect; i.e., that Vigorito's negligence proximately caused the damage claimed. Negligence alone does not create liability. Thus, although Vigorito's failure to file and prosecute a proper motion to suppress arguably fell below the standard of care required of defense counsel, it was not necessarily fatal. {¶ 22} In summary judgment, the movant "must state specifically which areas of the opponent's claim raise no genuine issue of material fact."Vahila at 429, quoting Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. "The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates that the nonmoving party has no evidence to support the nonmoving party's claims." Dresher at 293. "However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." Id. {¶ 23} While Belknap has raised a genuine issue of material fact regarding Vigorito's negligence, he has failed to demonstrate that there was a causal connection between Vigorito's negligent actions and any resulting prejudice or damage. Therefore, Belknap has failed to meet his burden in opposing summary judgment. Specifically, he failed to demonstrate the existence of a genuine issue of material fact regarding the issue of proximate cause. {¶ 24} In the present case, Vigorito raised the issue of causation in his motion for summary judgment by arguing that "[t]here is no genuine issue of material fact whether Plaintiff was damaged by VIGORITO's alleged negligence, and therefore Plaintiff's malpractice claim * * * fails the third prong of the test [i.e., proximate cause]." {¶ 25} Vigorito argues that it was Belknap's rejection of a plea agreement during the underlying criminal proceedings that resulted in his conviction, rather than Vigorito's alleged negligence. In support of this argument, Vigorito attached an affidavit to his motion for summary judgment attesting to the procedural posture of the underlying criminal action. In the affidavit, Vigorito testified that he had negotiated a plea agreement according to the terms by which Belknap would have pled guilty to one misdemeanor charge with a suspended jail sentence and a fine, while the remaining charges would have been dismissed. Belknap rejected the plea agreement, fired Vigorito, and elected to go to trial with the result that he was convicted on two of the charges against him. Vigorito concludes that it was Belknap's rejection of the negotiated plea agreement that resulted in his convictions, rather than Vigorito's alleged negligence. {¶ 26} Vigorito's self-serving affidavit was sufficient to meet his initial burden, as the moving party, to demonstrate that there was no genuine issue of material fact with respect to the element of proximate cause. The rule of law regarding self-serving affidavits submitted during a summary judgment exercise applies only to the nonmoving party's use of such affidavits, to wit: {¶ 27} "[T]he nonmoving party may not avoid summary judgment solely by submitting a self-serving affidavit containing no more than bald contradictions of the evidence offered by the moving party. To conclude otherwise could enable the nonmoving party to avoid summary judgment in every case, crippling the use of Civ.R. 56 as a means to facilitate `the early assessment of the merits of claims, pre-trial dismissal of meritless claims, and defining and narrowing issues for trial.'" (Citations omitted.) C.R. Withem Enterprises v. Maley, 5th Dist. No. 01 CA 54, 2002-Ohio-5056, at ¶ 24. {¶ 28} However, a moving party's self-serving affidavit is adequate evidence under Civ.R. 56 to demonstrate the absence of any genuine issue of material fact. Unlike the nonmoving party's self-serving affidavit, the moving party's self-serving affidavit may be refuted by evidence demonstrating a genuine issue of material fact. Thus, it is irrelevant whether the moving party's affidavit is self-serving, as this type of evidence will not result in any injustice such as an immediate grant of summary judgment. Frankly, considering the inherent difficulty in demonstrating a negative, such an affidavit may be the only way to initiate a summary judgment challenge. {¶ 29} That being said, Vigorito's affidavit pointed to the lack of sufficient evidence of the type listed in Civ.R. 56(C). Thus, Belknap had a reciprocal burden to meet Vigorito's challenge and present evidence of the type listed in Civ.R. 56(C) to demonstrate a genuine issue of material fact. He failed to do so. {¶ 30} To sustain a legal malpractice claim, the Ohio Supreme Court has rejected the "blanket proposition that requires a plaintiff to prove, in every instance, that he or she would have been successful in the underlying matter." Vahila at 428. However, "the requirement of causation often dictates that the merits of the malpractice action depend upon the merits of the underlying case. Naturally a plaintiff in a legal malpractice action may be required, depending on the situation, to provide some evidence of the merits of the underlying claim." Id. at 427-428. {¶ 31} Despite various refinements, a malpractice claim is still a tort. Thus, evidence of arguable proximate cause must be asserted even when there has been an unrebutted showing of negligence. Here, the only evidence provided by Belknap regarding the underlying criminal charges was contained within Belknap's affidavit. The affidavit merely attested to the faulty motion to suppress and Vigorito's allegedly improper voluntary dismissal of such motion. There is a complete absence of any reference to the substance of the underlying criminal charges. More critical was the absence of any suggestion as to what evidence should have been the subject of the motion to suppress. We are unable to determine either the evidence which should have been suppressed or the criminal charges to which that evidence related. {¶ 32} In conclusion, Vigorito's affidavit made a prima facie showing, by itself, that the deficient motion to suppress was insufficient to create a material issue of fact as to the proximate cause of Belknap's alleged damages. Belknap failed to rebut Vigorito's affidavit with evidence demonstrating a genuine issue of material fact regarding the proximate cause element. Without this evidence, Belknap was unable to establish that his subsequent conviction on the underlying criminal charges was due to Vigorito's mishandling of the motion to suppress. In short, Belknap may have demonstrated negligence, but he failed to demonstrate that there was a causal connection between Vigorito's negligent actions and the resulting damage or loss. {¶ 33} For the foregoing reasons, appellant's four assignments of error are without merit. The decision of the Trumbull County Court of Common Pleas, granting summary judgment in favor of Vigorito, is hereby affirmed. William M. O'Neill, J., concurs, Grendell, J., dissents with a Dissenting Opinion. 1 There is very little evidence in the record regarding the specific criminal matters tried in the Ravenna Municipal Court. In particular, we do not know what the actual charges were, when they were tried, or the sentence that was imposed. In his initial complaint, Belknap refers to his conviction for "falsification" without citing to any provision of the Revised Code.

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{¶ 34} The majority acknowledges that Belknap has raised a genuine issue of material fact regarding Vigorito's negligence, but affirms the trial court's grant of summary judgment on the grounds that Belknap failed to introduce evidence of damages proximately caused by Vigorito's negligence. Since Belknap, the nonmoving party, did not bear the burden of demonstrating that an issue existed regarding damages, I respectfully dissent. {¶ 35} To be entitled to summary judgment, the movant bears the initial burden of demonstrating the absence of a genuine issue of material fact on an essential element of the opponent's claim. Harlessv. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66. The movant must do more than state "conclusory assertions" that the nonmoving party cannot prove an element of his case. Dresher v. Burt, 75 Ohio St.3d 280,293, 1996-Ohio-107. The movant "must state specifically which areas of the opponent's claim raise no genuine issue of material fact." Vahila v.Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, quoting Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. If the movant fails to discharge his initial burden as to a particular claim, or element of a claim, then the nonmovant's reciprocal burden of demonstrating that a genuine issue does not arise as to that particular claim or element. Dresher,75 Ohio St.3d at 293.2 {¶ 36} In Vahila, the Ohio Supreme Court reversed a grant of summary judgment under similar circumstances. After finding appellants were not required to establish that they would have been successful in the underlying civil, criminal, or administrative matters giving rise to the malpractice action, the court considered the movants' assertion in their motion for summary judgment that "No Evidence Exists in This Case To Demonstrate that the Damages Plaintiffs Have Allegedly Sustained Were Proximately Caused by the Alleged Acts and/or Omissions of Defendants." The lower court concluded that "this assertion, by itself, was sufficient to discharge appellees' initial responsibilities under Civ.R. 56, requiring appellant to then point to specific facts in the record demonstrating the existence of a genuine issue for trial."77 Ohio St.3d at 428 (emphasis sic). The Supreme Court disagreed, reaffirming that the movant "always bears the initial responsibility of informing the court of the basis for the motion and identifying those portions of the record which support his or her claim." Id. at 430 (emphasis sic). {¶ 37} Similarly in the present case, Vigorito's conclusory assertion that Belknap cannot prove damages as a proximate result of his negligence does not discharge his burden in summary judgment. The majority errs by concluding otherwise. {¶ 38} In his brief in support of summary judgment, Vigorito argues that Belknap, in his complaint, alleged damages emanating from his conviction on two of the four criminal charges pending against him. In an attached affidavit, Vigorito states that he had negotiated a plea agreement according to which Belknap would only have pled guilty to one misdemeanor charge. Thus, Vigorito concludes, Belknap cannot claim to have been damaged as his convictions were the result of his voluntary decision to reject the plea agreement and proceed to trial. {¶ 39} Vigorito's "argument" that Belknap cannot prove damages is nothing more than a conclusory assertion such as the one that the Supreme Court rejected in Vahila. The bald assertion that Vigorito had negotiated a plea agreement does not compel, or even necessarily imply, the conclusion that Belknap was not damaged by Vigorito's negligent handing of the motion to suppress. If the motion to suppress had been properly filed and granted, arguably no plea may have been required. Considering Vigorito's affidavit, this court is in no better position to judge Vigorito's allegations that there were no damages than it is to judge Belknap's allegations that there were damages. The critical point is that Vigorito, as movant, bore the initial burden of coming forward with evidence that there were no damages and Vigorito failed to carry this burden.3 {¶ 40} The majority observes that, in this case, "[t]here is a complete absence of any reference to the substance of the underlying criminal charges" as well as "what evidence should have been the subject of the motion to suppress." The majority further concedes: "We are unable to determine either the evidence which should have been suppressed or the criminal charges to which that evidence related." One wonders how, in the absence of all this evidence, the majority gave credit to the substance of Vigorito's allegation that "it was Belknap's rejection of a plea agreement during the underlying criminal proceedings that resulted in his conviction, rather than Vigorito's alleged negligence." Cf. Bell v.Beightler, 10th Dist. No. 02AP-569, 2003-Ohio-88, at ¶ 33 ("Generally, a party's unsupported and self-serving assertions, offered by way of affidavit, standing alone and without corroborating materials under Civ.R. 56, will not be sufficient to demonstrate material issues of fact."). {¶ 41} The majority's ruling today also supports the dubious proposition that, regardless of how negligent an attorney's representation at trial might be, the attorney is immune from civil liability provided the client could have taken an advantageous plea instead of exercising his right to trial. At the very least, Vigorito should have demonstrated some connection between his negotiated plea agreement, Belknap's convictions, and the substance of the motion to suppress. Had Vigorito done so, then, Belknap would have had the reciprocal burden of demonstrating a genuine issue for trial. Instead, Vigorito has proffered the conclusion that Belknap cannot prove damages based on the logical non sequitur that Belknap could have taken a plea. Requiring Vigorito to meet his initial burden of "identifying those portions of the record" that support his claim will not cripple the use of Civ.R. 56(C) for disposing of cases. {¶ 42} Since "summary judgment precludes a jury's consideration of a case," it should "be used sparingly, only when reasonable minds can come to but one conclusion." Shaw v. Central Oil Asphalt Corp. (1981),5 Ohio App.3d 42, 44. "The main purpose of the summary judgment procedure is to enable a party to go behind the allegations in the pleadings and assess the proof in order to see whether there is a genuine need for trial." Johnston v. Johnston, 119 Ohio Misc.2d 143,2001-Ohio-4397, at ¶ 27. In this case, neither party has presented evidence that would allow this court to go beyond the pleadings and assess the substance of Belknap's claims. {¶ 43} Vigorito's motion for summary judgment relied on the argument that, as a matter of law, Belknap could not prove negligence without expert testimony. Expert testimony is not necessary on the issue of the suppression motion since Vigorito's negligence is within the ordinary knowledge and understanding of a lay juror. Vigorito's decision to withdraw the motion to suppress was not a tactical decision, but was the result of Vigorito's failure to properly draft and prepare the motion. According to Belknap, the motion filed by Vigorito did not identify him as the defendant and was not relevant to his situation. This sort of failure is not outside the scope of knowledge of the average lay juror.Brunstetter v. Keating, 11th Dist. No. 2002-T-0057, 2003-Ohio-3270, at ¶ 16. Legal expertise is not required to understand that a motion to suppress should identify the real defendant in the case and have relevance to the facts of that case. {¶ 44} To the extent that a jury is able to understand Vigorito's alleged negligence in connection with the filing of the motion to suppress without the aid of expert testimony, Belknap's assignments of error have merit and summary judgment should be reversed. 2 Under prior Ohio law, Vigorito, by merely filing a motion for summary judgment, would have forced Belknap to introduce Civ.R. 56(C) evidence on every element of his claim. See Wing v. Anchor Media, Ltd. ofTexas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus ("[a] motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial"). Wing, however, was limited by Dresher v. Burt (1996),75 Ohio St.3d 280, 295, in the manner indicated above. 3 There can be little doubt that Belknap suffered damages. In an affidavit submitted to the trial court, Belknap testified that when his new attorney attempted to question one of the arresting officers at trial about probable cause and the circumstances of the arrest, the judge upheld the state's objection to this line of questioning on the grounds that it should have been covered by the suppression motion withdrawn by Vigorito. As the majority correctly discerns, the real issue is the causal connection between the resulting convictions and Vigorito's negligence.

2016-07-06 06:36:03.379273+00

OPINION This is an appeal by defendant, George A. Heath, from a judgment of sentence and conviction entered by the Franklin County Court of Common Pleas following a jury trial in which defendant was found guilty of four counts of gross sexual imposition. On February 10, 1998, defendant was indicted on four counts of gross sexual imposition, in violation of R.C. 2907.06. The indictment alleged that the victim under each count was Stephanie Amich, an individual less than thirteen years of age. The matter was tried before a jury beginning on November 16, 1998. The first witness for the state was Stephanie Lynn Amich ("Stephanie"), age eleven. Stephanie resides with her mother, Jody Heath, at 870 Northwest Boulevard. The defendant is Stephanie's stepfather. Stephanie's natural father, Daniel Amich, and her mother were divorced when Stephanie was four years of age. Stephanie has a younger brother, age three. At the time of trial, Stephanie's mother was married to the defendant; however, the parties were in the process of obtaining a divorce. Stephanie gave the following testimony regarding the incidents giving rise to the indictment. On January 1, 1998, Stephanie, her mother and the defendant were in the living room of their residence. Stephanie's mother was asleep on the floor and the defendant was sitting on a couch. Stephanie and the defendant were watching the Rose Bowl. Stephanie was lying near the couch and the defendant started to rub her feet. Stephanie plays soccer and the evidence indicates that defendant had in the past rubbed or massaged Stephanie's feet and lower legs. Stephanie testified that, on this occasion, "he started to rub my calves and then went — he started to rub my knees, and then he started to rub my thighs, and then he started — he stuck his thumb through a hole in my pants and then under my underwear and touched me." (Tr. Vol. I, 37-38.) Stephanie elaborated that he touched her on the vagina with "a real quick rub." (Tr. Vol. I, 40.) Stephanie's initial reaction was that he touched her vagina by accident, "but I just moved away because I felt uncomfortable." (Tr. Vol. I, 40.) At the time of the incident Stephanie did not tell her mother because of her belief that it was an accident. Stephanie testified regarding a second incident on January 3, 1998. On that date, Stephanie was lying on her stomach on the floor of the living room playing Nintendo 64, a gift she had recently received from the defendant. Stephanie was wearing blue soccer shorts and a yellow soccer shirt. Stephanie's mother was in the kitchen at the time working at a computer. The defendant was sitting on the living room floor behind Stephanie. The defendant started to rub Stephanie's feet, calves, thighs, and "then he touched me again." (Tr. Vol. I, 49.) The defendant "rubbed back and forth with his thumb real quick * * * on my vagina." (Tr. Vol. I, 50.) The defendant stopped his activity when Stephanie moved and sat up. Stephanie did not tell her mother at the time about the incident "because I was afraid he might do something." (Tr. 52.) Stephanie related that a third incident occurred on January 5, 1998. Stephanie was lying on the floor watching a television show when the defendant "started rubbing my feet, then my calves, and then my thighs, and then he tried to touch me again, only not on the skin." (Tr. 57.) She further explained that the defendant touched her vagina area but this did not involve skin-to-skin contact. The defendant also touched her on the buttocks. The defendant stopped when Stephanie moved away. Stephanie's mother was in the kitchen at the time. Stephanie was wearing a nightgown and a pair of gray stretch pants. Later that night, when her mother came upstairs, Stephanie called her mother into her room and told her what had happened. Stephanie decided to tell her mother because she realized "it was wrong." (Tr. Vol. I, 61.) Stephanie's mother went downstairs and confronted the defendant. The defendant later came upstairs and told Stephanie "I'm sorry. I never meant to hurt you." (Tr. Vol. I, 62.) Joan Heath, the mother of Stephanie, also testified on behalf of the state. At the time of trial, Heath was married to the defendant but she testified that they had separated in May of 1997 and that they were in the process of getting a divorce. Heath was previously married to Stephanie's father, Daniel Amich, from November 1985 until June 1991. Prior to the allegations giving rise to the instant action, the defendant would spend time at Heath's residence even though the parties were separated. According to Heath, the defendant was hoping for a reconciliation of the marriage. Heath testified that she invited the defendant to her residence on January 1, 1998, and that he stayed overnight. The next day, Stephanie and the defendant went shopping. Stephanie had previously expressed interest in obtaining a Nintendo 64 game but Heath told her it was too expensive. Heath was surprised when they brought the game home. The defendant slept overnight on January 3 and 4 at Heath's residence. On Monday, January 5, the defendant came over to Heath's residence at approximately 5:30 p.m. Stephanie was watching television that evening in the living room. The defendant was also in the living room. Heath was in the kitchen using the computer. Stephanie went upstairs to bed around 9:00 or 10:00 p.m. Later, when Heath went upstairs to Stephanie's bed, she was surprised that Stephanie was still awake. Stephanie appeared to be upset; she was on the verge of crying and her voice was shaking. Stephanie initially indicated that nothing was wrong. When Heath asked her again, she said, "Andy tried to touch me again." (Tr. 217.) Stephanie told her mother that the incident occurred that evening while they were watching television. Heath then went downstairs and said to the defendant, "I can't believe we're having this conversation again." (Tr. 220.) The defendant "said he was sorry if Stephanie felt he had done something inappropriate, that he had rubbed her butt like that, and if that was a crime he was guilty." (Tr. 225.) The defendant indicated that he was going to call a cab. Heath went upstairs and brought Stephanie into her room to console her. Stephanie then told Heath about two other incidents during that week. Stephanie told Heath that during the football game the defendant "put his fingers up in the hole in her stretch pants and pushing aside her underwear and touching her and that she moved away from him." (Tr. 228.) The defendant later came upstairs that night and indicated he was sorry. He stated that he had not meant to do anything to hurt Heath or Stephanie. The next day, Heath contacted the Grandview Police Department. Detective Harper interviewed Stephanie about the allegations. Heath and Stephanie also spoke with an individual from Franklin County Children's Services a few days later. Prior to the alleged incidents during January, Heath had observed the defendant massage Stephanie's feet and calves. The defendant would also massage Heath's feet and legs. The defendant gave Heath a book, entitled "The New Guide to Massage," as a gift before Christmas 1997. The defendant once performed a massage on Heath's buttocks area, following instructions from the book. The state's next witness was Carol Harper, a patrol officer with the Grandview Heights police department. Officer Harper was working as a detective in the police department at the time of the allegations in the instant case. Officer Harper conducted an investigation. The officer knew Stephanie previously because Harper was a DARE officer and had spoken at Stephanie's school. Harper interviewed Stephanie and her mother on January 6, 1998, and she interviewed the defendant on January 12. The defendant appeared for the interview with Judith Wherry, an attorney who was representing the defendant in the divorce proceedings. Harper asked the defendant about the alleged incident on January 1. The defendant stated that Jody Heath had picked him up and taken him to her house to watch the football game; however, he stated that "Stephanie wasn't there. He did later on in the interview recall that he thought Stephanie was there, but she was upstairs. He didn't have any contact with her." (Tr. 309.) The defendant told Harper that on January 2 he was at Jody Heath's house and Heath was asleep on the floor. Heath was snoring and "he and Stephanie were laughing about Jody's snoring and Stephanie started complaining that her feet and legs hurt." (Tr. 309-310.) The defendant began massaging her feet and "he went up to her calves and her knees and her thighs and then he said that he * * * rubbed her butt, and if that's a crime then I'm guilty." (Tr. 310.) The defendant also told Harper that, on January 3, Stephanie was playing Nintendo and she asked him to rub her feet. The defendant started rubbing her feet, calves and then her thighs. He denied ever touching Stephanie on her vagina. The defendant described another incident on January 5 when Stephanie was on her stomach on the floor and again asked the defendant for a massage. The defendant related that he "didn't think anything about it." (Tr. 312.) He rubbed her feet, calves and thighs again. That evening, the defendant was told to leave the house. The defendant called a cab and went upstairs; Stephanie and her mother were crying and the defendant indicated that he was sorry and that he did not mean to scare or upset Stephanie. Bryn Moser, an employee with Children's Services, was the final witness for the state. Moser conducted an investigation into the allegations in the instant case. Moser went to the Heath residence on January 9, 1998, and spoke with Stephanie's mother. Moser returned on January 14 to interview Stephanie. Following his interview with Stephanie, Moser sent the defendant a letter requesting an interview with him. The defendant met with Moser on February 4, 1998, at the Children's Services office. The defendant acknowledged that on January 2, he rubbed Stephanie's feet, calves and thighs at her request. He stated that on January 3, he again rubbed Stephanie's legs at her request. The defendant related to Moser a third incident in which Stephanie asked him to rub her legs. The defendant denied ever touching her vaginal area. When Moser asked the defendant if he had ever touched Stephanie on the buttocks he stated, "yes, I touched — I rub her butt. That may be inappropriate, but I know what Jody likes when I massage her." (Tr. 388.) The jury returned verdicts finding defendant guilty of all four counts. On December 7, 1998, defendant filed a "motion for mistrial." The motion asserted that, following the jury verdicts, some members of the jury had questioned the trial judge about an alleged prior act committed by the defendant. By decision and entry filed January 7, 1999, the trial court overruled the motion for mistrial. The trial court sentenced defendant by judgment entry filed January 13, 1999. On appeal, defendant sets forth the following three assignments of error for review: ASSIGNMENT OF ERROR NO. 1: THE TRIAL COURT DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY REFUSING TO DECLARE A MISTRIAL AFTER THE JURY WAS EXPOSED TO INADMISSIBLE CHARACTER EVIDENCE OF APPELLANT'S "OTHER ACTS" ASSIGNMENT OF ERROR NO 2: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY OVERRULING APPELLANT'S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL, AS THE STATE FAILED TO OFFER SUFFICIENT EVIDENCE TO PROVE EACH AND EVERY ELEMENT OF GROSS SEXUAL IMPOSITION BEYOND A REASONABLE DOUBT ASSIGNMENT OF ERROR NO. 3: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION BY FINDING DEFENDANT GUILTY, AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE Under the first assignment of error, defendant contends that the trial court erred in failing to grant a mistrial after Joan Heath, the mother of Stephanie, made repeated improper references to prior allegations of sexual misconduct on the part of the defendant. More specifically, defendant points to four instances in which, it is contended, Heath made references alluding to prior alleged conduct by defendant. At the outset, we note that, at the time of Joan Heath's testimony, there was a discussion between the trial judge and the parties regarding whether "other acts" testimony might be admissible. Specifically, the prosecutor asserted that testimony of prior conduct by the defendant was relevant to show motive under Evid.R. 404. The trial court ruled that such evidence, including whether defendant had been previously under investigation for alleged sexual misconduct, was inadmissible. The first reference cited by defendant occurred during the prosecutor's direct examination of Heath. At the time, the prosecutor was questioning Heath about the events that took place on January 5, after Stephanie first told her mother that the defendant had touched her inappropriately. As noted under the facts, Stephanie and her mother were upstairs when Stephanie related these events, and the defendant was downstairs. Heath testified at trial that she came downstairs and confronted the defendant about the allegations. The prosecutor then asked Heath "what did you say?" (Tr. 220.) Heath responded, "I can't believe we're having this conversation again." (Tr. 220.) Defense counsel immediately objected. The trial court overruled the objection and counsel asked to approach the bench. At a sidebar, counsel stated that the basis for his objection was because, "by her saying I can't believe we're having this conversation again, she's now hinting at prior acts. I'm moving for mistrial at this point in time." (Tr. 221.) In response, the prosecutor again attempted to argue that the statement was "relevant to his motive, to his intent, to his knowledge, to his lack of mistake or accident" pursuant to Evid.R. 404. The trial judge ruled that he had misunderstood the context of her statement and that he was sustaining counsel's objection but overruling the motion for mistrial. The trial judge then gave the following instruction: THE COURT: * * * The Court has reversed its ruling on the statement made by the witness that — where she said I can't believe we're having this conversation again. I misunderstood the context. It is an improper statement by the witness. There's no evidence of anything before, and I misunderstood. I thought they were talking about these four sequences, so her statement is improper. I'm going to ask you to disregard it. I'm going to sustain the objection. It's not appropriate testimony with respect to these, you know, these four incidents that are alleged in the indictment. So the jury is to disregard that last statement. It's stricken from the record. (Tr. 222-223.) The next reference cited by defendant also occurred during the prosecutor's direct examination of Heath. The prosecutor asked Heath what actions she took regarding the information she received from her daughter. Heath indicated that she contacted the Grandview Police Department. The prosecutor asked whether she had called "someone specifically." (Tr. 233.) Heath responded, "[w]e requested Detective Harper." (Tr. 233.) When the prosecutor asked Heath why she requested Detective Harper, Heath stated that she had "previous contact" with that detective. Defense counsel objected and another sidebar took place between counsel and the trial judge. Following the sidebar, a recess was taken in order for the parties to research the issue, noted above, of whether prior acts evidence was admissible. The court ruled that such evidence was inadmissible, noting to the prosecutor that the effect of such evidence would be to "inflame this jury to help you make an element" of the offense. (Tr. 239.) Following the trial court's ruling on the admissibility of this evidence, the prosecutor stated she had advised Joan Heath "that she could not discuss any sort of — any prior other sexual activity." (Tr. 240.) The prosecutor further stated, "[y]ou know, if she inadvertently — I advised her not to mention any of that. I will not intentionally ask for anything to elicit that response, and we'll have to see what happens." (Tr. 240.) The next reference cited by defendant occurred during the redirect examination of Heath, in which the following exchange took place between the prosecutor and Heath: Q. Okay. When Stephanie first told you about what Andy did, why did you first call your divorce attorney? A. I don't know if I'm allowed to say. Do I say and — Q. No. A. I could say it was at the instruction of a previous situation that was similar and advice from an attorney. (Tr. 283.) At that point in the proceedings, defense counsel again moved for a mistrial, and the trial judge stated the following: THE COURT: Okay. First of all, the objection is sustained and the jury shall disregard. Again, you know, this is the witness attempting to bring up improper evidence, and she's been warned about it and she keeps trying to do it, and so I'm going to warn the jury to disregard it. It's totally improper. Okay. And I'll overrule the motion for mistrial. (Tr. 283.) The final reference cited by defendant occurred during the following exchange between the prosecutor and witness: Q. Jody, just for clarification, is it confusing to you as to what you are allowed to talk about in court and what — A. Yeah. It makes it hard to tell the truth — Q. You don't know all the evidence for trial — [DEFENSE COUNSEL] * * *: Objection. Move for mistrial. No, I have no idea. (Tr. 284-285.) Following the objection, the trial judge stated, "[a]gain, * * * her comments are not * * * appropriate, and so I'm going to sustain it and ask you to disregard her comment about it makes it hard to tell the truth." (Tr. 285.) Defense counsel then stated that "we now have a pattern of improper conduct." (Tr. 285.) At that point, the trial judge indicated that the parties would conduct a sidebar conference. At the sidebar, although the trial judge indicated his belief that the comments by the witness were "intentional," the court overruled the motion for mistrial. In general, the granting or denial of a motion for mistrial lies within the sound discretion of the trial court, and a mistrial is only necessary where "the ends of justice so require and a fair trial is no longer possible." State v. Garner (1995),74 Ohio St.3d 49, 59. The standard of review in determining whether an error occurring in a criminal trial is prejudicial is whether it affects the substantial rights of the accused; similarly, "a mistrial should not be ordered in a criminal case due to some error unless the substantial rights of the accused are adversely affected." State v. Smith (Jan. 27, 1995), Ashtabula App. No. 94-A-0032, unreported. We will first consider defendant's contention that the statements by the victim's mother were inadmissible. At the outset we find no merit to defendant's contention that the statement by the victim's mother regarding a prior contact with a police officer constituted inadmissible evidence. Rather, we agree with the state that the statement was innocuous as the issue of prior contact was explained to the jury in the context that, prior to the incidents at issue in this trial, the officer had been Stephanie's DARE instructor at school. More troublesome are the other three references cited by defendant. We note that defendant does not appear to contend that the prosecutor attempted, by misconduct, to elicit the statements from the victim's mother in which she alluded to prior sexual acts by the defendant. Evid.R. 404(B) provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." It has been noted that the danger in eliciting other-acts testimony at trial is that "the jury will convict the defendant solely because it assumes that the defendant has a propensity to commit criminal acts, or deserves punishment regardless of whether he or she committed the crimes charged in the indictment." Statev. Cotton (1996), 113 Ohio App.3d 125, 131. Thus, "[i]t is a well-established rule of evidence that the prosecution in a criminal trial may not present evidence that a defendant has committed other crimes, wrongs or acts independent of the offense for which he is on trial in order to demonstrate that the defendant has a propensity for crime or that his character is in conformity with the other acts." State v. Davis (1989), 64 Ohio App.3d 334,339. While evidence of other acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, it may be admissible for "other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evid.R. 404(B). In this regard, we note that most of the above exceptions are not even arguably applicable to the facts of this case. The identity of the perpetrator was not in dispute, i.e., if the allegations were true, the defendant, and nobody else, committed the offenses. Neither was opportunity at issue; the evidence indicated that the defendant was regularly at the Heath residence and that he often stayed overnight despite the marital difficulties. Regarding the issue of intent, the Ohio Supreme Court has held that "[a] defendant's intent for allegedly doing the act which forms the factual basis for the criminal charge brought against him is a material element of the offense only if the statute defining the offense requires a particular intent."State v. Curry (1975), 43 Ohio St.2d 66, 71. This court has previously noted that "[i]ntent * * * is not an element of the crime of gross sexual imposition of a child under the age of thirteen in Ohio." State v. Laws (Dec. 22, 1998), Franklin App. No. 98AP-306, unreported (1998 Opinions 5926, 5933). Thus, the evidence offered was not admissible as to the issue of the defendant's intent. Although the state does not strenuously assert that the testimony at issue was admissible under the evidentiary rules, the state suggests in its brief that the evidence regarding the prior incident "would arguably have been admissible to prove motive." We disagree. In Curry, supra, the court noted that "motive" has been defined as "`* * * a mental state which induces an act.'" Id. at 70, citing Shelton v. State (1922), 106 Ohio St. 243, 248. Under the facts of Curry, the defendant was charged with statutory rape. The court noted that the motive in that case was apparent; "[a] person commits or attempts to commit statutory rape for the obvious motive of sexual gratification." Curry, supra, at 71. The court concluded "[s]ince motive can not be deemed to have been a material issue at appellant's trial, `other acts' testimony was not admissible to prove this matter." Id. In State v. Smith (1992), 84 Ohio App.3d 647, 665 the court held that in a prosecution for gross sexual imposition, evidence of the defendant's other sexual acts was inadmissible to prove his motive or intent to commit the crimes charged. The court held that "the motive and intent of the alleged actor remain * * * those of sexual gratification. That fact is apparent from the charges and is not a material issue." Id. In the present case, the primary determination for the jury was simply whether the alleged acts occurred. The only relevance of the mother's statements about a previous similar incident involving the defendant would have been as propensity evidence, i.e., that defendant had tendencies toward touching children. Thus, we find no merit to the state's contention that evidence of prior similar acts may have been admissible to prove motive. In sum, we conclude that evidence of other prior acts by the defendant was not admissible for any purpose. We must still consider, however, whether the introduction of this improper evidence, in the form of the mother's testimony, materially prejudiced the case and affected a substantial right of the defendant, i.e., the right to a fair trial. Where inflammatory prior-acts testimony does not serve any of the permissible purposes, "the conviction must be reversed unless there is no reasonable possibility that this testimony contributed to the accused's conviction." Cotton, supra, at 133. Regarding the first objectionable remark by the witness, in which the witness stated that she could not believe she and the defendant were having this conversation "again," even assuming it to be an unexpected or volunteered comment, the record is clear that the witness was instructed after that statement to refrain from any other references of prior acts by the defendant. The witness thereafter made the statement regarding "a previous situation that was similar" to the instant allegations. The trial court noted at that point that the witness had "been warned about it and she keeps trying to do it." (Tr. 283.) The trial court viewed the subsequent comment by the witness about it being "hard to tell the truth" as "intentional" conduct by the witness. We agree with the trial court's assessment that the statements at issue do not appear to be inadvertent, and the effect of the testimony was to place before the jury inflammatory evidence of a propensity on the part of the defendant to engage in improper sexual conduct. Further, we find that the testimony at issue was prejudicial to defendant's case. As noted by defendant, there were no other witnesses to the crime, and no physical or other circumstantial evidence was introduced by the state to corroborate the victim's testimony. Thus, in the absence of corroborating evidence, the only direct evidence linking defendant to the crimes charged came from the alleged victim, and the determination for the jury came down essentially to her credibility. However, the improper statements by the mother provided such corroborating evidence, allowing the jury to infer that, because defendant had previously engaged in improper sexual conduct, he must have committed the acts for which he was charged in the instant case. Such evidence was highly prejudicial and could have affected the outcome. A number of Ohio cases have held that the impermissible introduction of other acts testimony in criminal sexual conduct cases may at times be so prejudicial as to necessitate the granting of a new trial. See, e.g., State v. Clemons (1994),94 Ohio App.3d 701, 711 (other act testimony elicited from alleged victim's mother regarding defendant's problem with masturbation was highly inflammatory and not harmless beyond a reasonable doubt; defendant's conviction depended entirely upon credibility of the alleged victim and victim's testimony may have been improperly bolstered by other acts evidence); Davis, supra, at 340 (other act testimony regarding defendant's drinking problem and temperament, and evidence depicting defendant as child abuser, constituted reversible error in defendant's prosecution for rape and sexual battery); State v. Hurst (July 27, 1992), Clermont App. No. CA91-08-064, unreported (other act testimony inferring that appellant had a history of being sexually active with teen-age females approximately the same age as the victim was "extremely inflammatory and could only cause the jury to engage in `unwarranted and possibly prejudicial speculation as to the appellant's guilt'"); Cotton, supra, at 134 (where there existed a real possibility that the victim's testimony may have been improperly bolstered by other acts testimony of past sexual allegations against defendant, prejudice to defendant required granting of a new trial); State v. Thompson (1981), 66 Ohio St.2d 496,499 (because of real possibility that highly inflammatory subsequent acts testimony contributed to accused's conviction, error in its admission cannot be considered harmless). In the present case, the witness did not simply volunteer a fleeting, extraneous reference to a prior act; rather, the witness made multiple references alluding to improper activity by the defendant, including the statement that the other act was "similar" to the charged offense. The danger that the jury will convict because it assumes the defendant has a propensity to commit criminal acts "is particularly high when the other acts are very similar to the charged offense, or are of an inflammatory nature." State v. Schaim (1992), 65 Ohio St.3d 51, 59. Further, under the circumstances, the fact that the trial court gave a curative instruction after each statement fails to convince this court that the statements had no affect on the verdicts. See,e.g., State v. Wilkins (Sept. 29, 1999), Summit App. No. 19315, unreported (based on inflammatory nature of witness' testimony about prior offense, trial court's limiting instruction was inadequate to remedy the effect of the improperly admitted evidence on the jury). While it is not easy to ascertain the effect of such evidence on a jury, in the instant case the record reveals that, following the return of the verdicts, jurors questioned the trial judge about the alleged prior conduct by the defendant. Specifically, at the sentencing hearing on January 7, 1999, the trial court noted on the record that "we were all back in the jury room * * * afterwards, including myself, and there was no question that some of the jurors asked about this prior incident. They were curious about this prior incident of investigation * * *." (Tr. 11.) Upon review of the record, including the inflammatory nature of the statements, their cumulative effect on the proceedings, and the jurors' expressed interest in the alleged conduct, our confidence in the verdicts is undermined, and we are unable to conclude that there is no reasonable possibility the other act evidence did not bolster the victim's testimony and contribute to the jury's verdict. Clemons,supra; Cotton, supra, Thompson, supra. Accordingly, we find that the trial court erred in failing to grant a mistrial and this matter must be remanded for a new trial of the charges. Defendant's first assignment of error is sustained. Under the second assignment of error, defendant asserts that the trial court erred in overruling defendant's Crim.R. 29 motion for judgment of acquittal; defendant maintains that there was insufficient evidence to sustain a conviction. We disagree. In order to determine whether evidence is sufficient to sustain a conviction, "[t]he relevant inquiry 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. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The offense of gross sexual imposition "requires proof of sexual contact with a person who is not the offender's spouse when the other person is less than thirteen years of age." State v. Harrod (Oct. 8, 1999), Hamilton App. No. C-990018, unreported. "Sexual contact" is defined as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C. 2907.01(B). Defendant's main contention is that there was insufficient evidence that any touching by defendant was done for the purpose of sexual arousal. However, it has been held that "a defendant's motivation in touching a child's vagina can be inferred by a jury, particularly when that defendant apologizes to the child and says what he did was wrong after the child tells him to stop touching her." State v. Clashman (Feb. 26, 1999), Jefferson App. No. 97 JE 8, unreported. The issue is "would an ordinary prudent person or a reasonable person sitting as a juror perceive from the defendant's actions, and all of the surrounding facts and circumstances, that the defendant's purpose or specific intention was arousal or gratification of sexual desire." Statev. Horrigan (Feb. 19, 1999), Montgomery App. No. 17260, unreported. In the present case, Stephanie testified that on three separate occasions the defendant touched her vagina area and that on one of those occasions he rubbed her buttocks. Based upon the facts presented, we find that a reasonable trier of fact could conclude that the touching by defendant was done for sexual gratification. Thus, we conclude that there was sufficient evidence presented, when viewed in a light most favorable to the state, upon which the jury could have found the essential elements of gross sexual imposition proven beyond a reasonable doubt. Defendant's second assignment of error is overruled. Under the third assignment of error, defendant contends that his conviction was against the manifest weight of the evidence. The legal concepts of sufficiency of the evidence and weight of the evidence are different. State v. Thompkins (1997),78 Ohio St.3d 380, paragraph two of the syllabus. In considering defendant's sufficiency argument, we concluded above that there was evidence presented such that a rational jury could have found the defendant guilty of gross sexual imposition. Our disposition of the first assignment of error, requiring that this matter be remanded for a new trial, renders moot defendant's third assignment of error, "as even if he were successful in prevailing under this part of the assignment, we would be required to remand this matter to the trial court for a new trial." State v. Staton (Dec. 22, 1997), Butler App. No. CA-97-08-0156, unreported, citingThompkins, supra. Based upon the foregoing, defendant's first assignment of error is sustained, defendant's second assignment of error is overruled, the third assignment of error is rendered moot, the judgment of the trial court is reversed and this matter is remanded to the trial court for a new trial. Judgment reversed; cause remanded. PETREE, J., and LAZARUS, P.J., concur.

2016-07-06 06:36:03.405517+00

OPINION Defendant-appellant, Michael Proctor, appeals his conviction in the Warren County Court of Common Pleas for trafficking in cocaine. On March 6, 2000, appellant was indicted by a Warren County grand jury on one count of trafficking in cocaine, R.C. 2925.03, a fifth degree felony. Appellant was arraigned on March 29, 2000. At the arraignment hearing, the trial court indicated that appellant was charged with two counts of assault. Appellant pled not guilty and requested that counsel be appointed to represent him. On June 12, 2000, appellant pled guilty to one count of trafficking in cocaine. The trial court sentenced appellant to nine months, to run concurrently with a prison sentence appellant was currently serving for a probation violation. Appellant appeals his conviction, arguing in a single assignment of error that his constitutional right to due process and his right to a fair trial was violated because he was never charged, arraigned or indicted for trafficking in cocaine. Appellant contends that he did not knowingly, intelligently and voluntarily plead guilty. However, a defendant's plea of guilty entered into knowingly, intelligently and voluntarily after a preliminary hearing waives the defendant's right to challenge a deprivation of a constitutional right at the preliminary hearing stage of a criminal proceeding. State v. Spates (1992), 64 Ohio St.3d 269, 273. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Id., quoting Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 1608. A careful review of the record reveals that appellant's plea was made knowingly, intelligently and voluntarily. The trial court informed appellant that he was charged with trafficking in cocaine, a felony of the fifth degree. The trial court explained appellant's rights to him in detail, then informed appellant that he would be giving up these rights by pleading guilty. The court then discussed the possible sentencing range for a fifth degree felony and explained to appellant that if the court accepted the plea, it would proceed with judgment and sentence. In addition, the record also establishes that appellant was aware that he was pleading guilty to a trafficking offense. With the exception of the statement at the arraignment hearing, the remainder of the record indicates that appellant was charged with trafficking in cocaine. The indictment, dated March 6, states that appellant is charged with trafficking in cocaine. The transcript of the June 12, 2000, hearing establishes that appellant understood that he was pleading guilty to one count of trafficking in cocaine. Appellant signed a change of plea at the hearing that indicates he was pleading guilty to one count of trafficking. The judgment entry of sentence states that appellant was sentenced for trafficking. Accordingly, we find that appellant's plea to one count of trafficking in cocaine was entered into knowingly, intelligently and voluntarily, and that appellant was not deprived of his constitutional rights by any errors at the arraignment. The assignment of error is overruled. Judgment affirmed. ___________ YOUNG, P.J. WALSH and POWELL, JJ., concur.

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OPINION *Page 2 {¶ 1} Appellant Barry C. Nelson appeals from the denial of his postconviction motion to set aside sentence in the Muskingum County Court of Common Pleas. The relevant facts leading to this appeal are as follows. {¶ 2} On May 23, 2007, appellant was indicted on one count of aggravated burglary (F-1), one count of carrying a concealed weapon (F-4), and one count of aggravated menacing (M-1). On July 23, 2007, appellant entered a plea of guilty to the lesser included offense of burglary (F-3) and the concealed weapon and aggravated menacing counts. On August 27, 2007, pursuant to a plea agreement, appellant was sentenced to an aggregate term of three years in prison. {¶ 3} On March 3, 2008, appellant filed a pro se motion to vacate or set aside sentence. The State filed a motion contra on March 7, 2008. Via a judgment entry filed March 10, 2008, the trial court denied appellant's motion. {¶ 4} Appellant filed a notice of appeal on April 2, 2008. He herein raises the following two Assignments of Error: {¶ 5} "I. WHETHER, THE DEFENDANT-APPELLANT WAS UNCONSTITUTIONALLY DEPRIVED OF HIS CONSTITUTIONAL RIGHTS TO LIBERTY, WHEN HE WAS CONVICTED OF AN OFFENSE HE IS ACTUALLY INNOCENT OF AGGRAVATED BURGLARY AS DEFINED IN R.C. § 2911.12(A)(3). {¶ 6} "II. WHETHER, THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PREJUDICIAL ERROR THAT DEPRIVED THE APPELLANT OF HIS BASIC CONSTITUTIONAL RIGHTS UNDER THE U.S. CONST., WHEN IT DENIED APPELLANT'S POST-CONVICTION RELIEF PETITION." *Page 3 I., II. {¶ 7} In his First and Second Assignments of Error, appellant contends the trial court erred in denying his postconviction motion to set aside sentence. We disagree. {¶ 8} Postconviction relief is a means by which a petitioner may bring claims of constitutional violations based upon matters outside the record. State v. Kreischer, Perry App. No. 01-CA-04, 2002-Ohio-357. R.C. 2953.21(A)(1) governs petitions for postconviction relief and states in relevant part as follows: "Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. * * *" {¶ 9} A trial court's decision regarding whether or not to conduct an evidentiary hearing in postconviction matters is governed by the standard of abuse of discretion. State ex rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134. The petitioner bears the burden of supporting his claim with evidentiary quality materials.State v. Massey, Stark App. No. 2001CA00136, 2001-Ohio-1746, citingState v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. {¶ 10} A review of appellant's postconviction motion indicates two bases for his constitutional claims: First, that he is "actually innocent" of the crime of burglary, and second, that alleged prosecutorial misconduct deprived him of rights under the First, Fifth,Sixth, and Fourteenth Amendments. *Page 4 {¶ 11} We have held that a claim of actual innocence does not constitute a substantive ground for postconviction relief. See State v.Bound, Guernsey App. No. 04-CA-8, 2004-Ohio-7097, ¶ 22, citing State v.Watson (1998), 126 Ohio App.3d 316, 323, 710 N.E.2d 340.1 Furthermore, we have reviewed the two affidavits attached to appellant's postconviction motion, one of which is appellant's and one of which is apparently the victim's, Ronnie Hanning. These affidavits simply set forth alternative versions of the events during the crime, and they make no allegations of prosecutorial misconduct in the case, which we reiterate was resolved via a plea agreement. {¶ 12} We therefore find appellant failed to meet the requirements for postconviction relief, and hereby hold the trial court did not err in dismissing appellant's motion. {¶ 13} Appellant's First and Second Assignments of Error are overruled. {¶ 14} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Muskingum County, Ohio, is hereby affirmed. Wise, J. Hoffman, P. J., and Delaney, J., concur. *Page 5 JUDGMENT ENTRY For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed. Costs assessed to appellant. 1 We note some "actual innocence" claims are now allowable under the statute, but such claims are restricted to certain cases in which DNA testing has been duly performed. This does not apply to the present case. *Page 1